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.