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

In responding to requests for environmental information under the Environmental Information (Scotland) Regulations 2004, Scottish public authorities are entitled to refuse to disclose the requested information. However, public authorities can only do so if the request falls within one of the exceptions specified in the Regulations. As identified by Fisher, the application of these exceptions often gives rise to conflicts between the requesters and public authorities. [1] However, there is little analysis of how these exceptions have been applied in practice or on their impact on requester/authority relations. This post is the first of a two-part series on the application of the exceptions contained within the Regulations by Scottish public authorities. Both posts analyse the 2013-2018 statistics provided by the Scottish Information Commissioner on how public authorities have applied these exceptions and explore the project’s early findings.

The first point to consider is how often the exceptions are applied by Scottish public authorities to deny access to information. Often, the application of the right’s exceptions is not viewed as valid by those requesting access to the environmental information in question. Individuals whose requests for disclosure are rejected often describe these rejections as incorrect and against the general public interest. As these rejections are often the requests which gather the most attention, there is a general impression that public authorities apply these exceptions to promote a culture of secrecy.

This can be evidenced through the initial responses to the project’s survey of requesters seeking access to environmental information. In the survey the research team asked respondents why they wished to access environmental information held by the public authority. A common trend so far within a significant minority of responses to the question was the perceived secretiveness of Scottish public authorities. This is further justified by the fact respondents disagreed with reasonableness of the authorities’ reasons for withholding the requested environmental information from them. As a result, the empirical evidence further corroborates the fact that individuals seeking access to environmental information feel that the application of the exceptions by Scottish public authorities is unreasonable.

While these preliminary findings do provide insight into how some requesters perceive the application of the Regulations’ exceptions, they do not indicate if these perceptions match the actual practice of Scottish public authorities. However, it is possible to map these perceptions to actual practice through the statistics gathered by the Scottish Information Commissioner. The statistics show that in responding to requests for environmental information Scottish public authorities are significantly more likely to fully disclose the requested information than to withhold all or some of it. This can be evidenced in the 2017 statistics, where public authorities fully disclosed the requested environmental information in 4465 instances, partially disclosed the requested information in 2122 instances and released no information in 668 instances.

This is significant for two reasons. First, this suggests that the default position for Scottish public authorities is to disclose the requested environmental information, with conflicts arising between them and the requester being the exception to this position. Such a finding is significant because it conflicts with the perceived views of public authorities as commonly withholding information and promoting a culture of secrecy. If public authorities were attempting to evade transparency and scrutiny, then the full disclosure of requested environmental information would not be so common.

Second, the statistics of the Scottish Information Commissioner reveal that, in the context of disclosing environmental information, the Regulations frequently do not incite conflict between the requester and the public authority. This is not to suggest that pre-existing conflicts do not act as a potential motive for individuals to submit a request for environmental information. However, it is notable that Scottish public authorities tend to fully disclose environmental information that is requested under the Regulations. This further emphasises how Scottish public authorities have engaged with the underlying principles of transparency and accountability inherent to the Regulations and counters the perceived view of Scottish public authorities attempting to evade such scrutiny.

While this post explores the numerical aspect of when Scottish public authorities apply the exceptions contained with the Regulations it does not analyse what exceptions are applied when public authorities do withhold environmental information from disclosure. This is important because it is possible to derive further insight into the different conflicts between requesters and public authorities by how, and for what reasons, Scottish public authorities withhold environmental information. This aspect of the Regulations’ exceptions is contained within the second part of this series.

Sean Whittaker

[1] E Fisher, “Exploring the Legal Architecture of Transparency” in P Ala’I and R Vaughn (eds) Research Handbook on Transparency (2014, Edward Elgar), 68.

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