- Jonathan Mitchell QC - http://www.jonathanmitchell.info -

Rights to environmental information

At the talk I gave on this subject to the conference on environmental justice [1] organised by the Environmental Law Centre [2] last Monday, I promised to post a synopsis of the issues discussed, and the handouts on ambit [3] and on appeal routes [4], here.

The background

There has since 2005 been a general right to freedom of information held by or on behalf of public authorities in the United Kingdom. The right to access to environmental information, however, long predates this, going back to Directive 90/313/EEC and its implementing regulations; although the scheme now in force, Directive 2003/4/EC [5]and its implementing regulations, the Environmental Information Regulations 2004 [6] and the Environmental Information (Scotland) Regulations 2004 [7] is tighter1 [8], the basic scheme has been in place since 1992. Nevertheless, this scheme has attracted far less attention than the general scheme of the two Freedom of Information Acts, the UK Freedom of Information Act 2000 [9] and the Freedom of Information (Scotland) Act 2002 [10], which only came into force thirteen years later.

Here’s the conference¬†handout on the ambit of the various freedom of information schemes [3]2 [11]; the Data Protection Act, the two FOI Acts, and the two sets of EI regulations.

How important are the Environmental Information Regulations?

At one level, they are obviously important; the ability to access information is vital in challenging environmental and planning decision-making. Yet at another level, it is far from clear that the regulations actually make much difference, standing the general freedom of information scheme. We do not know how often information is sought or obtained under the Regulations3 [12]. DEFRA, in a 2009 report ‘Public access to environmental information: Experience gained in the application of Directive 2003/4/EC [13]‘, seemed to estimate that only about 2% of all freedom of infomation requests made of UK central government were for environmental information4 [14]; this may be an underestimate, as the Scottish Information Commissioner’s website, and the Information Tribunal website, suggest that about 7% and 9% respectively of all applications to them were under one or the other set of regulations. These still seem surprisingly low percentages.

There are issues as to the ambit and extent of the regulations, and their boundaries with general freedom of information rights, which I discussed at the conference but don’t intend to go into here; in particular the question as to requests for ‘mixed’ information which may fall under either or both of the EI and general FOI schemes5 [15].

There are some substantial advantages for the applicant who can bring their request under the environmental information scheme rather than the general scheme. I see no disadvantages. A number of exemptions to rights under FOIA/FOISA don’t apply, for example the exemption for about-to-be-published information; for others, the exemption is not absolute. These may affect the ultimate result; see Decision 182/2006 [16] (a case as to the escape of farmed salmon) for an example where information was ordered to be disclosed under EISR that would have been properly withheld under FOISA, because EISR trumps most statutory prohibitions on disclosure. In those cases in which the public interest test [17] is applied under either regime, it may be more favourable to the applicant under EIR/EISR; and so on. Standing the delays in handling of requests, the EIR/EISR provision that the right is to updated information, rather than simply the information available at the date of application, is also significant.

Nevertheless, it seems that few applicants care which scheme they apply under, and many authorities put little effort, or little skill, in establishing the correct scheme; it is noteworthy that a high proportion of EISR applications to the SIC were treated by the public authority to which they were made as FOISA applications, and correctly characterised only by the Commissioner on appeal.

Delays and the different appeal structures

There are real benefits to an applicant in seeking information under the Scottish schemes rather than the UK schemes. As environmental information is often held by more than one authority, there may be advantages in seeking it of both a Scottish and a UK authority. This handout [4], largely rewritten since the conference, sets out the appeal routes from January 2010.

The first benefit is that delays in the office of the SIC, although real, are far less than in the UK ICO. A depressing report [18] by the Campaign for Freedom of Information found that the ICO took, on average, 20 months to deal with an appeal; the SIC takes rather less than half this time.

The second may be that decision-making in the SIC is better, or at least more acceptable. About 1% of all SIC decisions are appealed; about 30% of all UK IC decisions are appealed. While this may be accounted for to some extent by the fact that the SIC appeal is to the Court of Session while the IC appeal is to the Information Tribunal, if one hypothesises that the latter is more attractive to applicants, the appeal rate by public authorities is still tiny in Scotland; there have been only 27 appeals to the Court of Session, of which 23 were by public authorities.

The third is that, if one has a significant test case, the rights of appeal are firmer in Scotland; especially with the merger of the Information Tribunal into the unified tribunal system which is expected to take place in January 2010 (see the handout [4] for references). Under the UK system, there are numerous levels of appeal; but after the first these are heavily restricted. There are no equivalent restrictions under the Scottish system.

I made a number of comments as to the appeal system which I won’t clog this post up with; for example, delays in the Court of Session, legal aid issues, and the settlement of conceded appeals, of which there have been eight or nine.

Some concluding comments

  1. Following the Aarhus Convention [23] of 1998. See this paper [24] for a survey from an Irish perspective. [back [25]]
  2. Slightly revised from that given out at the conference. [back [26]]
  3. No statistics are generally kept of applications for information; it would probably be impracticable to do so, as information may be sought quite informally [back [27]]
  4. Page 4. [back [28]]
  5. See as examples Decision 218/2007 [29], the leading SIC decision, and BERR v Friends of the Earth [30], probably the leading Information Tribunal decision; and for some general discussion DEFRA’s revised guidance [31] of February 2009 (see also this paper [32], which has a fairly full discussion of the authorities). [back [33]]
  6. This decision was reclaimed. The court refused the reclaiming motion, issuing no written opinion but stating that it fully agreed with the opinion of the Lord Ordinary. [back [34]]
  7. I had understood there had been none, but am informed that applications had been made against Forth Ports Authority and Balfour Beatty which were unfortunately settled or withdrawn before their status could be tested. [back [35]]
  8. EISR/EIR, regulation 5. [back [36]]
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