Power and the Environmental Information (Scotland) Regulations 2004

Holding information not available to others is a common way of exercising power, but it has special significance in the context of environmental issues. It is in this context that the Environmental Information (Scotland) Regulations 2004 (the Regulations) aims to redistribute information between public authorities and the general public, and thus change power relations here. This post argues that, despite the intentions of the Regulations, both users and public authorities perceive themselves as powerless under the Regulations. Further, this post argues that these contrasting beliefs have a detrimental impact on how the right is guaranteed, and suggests that a change in how we think about power would be helpful here.

Under the Regulations, it was envisioned that users would be (and feel) significantly empowered by the ability to access environmental information. Users of the right are entitled to have environmental information proactively disclosed and disclosed on request, with the binding presumption that public authorities would disclose as much as possible. This is further enhanced with minimal procedural obligations being imposed on users of the right submitting request.

However, in interviews conducted under the project, users highlighted that they did not feel that the Regulations have put them on an even footing with Scottish public authorities. A common perception held about Scottish public authorities is that they do not respond “promptly” and are “unhelpful”, “obstructive” and “obfuscate issues”. These negative perceptions are further reinforced by difficulties encountered in the internal review procedure, in particular the length of time it takes to review decisions. In this way, users feel as if they have to struggle to have their rights recognised by Scottish public authorities, undermining the empowerment aims of the right.

Notwithstanding this, Scottish public authorities also feel as if they are powerless under the Regulations. While the Regulations grant public authorities various powers, such as to levy fees or to refuse to disclose certain requested environmental information, authorities feel morally obligated not to apply these powers strictly to hinder users of the right. This can be evidenced in the reluctance of authorities to use certain exceptions under the Regulations even where to do so would be justified, such as the “manifestly unreasonable” exception.

Further, the project’s discussions with Scottish public authorities highlight a negative perception of the motives underlying the use of the right. Scottish public authorities generally believe that users of the right use the disclosed information to achieve their own personal objectives, contrary to the aims of the Regulations. Indeed, the project’s surveys indicate that users of the right generally seek to access environmental information for personal or professional reasons. This contrasts with the idealised environmental aims of the Regulations, which assume that users of the right seek environmental information in order to participate in environmental decision-making procedures. This contrast is significant as it feeds a sense of unfairness felt by Scottish public authorities, which must comply with the aims of the Regulations in a way that users do not.

In this way, both users and public authorities feel that they are the weaker party in the relationship between them. What is interesting however is that the views of both groups can be considered as correct if their views are analysed from their own perspective. Users of the right are correct in that the public authority acts as the initial arbiter of whether they get to access the information they want. Conversely, public authorities are correct in stating that users of the right are not bound to follow the “spirit” of the Regulations in the way they are. Consequently, this clash can be personified as a clash between the law in practice and law in theory.

This clash has two significant impacts on how the right is used in practice and how power is exercised. First, because both users and public authorities have different views on the power-dynamics in their relationship under the Regulations there is an increased risk of conflict between them. This can be evidenced in the project’s emerging findings, which indicate that users of the right do not believe that Scottish public authorities fully disclose all relevant information even where the information is subject to a disclosure request. This can lead to discontent with the authority, even when it is disclosing full and accurate information.

Second, this perceived gap between the powers of users and public authorities also highlights the precarious position of Community Councils acting as both a user and a public authority. Acting as bridges between the general public and public authorities, Community Councils are often caught in the middle between the two: perceived as public authorities but without the powers conferred on such authorities. This middle ground raises issues where Community Councils submit requests for environmental information, as they are simultaneously acting as users and as a public authority. This is important as it reflects a monolithic understanding of users and public authorities which is not reflected in practice, to the detriment of the right.

The conflict between users and public authorities driven by perceptions of power under the Regulations is negatively impacting on how the right is guaranteed. This issue strikes at the heart of the right to access environmental information, relating to the attempt to shift power relations and to redistribute information between public authorities and the general public. The fact that those using the right do not feel empowered suggests that the right is currently not meeting its empowerment aims. This issue is further complicated by the fact that public authorities feel under pressure and disempowered by the Regulations.

A shift in how we think about power would be helpful here: rather than looking at which party holds power, a move to focus on how power is exercised by different parties might allow actors to focus on equitable power relations rather than holding or taking power. By enhancing understanding between users of the right and public authorities, it is possible that efforts can be taken to address their respective feelings of weakness under the Regulations. In turn, this may lead to a better relationship developing between users and public authorities and a more effective implementation of the right.

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