Ecological Data and Information Exempt from General Release Under the EIR/FOI Regulations

Ecological data and information exempt from general release under the EIR/FOI regulations

Operational guidance document

Date

Contents

Contents

Acronyms used in this document

Version Control

Summary of the guidance

1.Introduction

1.1.Background

1.1.1.What does the guidance relate to?

1.1.2.Why is this guidance needed?

1.1.3.How has this guidance been written?

1.2.Why some types of ecological data are exempt from general release

1.3.Types of ecological data and information exempt from general release

2.Ecological Data Which Are Exempt From General Release

2.1.Identifying exempt ecological data

2.1.1.Examples of Merlin data which are exempt from general release

2.1.2.Examples of Merlin data which are not exempt from general release

2.2.Exceptions to these exemptions

2.3.Handling ecological data not listed as exempt

2.4.Other restrictions

3.Release, Publication & Dissemination of EFGR Data and Information

3.1.Assessing and responding to a request for EFGR data

3.1.1.Dealing with requests for data from the public

3.1.2.Dealing with requests from trusted partners

3.1.3.Setting the licence duration

3.1.4.Extensions to the Licence Duration

3.1.5.Releasing associated non-exempt data

3.2.Exempt data in publications and on the internet

Appendix A: Species and Habitats Exempt From General Release (EFGR)

Appendix B: Summary of Legacy Body Guidance

Appendix C: Bats and Cetaceans Exempt From General Release (EFGR)

Acronyms used in this document

Version Control

Summary of the guidance

1. Introduction: NRW will promote open access to our ecological data and information wherever possible however there are some ecological features, species and habitats, which are at risk of harm if detailed location information about them is made public. See Section 1 for more details.
2. Ecological Data Which Are Exempt From General Release: Whenever you are making ecological data or information available outside NRW you must check to see if anything you are including is considered to be exempt from general release under EIR/FOI regulations. Section 2 has more details.
3. Release, Publication & Dissemination of EFGR Data and Information: If the data and information are exempt from general release we may still be able to release it but at a courser (less accurate / less detailed) spatial scale or with some information redacted. Alternatively we may be able to release the full detail, to appropriate parties, under licence. Further information can be found in Section 3.
4. Appendix:Appendix A has the full details of the data and information which is considered to be exempt from general release and the spatial scale below which the exemption applies. Appendix B has a summary of the legacy body guidance consulted in the creation of this document.Appendix C has a list of additional bat and cetacean species exempt from general release as an addition to Appendix A.

1.Introduction

1.1.Background

This guidance has been produced for all NRW staff involved in collecting, storing, managing and disseminating ecological data and information and those managing data on our behalf.

1.1.1.What does the guidance relate to?

This guidance relates to ecological data and information which has been deemed as exempt from general release (EFGR) under Environmental Information Regulations (EIR) and Freedom Of Information (FOI). That is, data and information about the location of species and habitats which could, potentially, lead to them being damaged if the data were to be made publicly available.

N.B. - Data and information can also be restricted by various legislative mechanisms e.g. the Data Protection Act (1998) and we must, of course, comply with these restrictions as well. Separate guidance exists for these legislative restrictions; see the NRW intranet for more information. If the data are owned by a third party you also need to check what permissions NRW have to share or publish it.

1.1.2.Why is this guidance needed?

This guidance has been produced in order to develop a consistent and defensible approach across NRW when releasing, or withholding the release of, ecological data and information. It will help staff involved in managing ecological data and information make informed decisions.

1.1.3.How has this guidance been written?

This document brings together the relevant advice and guidance from the former Countryside Council for Wales, the Forestry Commission and the Environment Agency. For a full list of the legacy guidance consulted see Appendix B. The list of ecological features exempt from general release and the scale at which the restriction applies (Appendix A) was originally created by the Environmental Information Team in CCW in consultation with the relevant species and habitat specialists as well as regional teams and other stakeholders. This list was also used by FCW and has been reviewed against EA’s list of coded species.

1.2.Why some types of ecological data are exempt from general release

The Environment Information Regulations (2004) give Natural Resources Wales (NRW) a general legal duty to give free access to its environmental data. However, NRW has the right to withhold data under the exception described in Regulation 12.(5)(g) if 'disclosure would adversely affect the protection of the environment to which the information relates'.

NRW recognises that certain species, and a small number of other biodiversity features, are particularly vulnerable to damage, disturbance or commercial exploitation if detailed occurrence information about them is released to the general public. Detailed data and information which could be used to identify the location of relevant species and habitats could, potentially, be misused by some individuals, either deliberately or unwittingly in a way which could cause damage to those features.

Potential types of damage include collection, disturbance or illegal activity. For example, the whereabouts of hen harrier nests or the location of killarney fern populations becoming known to collectors could lead to damage to these species. Photographers can disturb seal pupping sites, or people may use information on the location of badger setts to engage in badger baiting.

1.3.Types of ecological data and information exempt from general release

In the majority of cases making information about a species or habitat available helps protect that feature. Knowing the location of important biodiversity features means that mitigation can be put in place if there is a development proposal or appropriate conservation management can be put in place.

The main criterion for inclusion in the list of exemptions is that the feature must be subject to a specific source of pressure to which it is vulnerable such as those mentioned in section 1.2. Therefore rarity or legal designation are not enough, by themselves, to justify inclusion, and in fact many rare species are not included.

All the features on the list have an associated spatial scale below which (at more detailed level) data and information are considered to increase the potential risk of damage to that feature if made public. Data and information above this spatial scale (less detailed, broader resolution) are thought to be at a level at which the risk of harm is acceptable.

