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.