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Access to Environmental Information: A Consultation

SCOTTISH STATUTORY INSTRUMENTS

2004 No.

FREEDOM OF INFORMATION

The Environmental Information (Scotland) Regulations 2004

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972(^a) in relation to regulations [2 8(5) and (6), 10(1)(a) ad (5), 15 and 17 of these Regulations] and by section 62(3) of the Freedom of Information (Scotland) Act 2002(^b) in relation to the remaining provisions of these Regulations, hereby make the following Regulations:

Citation and commencement

1. These Regulations may be cited as the Environmental Information (Scotland) Regulations 2004 and shall come into force on **January 2005.

Interpretation

2. In these Regulations-

"the Act" means the Freedom of Information (Scotland) Act 2002;

"applicant" means any person requesting that environmental information be made available;

"the Commissioner" means the Scottish Information Commissioner;

"the data protection principles" means the principles set out in Part I of Schedule 1 to the Data Protection Act 1998(^c) as read subject to Part II of that Schedule and section 27(1) of that Act;

"data subject" has the same meaning as in section 1(1) of the Data Protection Act 1998;

"elements of the environment" include air and atmosphere, water, soil, land, landscape and natural sites (including wetlands, coastal and marine areas) and biological diversity and its components (including flora and fauna and genetically modified organisms);

"emissions" include discharges and other releases;

"environmental information" means information on any of the following-

(a) the state of elements of the environment or their interaction;

(b) substances, energy, noise, radiation, waste (including radioactive waste), emissions or other factors that affect or are likely to affect elements of the environment, including if requested, the place where-

(i) measurement procedures, including methods of analysis, sampling and pre-treatment of samples; or

(ii) if appropriate, the standardised procedures, which are used in compiling the information, can be found;

(c) measures (including policies, legislation, plans, programmes and environmental agreements) and activities that-

(i) affect or are likely to affect anything referred to in sub-paragraphs (a) or (b), or

(ii) are designed to protect elements of the environment;

(d) reports on the implementation of environmental legislation;

(e) cost-benefit and other economic analyses and assumptions used in connection with anything referred to in sub-paragraph (c);

(f) the state of human health and safety (including contamination of the food chain), conditions of human life, cultural sites and built structures to the extent that they are or may be affected by-

(i) the state of elements of the environment, or

(ii) anything referred to in sub-paragraphs (b) or (c) through those elements;

"information" means information recorded in any form;

"information held by a Scottish public authority" means environmental information produced or received by that authority which is either in its possession or held by a person on its behalf;

"measures" includes administrative measures;

"personal data" means personal data falling within paragraphs (a) to (e) of the definition of 'data' in section 1(1) of the Data Protection Act 1998,

and for the purposes of these Regulations a public authority referred to in paragraph (e) of section 1(1) of that Act shall have the same meaning as a public authority under these Regulations;

"Scottish public authority" means-

(a) any body which, person who, or the holder of any office which is-

(i) listed in Schedule 1 to the Act, or

(ii) designated by order under section 5(i) of the Act;

(b) a publicly-owned company as defined by section 6 of the Act; and

(c) any other body, person or office holder [having mixed functions or no reserved functions within the meaning of the Scotland Act 1998(^d)] that-

(i) carries out functions of public administration, or

(ii) is under the control of a body, office holder or person falling within items (a) or (b) of this definition and that in relation to the environment-

(aa) has public responsibilities,

(bb) exercises functions of a public nature, or

(cc) provides public services;

"statutory bar" means any provision made by or under any enactment which imposes any restriction or prohibition on the disclosure of information by any person;

Application

3. These Regulations shall not apply to any Scottish public authority to the extent that it is acting in a judicial or legislative capacity.

Duty to make available environmental information on request

4. -- (1) Subject to paragraphs (2) to (4), a Scottish public authority that holds environmental information shall be under a duty to make it available when requested to do so by any applicant.

(2) The duty under paragraph (1)-

(a) only extends to making available the information requested at such times or places as are reasonable;

(b) shall be complied with as soon as possible and in any event within 20 working days of receipt of the request; and

(c) is subject to regulations 5, 6, 8 and 10.

(3) To the extent that the information requested includes personal data of which the applicant is the data subject then the duty under paragraph (1) shall not apply to those personal data.

(4) Any statutory bar or rule of law (apart from these Regulations) which would prevent the making available of information in accordance with this regulation shall not apply.

