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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