Freedom of Information Legislation and the BIOT


Public authorities in England and Wales and Northern Ireland are subject to Freedom of Information legislation (Freedom of Information Act 2000 and Environmental Information Regulations 2004). [Both are available below]. Scotland has similar provisions under its own devolved FOI Act.

This legislation has not been extended to cover the UK Overseas Territories, although some of these where there is a resident population have their own variants (e.g., Bermuda’s ‘Public Access to Information Act 2010 - expected in force in late 2014).

Since 1 Jan 2005, under the EIR 2004, public authorities have a duty to disseminate environmental information (Regulation 4). It is clear that the Foreign and Commonwealth Office (FCO) have not been doing this in respect of any environmental information that is held concerning the Chagos (BIOT). 

Following a complaint to the Information Commissioner, the FCO were compelled to reply to a formal query and responded on 28 Sept 2011 that:

“The Government of the BIOT is not the subject of the EIRs” and that “The Government of BIOT has not therefore taken steps to disseminate environmental information under the EIRs, and I am unaware that it has carried out any voluntary dissemination of environmental information. It follows that if there has been no dissemination, the FCO cannot hold information on the subject of your request.” 

At the same time a number of other EIR requests for environmental information concerning the Chagos/BIOT and addressed to the FCO have been answered and information made available (a large amount of this is posted on this site).

On 6 November 2012 the Information Commissioner found that "in practice, the work of the government of the BIOT and the work of the FCO BIOT geographical desk are not always separated". As a consequence the Commissioner found that BIOT information was held by the FCO for the purposes of FOI and ordered that this be released. The FCO has not appealed that decision.  
 
However, the FCO would still appear to be deliberately creating confusion as to what information is and is not accessible and erecting 'chinese walls' to its access. The FCO's position is that the FOI legislation does not reach within the physical territory of the BIOT **, but it is also making access to information held in the United Kingdom difficult (arguing for example that information held on behalf of the BIOT in the UK is not held by the FCO). Only diplomats could play such a convoluted game of hide and seek! 

Elements of this stance by the FCO were challenged in the First Tier Tribunal (Information Rights). On 28 July 2014 the Tribunal ruled that a private contractor (DG21 LLC which runs the facilities on the US Base) was not subject to the jurisdiction of the UK Information Commissioner, dismissing a claim by Dr Peter Sand. However, importantly, the Tribunal also stated that: 

"Remembering that the EIR were made in order to implement Council Directive 2003/4/EC, it seems reasonable to be cautious about their effective extension to a territory that is outside the United Kingdom and not part of the European Union. But it has to be remembered that the general effect and intention of s3 of the [BIOT] Courts Ordinance is to apply English law in BIOT; the EIR are part of English law; accordingly the EIR apply in BIOT unless there is something about them which means they fall outside the operative words of s3 or unless excluded by the operation of the proviso

................

We hold, therefore, that the EIR apply in BIOT, but with such modifications as may be required to enable local enforcement."

For the full ruling see Sand v ICO & FCO Case No: EA/2012/0196 

** see DEFRA website at FAQ 24
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R P Dunne,
Feb 20, 2012, 6:51 AM
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R P Dunne,
Feb 20, 2012, 6:50 AM