As with the FOI Act, 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 FOI Act 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.
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 the FOI Act, which prohibits disclosure of information by a Scottish public authority (otherwise than under FOI) if this is prohibited by other legislation.
For more information on when public authorities can and cannot withhold information under the EIRs, download our guide on the exceptions.