Searching across the pond

From the Summer 2010 issue of The News Media & The Law, page 9.

Journalists covering the Deepwater Horizon oil spill have instinctively looked to the United States government for documents to aid them in their reporting.

In May, for example, the nonprofit Center for Public Integrity reported that records obtained from the federal agency charged with enforcing safety and health standards showed that BP had routinely violated refinery regulations put in place specifically to prevent catastrophic events. Weeks later, CBS News reported that the Deepwater Horizon oil rig had missed 16 required monthly inspections with federal regulators since January 2005.

But with energy operations on six continents, BP’s paper trail extends far beyond U.S. borders to nearly all corners of the globe. One obvious but perhaps overlooked source of oil company-related documents is the United Kingdom, where the oil company formerly known as British Petroleum is headquartered.

Fortunately for journalists, the U.K. in 2005 put a system of freedom-of-information laws in place that—subject to certain exemptions—require the disclosure of a wealth of information held by government authorities. Even better is that the laws do not require that requests be made by only its citizens.

In England, Wales and Northern Ireland, the type of information that can be requested and from what government bodies is governed by both the general Freedom of Information Act and laws known as Environmental Information Regulations. A companion set of laws in Scotland mimics this dual-pronged approach.

The type of environmental information that would trigger a request under EIR laws is fairly broad. Among other things, it would cover information relating to: (1) the condition of air, water, land and natural resources; (2) emissions and environmental discharges; (3) laws, plans and policies affecting the environment; (4) economic analyses relied upon in developing law or policy; and (5) documents relating to the health and safety of humans and the food chain.

The distinction between general FOIA and EIR requests becomes important when considering whether or not a particular record is exempt from disclosure under the law.  Under the law there are two kinds of exemptions, so-called “absolute” exemptions and those subject to the “public interest” test. Generally, records that fall into the absolute category — an example might be those related to national security — do not have to be disclosed. However the bulk of any records determined to be exempt under the general FOIA laws and virtually all exempt under EIR laws must first undergo a public-interest test, which requires the government to show that its interest in keeping the records confidential outweighs the public’s interest in disclosure.

According to Maurice Frankel, Director of the London-based advocacy group Campaign for Freedom of Information, whether or not a particular record falls under a specific exemption is less important under U.K. open records laws than it is under the federal public-records law in the United States because so many categories of exempt records are still subject to the public interest balancing test. 

“In close calls the public interest generally wins especially if no harm is asserted,” Frankel said. 

Many BP business records held by the government are still subject to balancing under the public-interest test despite potential claims of business confidentiality, for example. In the United States, if the government possesses any confidential business information that is exempt from disclosure under FOIA, it is generally not subject to any public-interest balancing test.

Frankel said the Health and Safety Executive, which regulates worker safety, the Environment Agency and the Companies House, which keeps corporate financial filings, might be useful targets for open-records requests. He also recommended requesting the agencies’ disclosure logs, which might indicate what documents seem to be generating public interest. Given BP’s extensive offshore drilling operations in the North Sea, similar records requests could also be made to independent Scottish authorities under the country’s parallel laws.

If the thought of navigating a foreign government’s record system seems a bit overwhelming, journalists can also get direct help from an unlikely partner — the government itself. Unlike in the United States, U.K. records custodians have an affirmative duty to provide reasonable advice and assistance to records requesters.

“The best thing to do is to find someone who will help by e-mail before you make a request,” Frankel said.  Custodians should write back to you and tell you generally the kinds of records they house, whether they have the records you are seeking and if not, what other body may hold them, if it is known to the custodian.

Like in crafting any public-records request, it is a good strategy to focus the request at the outset. Unlike in the United States, there is no public-interest fee waiver that applies to journalists and, if the government calculates that complying with a request will exceed certain thresholds established by law, it can deny the request outright.

In most cases, the turn-around time for well-crafted requests is timely. Frankel estimates that 75-80 percent of requests are handled within the 20-day response window, plus any applicable extension period. But some requests “do on occasion go on for years,” he said.