2.Ecological Data Which Are Exempt From General Release

2.1.Identifying exempt ecological data

Species and habitat data which are exempt from general release are described in Appendix A. These data are subject to access restrictions, and should not be published or released to anyone outside NRW without following the procedure outlined in this Guidance. The guidance applies to NRW-owned data, data held by NRW but owned by third parties and NRW owned data held by third parties.

The first step is to check the list to see if the feature(s) that you are dealing with are exempt from general release. If so, use the information in columns 3 and 4 of Appendix A to determine what specific restrictions apply. Use this example for Merlin as a guide:-

2.1.1.Examples of Merlin data which are exempt from general release

• Location of nest sites, given on maps, or as Lat. Long. coordinates, below 10 km sq scale (i.e. more detailed scale), anywhere in Wales, except where they are a listed feature on designated sites or sites with permanent wardens (see section 2.2).
• Location of nest sites if given at 4-figure or 6-figure grid references, anywhere in Wales, except where they are a listed feature on designated sites or sites with permanent wardens.

2.1.2.Examples of Merlin data which are not exempt from general release

• Location of a nest if given at 2-figure grid reference or at a scale equal or larger (less detailed) than 10km square e.g. for whole county or region.
• Information about presence/absence of Merlin on a particular site or in a particular area, at any scale.
• Management plans referring to activities intended to increase Merlin populations.
• General information about Merlin sightings, behaviour or ecology where nest locations are not given.

2.2.Exceptions to these exemptions

Sometimes releasing data which would normally be restricted is actually beneficial for the protection of the biodiversity feature in question. An example could be where a site is used to raise awareness of a rare species present there. Where this is the case the information should be released however it is extremely important that you assess each case on its own merits and consult the information asset owner and/or relevant specialist. Some specific exceptions are listed below:

• Official information on statutory protected sties (e.g. SSSI, SAC, SPA, Ramsar sites, etc), namely official maps and documents as follows: boundary maps, citations, feature sheets, site names, site management statements or management plans.
• Sites with targeted warden protection which aim to interpret wildlife to the public e.g. warden monitored nature reserves.
• Sites where information on the whereabouts of a species is used as a means to protect that species by regulating and managing potentially damaging activities e.g. cliffs with nesting birds used for rock-climbing where the British Mountaineering Council issue a voluntary code of climbing restrictions to encourage climbers to avoid nest sites or fishing zones where restrictions are in place and fishermen are notified of that fact.

2.3.Handling ecological data not listed as exempt

Environmental data that, according to this guidance, is not considered exempt from general release can normally be released or published freely at any scale without risk of causing environmental harm. However, it is important to use your own judgement before you make the final decision to release – if in doubt seek advice from the Information Asset Owner and/or the Access To Information (ATI) team.

If the feature is not on the list but you have concerns about whether it should be restricted because, for example, there have been local instances of harm, or because you think it has been unfairly omitted, then contact the ATI team and/or the relevant specialist. If they agree, then treat it as a Complex EIR enquiry and follow NRW’s formal FOI/EIR procedure.

2.4.Other restrictions

In common with any type of data and information, you must consider whether an ecological dataset may need to be withheld for other reasons e.g. it contains personal information; it is commercially confidential; it concerns a site in the process of designation; it is owned by a third party who insists upon confidentiality etc. In such cases, other EIR exceptions or other legislation (such as the Data Protection Act) may apply. Refer to the metadata for the dataset for more information. If you have questions or are unsure how to handle the data seek advice from the Access to Information Team.

3.Release, Publication & Dissemination of EFGR Data and Information

3.1.Assessing and responding to a request for EFGR data

Firstly make sure you have all the information you need to assess the applicant’s suitability. If you have a request which is vague or missing information (or you know someone wants to request data) then you can send a data request form (ask the Access to Information Team if you need a copy of the form). Access to exempt data may only be given to approved third parties or trusted partners for legitimate purposes (see boxes below for more details).

The following are broad guidelines and specific circumstances may mean that you will need to make exceptions. Your individual judgement should be applied in each case. Contact the Access to Information Team if in doubt.

N.B. - There is a 20-day time limit on responding to requests set by law so you must notdelay in starting the process.

There may be a Data Exchange Agreement in place between NRW and some of the larger bodies, e.g. government agencies, larger charities, LRCs etc. In which case a licence would not needed although the dataset in question may need adding to the agreement.

3.1.1.Dealing with requests for data from the public

If the data are deemed to be exempt from general release then it is likely that NRW will have to refuse a request from a member of the public. Therefore, you must immediately contact NRW’s Access To Information team, who will deal with the request with the appropriate Lead Officer (member of staff who has specialist knowledge of the dataset/feature in question).

Wherever possible you, or the ATI team, should aim to contact the requestor and discuss the request with them. Often they will be happy to have the data at a resolution at which it is not considered exempt from release or have the dataset with restricted data removed. If you cannot reach agreement in this fashion then a public interest test will have to be carried out and the request is likely to be refused.

N.B. - If the public interest test indicates that a request should not be granted then the response has to come from the ATI team directly. You must not make a refusal yourself.

3.1.2.Dealing with requests from trusted partners

NRW often receives requests for restricted information from legitimate partners or others where there is a clear need, or positive conservation benefit, to releasing the information. Examples include; local planning authorities, developers or their consultants, conservation organisations, academic researchers, etc. You may provide restricted data in such circumstances, but only under license, which imposes restrictions on use and dissemination.

The Licence indicates that the data is provided voluntarily as part of a working partnership rather than under EIR/FOI. If you give out restricted data without a licence it is deemed to be in public domain i.e. we no longer have the right to refuse a subsequent request from the press or public (even if we felt harm may result). So make sure you use the licence every time. For full details on licensing and the relevant legislation see the guidance on the intranet.