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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Technology and the Right of Access to Environmental Information

The right of access to environmental information has significantly evolved since it was first implemented in Scotland. One of the most significant changes the right has undergone is how technology and the internet have changed how users access environmental information. However, neither the Aarhus Convention (1998) nor the Environmental Information (Scotland) Regulations 2004 reflect this technological development. This is significant as these legislative instruments reflect a view of the right that does not reflect its current use or the expectations of modern society. In turn, this hinders how effectively the right could be used alongside modern innovations such as open data. This post will discuss how the right has evolved and the issues that arise from the legislation not reflecting this evolution.

The Aarhus Convention acts as the international “gold standard” for how the right should be guaranteed in Scotland. Opened for signature in 1998 and entering into force in 2001, the Convention has been ratified by the United Kingdom and enshrines the key obligations underpinning the right. However, with the negotiations leading to the Convention beginning in 1996, the assumptions that underpin the Convention reflect the time when it was created and have not changed alongside modern technological developments.

The negotiations leading to the Aarhus Convention took place before personal computers became commonplace. Indeed, the Convention was opened for signing in the same year that Google was founded; a period when environmental information was predominantly stored in paper files and academics such as Moxen and McCulloch noted the difficulties in disseminating environmental information. The use of printed reports had an impact on how the obligation to proactively disclose environmental information was viewed; as such information was predominantly available through public registers. This also had an impact on users of the right; because the user had to take special efforts visit and view the register, only those who had a particular interest would make efforts to use the right.

Despite the fact that the creation of the Aarhus Convention was not that long ago, there has been a dramatic shift in the use and availability of technology and the internet. In turn, this has had a substantial impact on how the right is used in practice. With the shift to creating electronic copies of environmental information, public authorities were no longer limited by the number of physical copies of the documents that contained the information. This made it much more practical to provide a wider amount of environmental information proactively available. Further, as environmental data is more available it provides the opportunity for users to create environmental initiatives, such as the Open Data Institute.

This technological shift in how environmental information is accessed is significant for two reasons. Firstly, because proactively disclosed environmental information is so readily available, individuals who access such information do not view themselves as users of a specific right to environmental information. Rather, these individuals view such transparency as the norm, notable only when the flow of information is disrupted.

On the one hand, this is a positive reflection on how Scottish public authorities have become more transparent and accountable. However, results from the project’s survey indicate that individuals are not more knowledgeable about their right to access environmental information despite their presumption that such information is proactively available. This can be problematic in instances where environmental information is not proactively disclosed, as the individual may not know of their right to request access to the information.

Secondly, the text of the Aarhus Convention and the Regulations do not reflect the technological innovations that have occurred since they were first implemented. The only reference to technology in either instrument is that environmental information and databases should be made available by electronic means. As a result there is a gap between the envisioned role of technology and its use in practice. This is detrimental, as by adopting a limited view of technological innovation there is a lack of impetus for public authorities to consider and adopt technological innovations in how they guarantee the right.

While this gap could be addressed by guidance from the Scottish Information Commissioner, current guidance does not address these sorts of issues. This lack of impetus to engage with such technologies makes it more like that Scottish public authorities will cease to engage with innovative projects. One example of this is the Open Data Initiative Aberdeen, which Aberdeen City Council ceased engaging with due to budgetary reasons. This is detrimental to achieving the benefits of the right, as dis-engaging from such innovative projects makes it more difficult for the public to access up-to-date information. Further, it allows public authorities to avoid considering difficult questions on how it gathers, categorises and archives data.

In conclusion, we can identify that there has been a notable shift from how the right was to be guaranteed from its initial conception to how it is guaranteed today. However this shift has not been reflected in either the legal instruments guaranteeing the right or, notably, the guidance provided by the Scottish Information Commissioner. In failing to reflect how technology has impacted on how the right is guaranteed, Scotland is experiencing difficulties in fully capitalising on the opportunities provided by improvements to technology over the previous 20 years. Such a gap is problematic, as it inhibits innovation and prevents the right from evolving and growing to better suit the needs of society in Scotland.

Sean Whittaker

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Scottish Public Information Forum

On 25 March 2019 Dr Whittaker presented at the Scottish Public Information Forum in Greenock to various public interest groups, registered social landlords and the Scottish Information Commissioner. The presentation set out the aims of the “Uncovering the Environment; The Use of Public Access to Environmental Information” project and the project’s preliminary findings on the use of the right to environmental information in Scotland.

