Proactive Disclosure of Environmental Information In Scotland: Part II

In the previous post I explored how Scottish public authorities proactively disclose environmental information, which is known as the active right. While the previous post was predominantly focused on the proactive disclosure of environmental information, it is important to recognise that this obligation does not operate in isolation. Scottish public authorities must also respond to and process requests for environmental information, which is described as the passive right. These obligations are important because we do not fully understand how they interact with one another in how they provide access to environmental information. In turn, this impacts on how effectively individuals access environmental information and increases the administrative costs of implementing the right. This article examines how both sets of obligations support each other and the practical impact on how individuals access environmental information from Scottish public authorities.

There are different advantages and disadvantages between providing access to environmental information via proactive disclosure and through disclosure on request. One advantage to Scottish public authorities proactively disclosing environmental information is that individuals do not need to submit a request for that specific information to be disclosed. Public authorities have to disclose this environmental information proactively, which allows them to potentially reach a broader section of the public who would not normally be interested enough to submit a request for the information.

Another advantage with proactively disclosing environmental information is that Scottish public authorities can update the information as it changes. As a result of this, Scottish public authorities can provide the public with the most up-to-date environmental information possible. This is not possible where the authority is disclosing environmental information in response to a request for disclosure, as the authority can only disclose the information they hold at the time they received the request.

However, this is not to suggest that providing environmental information through responding to request does not have its own advantages over proactive dissemination. As proactively disseminated environmental information is aimed at a broader audience, there is a limited ability to tailor this information to the exact interests of those receiving it. In contrast, when Scottish public authorities receive a request for environmental information they can (and in certain instances may be obliged to) ask the requester for additional information. This allows public authorities to identify and disclose environmental information which is of direct interest to the requester.

The comparative advantages and disadvantages of these approaches are important because they lead to the expectation that these approaches will support each other in providing access to environmental information. Likely examples of these approaches supporting each other include Scottish public authorities using requests to inform their proactive dissemination strategy and users using proactively disclosed information to inform their requests for environmental information. However, while these examples are likely to occur in practice there has not been any research done to show that this is actually happening.

The dearth of research in this area can be attributed to the differing focus on proactive dissemination and dissemination on request, specifically the lack of focus given to the proactive dissemination of environmental information. A possible reason for this lack of focus could be the greater profile of the general right to information under the Freedom of Information (Scotland) Act 2002, which places emphasis on the rights (and limitations on those rights) of individuals to request information rather than on the duties of authorities to disseminate it. Another possible reason is that the active right has become so enmeshed in what society expects of public authorities that it is not recognised as a distinctive right to information.

This lack of research is important because it has real-life consequences for how Scottish public authorities implement the right to environmental information. As we do not know whether the proactive dissemination and disclosure on request mechanisms support each other, public authorities are unable to make full use of them in how they implement the right in practice. This has negative consequences for the public, as the right may not be as effectively guaranteed as it could be if the interactions between proactive disclosure and disclosure on request were known.

These negative consequences are not just restricted to those using the right however. Scottish public authorities are also negatively impacted because they lose out on the potential financial savings from supplementing how they process and respond to requests for environmental information with proactively disclosed environmental information. A better understanding on the interactions between proactive disclosure and disclosure on request would help to avoid these negative consequences. In this way, further research into both aspects of the right would help improve how the right is implemented in practice for both public authorities and members of the public.

Sean Whittaker

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