Funding the Environmental Information (Scotland) Regulations 2004: The Use of Proactive Disclosure

Last month the research team posted on the use of fees by public authorities, highlighting the gap between the intended use of fees by public authorities and their actual use in practice. While this gap is problematic, it can be partially resolved by public authorities proactively disclosing environmental information. This benefits both those seeking access to environmental information and public authorities in a variety of ways, suggesting that public authorities should make greater use of proactive disclosure mechanisms. However, while beneficial proactive disclosure cannot fully replace the right to have environmental information disclosed on request: public authorities need to utilise both form of disclosure to guarantee the right of access to environmental information in a way that is effectively accessible and usable to the public.

Under the Environmental Information (Scotland) Regulations 2004 Scottish public authorities have an obligation to make environmental information available proactively. This enables members of the public to access environmental information without having to submit a specific request for disclosure to the public authority. Proactive disclosure can take many forms: while the most common methods of proactive disclosure are the publication of environmental information online and the production and maintenance of public registers, the use of “disclosure logs” and freely downloadable spatial datasets are also used to great effect.

From the view of the public authority, proactive dissemination of environmental information is beneficial because it reduces the cost of making such information available in two ways. First, because the general public can access the environmental information online there should be less repeat requests for the same piece of information. This allows the public authority to save money by not processing the same request from different parties. Second, because the environmental information is already available the authority should not receive any requests asking for its disclosure. Proactive disclosure also benefits the general public because environmental information that is proactively disclosed is guaranteed to be free. This contrasts with submitting a request for environmental information, the costs (or perceived costs) of which can be dissuasive.

However, there is still a need for public authorities to allow for and respond to requests for environmental information.  One reason for this is the general nature of proactively disclosed information: because proactively disclosed information is disclosed to a wide audience, it cannot be tailored to fit each individual audience member’s needs. This contrasts with how public authorities can tailor their responses to a specific request for environmental information. Further, public authorities may not actually know what information is of interest to the general public without submitted requests acting as a gauge of public interest. A final reason is that the public may be unable to find the proactively disclosed information. This can occur for a variety of reasons, but it necessitates that the public authority keeps alternate disclosure mechanisms, such as responding to requests for environmental information, open.

Consequently, because it is necessary for the public to be able to submit requests for environmental information it is also necessary for public authorities to be able to levy adequate fees to recoup their processing costs. In this way, proactively disclosed environmental information does not circumvent the need for public authorities to process requests for environmental information or resolve the problems associated with processing such requests. Nevertheless, proactive disclosure can act to relieve the pressure of processing requests imposed on public authorities and provide greater certainty to the public of the cost of accessing environmental information. This is a positive for both public authorities and the public generally, and suggests that public authorities should look towards making greater use of proactive disclosure as a means of meeting their obligation to provide access to environmental information.

Sean Whittaker

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