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

When disclosure of environmental information would substantially prejudice the protection of the environment to which the information relates.

Protection of the environment#

Regulation 10(5)(g) of the EIR(S) allows an authority to refuse your request if disclosure would, or would be likely to, substantially prejudice the protection of the environment to which the information relates. The logic is straightforward: the EIR(S) exist to protect the environment, so it would defeat their purpose if disclosing environmental information caused environmental damage.

In plain terms#

The authority is saying that releasing this information would itself harm the environment. The classic example is the location of a rare or protected species - publishing the exact coordinates could lead to disturbance, egg theft, or poaching.

NatureScot holds records showing the precise location of freshwater pearl mussel beds in a Highland river. Pearl mussels are critically endangered and targeted by illegal collectors. NatureScot withholds the location data to protect the species.

The legal detail#

The exception applies where disclosure would substantially prejudice the protection of the environment to which the information relates. The harm must be to the specific environment connected to the information, not to the environment in general.

“The environment” has a wide meaning under the EIR(S). Regulation 2(1) defines environmental information by reference to elements of the environment including air, water, soil, land, landscape, natural sites, biological diversity (including genetically modified organisms), and the interaction of these elements.

This is a substantial prejudice exception. The authority must show a genuine, demonstrable link between disclosure and the environmental harm claimed. Speculative or remote risks are not enough. The harm must be of real significance.

The public interest test#

The public interest test applies, and the authority must presume in favour of disclosure. This creates an interesting tension: the public interest in environmental transparency is weighed against the environmental harm that transparency might cause. In most cases where this exception legitimately applies, the Commissioner accepts that the public interest in withholding outweighs the interest in disclosure - if releasing the information would genuinely harm the environment, that is itself a powerful public interest argument.

See What can they refuse? for how the public interest test works under the EIR(S).

How it’s used in practice#

This exception is narrow in practice and rarely used - rightly so, since the whole point of the EIR(S) is to make environmental information available.

The Commissioner’s decisions show where the line falls. In Decision 044/2007, Transport Scotland withheld a badger survey carried out along the A95 and A96. Transport Scotland provided the Commissioner with evidence that harm had actually been caused to badgers and badger setts when location information was known. The Commissioner accepted that the exception applied.

In Decision 073/2010, the Commissioner dealt with a request for information about freshwater pearl mussels. Disclosing the location of the mussels would harm the species by attracting illegal collectors. But information about the state of the species - population trends, health data - would not cause harm and should be disclosed. The Commissioner ordered disclosure of the latter while accepting the exception for the location data.

By contrast, in Decision 193/2012, Scottish Ministers argued that disclosing information about seals killed under licence at salmon farms would harm the environment because protesters might damage fish cages, leading to farmed fish escaping and affecting wild populations. The Commissioner found no evidence that this chain of events was likely and ordered disclosure.

In Decision 071/2009, Scottish Ministers withheld information about the escape of farmed trout into Loch Lochy, arguing that disclosure would harm relationships with the aquaculture industry and, indirectly, the environment. The Commissioner was not satisfied that there was a sufficient connection between disclosure and environmental harm.

How to challenge it#

Is the link between disclosure and harm direct? The authority must show that releasing the information would itself cause environmental damage - not that it might upset someone who might then do something that might harm the environment. Speculative chains of causation are not enough.

Can parts be released safely? As the pearl mussel decision shows, the authority should consider whether some information (such as population data or health indicators) can be disclosed while withholding the sensitive parts (such as precise locations).

Is the information already available? If the location data or environmental sensitivity is already known through other published sources, the additional harm from EIR(S) disclosure may be minimal.

See What to do if refused for the full process.

You can also use our interactive challenge tool for this exception to work through these questions step by step and draft a review request.

Good to know: The emissions carve-out applies. Under regulation 10(6), this exception cannot be used to withhold information that relates to emissions. This means that even where disclosure of emissions data might theoretically harm the environment, the authority cannot rely on this exception to withhold it. There is no direct FOISA equivalent. Section 39(1) of FOISA provides an exemption where disclosure would endanger the physical or mental health or safety of an individual, but that is a narrower provision focused on human health and safety rather than the environment itself.