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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