Information is Power: How Public Authorities and Freedom of Information Officers Perceive Their Power in Relation to the Right to Access Environmental Information

In the first part of this series of blog posts we discussed how users of the right of access to environmental information in Scotland perceived themselves to be less powerful than Scottish public authorities under the Environmental Information (Scotland) Regulations 2004 (the Regulations). While originally seeking to examine how the views of Scottish public authorities impact how they respond to requests for environmental information, our research has highlighted that analysing the role of the Regulations as an actor itself is a more fruitful research topic.

This post will still examine the different way(s) in which Scottish public authorities perceive power under the Regulations. However, the post will then highlight that these views have minimal impact on how Scottish public authorities respond to requests for environmental information. The post concludes by considering what role the Regulations play in shaping the responses of public authorities, which may justify it being considered as an actor which can exercise power itself.

As discussed in the previous post, users of the right are entitled to submit requests for environmental information to Scottish public authorities under the Regulations. When the public authority receives this request they must process and respond to it under the procedures set out in the Regulations, and their decision may be subject to review. These obligations apply to every Scottish public authority, which is significant as this uniformity might suggest that the authorities would perceive their positions within the Regulations in the same way.

However, our interviews with Scottish Freedom of Information officers highlighted a range of views on how power is exercised under the Regulations. While these interviews did also highlight a divide between the views of officers and other public authority employees, as it is the officers who respond requests for environmental information this post considers their views as the primary view of the authority itself.

The views on where power lies under the Regulations can be divided into three distinct views. The first view agrees with users of the right: that due to their having the power to refuse to disclose environmental information it is the public authorities that are more able to exercise power under the Regulations. This congruence with users’ views is not absolute though, as authorities holding this view do not view themselves as “unhelpful” or “obstructive” (as users describe them), but the core views on power still align.

The second view holds the opposite view of users: that it is the users who hold the power under the Regulations because they are entitled to challenge and even override the authority by seeking internal reviews and going to external regulators to ensure their rights are guaranteed. Out of the three views identified by the project, this view is held by the smallest number of public authorities. The third view is that neither the authorities nor users have any power. Instead, Scottish public authorities holding this view believe that the power created by  the Regulations is held by either the Scottish Information Commissioner (SIC) as a regulator or the Regulations themselves.

It might be expected that these divergent views would influence how Scottish public authorities, represented by Freedom of Information officers, respond to requests for environmental information. For example, a public authority who considers users to be in the more powerful position under the Regulations may be less willing to withhold environmental information in fear of users seeking internal reviews and appealing to the SIC.

Yet analysing the disclosure rate of Scottish public authorities and how they phrase responses to requests under the Regulations evidences no discernible difference between how authorities respond to requests. Indeed, in the statistics provided by the SIC many Scottish public authorities have similar rates of disclosing and withholding environmental information regardless of whether the Freedom of Information officers feel empowered or disempowered under the Regulations.

Such a finding is significant because it suggests that the views of those responding to requests for environmental information does not influence the response given to pubic authorities, which is a belief held by users interviewed by the project. Instead, it might suggest that the responses given to requests for environmental information are shaped more by the obligations and language contained within the Regulations. One piece of evidence for this is the language used in responses to requests, which mirrors the legal language contained in the Regulations despite officers identifying it as “overly complex”.

This impact may elevate the role of the Regulations from a set of legal obligations to being an actor. In this context, the term actor is used to denote a thing which can exercise power over others such as public authorities and users of the right. Current academic debate only considers two actors: those using the right and public authorities. By elevating the role of the Regulations to that of an actor it is possible to better examine how the right is really used in practice; examining the interactions between these three actors which impact on whether environmental information is disclosed or not.

It is important to note that, similar to the previous post, the purpose of this discussion is not to undermine the role of users and Scottish public authorities under the right of access to environmental information. Indeed, elevating the role of the Regulations to an actor does not diminish the importance of either users or Scottish public authorities. Rather, the intent is to highlight that there are depths to how the right operates which are currently not captured by current discussions. By examining these depths, we hope to develop understanding of the right and improve how it meets its environmental aims enshrined in the Aarhus Convention.

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Presentation of Oral Evidence to the Public Audit and Post-Legislative Scrutiny Committee

On 3 October 2019 Professor Colin Reid presented oral evidence to the Public Audit and Post-Legislative Scrutiny Committee regarding the Freedom of Information (Scotland) Act 2002. This evidence was based on the project’s current findings, and focused on the connections between the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Act 2004.

If you wish to watch the meeting of the committee, please click here.

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Society of Legal Scholars Annual Conference 2019

On 3 September 2019 Professor Reid and Dr Whittaker presented on the emerging findings of the project at the Society of Legal Scholars Annual Conference 2019 in Preston, United Kingdom. The presentation focused on discussing the aims and emerging findings of the “Uncovering the Environment; The Use of Public Access to Environmental Information” project and on the broader questions raised by the project.

