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Proposals for a Revised Regime - Regulatory Impact Assessment

Proposal for a Directive of the European Parliament and of the Council on Public Access to Environmental Information
[COM (2000) 402 Final]

Issue and objective

  1. The proposal is for a Directive which will provide the public with enhanced rights of access to information on the environment (COM (2000) 402 Final). It was adopted by the European Commission on 29 June. An Explanatory Memorandum dated 6 October 2000 (containing a partial Regulatory Impact Assessment) has already been submitted. The proposal would replace EC Directive 90/313/EEC on the freedom of access to information on the environment which has been fully transposed in the UK and Gibraltar.
  2. The proposal and the current Directive contribute to the goal of sustainable development by providing rights of access to environmental information. By providing information on the environment, the public is better able to make informed decisions which should lead to a better quality of life for present and future generations.

Risk assessment

  1. The proposal is not prepared in response to a direct risk. The main objective of the Commission's proposal is to give effect to the access to environmental information obligations of the UNECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (the 'Aarhus Convention') (see EM CM 4736). However, the Commission are also seeking to correct flaws in the current procedures and respond to advances in technology.

Options

  1. The UK is already committed to implementing and ratifying the Aarhus Convention. In this Regulatory Impact Assessment, the Aarhus access to environmental information regime is considered to be the baseline and shown as Option 1.
  2. The Commission's proposal seeks to bring the current 1990 regime in line with this Aarhus access regime but goes beyond what is required to achieve this. This RIA focuses, in Option 2, on the extra steps set out in the Commission's proposal which go beyond the Aarhus regime.
  3. EC Directives must be transposed into domestic legislation. Save in exceptional circumstances, other means of implementation, such as voluntary codes, are not possible. Failure to implement EC law results in infraction proceedings against the UK and so an option based on non-compliance is not viable. However, Option 3 identifies any areas of the Commission's proposal discussed during negotiations where the benefits are believed to outweigh the costs. These are elements where subsequent transposition into the UK would be regarded as desirable.
Option 1: Baseline: Implement the Aarhus Convention
  1. The UK is committed to ratifying the Aarhus Convention as soon as possible. The Freedom of Information Act 2000 contains a power to enable Regulations to be made to bring the existing regime into line with the Aarhus regime ahead of action at the Community level (such as this proposal). These Regulations are now being drafted. A similar power will be taken in Scotland in due course to allow implementation across the whole of the UK.
  2. The main changes between the current 1990 regime and the Aarhus regime are:
    • a reduction in the time limit for responding to the majority of requests for environmental information from 2 months to 1 month;
    • the introduction of a public interest test for all the exemptions from release of information (blanket exemptions will no longer be possible);
    • clarification of the information to be made available about making reasonable charges for supplying environmental information; and
    • strengthening the appeal provisions of the access regime.
  3. The UK is already giving effect to the proactive dissemination obligations of the Aarhus Convention (i.e. Article 5) by administrative means such as issuing reports and leaflets, and preparing guidance for other authorities.
Option 2: Implement the European Commission's proposal
  1. The Commission's proposal covers the Aarhus elements described under Option 1 (and therefore would enshrine in law activities currently undertaken by administrative practice) but then goes further by:
    • clarifying the definition of environmental information to include waste and radioactive waste;
    • applying the regime to bodies which perform functions by arrangement with a public authority which affect the environment, whether or not they have a public duty or responsibility for the environment;
    • restricting the exemption in relation commercial and industrial confidentiality where the information relates to emissions;
    • providing for information to be provided, where reasonable, in both the form and format requested, if not already publicly available in another form;
    • creating an obligation in law to actively disseminate environmental information such as legal texts and state of the environment reports electronically;
    • requiring free access to environmental information in situ; and
    • banning the collection of charges in advance.
  2. The proposal also removes some of the optional elements and flexibility available with respect to the dissemination of information and arrangements for dealing with requests for information that have been addressed to the wrong authority.
Option 3: Negotiation
  1. This option consists of the most beneficial aspects of Option 2, as identified through the consultation and negotiation processes in Brussels. To date, such elements have been limited. The discussions in Council have shown that Member States generally regard the Aarhus access regime as a clear and challenging strengthening of the 1990 access to environmental information regime but that other additional elements do not achieve the right balance between the costs entailed and the extra benefits accrued.
