The ICO exists to empower you through information.

Time limits for compliance under the Environmental Information Regulations 2004 (EIR)

Share
Latest updates - 1 August 2023

1 August 2023 - The following Further reading resources have been added:

  • Key questions on timeliness
  • Response rate calculator
  • Template action plan
  • Keeping internal consultations on FOI timely and transparent - a short guide for public authorities
  • FOI good practice case study - Wye Valley NHS Trust
  • FOI good practice case study - North Lincolnshire Council

10 February 2023 - The guidance has been converted into webpage format and has had stylistic updates.

Section entitled “Can we apply an extension for complex and voluminous requests?” has been edited to read complex ‘and’ voluminous (from ‘or’) to maintain consistency with Regulation 7(1).

Section entitled “Can we transfer requests?” has been updated to clarify that permission must be sought from the requester before a public authority can transfer a request.

About this detailed guidance

This guidance discusses in detail the time limits for compliance under the Environmental Information Regulations and is written for use by public authorities. Read it if you have questions not answered in the Guide.

In detail

What are the time limits for responding under the EIR?

Under the EIR, you have a duty to inform the requester whether you hold the requested information and, if so, to communicate the information to them ‘as soon as possible, and no later than 20 working days after the date of receipt of the request.’ [Regulation 5(2)]

The Information Commissioner interprets this to mean that ‘day 1’ is the first working day after the request has been received.

The EIR also specify that you have a duty to comply with the following regulations ‘as soon as possible and no later than 20 working days after the date of receipt of the request’:

  • Regulation 6(2)(a) – requirement for you to explain why you cannot make information available in the form or format requested.
  • Regulation 7(1)(3) – requirement to notify the requester that you need an extension of time to deal with a request that is complex and voluminous.
  • Regulation 9(2)(a) – requirement to offer advice and assistance where a request has been formulated in too general a manner.
  • Regulation 14(2) – requirement to issue a refusal notice when a request is being refused.

If Regulation 8(4) applies (the obligation to notify the requester that an advance payment is required), the EIR state that you must comply ‘no later than 20 working days after the date of receipt of the request’.

The EIR permit an extension to the time for compliance for Regulations 5(2), 6(2)(a) and 14(2), from 20 to 40 working days, if you believe that the request’s complexity and volume would make it impractical to comply or reach a decision about whether to refuse the request, within 20 working days.

Unlike the Freedom of Information Act, there is no provision to extend the time for compliance to further consider the public interest test, nor do the EIR make any provision for variations to the time limits for certain categories of information or types of organisation.

How do we calculate the date of receipt?

Where the EIR refer to the ‘date of receipt of the request’, that date will be either:

  • the day the request is physically or electronically delivered to you, to a general or dedicated address or email address, or directly into the inbox of a member of staff; or
  • if the request was previously refused as formulated in too general a manner, the day on which you receive sufficient clarification to enable you to identify and locate the requested information.

You should ideally publish both a postal and email address to which people can send requests. If you have an online submission process for requests, you should send a copy of the completed request form to applicants alongside any acknowledgment notice.

Remember, you still have a duty to deal with requests received anywhere within the public authority and you must accept verbal requests.

You must not regard the date of receipt as the date on which the request is passed on to the appropriate person within the authority, such as the Freedom of Information Officer, for processing.

An exception to this will be where the request has been emailed to an absent member of staff, and this has generated an ‘out of office’ message with instructions on how to re-direct the message to another contact.

Where this is the case, the date of receipt will be the day the request arrives in that contact’s inbox.

To cover periods of absence, it is advisable for staff to use the automated out-of-office facility for emails and to provide alternative contact details.

If an alternative contact has been provided in an out-of-office message, that contact should inform the original recipient of the action taken regarding the request.

If you have outsourced services to a third party (for example, a contractor) and that third party receives a request, the Information Commissioner deems the date of receipt to be the date you receive the request from the third party. However, the third party should be aware of your EIR obligations and forward the request to you as soon as possible.

When receiving a request, it is good practice to acknowledge its receipt and to refer to the 20-working-day time limit, so that requesters know their request is being dealt with.

What is the definition of a ‘working day’?

