Regulation 10(5)(g) - Protection of the environment

What this exception means#

The authority is saying that disclosing the information would, or would be likely to, cause substantial prejudice to the protection of the environment to which the information relates.

This is the unusual exception in the EIRs - it exists to protect the environment rather than to protect institutional interests. For example, disclosing the location of rare or endangered species could lead to disturbance or poaching. In these cases, the public interest may genuinely favour withholding.

However, the exception still requires specific, realistic harm to the environment. It cannot be used as a vague justification for withholding environmental information.

Unlike FOISA, all EIR exceptions are subject to a public interest test and must be interpreted restrictively. There is a presumption in favour of disclosure.

Important: This exception cannot be used to withhold information about emissions - regulation 10(6) specifically prohibits this.

What the authority must show#

For this exception to apply, the authority must demonstrate that:

1. The information relates to a specific environmental feature that needs protection
2. Disclosure would, or would be likely to, cause substantial prejudice to the protection of that feature
3. There is a direct connection between disclosure and environmental harm - not an indirect or speculative link
4. The information is not about emissions (which cannot be withheld under this exception)
5. Even if the exception applies, the public interest in withholding outweighs the public interest in disclosure, applying the presumption in favour of disclosure - though here the public interest may genuinely favour withholding

Things to check#

• Did they explain what environmental harm disclosure would cause? The authority must identify the specific environmental feature at risk and explain how disclosure would lead to harm. For example, disclosing the location of a nesting site for a protected bird species could lead to disturbance. Vague claims about “environmental harm” are not enough.

• Is the harm specific and realistic? The Commissioner requires evidence that harm would actually occur - not just that it theoretically could. In cases involving rare species, the Commissioner has accepted evidence of past disturbance or poaching as supporting the claim. But assertions without evidence have been rejected.

• Is the link between disclosure and harm direct? The information must relate to the environment the authority is seeking to protect, and the harm must flow from disclosure itself. The Commissioner has rejected claims where the connection was too indirect - for example, where the authority argued that disclosure would harm relationships with industry, which would “ultimately” harm the environment.

• Does the information relate to emissions? Under regulation 10(6), information about emissions cannot be withheld under this exception. Even if the emissions data could theoretically be used to locate a protected site, the emissions information itself must be disclosed.

• Could partial disclosure work? Even where the exception applies, the authority should consider whether it can disclose some of the information. For example, data about the state of a species might be disclosable even if location data is withheld.

• The public interest test still applies. Even for genuine environmental protection, the authority must carry out a public interest test. However, this is one of the few exceptions where the public interest may genuinely favour withholding - protecting rare species or vulnerable habitats is itself a public interest. The Commissioner has upheld withholding in cases involving badger setts, osprey nests, and pearl mussel locations.

Use the interactive tool#

Answer the questions below to check whether regulation 10(5)(g) has been properly applied to your request.