The PowerPoint presentation is available below:

Scottish Public Information Forum Presentation 25 March

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Why Do You Seek Access to Environmental Information?: Motives and the Right of Access to Environmental Information

The primary aim of the right of access to environmental information is to enhance how the public participates in environmental decision-making procedures in order to improve the decisions taken by public authorities on the environment. However, evidence gathered by the project suggests that users predominantly use the right to further their own individual interests. This is significant because public authorities may feel that such requests are an abuse of the right. In practice however, it is possible for these users to have a positive impact on the environment. This post will discuss how the majority of users of the right utilise the right for their own individual interests, and how this impacts on the environmental aims of the right.

In guaranteeing the right of access to environmental information, Scottish public authorities tend to compare users of the right with the “ideal” user: a user who holds altruistic motives and is using the information accessed in order to help the authority protect the environment. This ideal is sourced from the justifications given in the founding documents as the right was established (e.g. the Aarhus Convention), but there are doubts about whether users actually use the right for altruistic reasons. This is significant, as some Scottish public authorities may regard non-altruistic uses of the right as an abuse of the right and hence an unjustified burden on their resources.

An interesting finding from the project’s survey on the right of access to environmental information is that, in practice, users with altruistic motives make up a minority of users of the right. Out of the 46 respondents so far to the project’s survey, 36 respondents indicated that they sought to access the information for either personal[1] or professional reasons.[2] This is in stark contrast to “altruistic” environmental motives, which were held by only 10 respondents. These findings suggest that the idealised view of how users engage with the right is unrealistic. This is significant because it reflects a mismatch between the views of the authorities and actual practice and the majority of the right’s users.

The mismatch between the authorities’ expectations and actual practice is important, because it highlights further expectations on how users use the environmental information they accessed. There is a general expectation that users that have altruistic motives will use the accessed information to help the authority to improve how it takes environmental decisions. In contrast, users with personal (potentially even characterised as “selfish”) motivations (such as seeking information for litigation purposes) are unlikely to assist the authority, or the wider public interest, in the same way, undermining the environmental aims of the right.

Nevertheless, while it is true that users with altruistic motives are more likely to use the accessed environmental information to improve the environmental decisions of public authorities this does not preclude personally-motivated users from doing the same. Users with personal motives can use the accessed information in ways that have an incidental positive impact on the environment. An example of this is a user who is seeking information on environmental policies that are impacting the economic growth of their business. While the user is seeking information for personal reasons, the fact that the authority is forced to become transparent can have a broader positive impact on how they decide environmental policies.

This is significant, as it suggests that users do not necessarily need to hold altruistic motives to have a positive impact on the environment and meet the aims of the right. Further, it suggests that it is incorrect to assume that users who do not match this “ideal” undermine the right’s environmental aims. This is not to imply that every user with a personal motive is suddenly going to have a positive impact on environmental decision-making processes and the wider environment. Rather, it is to warn Scottish public authorities from pre-judging users of the right merely because they do not match the “ideal” user as envisioned by the right.

To conclude, while the “ideal” user of the right seeks to access environmental information for altruistic motives the reality is that the majority of users do not fit this ideal. However, this does not act to undermine the right’s environmental aims: users with personal (or even selfish) motives can act to help improve the environment even if that is not the user’s primary intent. This is not to suggest that some users utilising the right are awkward and will not benefit anyway. Rather, these findings highlight that the actions of users with personal motives can have wider positive environmental impacts.

Scottish public authorities should recognise this in order to ensure that they are not pre-judging users who do not indicate that they have altruistic motives. This is not to discount the “awkward” users who are unlikely to have a positive environmental impact, but by doing this Scottish public authorities are less likely to unjustly perceive users as abusing the system. In turn this is likely to improve the relationship between Scottish public authorities and users, which may lead to an improvement in how the right is guaranteed in Scotland.

Sean Whittaker

[1] Examples of personal reasons include information relating to a land ownership dispute the user is embroiled in and information on a flood which damaged the user’s property.

[2] Examples of professional reasons include journalists seeking environmental information for a news story or lawyers advising their clients.