Regulation 2(1) states that the meaning of a ‘working day’ under EIR is the same as defined in FOIA so this principle will also apply to EIR requests.

A working day can be defined as any day other than a Saturday, Sunday, Christmas Day, Good Friday or a day that is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

Remember that any bank holiday in any of the four nations comprising the UK will be a non-working day for EIR purposes.

For example, St. Patrick’s Day counts as a non-working day in all nations covered by the legislation, even though it is only a bank holiday in Northern Ireland, and not in England, Scotland or Wales.

If you are closed for privilege days in addition to bank holidays, these will not count as non-working days.

For the purposes of the Regulations, the ‘working day’ will end at midnight regardless of your opening hours. Therefore, you should regard any request that arrives before that time as having been received that day.

This principle was established in a FOIA Tribunal case, Berend v ICO and London Borough of Richmond upon Thames (EA/2006/0049 & 50, 12 July 2007). Here the Tribunal found that, ‘There is no definition within the Act as to the length of a day and in the absence of any such definition, we are satisfied that a day ends at midnight…’ (para 63).

What about requests received on non-working days?

The EIR do not stipulate that the date of receipt must be a working day. It therefore follows that the date of receipt can also be a non-working day such as a weekend or bank holiday.

When an EIR request is received on a non-working day, the clock will still start on the following working day.

So, if the following day is another non-working day, the clock will start on the next working day after that.

Example 1

A public authority that is closed at weekends receives a request on a Saturday. As the time for compliance only commences on the next working day, the clock will start on the following Monday.

Example 2

The same public authority receives a request on Easter Sunday. As the following Monday is a bank holiday, the clock will begin on the next working day after that, which in this case would be Tuesday.

Why should we respond as soon as possible?

Where a Regulation specifies the requirement to respond ‘as soon as possible’, you must comply with that Regulation as soon as is reasonably practicable.

Your duty to respond as soon as possible will always be linked to your obligation to comply no later than 20 working days after receipt of the request, but you should treat it as a separate requirement.

You will therefore need to both respond as soon as possible and within 20 working days to comply with Regulation 5(2) that specifies both these criteria.

You should thus regard the 20-working-day limit as a ‘long stop’, in other words the latest possible date on which you can comply with the requirement.

If you comply with a request close to, or on, the final day of the 20- working-day limit, you should be able to both account for, and justify, the length of time taken to meet the obligation concerned.

Example

In Decision Notice FER0348473 the complainant maintained that Gedling Borough Council had failed to comply with his request for information concerning building regulations approvals, certificates and notices connected to a specific property as soon as possible. The council had provided its response 17 working days after the date of receipt of the request.

In its submissions to the Information Commissioner, the council explained that the request had first been passed to an FOI officer, who then asked the building control department to check whether any relevant information was held. That search took 12 working days and entailed interrogating the management system; searching microfiche and CDs; and manually sifting through hard-copy records dating back to 1974. Once he had verified the search results, the building control manager discussed them with an FOI officer and the response was issued that same day. The council also pointed out that the building control department was responsible for handling applications and inspection requests, as well as other functions such local land searches and responding to enquiries, and the department had considered it unreasonable to give EIR requests a higher priority than this work.

The Information Commissioner ruled that the council had replied as soon as possible, stating that:

“The test of whether a public authority has complied ‘as soon as possible’ is a subjective one, because it could be argued that if the Council set aside all of its other tasks and focuses solely on complying with the request, a response could be sent very promptly. However, the Commissioner accepts that a public authority is entitled to balance its duties under the EIR with its other responsibilities and commitments. He also accepts that it was appropriate for the Council to delegate the task of searching relevant records to staff that have experience and knowledge of this area. He considers that the Council therefore complied with this request as quickly as possible particularly given its obligations to comply with a wide range of responsibilities.” (para 32).

What is our duty to make information available on request?

The EIR say:

5.—(1) Subject to paragraph (3) and in accordance with paragraphs (2), (4), (5) and (6) and the remaining provisions of this Part and Part 3 of these Regulations, a public authority that holds environmental information shall make it available on request.

