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

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

• 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;

• (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);

• (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;

• (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

• (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);

• 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

• 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

• 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

• 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

• 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

• Form and format• Provide information in form or format

requested unless:• reasonable to do otherwise• already publicly available and easily accessible

in another format

• 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

• 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

• 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.

• 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;

• 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

• 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

• 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

Draft GuidanceEIRs 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).