  2. Two beneficial aspects have been identified. The first is the proposal to put into law an obligation to proactively disseminate certain environmental information by electronic means. On the basis that this obligation does not apply to archive material, the proposal has been welcomed by Member States, including the UK. The second is the better 'customer focus' envisaged in the Commission's proposal where the authority will be obliged to supply the information in the format requested if it is reasonably possible to do so. Again, this should not give rise to significant costs and is supported.
Issues of equity or fairness
  1. It is not believed that there are any issues of equity or fairness in any of the options. Each applies to certain organisations (Government at all levels, Agencies under the control of Government and some private sector bodies) but not members of the public. Option 1 does not involve a change in the application of the regime. In Option 2, one of the Commission's concerns in extending the definition of the range of organisations brought within the regime is to secure a level playing field between Member States. They point out that some member States have gone further towards the privatisation of public services than others while in some Member States, some public services have always been in the private sector. Waste disposal and the provision of utilities are examples of areas where national arrangements vary. The implications of the proposed changes in the definition of public authorities is however, unclear (see paragraphs 22 to 24 below). In Option 3, the negotiations to date have led to a text which uses the Aarhus definition (the same as Option 1).
Benefits
  1. To achieve sustainable development, it is important that information about the environment is made available to the public in a cost-effective manner so that they can make informed choices. This should benefit the environment directly through improved decision-making involving all sectors of society. This can help to target investment towards projects or other initiatives which will bring lasting benefits, and in turn, benefit society and the economy at large. The Government strongly supports the objectives of the Aarhus Convention.
Option 1: Baseline: Implement the Aarhus Convention
  1. The Aarhus Convention builds on the 1990 EC Directive and brings enhanced benefits in terms of increased rights of access to environmental information. The public interest test is introduced in relation to all exemptions, shorter time period for responses and the enhanced provision for appeals will all assist members of the public in obtaining environmental information.
Option 2: The Commission's proposal
  1. The proposal seeks to go further, beyond the Aarhus regime, in terms of openness, providing the public with the information they request in the form and format they request it, and the proactive dissemination of information. It seeks to provide for a greater range of information becoming available through the regime from a wider range of bodies. Possible barriers to the prompt release of information such as the delay in securing payment in advance of supply of the information will be removed. This could enhance the benefits referred to above even further.
Option 3: Negotiation
  1. The beneficial point from Option 2 identified so far is the obligation to set out in domestic law the obligation to disseminate certain environmental information via electronic means. This will ensure that citizens have a clear right to receive such information without requesting it.
Compliance costs for business, charities and voluntary organisations
  1. The baseline and the Commission's proposal both apply to some larger businesses. They do not apply to charities or voluntary organisations.

Business sectors affected

Option 1: Baseline: Aarhus Convention Regime
  1. The Aarhus regime applies to Government at all levels, bodies under the control of Government and some private sector companies. The private companies are defined by 'any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of [a public body]'.
  2. It is not possible to provide a definitive list of companies subject to the Aarhus regime but it is arguable that bodies such as the privatised water companies fall within its scope. The matter has not been tested in Court.
Option 2: The Commission's proposal
  1. The Commission propose to extend the scope of the access regime to apply it to all privatised bodies which might affect the environment ('any legal person entrusted by law, or under arrangements with [a public body at any level] with the operation of services of general economic interest which affect or are likely to affect the state of elements of the environment'). This is wider than the Convention's scope which is limited to bodies having responsibilities, functions or providing public services in relation to the environment.
  2. Although it is clear that the scope is wider, it is not possible to provide a definitive list of the bodies that would be subject to the regime under this definition. However it could include companies in the gas, waste disposal, telecommunications, water, electricity, rail, airline, shipping, port, harbour, freight haulage, road construction and the construction sector more generally.
  3. The proposal uses the same phrase as in Article 86(2) of the Treaty which relates to State Aid and has relevance for rules on competition. This may not be the most relevant definition for a Directive to increase awareness of environmental information and improve the quality of decisions affecting the environment.
Option 3: Negotiation
  1. On the scope of the regime, negotiations have moved the definition back to the Aarhus Convention definition on this point. This is the same text as for Option 1 and the comments made above apply here.