5.—(2) Information shall be made available under paragraph (1) as soon as possible and no later than 20 working days after the date of receipt of the request.

Under Regulation 5(1) you have a duty to make environmental information available on request.

This means that where you hold the requested information and you are not relying on an exception or Regulations 6(2)(a) or 8(4), you must provide that information to the requester as soon as possible and no later than 20 working days after the date of receipt of the request.

The 20-working-day clock begins the day after the request is received. However, if you have previously refused the request for being formulated in too general a manner under Regulation 9(2)(a), the clock will begin the day after the requester provides sufficient clarification to allow you to identify and locate the information. Further information about applying Regulation 9(2)(a) can be found later in this guidance.

What is our duty to confirm or deny?

We consider that you have an implicit duty under the EIR to confirm or deny whether you hold the information as soon as possible and within 20 working days.

It therefore follows that a general response (such as a holding letter or acknowledgement) issued within 20 working days, but which fails to confirm or deny whether the information is held, or to provide information, will not be sufficient to comply with the Regulations.

If you hold the requested information, you will fulfil your ‘duty to confirm’ by (as soon as possible and within 20 working days):

  • providing the information under Regulation 5(2); or
  • issuing a refusal notice under Regulation 14 explaining that the information is held but is being withheld under an exception; or
  • notifying the requester that the information cannot be provided in the form or format requested under Regulation 6(2)(a); or
  • notifying the requester that a fee is required under Regulation 8(4).

If you do not hold the information, you will fulfil your ‘duty to deny’ by refusing the request under Regulation 12(4)(a) [the exception for information that is not held at the time for the request]. In this instance, you will also need to issue a refusal notice as soon as possible and within 20 working days of the date of receipt of the request.

If the information is subject to an exception from the duty to confirm or deny, you must issue a refusal notice as soon as possible and within 20 working days, stating that you can neither confirm nor deny whether you hold the information. For further information on refusing requests where there is an exception from the duty to confirm or deny, please read our guidance Refusing a request under the EIR.

What are the time limits for refusing a request?

Regulations 14(1) and 14(2) state:

14.—(1) If a request for environmental information is refused by a public authority under regulations 12(1) or 13(1), the refusal shall be made in writing and comply with the following provisions of this regulation.

(2) The refusal shall be made as soon as possible and no later than 20 working days after the date of receipt of the request.

If you have chosen to refuse a request under one of the exceptions listed in Regulations 12(1) and 13(1), you must issue a refusal notice as soon as possible and no later than 20 working days after the date of receipt of the request.

The refusal notice has to be in writing and must:

  • explain the reasons for the refusal including the exception(s) being relied on and any factors you took into account in reaching a decision under the public interest test;
  • inform the requester of their right to make representations if they disagree with the decision;
  • inform the requester of their right to complain to the ICO, including the relevant contact details

If the exception(s) only cover part of the information, you must aim to extract or summarise the non-excepted information and provide it to the requester within the 20-working-day time for compliance, unless it is not reasonably capable of being separated.

Can we request clarification?

The EIR say:

9.—(2) Where a public authority decides that an applicant has formulated a request in too general a manner, it shall—

(a) ask the applicant as soon as possible and in any event no later than 20 working days after the date of receipt of the request, to provide more particulars in relation to the request; and

(b) assist the applicant in providing those particulars.

9.—(4) Where paragraph (2) applies, in respect of the provisions in paragraph (5), the date on which the further particulars are received by the public authority shall be treated as the date after which the period of 20 working days referred to in those provisions shall be calculated.

(5) The provisions referred to in paragraph (4) are—

(a) regulation 5(2);

(b) regulation 6(2)(a); and (c) regulation 14(2).

Under Regulation 12(4)(c) of the EIR, you may refuse a request that has been formulated in too general a manner.

However, you can only do so if you have also fulfilled your obligation under Regulation 9 to offer the requester advice and assistance to help clarify the request.

Regulation 9(2) states that you must offer that advice and assistance within 20 working days of the date of receipt of the request.

You must still issue a refusal notice within 20 working days of receipt of the request explaining that you have applied Regulation 12(4)(c).