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Presenting the Project’s Emerging Findings to the Scottish Information Commissioner

On 13 February 2019 the research team presented the project’s emerging findings to the Scottish Information Commissioner and their staff. The PowePoint presentation is available below:

Scottish Information Commissioner Presentation

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The Use of Internal Reviews under the Environmental Information (Scotland) Regulations 2004

Under the Environmental Information (Scotland) Regulations 2004, users of the right can challenge how Scottish public authorities responded to and processed their request for environmental information. However, users are generally reluctant to challenge Scottish public authorities under the Regulations. This is significant because the absence of challenges can be viewed as evidence that Scottish public authorities are correct in how they are processing and responding to requests, even if this is not actually the case. This post examines the extent to which the internal review process is used in practice by users of the right. The post identifies that while few users make use of the internal review process this appears to be the result of how the process is viewed, not failings within the process itself.

Internal reviews are the first step in the review mechanism available to users of the right, prior to taking a case to the Information Commissioner. Through an internal review, users can request that Scottish public authorities reflect on whether they were right to withhold environmental information or breached the user’s procedural rights. If the user requests such a review, the public authority must complete it within 20 working days and, if they find themselves to have wrongly withheld information or acted unlawfully, take actions to remedy their failings. Further, there are no specific procedures that users need to use to request that a review take place, and the review itself is free.

Despite this however, very few users have taken the opportunity to do so. Generally, only 3%-5% of requests will be followed by an internal review.[1] This percentage is surprisingly low, particularly since, on average, a third of users are either denied access or only given partial access to the information that they requested. This raises the question: why do users not challenge Scottish public authorities through internal reviews?

One potential reason is that users are dissuaded from initiating internal reviews because Scottish public authorities tend to uphold their original decision. This can be demonstrated by the statistics gathered by the Scottish Information Commissioner in 2017. During this year Scottish public authorities conducted 364 internal reviews, out of which 189 of the original decisions were upheld and 134 decisions were overturned. However, respondents to the project’s survey did not highlight any perception of bias on the part of Scottish public authorities. This is positive for the integrity of the internal review process, and suggests that the fear of bias is not why users are dissuaded from challenging Scottish public authorities.

Additionally, respondents to the survey also indicated that one of the reasons that they did not challenge public authorities through the internal review process is that it was too time-consuming. To an extent this can be seen as a valid reason, because if they authority takes too long to process the review then the requested information may become out of date. However, this reasoning is challenged by the fact that that majority of reviews (80%) are completed within the 20 day time limit set by the Regulations. This is interesting, as it suggests that either that respondents view the 20 day deadline as too long (which raises further questions on the changing expectations of the public) or that they are mistaken about how long it takes public authorities to process internal reviews in practice. While we cannot identify the validity of either interpretation without further research, it is clear that either reasoning would dissuade users from challenging public authorities.

A final range of reasons identified by the survey relate to the user’s mindset. In receiving the response to their request users may feel a range of emotions. Users may feel that by challenging the authority the relationship between them may deteriorate; they may feel that they may have easier access to the environmental information from elsewhere; or they may feel satisfied that their request was responded to in the correct way. These reasons are significant in that they can all act to steer users away from challenging the decision of the public authority. However, it is critical to note that these reasons do not arise from the internal review process itself. As such, similar to other complaints procedures, the reluctance of users to challenge public authorities is not created by the internal review process, but is created by social factors individual to the users themselves.

To conclude, while users of the right are reluctant to challenge Scottish public authorities this does not appear to be due to the features of the internal review process itself. Rather, this reluctance appears to be the result of parallel social considerations. This finding is significant, as there is limited research on the use of internal review procedures and it is possible to interpret the lack of internal reviews as Scottish public authorities successfully meeting their obligations under the Regulations. The above findings neither prove nor disprove this interpretation, but rather highlight the existence of other reasons for the lack of internal reviews being conducted beyond the public authority meeting their regulatory obligations.

[1] In 2017 this amounted to 364 reviews, see the statistics of the Scottish Information Commissioner available at https://stats.itspublicknowledge.info/

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Part 7 Network Meeting – PowerPoint Presentation Available

On 21 January 2019 Dr Whittaker presented at the Part 7 Network Meeting at Skills Development Scotland to an audience of various Scottish public authorities. The presentation set out the aims of the “Uncovering the Environment; The Use of Public Access to Environmental Information” project and the project’s preliminary findings on the use of the right to environmental information in Scotland.

The PowerPoint presentation is available below:

Part 7 Network Meeting Presentation

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