Compliance costs for a "typical" business

Option 1: Baseline: Implementation of Aarhus
  1. No new bodies will be brought within the existing regime by the baseline and neither are the amendments proposed expected to give rise to additional costs.
  2. The Explanatory Memorandum for the Aarhus Convention (Cm 4736) reflects this. It states that "it is not anticipated that there will be significant additional costs arising from ratification of the Convention. In particular, the revised access to environmental information regime applies to public bodies and private bodies that have public responsibilities or functions or provide public services. In practice, this is the same range of bodies as for the current regime. Therefore, there is no additional cost to business through the revisions in this area."
Option 2: Implementation of Commission Proposal
  1. The Commission's proposal contains a number of suggestions that may give rise to additional costs. These relate to new bodies being subject to the regime for the first time and procedural changes.
New Bodies
  1. Under the Commission's proposal, some bodies will be subject to the regime for the first time. For them, there will be a need to identify that the information that they hold is environmental information within the meaning of this regime. When it is, they will need to provide a means of responding to requests. The scale of these costs will depend on the existing arrangements. If public inquiries are already directed to a dedicated unit, few additional resources may be needed. Bodies will also need to consider the steps necessary for them to proactively disseminate environmental information that they collect (such as monitoring data) via electronic media such as the Internet.
  2. Bodies subject to the regime for the first time may also incur some initial costs such as training. This may be particularly relevant where the main services or functions provided by that body are not environmental (see paragraph 22 above).
  3. Information on costs was invited as part of the public consultation exercise but little was forthcoming. Virgin Atlantic said that 'considerable effort' would be required to comply with the requirements. Firstly, an internal audit would be required to ascertain what information was held and then a new member of staff would be required to operate the regime within the airline. Start-up costs could be £40-£100k with on-going costs of £40-60k. The Electricity Association described the requirements as 'very costly'.
Procedural Changes
  1. The proposal will prohibit charging for the supply of information in advance of supplying that information. The Commission believes that processing the charge is a barrier to public access to environmental information. This is doubtful. Processing of fees takes a short time and applicants would still need to confirm that in the 5% or so of cases where a fee is to be charged, they were prepared to pay that fee in advance of supplying the information sought. If charging is only allowed retrospectively, additional costs may arise through the need to create debt collection units and through defaulted payments. Since the level of these charges is relatively low, these additional costs may force bodies to abandon charges entirely. Cost recovery for the service provided would reduce and the fee would no longer act as a moderating influence on the scope and nature of requests made.
  2. The proposal will require bodies to proactively disseminate all environmental information that they hold and collect (such as monitoring data) via electronic media such as the Internet. The requirement relates to archive material as well and this could give rise to a considerable non-recurring cost in digitising the material. Data and estimates of costs was invited but again, little came forward. Merck Ltd suggested that start up costs in excess of £100,000 and operational costs of £50,000 per annum would be the likely level incurred.
  3. The proposal would prevent information on emissions to the environment subject to Community legislation from being exempted on the grounds that it was 'commercially confidential'. Should this involve exposure of genuinely commercially confidential information with a subsequent impact on that industry or business, costs may arise, even if only a lost opportunity cost. It is not possible to quantify a cost of this sort.
Option 3: Negotiation
  1. Two elements selected from Option 2 are considered to be beneficial. Negotiations have modified the proposal for proactive dissemination by electronic means so that it applies to certain types of environmental information collected once the proposal enters into force and archive material only where that information already exists in an electronic format. The other element is the requirement to provide information in the format requested where this is possible. Neither is expected to give rise to significant additional costs.

