As with FOISA, where exemptions may be applied in certain circumstances,there are instances when environmental information requests may be refused under the EIRs, if an exception applies.
The EIRs permit Scottish public authorities to refuse a request if an exception under regulation 10(4) or 10(5) applies and the public interest in making the information available is outweighed by that in maintaining the exception. Regulation 11 also permits a public authority to withhold personal data in certain circumstances.
Unlike FOISA exemptions, the public interest test must be applied to ALL exceptions under the EIRs. Bodies must interpret all of the exceptions in a restrictive way and must apply a presumption in favour of disclosure (regulation 10(2)).
Information relating to emissions is given a special status under the EIRs. Some of the exceptions under the EIRs cannot be applied when the information in question relates to emissions.
Also note that regulation 5(3) provides that any enactment or rule of law which would prevent information from being made available in accordance with the EIRs shall not apply. This regulation is in direct contrast with section 26(a) of FOISA, which prohibits disclosure of information by a Scottish public authority (otherwise than under FOISA) if this is prohibited by other legislation.
Further guidance on when public authorities can and cannot withhold information under the EIRs can be viewed here:
In addition, the Commissioner's Exemption Briefing Series, in the 'Guidance' section of this website, which give advice on each exemption under FOISA, also include guidance on each of the EIR exceptions. Bodies might also find it useful to refer to the Commissioners' decisions, where EIR exceptions have been considered.
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