SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK
MODULE 11
ACCESS TO ENVIRONMENTAL INFORMATION
11.1 CONTENT AND LEARNING OBJECTIVES
Where information concerns the environment there are special rules for accessing it. The right of access also applies to some bodies which will not be covered by FOISA. This module explains the reason for those rules and what they are.
Once you have worked your way through this module you should understand:
- Why there is a separate set of rules for environmental information
- What is meant by the term "environmental information"
- The legal and international background to the separate access regime
- How access works under the current Environmental Information Regulations 1992
- That Scotland will introduce new regulations which will take effect in January 2005 to coincide with FOISA
- How the environmental access regime interfaces with the FOISA
SUGGESTED TIME ALLOCATION: 1 hour
11.2 LEARNING MATERIALS
11.2.1 Why is there a separate set of rules for environmental information?
"..adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself"
"..every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations".
These words are taken from the start of the international convention, sponsored by the United Nations, which commits those nations which adopt it to be open about information concerning the environment. This convention, the Aarhus Convention, is part of a wider global movement which recognises that environmental effects and the concerns that go with them, transcend normal national boundaries.
The United Kingdom has international obligations which it must meet where information about the environment is concerned. The globalisation of these concerns, for example that the regulation of emissions in one country can affect the climate of others, explains the need for international agreement and action on the protection of the environment.
11.2.2 What information is covered by the term "environmental information"?
The term is broadly defined in the various legal instruments concerned with this area - in effect any recorded information that has any bearing on the environment comes within the scope. As we see later the exact wording is due to alter but the starting point is that this is a wide definition.
In the Aarhus Convention it is a long definition but the main strands cover information about
- the state of the elements including air, water, soil and all biological organisms including genetically modified ones.
- any force or activity or human measure that affects the environment including noise, radiation, legislation, decisions and the material supporting them.
- human life and human health, cultural and built sites.
Remember - The definition is so wide that almost every public authority will hold some environmental information- the special rules for access must be applied where such information is asked for
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11.2.3 The background to the special rules for access to environmental information
This Workbook does not go into the detailed legal background but mention is made to explain the context for these regulations. When handling requests for information, staff will need to be alert to the nature of the information sought, not least because the framework governing the release of environmental information falls under these regulations.
In 1990 the European Community passed a Directive (90/313/EEC) which required Member States to give citizens access to information about the environment. In order to comply with that, UK-wide regulations were passed (Environmental Information Regulations 1992, as amended in 1998). Although it is these UK regulations that remain in force, Scotland will develop revised regulations under FOISA and it is expected that these will be brought into force in January 2005.
Over the following decade there was an increasing international commitment to improving the environment and this resulted in the adoption of the Aarhus Convention by the United Nations. The Aarhus Convention tightens up the rules from those imposed by the original Directive.
Once the Aarhus Convention was adopted, the European Union decided that the European law on this should be brought into line with the standards which had been agreed internationally and so it has revised the Directive. The new Directive (2003/4/EC) sets equivalent standards to those required by the Aarhus Convention. Although this may seem a bit messy, it does mean that eventually everyone will be working to the same standard.
The outcome is that the regulations that are now in force are going to be replaced by a new set which will meet the revised international standards.
This should not be a major issue for Scotland or England, Wales and Northern Ireland as the regulations now in place will not require major changes. However, the definition of what constitutes environmental information will be expanded and consequently authorities must be alert to the greater potential to receive requests for such information.
11.2.4 How access works currently and who is affected
The bodies covered by the Environmental Information Regulations 1992 (as amended in 1998) are rather wider than under the FOISA. See module 3 for an explanation of bodies covered by the FOISA. As well as public authorities, some private bodies which have responsibilities for the environment are covered.
An access request for environmental information does not have to be in writing but can be made orally. This is a major difference from requests under FOISA.
Remember If the request concerns environmental information the applicant can make an oral request and it will still be valid. Your authority must deal with it. |
The authority currently has 2 months in which to respond to requests and any refusal must be supported by a statement of the reasons for the refusal. There are also obligations to make information publicly available. The charging regime is different from that under FOISA. The authority is able to impose reasonable charges for information.
The exemptions cover some of the same ground as the FOISA but are not identical and in some areas they are not as wide. Commercial confidentiality can be protected as can personal privacy. The exemptions also take account of the circumstances in which a private body has volunteered information to the public body which it could not have been required to disclose and wishes to remain confidential.
11.2.5 New Environmental Information Regulations for Scotland
There are plans to introduce new regulations in Scotland on public access to environmental information in the near future. A consultation entitled "Proposals for a new regime on Public Access to Environmental Information" ended on 9 August 2002.
As at January 2004 the Scottish Executive is still working on the revised draft regulations and consultation on these is expected in early 2004. The Regulations are expected to be implemented to coincide with FOISA coming into full force. These will be made under the FOISA and will bring the two regimes closer together.