The PowerPoint presentation is available below:

Society of Legal Scholars Annual Conference 2019 PowerPoint

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The Perception of Power From Users of the Right to Environmental Information

The Environmental Information (Scotland) Regulations (the Regulations) are concerned with the disclosure of environmental information. This, in turn, raises questions on the power exercised by those who hold such information. In a previous post we noted how both users of the right of access to environmental information and Scottish public authorities felt as though the other party was better able to exercise power under the Regulations. Since that post, further empirical evidence has been gathered through interviews with users and Scottish public authorities.

This post is part of a two part series on how users and public authorities perceive the distribution of power under the Regulations and the impact this perception has on how the right is used. This post highlights how users of the right believe that public authorities are better able to exercise power under the Regulations, and explores why users believe this to be the case.  The second part will highlight how the opinions of public authorities on who is better able to exercise power is split, and discusses the impact this has on interactions between users and public authorities.

Under the Regulations, users of the right are entitled to submit requests for environmental information to Scottish public authorities. When the public authority receives this request they must process and respond to it under the procedures set out in the Regulations. While public authorities should disclose the requested information, they are entitled to withhold the information if it falls within one of the listed exceptions and if withholding the information from disclosure is in the public interest. If users disagree with the decision of the authority or with how the decision was processed they may request an internal review of the authority’s decision, which can progress to being independent adjudication.

It is in this context that users and public authorities understand the exercise of power. Continuing the trend identified in our previous post, the majority of users who have been interviewed believe that the Regulations grant public authorities a greater ability to exercise power than those using the right. This perception is reinforced by the belief that public authorities are able to act in ways contrary to the Regulations. An example of this is users believing that public authorities were acting “obstructive” and “unhelpful” contrary to their obligations under the Regulations.

In considering this feeling of powerlessness, it is interesting to note that giving users the ability to exercise power through review mechanisms is not perceived as empowering. This would suggest that many users believe that the review procedures are unfit for effectively holding public authorities to account. Yet this negative opinion is not held by all users: a minority of interviewees noted that they had successfully enforced their rights to environmental information but still believed that public authorities were more able to exercise their greater powers under the Regulations. What this suggests is that while perceived failings in the review procedure do contribute to a feeling of powerlessness in users, they are not the only reason that users do not feel empowered under the Regulations.

A possible explanation for this feeling of powerlessness is the varied interpretation of the participative aims of the right.  Implicit within the right of access to environmental information is that users can, and indeed should, exercise the power derived from holding environmental information to participate in and contribute to decision-making processes. By exercising this power, users can ensure that local knowledge and concerns are incorporated into decision-making procedures so that there is an increased correlation “between the views of the participating public and the content of the decision.”

However, this understanding of the right lies in direct contrast with how many users tend to exercise their power. Many users seek access to environmental information in order to oppose decisions being proposed or taken by public authorities, with the ultimate aim of making the public authority withdraw or radically rethink their proposal. When public authorities do not withdraw the proposed decision or make the suggested changes, users become despondent and feel that exercising their power through participating in the decision-making process was worthless. To quote one interviewee: “…your answers will get listened to but they’ll do what they want anyway.”

This is not to suggest that public authorities are not taking into account the input of individuals engaging with environmental decision-making procedures. Instead, it suggests that users want to have their specific demands met by the authority, which is not always possible when weighing up the general public interest against the wishes of a single individual. Such a finding is interesting because it highlights that access to environmental information is not an end in itself but a means to a greater end. Accordingly, it is possible that users of the right can get access to environmental information yet still feel disempowered when the cannot use the information to achieve their desired goal.

The purpose of this post is not to undermine the significance of how public authorities provide access to environmental information under the Regulations. Rather, it is to highlight that a holistic view of the process is required to fully understand how users exercise power under the Regulations and how both them and public authorities perceive this power. By shifting the discussion from “who holds power” to “how is power exercised”, users can better understand the power they exercise and the gaps between their perceptions and use of power in practice. In furthering knowledge of the power exercised by both users and public authorities, it is possible to create a shared framework where both sides can understand the concerns of the other, leading to a more effective use of the right of access to environmental information.

Sean Whittaker

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The Limited Use of Internal Review Procedures: Parallels with Other Review Regimes

In a previous post we have considered why requesters who have not received all of the information they requested or received a late response decided to not utilise the internal review procedure. The lack of internal reviews from this category of requesters is problematic because it suggests that they are not fully utilising their procedural rights under the Environmental Information (Scotland) Regulations 2004 (the Regulations). Further Scottish public authorities may incorrectly use the lack of reviews as an indicator of success, creating a misleading impression of how they guarantee the right.

While problematic, this issue is not restricted to the right of access to environmental information. Review procedures under consumer law are also rarely used despite their benefits.  This post explores the similarities between the review procedures, and draws lessons which may act to reform the review procedure under the Regulations.

The internal review procedure was designed to act as a way for requesters to raise issues with the authority where the requester believes that they are not doing what they should. Internal reviews are free to initiate, ensuring that there is no financial barrier to requesters enforcing their right to environmental information. Under the design of the Regulations, the internal process acts as the primary gateway of enforcing the Regulation’s procedural obligations against Scottish public authorities.

