Uncovering the Environment: The Use of Public Access to Environmental Information

A key output of the “Uncovering the Environment: The Use of Public Access to Environmental Information” project was the publication of a report summarising the project’s findings on how the right of access to environmental information was implemented and utilised in Scotland. Unfortunately, due to COVID-19 the publication of this booklet was delayed.

Today, the project team is pleased to release the summary report of the findings arising from the “Uncovering the Environment: The Use of Public Access to Environmental Information” project. The project’s findings indicate that there are two distinct categories of users: “personal users”, who use the right in a personal capacity, and “professional users”, who use the right as part of their job. While these two categories of users, and the users within each category, engage with the right differently and for different reasons, both categories rely on proactively disclosed environmental information as a key source of environmental information from public authorities.

The project has also found that Scottish public authorities are broadly complaint with the obligations imposed under the Environmental Information (Scotland) Regulations 2004. Nevertheless, a key finding arising from the project is that many users are dissatisfied with how Scottish public authorities provide access to environmental information and how they enable participation in environmental decision-making procedures. This indicates a mismatch between how users and public authorities perceive environmental decision-making procedures, the role of the public in such procedures and the value of environmental information disclosed under the right of access to environmental information.

The summary report is available through the below link:

Building on the findings of this project, the University of Dundee has opened applications for students to work under Professor Reid and staff members from the School of Business to conduct doctoral research on freedom of information and its application in practice.

The first of these projects is titled “Examining the Impact of Public/Private Hybrid Bodies in the Provision of Public Services and on Accountability through Freedom of Information”. The project seeks to analyse the intersection between freedom of information and the divide between public and private bodies in light of the growing trend of privitisation. Further information regarding this project can be found at the following link: https://tinyurl.com/svztjatc

The second project is titled “Interactions between Transparency, Accountability and the Sustainable Development Goals: Freedom of Information as a Test for Implementation Within Public, Private and Hybrid Bodies”. This project examines the ability of freedom of information laws to contribute to sustainable development and the sustainable development goals established by the United Nations. Further information regarding this project can be found at the following link: https://tinyurl.com/6wandh6f

If a propospective applicant has any questions about these projects, please email Professor Reid at c.t.reid@dundee.ac.uk.

Dr Sean Whittaker

Emergency legislation always throws up a number of quirks and one area where this is the case at present is in relation to freedom of information.  Everyone accepts that the current circumstances will affect the ability of public authorities to carry out their usual activities, including responding to requests for information.  Even where staff are not absent through illness or precautionary isolation nor redeployed to other priorities, they may be working from home and therefore not able to access information systems in the usual way.  Official recognition of this has, however, taken different forms.

Deadlines and Enforcement

Outwith Scotland, there have been no changes to the law in relation to the time-limits for the handling of information requests under the Freedom of Information Act 2000.  However, the Information Commissioner has issued a letter about The ICO’s regulatory approach during the coronavirus public health emergency which states that “an empathetic and pragmatic approach” will be taken. The public interest in transparency should be recognised, “especially where people have seen their civil liberties impacted”, but there should also be recognition of the fact that authorities will not have the resources to address requests or deal with backlogs.

In contrast Scotland, through the Coronavirus (Scotland) Act 2020, has made temporary changes to the Freedom of Information (Scotland) Act 2002. Under the new Act, the deadline for responding to requests for information or holding a review of how such a request has been handled has been extended from 20 to 60 days. The Scottish Ministers are also given power to further extend these deadlines for specific authorities, other than the Ministers themselves, by up to another 40 days, where this “will enable Scottish public authorities to better utilise resources to respond to coronavirus”.

Moreover, when the Scottish Information Commissioner is determining whether an authority has failed to meet its obligations, he may decide that not meeting a statutory deadline is not in fact a failure where the non-compliance is “(a) due to the effect of coronavirus on the authority generally or its ability to carry out its functions (including any action it had to take to better utilise its resources to deal with the effect of coronavirus), and (b) reasonable in all the circumstances.”

The Scottish Information Commissioner has, however, noted that the primary obligation remains to respond “promptly”, and that authorities should provide information of how the emergency has affected their ability to respond to requests.

The approach south of the border may seem pragmatic, relying on the discretionary nature of aspects of the enforcement regime to ensure that no authority is unreasonably penalised.  Nevertheless, simply turning a blind eye to breaches of the statutory requirements is not exactly in keeping with the rule of law, however sensible the outcome.   The more formal Scottish may seem unduly legalistic, but is constitutionally more correct – it is the law, not the discretion of the enforcing body that should determine whether or not obligations have been met.

In a democratic society, transparency and freedom of information are important even, and perhaps especially, at times of emergency when sweeping powers over citizens’ lives and businesses are conferred on public authorities.  Proper concern for the pressures and difficulties being faced by authorities should not be abused to provide an excuse for hiding, or delaying, uncomfortable truths.

Environmental Information

It should be noted though, that the legislative adjustment to the Freedom of Information (Scotland) Act 2002 has not been matched by any changes to Environmental Information (Scotland) Regulations 2004.  The statutory deadlines here remain unaltered.  Accordingly as the Commissioner has noted, if a deadline is missed then a finding that the statutory obligation has been breached is inevitable.  There will, though, be sympathy for the effects of the emergency “and any unavoidable reasons for delay [will] be recognised in decisions issued by the Commissioner.”

It is not clear why environmental information is being treated differently, especially since the definition of this extends to include the currently central issue of human health in a fairly broad range of circumstances.  Is it just an oversight or was it thought that this did not require attention as too trivial a source of work for the authorities most directly affected by the emergency?   Or is there a more technical reason, based on the legal concern that changes would introduce incompatibilities with the EU Directive upon which the law is based and thus be beyond the competence of the Scottish Parliament?

Whatever the reasoning, the law on freedom of information has now become even more complex.  Distinguishing between the two separate regimes for environmental and other information has always been a source of difficulty and confusion.  There is now in Scotland an even more pressing reason for paying particular attention to whether a request for information falls to be considered as relating to environmental or more general information.

Professor Colin Reid

On 12 March 2020 Dr Sean Whittaker delivered a talk to the Information Requests Network in Glenrothes, discussing key findings of the “Uncovering the Environment: the Use of Public Access to Environmental Information” project.

Dr Whittaker also highlighted the upcoming Centre for Freedom of Information Annual Practitioner Conference (12 May 2020) as another excellent forum offering opportunity to deliberate on matters of information law in Scotland. To register, please, follow: https://tinyurl.com/v4p6qtl

The PowerPoint presentation is available below:

Info Request Meeting PowerPoint

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.