Proactive Disclosure of Environmental Information in Scotland: Part I

In Scotland, the Environmental Information (Scotland) Regulations 2004 are the most visible legislative instrument implementing the right of access to environmental information. The most visible aspect of the Regulations is how it imposes an obligation on public authorities to disclose environmental information on request.  This is known as the passive right to information, since authorities are not required to do anything until a request is received.  However, the right of access to environmental information also encapsulates the active right, under which public authorities are obliged to proactively disclose environmental information without having to wait for a specific request. This is important, as the active right plays a significant role in how the right to environmental information achieves its aims of promoting public participation in environmental matters. This post describes the development and obligations underpinning the active right before discussing the initial/preliminary findings of the project’s survey.

In the UK, the adoption of planning registers under the Town and Country Planning Act 1947 is an early example of the active right being implemented in the United Kingdom. However, this was not explicitly considered as a measure that guaranteed the active right to environmental information. Indeed, the right of access to environmental information was only explicitly guaranteed by the Environmental Information Regulations 1992, and the division between the active and passive rights was crystallised in the Aarhus Convention in 1998.

Under article 5 of the Aarhus Convention, which the United Kingdom is Party to, Party states have to meet various requirements for the active collection and dissemination of environmental information. These obligations fall into two general categories: the obligation to collect and hold environmental information relevant to the public authorities’ purpose and the obligation to proactively disseminate that environmental information to the public.

This division between the active and passive right is important because they cover different aspects of how individuals can access environmental information from public authorities. Critically, under the active right the obligation to disseminate environmental information is a constant obligation. This contrasts with the passive right, where a request for environmental information needs to be received before the procedural obligations are triggered. As a result, the obligations contained in the active right are more general in nature and are rarely legally enforceable.

Since the active right does not rely on requests to “trigger” the obligations contained within it, it is difficult to analyse how the right is used in practice through the statistics gathered by the Scottish Information Commissioner. As part of the project we are undertaking a survey to identify and analyse how the active right to environmental information is used. The initial statistics gathered by the survey indicate that the majority of individuals who have sought information have tried to access environmental information proactively disseminated by public authorities. Further, the survey indicates that individuals seeking environmental information will generally first look for proactively disclosed environmental information before submitting a request under the passive right.

Those responding to the survey also indicated that they were generally able to find all or some of the information that they were searching for under the active right. This is further emphasised by the generally positive responses on how easy the information was to find, how understandable the information was and how useful the information was to achieving the user’s goals. These findings are particularly important because they indicate that, despite the difficulty in enforcing the active right, public authorities are generally successful in implementing it. In turn, this allows individuals to access environmental information without having to submit a request for environmental information under the passive right.

In interpreting these results it is important to highlight both their preliminary nature and the self-selecting nature of the respondents. Nevertheless, these general trends are interesting in indicating how the right is used and implemented within Scotland. While the results of the survey do provide valuable insight into how the active right is used, they do not address other aspects of the active right. In particular, the results do not directly consider how the active right interacts with the passive right to environmental information or the relative profile of both rights. These questions are not considered in this post, but are significant to understanding how the active right is implemented and used in practice. As such, these questions will be considered in our next post in this series on the active right of access to environmental information.

Sean Whittaker

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