A Distinction Without a Difference? The Parallel Information Regimes in Scotland

In Scotland there are two regimes which guarantee the right to request access to information. The first of these is the Environmental Information (Scotland) Regulations 2004 (EI(S)R), whose origins predate the wider freedom of information laws in the UK and which guarantees the right to request access to environmental information. The second is the Freedom of Information (Scotland) Act 2002 (FOI(S)A), which guarantees the right of access to information generally. These two regimes work in parallel with each other and are exclusive: requests for environmental information must be processed under the EI(S)R whereas requests for other types of information are processed under FOI(S)A.

This decision is critical because there are differences between the two regimes: most noticeably they both exempt different categories of information from disclosure and operate under different fee levying procedures. The differences between the two regimes can determine whether a request is ultimately successful or not. As a result, the decision to process a request under either EI(S)R or FOI(S)A is critical to how the right of access to environmental information is guaranteed. This post will explore the operation of the two parallel regimes, highlighting the potential issues with having such a system and proposing reforms.[1]

In deciding whether to process a request for information under EI(S)R or FOI(S)A, public authorities must determine if a request is environmental in nature or not. While public authorities are obliged to follow the definition of “environmental information” provided by the EI(S)R, critics have noted that the definition can be difficult to apply in practice. Hence, public authorities may mistakenly process a request for environmental information under FOI(S)A or vice-versa. This can give rise to two issues that undermine how both information rights are guaranteed.

The first issue arises where numerous public authorities have received the same request. These “round-robin” requests are often done where an individual is seeking specific information from numerous public authorities on a single topic. While such requests are identical between public authorities, due to the variations in how public authorities interpret “environmental information” different authorities may process these identical requests under different regimes. This can be evidenced from the “round-robin” requests made available on WhatDoTheyKnow, where identical requests for information on electric vehicles have been processed under both the EI(S)R and FOI(S)A. Consequently, requests may be subject to the incorrect processing procedures and, as a result of the differences between the regimes, may ultimately be unsuccessful. Further, this error may act to reduce public confidence in how public authorities process requests.

The second issue is where public authorities alternate between regimes while processing a request for information. Often occurring in instances where the requester has not provided their full name (a procedural requirement under FOI(S)A, but not EI(S)R) this movement between regimes can also lead to public authorities applying the incorrect exemption to prevent the disclosure of the requested information. This not only creates the possibility for requests to be incorrectly processed, but it also alters the basis for communication between the requester and the public authority. A further consequence of this is that the requester may be unsure of what regime their request is being processed under, making them unable to identify (for example) whether the correct exceptions have been applied to their request.

This issue is not merely theoretical in nature: indeed, as of this year the issue has been adjudicated on by the English Upper Tribunal in respect of the UK Government’s handling of an information request. How then, can we prevent requests for (environmental) information from being processed under the incorrect regime? One proposal is to further educate both members of the public and public authorities on the differences between the two rights and their respective regimes. However, such educative measures already exist, and in practice it can still be difficult to determine whether a request is environmental or not despite the availability of guidance. A more substantive reform would be to merge the two regimes together, marrying their obligations in a way that is compliant with the Aarhus Convention and effectively guarantees the rights to access both environmental information and information more generally.

A merging of the two separate regimes into one regime would not be unheard of. In the United States the Freedom of Information Act 1966 governs both the right to information generally and the right to environmental information, and in the EU both Estonia and Finland have also adopted this single regime approach. Brexit may also lend further impetus to this reform, as Scotland (as part of the UK) will not be bound by the stricter obligations imposed by EU Directive 2003/4/EC. However, it must be noted that the UK Government concluded a review of the Freedom of Information Act in 2016, which did not raise the issue of distinguishing between the two information regimes. This suggests that such a reform is not of high priority, which is further reflected in the Scottish Government’s silence on the matter. This suggests that, despite the issues in distinguishing the two regimes, the proposed reform is unlikely to be adopted.

To conclude, the distinction between EI(S)R and FOI(S)A plays a critical role in the operation of both regimes. While both regimes are intended to provide access to information (environmental or otherwise) their parallel nature can act to hinder this objective and undermine how the public uses their right to request access to environmental information. Reforms are needed to remedy this issue, but until both the UK and Scottish governments recognise this problem such reforms are unlikely to occur even with the impetus of Brexit freeing the UK from the stricter provisions of Directive 2003/4/EC.

Sean Whittaker

[1] This post is based on the qualitative analysis of 625 requests for access to environmental information between 5 July 2017 and 5 July 2018 from Scottish public authorities sourced from WhatDoTheyKnow and a literature review conducted as part of the project.

This entry was posted in Academic Analysis and tagged , , . Bookmark the permalink.

Leave a Reply

Your email address will not be published.