1. The Legislative Position in Scotland Environmental Information (Scotland) Regulations 2004 SSI 2004 No.520 Professor Colin Reid, School of Law, University of Dundee © University of Dundee 2009

2. Environmental Information (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

3. (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in paragraph (a);

4. (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements;

5. (d) reports on the implementation of environmental legislation; (e) costs benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c); and

6. (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);

7. Scottish public authorities Extends to person who is under the control of a public authority and which: – has public responsibilities – exercises functions of a public nature – provides public services relating to the environment

8. Information to be available Information held by authority – no express exclusion for information held on behalf of another Express disapplication of legal rules preventing disclosure

9. Duties Active and systematic dissemination – inc. facts and analyses of facts which the authority considers relevant and important in framing major environmental policy proposals Provide advice and assistance to applicant

10. Requests No need to be in writing or other permanent form Duty on authority to request further particulars if request too general If authority does not hold information, duty to transfer request to authority that does hold it or to give applicant details

11. Time Respond as soon as possible and within 20 working days extra 20 days if volume and complexity of information makes it impracticable to comply earlier – must notify applicant

12. Form and format Provide information in form or format requested unless: reasonable to do otherwise already publicly available and easily accessible in another format

13. Charges Not exceed a reasonable amount and never exceed the cost of making the information available – no statutory limit No fee to inspect public registers or to examine information at place made available by authority

14. Exceptions Refuse if exception AND in all the circumstances the public interest in making the information available is outweighed by that in maintaining the exemption Authority must – interpret exceptions in a restrictive way – apply presumption in favour of disclosure Personal data not to be disclosed

15. Refusals (a) does not hold that information when an applicant's request is received; (b) request is manifestly unreasonable; (c) request is formulated in too general a manner and the authority has asked for further particulars; (d) request relates to material which is still in the course of completion, to unfinished documents or to incomplete data; or (e) request involves making available internal communications.

16. Substantial prejudice to: (a) international relations, defence, national security or public safety; – here need not even say if hold information (b) the course of justice, a fair trial or an inquiry of a criminal or disciplinary nature; (c) intellectual property rights;

17. Substantial prejudice to: (d) confidentiality of the proceedings of any public authority where provided for by law; (e) confidentiality of commercial or industrial information provided for by law to protect a legitimate economic interest; BUT (d)-(g) do not apply to emissions data

18. Substantial prejudice to: (f) the interests of the person who provided the information where that person– – (i) was not under, and could not have been put under, any legal obligation to supply the information; – (ii) did not supply it in circumstances such that it could, apart from these Regulations, be made available; and – (iii) has not consented to its disclosure; or (g) the protection of the environment to which the information relates. BUT (d)-(g) do not apply to emissions data

19. Review Applicant can request review within 40 days of decision or apparent failure – must be in writing Authority must consider and review and reply within 20 days

20. Draft Guidance EIRs v. FOISA – The Key Differences The definition of a Scottish public authority The definition of a Scottish public authority is wider under the EIRs than FOISA. Those bodies listed in schedule 1 of FOISA, designated by order under section 5 of FOISA, or publicly- owned companies as defined by section 6 of FOISA (section 3).