< Previous | Contents | Next >

Access to Environmental Information: A Consultation

Introduction

1. The Scottish Executive is committed to a wide-ranging regime of freedom of information and to a greater sense of openness and transparency within the government itself. The Scottish Executive is also keen to give a greater sense and opportunity for empowerment for individuals and communities in matters which affect the quality of their lives. The Freedom of Information (Scotland) Act 2002 will come into effect in stages to January 2005. The Act will introduce the appointment of an independent Scottish Information Commissioner to oversee compliance with the Act. The Scottish Parliament appointed the first Scottish Information Commissioner on 13 December 2002 and he took up office on 24 February 2003. Article 62 of the Act provides the power for Scottish Ministers to make the new Environmental Information Regulations.
2. The keeping of a separate regime for environmental information acknowledges the existing arrangements, the separate origins of the policy in international forums and the slightly wider range of bodies to which the Aarhus requirements apply. However, the Scottish Executive considers it important that the new environmental information regulations are aligned as closely as possible with the general Freedom Of Information (FOI) regime in order to help Scottish public authorities administer the two regimes and to make it easier for the public to understand. Making environmental information more easily accessible to the public is considered vital in contributing towards the achievement of sustainable development. The more information that people have access to, the more the public can understand the consequences on the environment of certain proposals and actions. Hence individuals and groups can take part more effectively in the decision-making process on matters relating to the environment. A previous consultation document on the Proposals for a new regime on Public Access to Environmental Information was published by the Scottish Executive in May 2002 (Paper 2002/16). Copies of this previous consultation exercise can be obtained from the Scottish Executive Library, the Stationery Office Bookshop and on the Scottish Executive website at: www.scotland.gov.uk
3. The Environmental Information Regulations 1992, implementing European Directive 1990/313/EC, set requirements for the release of information about the environment by public bodies across UK. The Aarhus Convention of 1998, as implemented recently by European Directive 2003/4/EC, updated thinking on that subject. This consultation exercise seeks the views of all interested parties by presenting an opportunity for those who wish to comment or express an opinion on new Scottish regulations to implement Aarhus and Directive 2003/4/EC.

Aarhus Background

4. The UK signed the UNECE Convention on Access to Information, Public Participation and Access to Justice in Environmental matters at Aarhus in Denmark in 1998 (the Aarhus Convention), which took effect in October 2001. The UK is committed to the ratification of Aarhus once all of its provisions have been transposed into law across UK. The implementation deadline for the Aarhus-based EU Directive on Environmental Information (14 February 2005) falls nicely with the January 2005 date for the implementation of the wider Freedom of Information (Scotland) Act 2002. Scottish Ministers propose to make the new Scottish environmental information regulations as soon as possible after public consultation and bring them the into force in January 2005 in tandem with the comparable regulations for the rest of the UK. The existing regulations of 1992, as amended by the Regulations of 1998, will be repealed once the new regulations come into force.

Consultation Contents

5. This consultation document consists of:-

• Draft Environmental Information (Scotland) Regulations 2004
• Draft Guidance on the Environmental Information Regulations
• Draft Code of Practice on the Environmental Information Regulations
• Questionnaire
• List of Consultees
• Respondee Information Form

It should be stressed at this point that the three key documents are still in draft format and therefore subject to some degree of change as details are refined following this and the previous consultations. However, the updated regime based upon the new regulations does have to implement the Convention, significantly by transposing Directive 2003/4/EC. In many respects, therefore, the scope for change is in the detail and in the arrangements that we make for bringing the regime into effect. For example, the policy consultation of May 2002 strongly supported aligning the EIRs with the FOI regime and hearing of appeals by the Scottish Information Commissioner, both now reflected in the implementing proposals.

Draft Environmental Information Regulations

6. Section 1 of this consultation document contains a draft of the new Environmental Information (Scotland) Regulations. Interested bodies commented on the basis of policy in the previous consultation exercise and gave insights into the issues that might have to be addressed in practice. Such comments have been kept in mind in drafting.

The principal differences between the forthcoming new environmental information regulations and the 1992 regime are:

• definitions of environmental information and the bodies that are affected are better defined
• in most cases the time limit within which a public body has to respond to a request for environmental information is reduced to 20 working days compared to 2 months under the 1992 regulations
• scope to withhold information is narrowed in relation to emissions to the environment
• a public interest test has been introduced, which means information should only be withheld if the public interest in doing do so is greater than the public interest in releasing the information. This is in alignment with the Freedom of Information (Scotland) Act 2002
• also in line with the Freedom of Information (Scotland) Act 2002 it will be the duty of the Scottish Information Commissioner to hear appeals by dissatisfied applicants.
• other changes clarify provisions within the 1992 regime, most of which are already practised by public authorities

Comments on any part of the draft regulations would however be useful before the regulations are finalised and laid before parliament.

7. Section 2 of this consultation document contains draft Guidance on the Environmental Information Regulations. The Guidance has been drafted to assist individual readers to understand the regulations better. The Guidance replaces the previous Guidance to the 1992 Regulations. It is not legally binding: only the Scottish Information Commissioner and the Courts will be able to give an authoritative interpretation of the Regulations.
8. Responses to the first (policy) consultation gave some suggestions about practical issues which have been included in the Guidance. In order to make the Guidance more user friendly the Scottish Executive would like to learn of any ‘good practice’ examples from consultees which they would be willing to have published in the Guidance or on the website. For instance, how does an organisation actively disseminate environmental information to the public, an applicant’s experience of requests for review of a refusal, or separating confidential information from that to be released. The Scottish Executive would also be interested to hear of examples of new working practices being considered and how these would help your organisation comply with the regulations. Your comments on the draft guidance would be helpful , together with any good practice examples
9. Section 3 of this consultation document contains a draft Code of Practice and this should be read along with the draft Guidance. The Code of Practice satisfies the power of Scottish Ministers to advise Scottish public authorities as to the practice which would be desirable for them to follow in connection with the discharge of their duties under the new regulations. The definition of ‘public bodies’ for the purposes of the environmental information regulations is wider than under section 3 of the Freedom of Information (Scotland) Act 2002. The Code of Practice will have to be approved by the Scottish Information Commissioner and laid before the Scottish Parliament. Your views would be appreciated on how practical the text of this Code of Practice will be to public authorities.
10. Section 4 is a Questionnaire, which has been devised to focus on key pertinent issues in this consultation but please feel free to put forward any other short constructive comments you consider relevant. Brief comments would be appreciated as that would assist us in analysing the responses.
11. Section 5 is a list of Consultees and, should you identify another interested party not on the list, please either copy the consultation document to them or ask them to contact Ian McGough, telephone number 0131-244-7311 who will be happy to forward on a copy.

Scottish Executive Consultation Process

12. Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general, Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinion on a proposed area of work to do so in ways which will inform and enhance that work. While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body. Consultation exercises may involve seeking views in a number of different ways, such as public meetings, focus groups or questionnaire exercises.
13. Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the area of consultation, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses. Copies of all the responses received to consultation exercises (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH 11 3DX, telephone 1031-244-4552).
14. The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process. Depending on the nature of the consultation exercise the responses may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

If you have any comment about how this consultation exercise has been conducted, please send them to:

Sustainable Development Directorate: International Team
Env Group
Scottish Executive
Victoria Quay
EDINBURGH
EH6 6QQ

Telephone: 0131-244-7814
Fax: 0131-244-0195
E-mail EIRs.consultation@scotland.gsi.gov.uk

< Previous | Contents | Next >