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Uncovering the environment

17 September 18

Solicitors with experience of exercising the right to access environmental information are invited to help a research project being run by the University of Dundee

by Colin T Reid

The right of access to environmental information has been described as “critical to environmental law and regulation”. Aimed at increasing participation in environmental decision-making processes, access encapsulates both the right to request environmental information from public authorities and the right to have public authorities proactively disclose such information. However, without fully understanding how the right is actually utilised by members of the public in practice, it is unlikely that the full benefits of the right will be achieved in Scotland. A project at Dundee University wants to hear of your experience to assist in filling this knowledge gap.

The benefits in effectively guaranteeing the right of access to environmental information are widely recognised. By providing access to environmental information, members of the public will be aware of the actions/inaction of public authorities, enabling them to hold public authorities to account in environmental matters. The right can also be of particular interest to members of the legal profession, as environmental information can help in tailoring legal advice to an individual client’s needs, assist in identifying the circumstances surrounding a legal problem or provide a basis for court proceedings.

Although access to some information had been provided earlier, e.g. through planning registers, the broader right of access to environmental information was introduced in 1992 in response to an EU directive. This was a dramatic move at the time when most official information was still protected by the Official Secrets Acts. Since then, further EU developments and the adoption of the Aarhus Convention at the international level have led to the right being expanded, ultimately leading in Scotland to the Environmental Information (Scotland) Regulations 2004.

The 2004 Regulations continue to govern the provision of environmental information, separate from the wider access to information enabled by the Freedom of Information (Scotland) Act 2002. Indeed it is a common error for environmental cases to be treated under the general freedom of information regime, whereas they should be handled under the specific environmental provisions, which do differ in some respects (see the Scottish Information Commissioner’s guidance).

However, while the environmental governance aims of the right have been successfully embedded within the Environmental Information (Scotland) Regulations 2004, what they deliver in practice is less clear. This is due to a variety of reasons. On the one hand, there are issues with how public authorities have responded to their obligations under the regulations (see the numerous appeals to the Scottish Information Commissioner). On the other, the motives of those using the right may not align with the environmental governance aims of the right, being driven by purely personal concerns rather than serving the public good.

The position is further complicated by the lack of research into whether the environmental information disclosed by public authorities is of high quality, and whether information accessed under the right is used to engage with decision-making processes. Moreover, we are now so used to material being published on the internet that it is often hard to appreciate that access is protected as a legal right rather than just being “business as usual”.

This gap in our knowledge on the actual use and impact of the right of access to environmental information is the inspiration for “Uncovering the Environment: The Use of Public Access to Environmental Information”, a project being undertaken at the University of Dundee. The project is run by Professor Colin Reid, Dr Jonathan Mendel and Dr Sean Whittaker, and it seeks to discover the nature and scale of the use of the right in Scotland.

In particular, the project aims to identify the number of individuals using their right to access environmental information – both through making specific requests and simply using the information routinely made available by authorities. The project also seeks to explore how these individuals intend to use any information disclosed under the right. Further, the project aims to assess whether environmental information accessed under the right has led to changes in the processes for or outcomes of decision-making procedures.

Arising from the project’s findings, we are planning to organise various workshops on the right both for the public authorities who hold information and for members of the public and professionals who make use of it. These workshops will bridge the gaps between public authorities and the public, exposing them to the other parties’ expectations and aligning these expectations to improve interactions under the right. Further, with the Brexit “due date” only months away, there is a possibility for Scotland to introduce reforms so that it continues to guarantee the right (as required by the UK’s obligations under the Aarhus Convention), whilst taking advantage of the freedom to depart from the particular strictures of EU Directive 2003/4/EC.

As a key element of the study, we are conducting both a survey and interviews on the experiences of those who have accessed environmental information held by Scottish public authorities. The views of those within the authorities that hold information are also sought. By conducting these surveys and interviews, we can develop our understanding of how the right is being used in practice.

Perhaps more significantly, we will also be able to identify how far members of the legal and other professions are making use of the right, whether the right makes a valuable contribution to their work and whether there are obstacles preventing the right from achieving its goals. For example, how does the timescale for disclosing information fit with the tighter new time limit for raising judicial review actions? How far is the information published by authorities being used without the need to make specific requests for further information?

If you are interested in participating in the survey or in being interviewed on your use of the right of access to environmental information, or role in providing it, please visit the project’s website at sites.dundee.ac.uk/envinfo/

If you have any queries about the project, or wish to contact the research team, please email Dr Sean Whittaker at s.x.whittaker@dundee.ac.uk

Colin T Reid is Professor of Environmental Law at the University of Dundee

 

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