Legislation Note: The Environmental Information Regulations 2004: Limiting Exceptions, Widening Definitions and Increasing Access to Information?

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Environmental Information Regulations (‘the Regulations’), which entered into force in January 2005, give effect both to Directive 2003/4/EC of the European Parliament and Council (‘the Directive’) and, indirectly, to Articles 2, 4, 5 and 9 of the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’, hereinafter ‘the Convention’). The Directive itself was not merely introduced in response to the European Community’s own commitments under the Convention, but also in response to the Commission’s Report to the Council and European Parliament (‘the Report’) concerning the application of its prototype, Council Directive 90/313/EEC. This paper will consider the extent to which the Directive complies with the Convention, and the extent to which the Regulations comply with the Directive. It will then consider the extent to which public access to environmental information is likely to have been improved by the limiting of certain exceptions and the widening of certain definitions, with reference to the Report. One should not assume that there is certain to be an increase in the flow of information to the public if exceptions to the right of public access are limited. Amending legislation might not alter the mindset of officials who are accustomed to maintaining secrecy. The Regulations are, however, accompanied by a Code of Practice (‘the Code’) which might strengthen the freedom of information concerning environmental issues. A breach of the Code should, ideally, be regarded as a breach of the Regulations themselves.

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