As this refusal is conditional on compliance with Regulation 9, you must offer the advice and assistance either before or at the same time that you issue the refusal notice.

If, following this, the requester provides sufficient details to enable you to identify and locate the information, the time limit for providing the information will reset to 20 working days with the clock starting the day after you receive the required clarification.

This will also reset the time for compliance for:

  • Regulation 6(2)(a) – the time limit for explaining why you are not making information available in the form or format requested;
  • Regulation 14(2) – the time limit for issuing a formal refusal notice to the requester.

In effect, therefore, the clarified request is treated as a new request.

Example

On 5 August you receive the following request relating to a derelict listed building that is under threat of demolition:

“I would like to know what steps the council is taking to secure this building.”

You consider this request to be vague because in this context ‘secure’ could relate to

  • the security of the building, or
  • maintaining its structural integrity, or
  • efforts to save it from demolition.

You therefore issue a refusal notice on 11 August stating that you are applying Regulation 12(4)(c) to the request.

At the same time as you issue the notice, you ask the requester to clarify what he meant by ‘secure’, thereby fulfilling your obligation under Regulation 9(2) to offer advice and assistance within 20 working days.

The requester contacts you again on 14 August to confirm that by ‘secure’ he meant ‘maintain its structural integrity’.

You now have sufficient details to identify and locate the requested information. The time for compliance therefore resets to 20 working days with the clock starting on the day after the required clarification was received, which in this case is 15 August.

What about assistance provided outside Regulation 12(4)(c)?

Regulation 12(4)(c) applies only in cases where you require further clarification in order to comply with the request.

If the request is sufficiently clear that the information being sought can be identified and located, and you are offering assistance for any other reason – for example, to ask if the requester is interested in any other information – then the clock does not stop but continues to run from the original date of receipt.

Can we apply an extension for complex and voluminous requests?

The EIR say:

7.—(1) Where a request is made under regulation 5, the public authority may extend the period of 20 working days referred to in the provisions in paragraph (2) to 40 working days if it reasonably believes that the complexity and volume of the information requested means that it is impracticable either to comply with the request within the earlier period or to make a decision to refuse to do so.

(2) The provisions referred to in paragraph (1) are—

(a) regulation 5(2);

(b) regulation 6(2)(a); and

(c) regulation 14(2)

(3) Where paragraph (1) applies the public authority shall notify the applicant accordingly as soon as possible and no later than 20 working days after the date of receipt of the request.

Regulation 7(1) says that where a request is particularly voluminous and complex, you may extend the time for compliance for making the information available from 20 working days to 40 working days.

When you claim this extension, the new 40-working-day timescale will also apply to:

  • Regulation 6(2)(a) – the time limit for explaining why you are not making information available in the form or format requested;
  • Regulation 14(2) – the time limit for issuing a formal refusal notice to the requester.

You may only apply the extension if you reasonably believe you will need more time to locate and provide the information because:

  • the requester has asked for a large amount of complex information; and
  • it would not be practical to provide the information or make a decision about whether to refuse the request within 20 working days.

Unlike FOIA, there is no provision to claim an extension of time specifically to consider the public interest test.

If you are applying an extension, you must notify the requester of this as soon as possible and within 20 working days after the date of receipt of the original request.

This notification should be as specific as possible in explaining the reasons for the delay and indicating when the requester is likely to receive the information.

Can we inform the requester that the information is not available in the preferred format?

The EIR say:

6.—(2) If the information is not made available in the form or format requested, the public authority shall—

(a) explain the reason for its decision as soon as possible and no later than 20 working days after the date of receipt of the request for the information;

(b) provide the explanation in writing if the applicant so requests; and

(c) inform the applicant of the provisions of regulation 11 and of the enforcement and appeal provisions of the Act applied by regulation 18.

Regulation 6(1) states that, if a requester has asked for the information to be provided in a particular form or format, you must meet that requirement unless:

  • you cannot supply the information in the requested format; or
  • the information is already publicly available and easily accessible in another format.

Under Regulation 6(2), if you choose not to make the information available in the requester’s preferred format, you must contact them to explain the reasons for your decision as soon as possible and no later than 20 working days after the date of receipt of the request.

