Professor Colin Reid, Dr Jonathan Mendel, Dr Sean Whittaker One of the UK’s top 30 universities (The Times/Sunday Times Good University Guide 2019) Uncovering the Environment: The Use of Public Access to Environmental Information Professor Colin Reid, Dr Jonathan Mendel, Dr Sean Whittaker December 2018

History Information Technology Revolution Directive 90/313/EEC Official Secrets Acts Directive 90/313/EEC Public registers 1992 Regs The Aarhus Convention (1998) Freedom of Information (Scotland) Act 2002 Directive 2003/4/EC 2004 Regs Brexit Information Technology Revolution

Law and Status Aarhus Convention Directive 2003/4/EC UK bound by this in international law Aarhus Convention Compliance Committee Directive 2003/4/EC Gives more detailed implementation to Aarhus obligations; scope of laws, procedures and exceptions Requires Member States to have laws that match this Environmental Information (Scotland) Regulations 2004 Implements Directive 2003/4/EC Take priority over general rules on freedom of information if case involves environmental information

Differences between EIRs and FOISA Environmental Information (Scotland) Regulations 2004 Only covers environmental information Public authorities must actively and systemically disseminate updated environmental information A request can be verbal or written The EIRs contain environmental-specific exceptions and a strict public interest test No upper or lower cost limits in charging fees Freedom of Information (Scotland) Act 2002 Covers all information except environmental information Public authorities must only adopt and maintain a publication scheme Requests must be in writing only The public interest test only applies to some exceptions under FOI(S)A £100 lower limit and £600 upper limit on charging fees

Definition of Environmental Information Environmental information is defined as information on The state of the environment Factors affecting or likely to affect the state of the environment Measures affecting or likely to affect the elements or factors previously mentioned and any cost-benefit or economic analyses and assumptions used Reports on the implementation of environmental legislation The state of human health and safety, as far as they may be affected by the elements of the environment or through factors or measures which affect the elements of the environment Examples of environmental information include Levels of chlorine in a public swimming pool. Contracts relating to environmental remediation of a disused quarry Information about the state of the pavement on a public footpath

Definition of Environmental Information Distinguishing “environmental” information from “non-environmental” information Disposal of land containing a memorial to IRA members who died during the 1981 Hunger Strike A list of potential sites for the development of large prisons “[I]nformation will not necessarily be environmental simply because it had a slight or tangential association with the state of the elements of the environment.” – Decision 012/2012: Mr Tommy Kane and Scottish Water Material held by public authorities may contain both “environmental” information and “non-environmental” information Information Commissioner v. Department for Transport & Hastings [2018] UKUT 184 (AAC) Do the component elements of the material add up to “environmental” information?

(Very) Preliminary Findings Importance of proactively disclosed environmental information Expectations not based on awareness of legal rights Motivations on those requesting environmental information tend to be personal Many requesters seek information on planning matters Scottish public authorities are generally committed to responding to requests under the EIRs Success rate of requests Refusals mostly relate to personal data Fees and fee schedules

Your thoughts and experiences How would you describe your experience with the EIRs? What environmental information are people seeking access to? Who is asking for access to this environmental information? For what purposes is this environmental information being used? How has the proactive disclosure of environmental information impacted on how you engage with the right of access to environmental information? What has been your experience with internal reviews following a request for environmental information?

https://sites.dundee.ac.uk/envinfo