Exceptions and Conflict under the Environmental Information (Scotland) Regulations: Part II

In the previous post I analysed how often Scottish public authorities applied the exceptions contained within the Environmental Information (Scotland) Regulations 2004. I identified that Scottish public authorities, contrary to public belief, usually disclose environmental information on request and rarely withhold it from disclosure. In this post I address questions left unanswered in the previous post: what exceptions do Scottish public authorities rely on when withholding environmental information from disclosure, and do these exceptions necessarily involve conflict between requesters and public authorities?

In exploring these questions, I conclude that the exceptions most widely discussed are not the exceptions most widely used. Further, I conclude that the some exceptions are more accepted as reasons for withholding environmental information from disclosure. These findings are important because what exceptions are applied to justify non-disclosure and how they are applied impacts on how the requester views the public authority. This impact has further consequences, as if they requester does not agree with the decision of the public authority they may seek to have the decision reviewed, creating additional expenses for the authority.

Generally, work on this area focuses on the exceptions which relate to the interests of the public authority. These are enshrined in regulation 10(5) of the Regulations, and cover interests such as protection of the environment and commercial interests. The focus on these suggests that Scottish public authorities rely on these exceptions the most in withholding information from disclosure. However, the statistics gathered by the Scottish Information Commissioner do not corroborate this impression.

The exceptions most commonly relied on by Scottish public authorities were the personal data exception and the “environmental information is not held” exception. The gap between the use of these two exceptions and the other exceptions is substantial. An example of this can be seen in the Commissioner’s statistics for 2017, where the two exceptions were applied 906 and 842 times respectively. In comparison, the next most used exception (that disclosing the information would prejudice the confidentiality of proceedings by a public authority) was applied only 160 times.

The personal data exception is interesting because, despite its potential to create conflict between the requester and the public authority, is often used without issue. In the majority of cases the exception is used to withhold data such as personal contact details and bank account details. Requesters are often not interested in this type of information, and readily accept their being withheld from disclosure for privacy reasons. This is not always the case however. Where the requester is specifically seeking to access personal data (e.g. identifying who submitted a complaint against them) then a conflict is more likely to arise between the requester and the Scottish public authority. Consequently, the motive of the requester plays a significant role in determining whether a conflict will arise in applying the personal data exception.

The “environmental information is not held” exception is also interesting because, unlike the other exceptions, it does not require the public authority to balance the competing interests of the requester and the authority itself. Instead, the exception is a question of fact: does the public authority hold the requested environmental information? Critically, the exception sidesteps the issue of whether the authority ought to hold the requested information. As a result, the exception does not engage with contentious questions regarding how public authorities “should” store information and conduct their activities.

However, while this exception attempts to sidestep these issues it does not fully succeed. Analysis of the decisions of the Scottish Information Commissioner indicates that requesters have argued that public authorities should hold the environmental information they requested. This is important because while public authorities may feel that this exception is uncontentious, the requester may well view this differently. These differing views can be problematic, as it creates certain expectations about whether the information is likely to be disclosed. This can lead to resentment building up and, if these expectations are not met, negatively impact on efforts to resolve the conflict between the requester and the authority and on future requests for environmental information.

Reflecting on the above observations two key findings emerge. First, public authorities should be particularly careful in how they apply the most commonly applied exceptions. While public authorities may believe that withholding information is both justified and uncontentious, relying on the exceptions to justify non-disclosure may generate conflict contrary to the expectations of the public authority. This is important because such conflict may lead to the decision being internally reviewed by the authority or appealed to the Scottish Information Commissioner, costing the authority more time and resources. While in some instances conflict may be unavoidable, by fully explaining the reasoning behind withholding the requested information public authorities can preempt such conflicts.

Second, it is interesting to note that the exceptions most commonly written about are not the exceptions that are most commonly applied in practice. This provides the public with a false (and negative) impression of how Scottish public authorities respond to requests for environmental information. Consequently, this negative impression can act to prevent communication between the requester and the public authority, hindering how environmental information is disclosed. Scottish academics should act to address this imbalance in the literature, as it would more accurately portray how Scottish public authorities apply the exception in practice and improve the relationship between requesters and Scottish public authorities.

Sean Whittaker

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