European Union Emissions Trading Scheme (EU-ETS)

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Sample Response to UK FOIA Request

August 19, 2011

This letter was not prepared by or under the direction of NBAA. It is being provided to NBAA Members for their general information and should not be construed as legal advice or legal opinion on any specific facts or circumstances. You are urged to consult your attorney or other advisor concerning your own situation and for any specific legal questions you may have.

To: UK ETS Aviation Helpdesk ([email protected])

Re: (OPERATOR NAME) (Reference: NRJUL29)

Request for Information under the Freedom of Information Act 2000 (FOIA)/Environmental Information Regulations 2004 EIR

This letter serves as (OPERATOR NAME) response to the UK Environment Agency’s letter dated (mm/dd/year). 

(OPERATOR NAME)  requests that the Environment Agency release to the public only the total tonne-kilometre number for the company.  As stated below, the other information that has been requested including, but not limited to, the company name, destination aerodromes, number of passengers, total freight should not be disclosed inasmuch as this requested information falls within the exemptions under Regulation 12 of the EIR and passes the public interest test.

By way of background, Regulation 12 of the EIR sets out various exceptions allowing public authorities to refuse to disclose environmental information. However, all the exceptions in the EIR are subject to a public interest test.   Regulation 12(1)(b) states that a public authority may refuse to disclose environmental information requested if, ‘in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information.’  In other words, in order for the public authorities to refuse to disclose the environmental information, the information must fall within a specific exemption and pass the public interest test.  According to the FOI guidance on the public interest test (See Awareness Guidance 3), the public interest test is concerned about allowing disclosure of information that promotes understanding, transparency and accountability of public institutions. 

Notably, based on this guidance’s parameters, the only requested information that would be in the public interest to disclose is the total tonne-kilometre figure.  This figure could be used by members of the public to determine the overall greenhouse gas emissions of the aviation sector. None of the other requested information improves the understanding, transparency and accountability of the public institutions.  Instead, the other requested information including, but not limited to, the company name, destination aerodromes, number of passengers, total freight violates the privacy and safety of (OPERATOR NAME) and its employees.

For the sake of organization, (OPERATOR NAME) lists below the pertinent exemptions and why the requested information falls within the exemptions.

Regulation 12(5)(a) International relations, defence, national security & public safety.

Subject to the public interest test, if the disclosure of information would adversely affect any of these matters, it is exempt from disclosure.  As for public safety, the exemption covers both information whose disclosure would impact adversely upon the protection of the public, public buildings, industrial sites from accident or acts of sabotage and information whose disclosure would have an adverse affect upon the health and safety of the public.  The disclosure of the requested information other than the total tonne-kilometre figure would pose a threat to passengers and employees of (OPERATOR NAME) and other members of the public.

Regulation 12(5)(e) The confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest.

Subject to the public interest test, the information covered by the exception will include a range of commercially sensitive information such as trade secrets, information supplied by contractors, information supplied as part of a tendering or procurement process and information held by regulators.

As stated above, (OPERATOR NAME) has no objection to providing the total tonne-kilometre figure.  However, the other requested information could reveal (OPERATOR NAME) business and development plans.  Indeed, for example, by providing members of the public the company name, destination aerodromes, number of passengers, total freight, one could decipher (OPERATOR NAME) business plans in a given region.  As such, confidentiality is required to protect (OPERATOR NAME) economic interest.

Regulation 12(5)(f) The interests of the supplier of the information.

Subject to the public interest test, this is where the information was supplied on a voluntary basis in the expectation that it would not be disclosed to a third party and where the supplier has not consented to disclosure. In effect information which is protected by the common law duty of confidence. An example of the information potentially covered by this exception is privately owned information which has been deposited in a public record office or archive.

(OPERATOR NAME) agrees with the Environment Agency’s conclusion that except for the tonne-kilometre figure the other requested information is not information relating to information on emissions for purposes of EIR Regulation 12(9) and thus Regulation 12(5)(f) applies. (OPERATOR NAME) did not and will not consent to the disclosure of the other requested information.  (OPERATOR NAME) had an expectation that this information would not be disclosed.  Consequently, (OPERATOR NAME) requests that the other requested information not be disclosed in accordance with Regulation 12(5)(f).

We appreciate the opportunity to respond.  Should you have any questions, please let me know.

Operators planning to submit a response to the FOIA request should send it to: [email protected]