Member Article

In the world of information legislation in Scotland, the Freedom of Information (Scotland) Act 2002 ("FOISA") reigns supreme. But is this Act the most appropriate tool to use in all circumstances? The answer is most definitely no. Lurking behind this headline Act are two pieces of other information-related legislation that, in many circumstances, are more powerful tools to access and use certain information. One, the Re-use of Public Sector Information Regulations 2005, is useful for those who wish to obtain government information for the purposes of re-using it in commercial activities. However, it is the other piece, the Environmental Information (Scotland) Regulations 2004 (referred to as the "Regulations") that is the focus of this article. These Regulations came into force at the same time as FOISA and provide a separate route of access to environmental information. "Environmental information" is defined broadly in the Regulations and can range from information concerning the state of the elements, such as air, water, soil, land, flora and fauna, or the state of human health and safety, to economic analyses and reports on the implementation of environmental legislation. The range of information available under the Regulations is wide, although more limited than what can be accessed through FOISA. However, if the information sought can be classed as environmental, the Regulations will generally provide a better route of access than FOISA, for two main reasons. First, while both FOISA and the Regulations apply to public authorities- meaning that that information can be requested from public authorities, the definition of a public authority is wider under the Regulations. Any body listed in FOISA as a public authority will also hold that status for the purposes of the Regulations. However, the Regulations go further, also covering bodies that carry out functions of public administration, and bodies that are under the control of a public authority and exercise functions, provide services or have responsibilities of a public nature and relating to the environment. The crucial point is that this wider definition can bring private sector companies under the scope of the Regulations - although they may not be subject to the Regulations as regards all the information that they hold. For example, a recent decision by the UK Information Commissioner shows that a private environmental consultancy was deemed to be a public authority insofar as the information that it held related to a review it had carried out on behalf of the Regional Assembly for the North East of England. The Regional Assembly was a public authority because it performed functions of public administration; and the consultancy company was found to be under its control, and carrying out functions of a public nature. Information relating to the review could therefore be requested from this company under the Regulations, despite the fact that it was, on the whole, part of the private sector. Secondly, information is not only available from more bodies under the Regulations than under FOISA, it is also more likely to be released. Both FOISA and the Regulations are based on a presumption in favour of disclosure, subject to a number of specific exemptions. But the list of exemptions under the Regulations is shorter than the list in FOISA, and falls short, for example, of exempting information that is intended for future publication or is available elsewhere. The Regulations are therefore not only of interest to anyone seeking environmental information, but also to those in the public sector who hold such information. The UK Information Commissioner decision discussed above shows that private sector companies can be brought under the scope of the Regulations, a fact which is important for any company that contracts with the public sector for the provision of functions or services of a public nature - and also important for the public sector bodies on the other side of the contract. Any public body which is obliged to perform functions or provide services that are public in nature and that relate to the environment, but which opts to contract these functions or services out to the private sector, will likely be imposing obligations in terms of the Regulations upon its contractual partner. This transfer of obligations could be significant, given that responsibility for handling any relevant information and for dealing with any request relating to it will then rest with the private company. This should not necessarily be viewed as a disadvantage, given the cost in terms of staff time and other resources that compliance with the environmental information regime can involve. The Regulations can therefore be of potential benefit to the public sector as well as to those looking for environmental information. As for the private sector bodies subject to the Regulations through contracts with the public sector, the obligations incurred could be seen as a small price to pay for access to lucrative public contracts.

 

Footnotes: Alison White is a partner specialising in information management law with commercial law firm Shepherd and Wedderburn. +44 (0)131 473 5313