However, in practice very few requesters whose rights may have been breached actually initiate an internal review. The statistics gathered by the Scottish Information Commissioner state that only 363 internal reviews were initiated by requesters in 2018. This is surprising considering that of the 11,400 requests submitted, 1395 responses were given after the 20 day time limit, 1003 responses led to no information being disclosed and 2919 responses led to only some information being disclosed.

It is unlikely that the majority of these users are satisfied with having information withheld from them or having their responses delayed, despite Scottish public authorities interpreting the lack of internal reviews in this way. Consequently, broad satisfaction with how public authorities respond to requests under the Regulations is unlikely to explain this low rate of use of the internal review procedure. But this raises the question: Why do requesters rarely seek internal reviews?

Interviews conducted as part of the “Uncovering the Environment: The Use of Public Access to Environmental Information” project highlight two common reasons for this trend. The first reason is that many requesters believe that the review process is not independent and is merely a way for the authority to reconfirm its original decision. While more than half of all internal reviews do not lead to a change in the authority’s position, this does not necessarily indicate that the review process is biased. Nevertheless, this perceived lack of independence may dissuade individuals from initiating an internal review even when the authority has breached their rights.

The second reason is that requesters do not see any value in the review procedure; even it leads to a result in their favour. This can be due to the review taking too long, reducing the value of the information to the requester, or because they have lost interest in the requested information. There are also issues regarding the loss of anonymity if the requester wishes to use the internal review procedure and a general lack of time on the part of the requester. These reasons are all important because they suggest that satisfaction with how the authority has responded to their request for environmental information is not why requesters fail to submit internal review requests.

These findings reflect similar studies that identify that the public also fail to enforce their consumer protection rights. Cranston and Yeung separately highlight the individual’s feelings of powerlessness in face of large corporations. They also note that consumers feel there is little benefit to be had in enforcing their consumer rights through review procedures. These parallels are interesting because it indicates that the public’s unwillingness to enforce their rights is not unique to the right of access to environmental information. Further, it suggests that the requester-driven review procedures may not be the best method in ensuring that the right to environmental information is enforced.

What then is the best way of enforcing the right of access to environmental information if those using the right chose not to utilise the internal review procedure? One potential reform is to make the review procedures more attractive to use, thereby overcoming the motivation barrier. Adding an additional layer between the authority and the requester may assist in this, as it would address the perceived issue of independence.

However, such an addition would be costly and would likely lead to delays in the review process. A more novel reform could be for the Scottish Information Commissioner to proactively initiate “spot-check” reviews for cases where the information was fully or partially withheld or where the response was late. While the Commissioner could not look into every potential breach of the Regulations, such a reform would act to partially relieve the burden imposed on requesters to enforce the right. Additionally, with the proactive involvement of the Commissioner public authorities may be further incentivised to process requests in accordance with the Regulations. Such a reform would have significant cost implications which, in the current economic climate, may be difficult to meet.

Ultimately, this issue is not one that can be tackled in isolation. The treatment of requesters by Scottish public authorities throughout the process has a significant impact on whether requesters feel comfortable in using internal reviews to enforce their procedural rights. This links into further issues of trust, which have been explored in previous posts, and requires a much more fundamental examination of the role of the right to environmental information and the relationship between the public and Scottish public bodies.

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ISSR Forum Presentation – 24 June 2019

On 24 June 2019 Dr Mendel presented some of the project’s emerging findings to the Institute for Social Sciences Research Forum’s Annual Conference, which brought together various interdisciplinary academics in the University of Dundee. Dr Mendel discussed the lack of current empirical research on the right of access to environmental information and the current hierarchical understanding of the right.

The PowerPoint presentation can be found here:

ISSR presentation 2019

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Interactive Q&A Session at the Center for Freedom of Information Annual Conference, University of Dundee

On 29 May 2019 the research team hosted an interactive Q&A panel at the Center for Freedom of Information Annual Conference, The Conference was hosted by the University of Dundee, and was attended by a range of Scottish public authorities and users of the right of access to environmental information.

The Q&A session provided an opportunity for attendees to express an opinion of various topics, including the merging of environmental information regimes with non-environmental information regimes, the impact of proactively disclosing environmental information and and the use of disclosed environmental information.

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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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Law and the Environment 2019: 17th Annual Conference at University College Cork

On 11 April 2019 Dr Whittaker presented on the emerging findings of the project at the Centre for Law and the Environment Annual Conference in Cork, Ireland. The presentation focused on discussing the aims and emerging findings of the “Uncovering the Environment; The Use of Public Access to Environmental Information” project and on the broader questions raised by the project.

The PowerPoint presentation is available below:

Centre for Law and Environment Presentation

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Socio-Legal Studies Association Conference 2019

On 3 April 2019 Dr Whittaker presented on the emerging findings of the project at the Socio-Legal Studies Association Conference 2019 in Leeds. The presentation focused on discussing the aims and emerging findings of the “Uncovering the Environment; The Use of Public Access to Environmental Information” project and on the broader questions raised by the project.

The PowerPoint presentation is available below:

SLSA PowerPoint Presentation

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