This explanation must include details of your appeals procedure and should be in writing if the requester specifies this. If there is a choice of alternative forms/formats, it is good practice to inform the applicant of these other options.

The requester may specify their preferred form or format at any time between the submission of the request and your response. However, we recognise that it may be unreasonable to expect you to provide the information in that format within the time for compliance if the requester only makes their preference known towards the end of the 20-working-day timescale.

Can we pause the clock to charge a fee?

The EIR say:

8.—(4) A public authority may require advance payment of a charge for making environmental information available and if it does it shall, no later than 20 working days after the date of receipt of the request for the information, notify the applicant of this requirement and of the amount of the advance payment.

(5) Where a public authority has notified an applicant under paragraph (4) that advance payment is required, the public authority is not required—

(a) to make available the information requested; or

(b) to comply with regulations 6 or 14,

unless the charge is paid no later than 60 working days after the date on which it gave the notification.

(6) The period beginning with the day on which the notification of a requirement for an advance payment is made and ending on the day on which that payment is received by the public authority is to be disregarded for the purposes of determining the period of 20 working days referred to in the provisions in paragraph (7), including any extension to those periods under regulation 7(1).

Under Regulation 8(4), you can ask the requester for an advance payment before releasing the information.

However, you may only charge for environmental information if you have published a schedule of charges under Regulation 8(8) containing details of when you may or may not charge.

If you elect to charge an advance fee, you must within 20 working days after the date of receipt of the request:

  • notify the requester that you intend to charge for the information;
  • inform them of the amount required; and
  • provide a copy of your schedule of charges or inform the requester where to get a copy.

Our interpretation of Regulation 8(6) is that you can disregard from any calculation of the 20-working-day time limit the period starting from the day you notified the requester of a requirement for an advance payment and ending on the day you received the payment.

You should therefore pause the 20-working-day clock on the day you issue your request for payment. The clock will restart the day after you receive the required fee.

If the requester elects to pay by cheque, the clock will only restart once this has cleared. However, cheques should be banked promptly to ensure there is no undue delay in processing the request.

The requester must make their payment no later than 60 working days after the date you issue notification that you require a fee. If they fail to do so, the clock stops permanently as you need not proceed with their request.

Can we transfer requests?

Regulations 10(1) and 10(2) state:

10.—(1) Where a public authority that receives a request for environmental information does not hold the information requested but believes that another public authority or a Scottish public authority holds the information, the public authority shall either—

(a) transfer the request to the other public authority or Scottish public authority; or

(b) supply the applicant with the name and address of that authority,
and inform the applicant accordingly with the refusal sent under regulation 14(1).

(2) Where a request is transferred to a public authority, for the purposes of the provisions referred to in paragraph (3) the request is received by that public authority on the date on which it receives the transferred request.

(3) The provisions referred to in paragraph (2) are—

(a)regulation 5(2);

(b)regulation 6(2)(a); and

(c)regulation 14(2)

If you do not hold the information yourself, but believe it to be held by another public authority or Scottish public authority, you must refuse the request under Regulation 12(4)(a) and issue a refusal notice that either:

  • informs the requester that you have decided to transfer the request to that other authority; or
  • provides the requester with the other authority’s name and address.

The refusal notice must be sent under Regulation 14(1), which means you must issue it as soon as possible and no later than 20 working days after the date of receipt of the request.

Once you have issued the notice, you as the original authority have no further obligations.

With respect to the receiving authority, the time for compliance for the regulations below starts 20 working days after the date of receipt of the transferred request:

  • Regulation 5(2)(a) – the time limit for making environmental information available.
  • Regulation 6(2)(a) – the time limit for explaining why the authority is not making information available in the form or format requested.
  • Regulation 14(2) – the time limit for issuing a formal refusal notice to the requester.

It is good practice for the original authority to obtain the requester’s consent before transferring a request. You should also check with the intended receiving authority that the transfer is appropriate (without disclosing the requester’s identity). Once consent and agreement have been obtained, you should facilitate the transfer as soon as practicable.

Further good-practice advice on transferring a request can be found in Part III of the Regulation 16 Code of Practice.

Further reading