Total compliance costs

  1. It is not possible to provide total compliance costs given the limited information which was forthcoming from the public consultation exercise and the uncertainty about the scope of the bodies to which the European Commission's might apply. However, it is clear that Option 2 is the only option to create new burdens which are considered to be significant by a number of consultees. No new benefits were identified.

Consultation with small business: "The Litmus Test" impact on small business

  1. This regime would not apply to small businesses.

Other costs

Option 1: Baseline: Aarhus Convention Regime
  1. The Aarhus access to environmental information regime is not expected to give rise to any additional costs for other bodies such as public authorities.
Option 2: The Commission's Proposal
  1. Costs for public authorities are considered to arise from the Commission's proposal. Although very few charges are made for the supply of information, in the 5% of cases where costs are so significant that a fee is payable, the proposal to prohibit making payment of fees dependent on the supply of the information is likely to cause a significant additional burden. Coventry City Council estimates that collecting payment after supply of the information would lead to a 10% increase in the cost to cover additional administrative costs such as invoicing and debt recovery. The estimated cost to the Environment Agency is £1million per annum and the Planning Inspectorate £40,000 per annum. The Environment Agency's experience is also that vague requests for information become more focussed once a fee may be charged. It follows that the cost of providing the service may rise if a fee is removed.
  2. Costs will also arise from the requirement to disseminate all environmental information held electronically. For bodies that hold significant data, the costs will be considerable. The Environment Agency estimates that this would cost £48.7 million to prepare and £0.6 million per annum to maintain (the Agency has 19 million documents which would need to assessed, 13 million of which would need to be digitised under the proposal). This would have serious implications for the Agency and would require resources that would otherwise be spent on other environmental work. The Planning Inspectorate estimates that complying with this proposal would cost £100,000. Coventry City Council said that the resources required would be 'considerable', Surrey CC said that it would create 'significant costs' and Portsmouth City Council said that it would cause 'major problems'.

Results of consultations

  1. Public consultation on the Commission's proposals and the partial RIA took place between November 2000 and January 2001. Comments were received which supported the analysis of the proposal set out in the partial RIA. However, little further information on costs was received. What was received has been incorporated into this revised RIA.

Summary and recommendations

  1. Although not quantified in most cases, the consultation exercise supports the Government's initial view that the Commission's proposals do not strike the right balance between the benefits accrued and the resources required to give effect to the Aarhus Convention and deal with short comings in the current regime ('Option 2' in this RIA). It follows that Option 2 should not be supported.
  2. The negotiations in Brussels have identified 2 beneficial aspects of the Commission's original proposal ('Option 2') over and beyond the Aarhus Convention text ('Option 1'). There are a modified proposal for the proactive dissemination of environmental information and the requirement to provide the information in the format required. These achieve what the Commission intended but are more practical in their application and are not thought likely to give rise to significant extra costs. Option 3 should therefore be supported.

Enforcement, sanctions, monitoring and review

Option 1: Baseline: Aarhus Convention Regime
  1. The Aarhus regime offers greater opportunities for appeals than in the 1990 regime. The UK proposes to use the Information Commissioner established under the Freedom of Information Act 2000 to provide this new method for appeals. As with the existing 1990 regime, applicants who are unhappy with the way in which a request has been handled can also request an administrative review or seek a judicial review. We do not anticipate any significant increase in either appeals or costs.
  2. The Meetings of Parties under the Aarhus Convention will keep implementation of the Convention under review.
Option 2: The Commission's Proposal
  1. The proposal includes provision for a review. Member States are to report to the Commission after 5 years. The UK will include in its report a review of the effectiveness of the regime's contribution towards sustainable development.
Option 3: Negotiation
  1. The same provisions as for Option 2 would apply to this option.
[Signed by the Minister] Michael Meacher
Minister for the Environment
Department of the Environment, Transport and the Regions

Page last modified: 18 February 2005

Department for Environment, Food and Rural Affairs