The Environmental Information (Scotland) Regulations (the Regulations) are concerned with the disclosure of environmental information. This, in turn, raises questions on the power exercised by those who hold such information. In a previous post we noted how both users of the right of access to environmental information and Scottish public authorities felt as though the other party was better able to exercise power under the Regulations. Since that post, further empirical evidence has been gathered through interviews with users and Scottish public authorities.
This post is part of a two part series on how users and public authorities perceive the distribution of power under the Regulations and the impact this perception has on how the right is used. This post highlights how users of the right believe that public authorities are better able to exercise power under the Regulations, and explores why users believe this to be the case. The second part will highlight how the opinions of public authorities on who is better able to exercise power is split, and discusses the impact this has on interactions between users and public authorities.
Under the Regulations, users of the right are entitled to submit requests for environmental information to Scottish public authorities. When the public authority receives this request they must process and respond to it under the procedures set out in the Regulations. While public authorities should disclose the requested information, they are entitled to withhold the information if it falls within one of the listed exceptions and if withholding the information from disclosure is in the public interest. If users disagree with the decision of the authority or with how the decision was processed they may request an internal review of the authority’s decision, which can progress to being independent adjudication.
It is in this context that users and public authorities understand the exercise of power. Continuing the trend identified in our previous post, the majority of users who have been interviewed believe that the Regulations grant public authorities a greater ability to exercise power than those using the right. This perception is reinforced by the belief that public authorities are able to act in ways contrary to the Regulations. An example of this is users believing that public authorities were acting “obstructive” and “unhelpful” contrary to their obligations under the Regulations.
In considering this feeling of powerlessness, it is interesting to note that giving users the ability to exercise power through review mechanisms is not perceived as empowering. This would suggest that many users believe that the review procedures are unfit for effectively holding public authorities to account. Yet this negative opinion is not held by all users: a minority of interviewees noted that they had successfully enforced their rights to environmental information but still believed that public authorities were more able to exercise their greater powers under the Regulations. What this suggests is that while perceived failings in the review procedure do contribute to a feeling of powerlessness in users, they are not the only reason that users do not feel empowered under the Regulations.
A possible explanation for this feeling of powerlessness is the varied interpretation of the participative aims of the right. Implicit within the right of access to environmental information is that users can, and indeed should, exercise the power derived from holding environmental information to participate in and contribute to decision-making processes. By exercising this power, users can ensure that local knowledge and concerns are incorporated into decision-making procedures so that there is an increased correlation “between the views of the participating public and the content of the decision.”
However, this understanding of the right lies in direct contrast with how many users tend to exercise their power. Many users seek access to environmental information in order to oppose decisions being proposed or taken by public authorities, with the ultimate aim of making the public authority withdraw or radically rethink their proposal. When public authorities do not withdraw the proposed decision or make the suggested changes, users become despondent and feel that exercising their power through participating in the decision-making process was worthless. To quote one interviewee: “…your answers will get listened to but they’ll do what they want anyway.”
This is not to suggest that public authorities are not taking into account the input of individuals engaging with environmental decision-making procedures. Instead, it suggests that users want to have their specific demands met by the authority, which is not always possible when weighing up the general public interest against the wishes of a single individual. Such a finding is interesting because it highlights that access to environmental information is not an end in itself but a means to a greater end. Accordingly, it is possible that users of the right can get access to environmental information yet still feel disempowered when the cannot use the information to achieve their desired goal.
The purpose of this post is not to undermine the significance of how public authorities provide access to environmental information under the Regulations. Rather, it is to highlight that a holistic view of the process is required to fully understand how users exercise power under the Regulations and how both them and public authorities perceive this power. By shifting the discussion from “who holds power” to “how is power exercised”, users can better understand the power they exercise and the gaps between their perceptions and use of power in practice. In furthering knowledge of the power exercised by both users and public authorities, it is possible to create a shared framework where both sides can understand the concerns of the other, leading to a more effective use of the right of access to environmental information.