The main proposed improvements on the existing regime are:
- the definitions of the scope of the Regulations and the bodies affected are clarified;
- the time limit for response to an application is reduced to 1 month in most cases;
- a public interest test is to be introduced which is the same test as applies under the FOISA;
- the Scottish Information Commissioner with power to review the decisions of public bodies to withhold information will provide a strengthened means of review for applicants.
11.2.6 How the environmental access regime interfaces with the FOISA
In the absence of the final regulations it is impossible to give precise information about the interface. However some things can be said. If a request concerns environmental information it is to be dealt with under the Environmental Information Regulations. This is a significant point as technically a request for environmental information made under the FOISA will be refused as an exemption in FOISA will apply (either the exemption for information that is available elsewhere or, when the new regulations come into force the specific exemption for information made available under these regulations). In practice however authorities have a duty to provide advice and assistance and should therefore advise an applicant where possible how to word their request in order to get the information required.
11.3 THE STRATEGIC APPROACH
Authorities should consider what information they have that may fall within the definition of environmental information.
Staff will need to be able to differentiate between a FOISA request and a request for environmental information and understand the differences in dealing with the two types of request. Monitoring, reporting and complaints procedures should include requests for environmental information. |
11.4 SUMMARY
Requests for environmental information are a special case and will not be handled under FOISA, they will be dealt with under specific environmental Regulations. Almost every public authority will hold some environmental information and so should be aware of the rules for handling requests for such information. Under current Environmental Information Regulations 1992 a request for environmental information does not have to be in writing and can be made orally. The authority currently has to respond to the request within 2 months (although this is expected to change under the new regulations which are to come into force to coincide with the FOISA i.e. January 2005) and a reasonable charge can be made for the information. Exemptions exist in relation to some information.
The FOISA provides for revised Environmental Information Regulations to be made. It is intended that once made the new regulations will mirror procedures as far as possible with those under FOISA.
11.5 KEYWORDS
Environmental Information | This term is not defined in the Freedom of Information (Scotland) Act but has a wide definition in the Environmental Information Regulations and the Aarhus Convention. |
Member States | These are those countries that belong to the European Union. |
11.6 REFERENCES
Section 25 Information otherwise accessible
Section 39 Health, safety and the environment
Section 62 FOISA Power to make provision relating to Environmental Information
11.7 RESOURCES
Scottish Executive Environmental pages:
www.scotland.gov.uk/topics/?pageID=63
11.8 SELF ASSESSMENT CHECKLIST
1. After January 2005 requests for access to environmental information will be dealt with under the FOISA. TRUE or FALSE ?
2. 'Environmental information' would include documentation relating to cost-benefit analyses used by a public authority in environmental decision-making. TRUE or FALSE ?
3. Any person has a right of access to environmental information held by or for public authorities without having to state an interest. TRUE or FALSE ?
4. A request made to a public authority for environmental information must be in writing. TRUE or FALSE ?
5. Where a public authority refuses to make available to the applicant all or part of the information requested, it is obliged to inform that applicant of his rights to a review of the decision to deny access. TRUE or FALSE ?
Click here for answers
11.9 WHAT THEY SAID
"Currently the public's rights to information are contained in disparate pieces of legislation, codes of practice and Charter commitments. However, the current system is clearly lacking in common sense. An enquiry to SEPA asking who their Chief Executive is would get a reply within 20 working days, whereas an enquiry about emissions from a local factory only has to be answered within two months, because different rules apply to environmental and non-environmental information". (Friends of the Earth Scotland)
11.10 CASE STUDY
HARRISAY TIMES 17 February 2005 Ruddy duck have happily been minding their own business on the Isle of Harrisay since they first settled here from America in the 1940s. Their mostly vegetarian ways have endeared them to the locals and tourists alike with one of our main attractions being the bird sanctuary at Loch Taing where several ruddy duck are known to reside. All this is set to end with the introduction of a ruddy duck eradication scheme due to commence on Harrisay in the Spring. This follows several pilot eradication schemes elsewhere in the UK. "The problem with the ruddy duck lies not in Scotland but in Spain" said Douglas McVeigh of Birds Scotland. "Several ruddy duck escaped from captivity in the 1950s and established themselves successfully in the wild. Ruddy duck mate with the white-headed duck, both members of the stifftail family and in Spain this led to the near extinction of the white headed duck in the late 1970s. Due to a successful conservation programme, the numbers of Spanish white headed duck are on the up but hybridisation with the ruddy remains the main threat. We believe the only solution is a complete cull of ruddy duck and will be working with our UK colleagues to ensure that this is carried out in Scotland". There are an estimated 6000 ruddy duck in Britain and a cull would cost millions. It is not yet clear how the eradication on Harrisay will be funded. |
Task
1. You are the secretary of SORD ("Save Our Ruddy Duck") on Harrisay. Using the information in the module, write a letter to Birds Scotland (a fictitious Scottish public authority) requesting information that you consider would be useful to you in mounting your campaign.
2. Consider whether this is an access request under FOISA or under the environmental access provisions and make a note of the key differences between the two, if any.
MODULE 11 - REQUEST FOR ENVIRONMENTAL INFORMATION
