Part 1: Environmental Governance Chapter 2: The Office for Environmental Protection Section 43: Confidentiality of proceedings
This section deals with the circumstances in which the OEP and public authorities may or may not disclose information regarding an investigation whilst the OEP is carrying out enforcement proceedings. The provisions have been designed to provide adequate protection of confidential information during those enforcement proceedings, whilst ensuring compliance with the pillar of the Aarhus Convention that is concerned with access to environmental information, by the Environmental Information Regulations 2004 (EIR) and in Scotland by the Environmental Information (Scotland) Regulations 2004, which provide public access to environmental information.
	Subsection (1)(a) sets out that the OEP must not disclose information which has been provided by a public authority as a response to a request for information from the OEP in an information notice (as provided for in section 35(3)(b)), or otherwise obtained by the OEP on the basis of the duty on public authorities to co-operate, provided for in section 27(1)). Under paragraph (b) of this subsection, the OEP cannot disclose any correspondence between the OEP and the recipients of information or decision notices that relates to those particular notices, including the information and decision notices themselves. Circumstances where provisions in subsection (1) do not apply, and the OEP is able to disclose the information, are covered under subsection (2). For example, the restriction in subsection (1) does not apply to a disclosure once the OEP has concluded a case has been closed and that it intends to take no further steps.
	Under subsection (3), a public authority in receipt of an information or a decision notice may not disclose the notice or any correspondence between the OEP and that, or any other, public authority relating to that notice. Subsection (4) sets out the circumstances where the restriction in subsection (3) does not apply to a disclosure. This relates to cases such as where consent has been obtained, where the disclosure is required for the purposes of an investigation under section 33, where disclosure is required to be able to respond to an information or decision notice, or where it is connected to an environmental review or judicial review proceedings.
	Subsection (5) sets out that the OEP can only give its consent for disclosure of an information or a decision notice when it has concluded it intends to take no further steps under this Chapter.
	Subsection (6) ensures that, if consent has been requested by a public authority, the OEP cannot withhold that consent for disclosure of correspondence if it has concluded it intends to take no further steps under this Chapter.
	Subsection (7) provides that when information referred to in subsection (1) and held by the OEP, or subsection (3) and held by a public authority, is "environmental information" in accordance with the EIR it is held, for the purposes of these regulations, in connection with confidential proceedings. Whilst enforcement proceedings by the OEP are ongoing, the information referred to in subsection (1) and (3) will be capable of attracting an exception in the EIR that provides that a public authority may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law.
	This section does not override the EIR which will still apply to the OEP and other public bodies. The OEP will be required to consider requests for disclosure of information made under the EIR on a case by case basis, including assessing whether any appropriate exception will apply.
	This section will also not override or disapply other existing legislative provision on public access to information such as the Freedom of Information Act 2000 or Data Protection Act 2018. The OEP will therefore be subject to requirements set out in existing law which govern access to, and protection of, information. This will include the ability to rely on exemptions in existing legislation where appropriate and necessary.
	This section should also not act as a barrier to the transfer of information, whether by the OEP or other bodies, to The National Archives under the Public Records Act 1958 in accordance with the existing statutory scheme. The OEP may seek to ensure the efficient transfer of information by preparing a joint working protocol with The National Archives.