Form and format of information

5. -- (1) Where an applicant requests that environmental information be made available in a particular form or format, a Scottish public authority shall comply with that request unless-

(a) it is reasonable for it to make the information available in another form or format; or

(b) the information is already publicly available and easily accessible to the applicant in another form or format.

(2) Where a Scottish public authority relies on a provision of paragraph (1) not to make the information available in the form or format requested it shall-

(a) state the provision on which it relies as soon as possible and in any event within 20 working days of the receipt of the request for the information;

(b) make that statement in writing if the applicant so requests;

(c) inform the applicant of the review provisions under regulation 13 and of the enforcement and appeal provisions under regulation 14.

Form of refusal to make information available

6. If a request to make environmental information available is refused by a Scottish public authority in accordance with regulation 10, the refusal shall-

(a) be made in writing as soon as possible and in any event within 20 working days of the receipt of the request for the information;

(b) specify the reasons for the refusal including, as appropriate, any exception relied on under regulation 10(3) or (4) and how the Scottish public authority has reached its decision with respect to the public interest under regulation 10(1)(b), (2)(a)(i)(bb) and (2)(b);

(c) state the basis on which any exception relied on under regulation 10(3) or (4) applies if it would not otherwise be apparent;

(d) if the exception in regulation 10(3)(d) is relied on, state the name of any other Scottish public authority preparing the information and the estimated time in which the information will be finished or completed; and

(e) inform the applicant of the review provisions under regulation 13 and of the enforcement and appeal provisions under regulation 14.

Extension of time

7. -- (1) The period of 20 working days referred to in-

(a) regulation 4(2)(b);

(b) regulation 5(2)(a); and

(c) regulation 6(a),

may be extended to 40 working days if the volume or complexity of the information requested makes it impracticable for the Scottish public authority either to comply with the request within the earlier period or to make a decision to refuse to do so.

(2) Where paragraph (1) applies the Scottish public authority shall notify the applicant accordingly as soon as possible and in any event within 20 working days of the receipt of the request for the information.

(3) In the following cases, the date on which a Scottish public authority receives a request for information under the provisions listed in paragraph (1) and under paragraph (2) shall be-

(a) where regulation 9(2) applies, the date on which the further particulars are received by the authority; and

(b) in respect of a Scottish public authority to which a request for information is transferred under regulation 11, the date on which the request is received by that authority,

Charging

8. -- (1) Subject to paragraphs (2) to (8), where a Scottish public authority is under a duty to make environmental information available under Regulation 4(1), it may charge a fee for so doing.

(2) A Scottish public authority shall not charge any fee for-

(a) allowing an applicant to access any public registers or lists of environmental information held by it; or

(b) allowing an applicant to examine the information requested on any premises of the authority.

(3) Fees charged under paragraph (1) shall not exceed a reasonable amount.

(4) For the purposes of paragraph (3), a reasonable amount means-

(a) where a Scottish public authority makes environmental information of the kind requested available on a commercial basis and the continued collection and publication of such information would be prejudiced if the authority did not charge a market-based fee, such a fee; and

(b) in all other cases, a fee which does not exceed the costs to the authority of producing the information requested.

(5) A Scottish public authority may, when it is reasonable for it to do so, require that payment of the whole or part of a fee under paragraph (4) be made in advance of making information available.

(6) Where a Scottish public authority imposes a requirement under paragraph (5) it shall notify the applicant in writing.

(7) Where a Scottish public authority has notified an applicant that advance payment is required under paragraph (6) then that authority is not obliged to-

(a) make the information requested available under regulation 4; or

(b) comply with regulations 5 and 6,

unless the fee is paid; and any such fee must be paid within a period of three months beginning with the day on which the authority gave such notification.

(8) Where fees may be charged under this regulation, the Scottish public authority shall publish and make available to applicants-

(a) a schedule of those fees; and

(b) information on the circumstances in which a fee may be charged, waived or required to be paid in advance.

Duty to provide advice and assistance

9. -- (1) It shall be the duty of a Scottish public authority to provide advice and assistance, so far as it would be reasonable to expect the authority to do so, to applicants and prospective applicants.

(2) Where an applicant formulates a request in too general a manner, the duty under paragraph (1) includes-

(a) asking the applicant as soon as possible and in any event not later than 20 working days after the request is received, to provide more particulars in relation to the request; and

(b) assisting the applicant in providing those particulars.

(3) To the extent that a Scottish public authority conforms to the code of practice under regulation 16 in relation to the provision of advice and assistance in a particular case, it shall be taken to have complied with the duty imposed by paragraph (1) in relation to that case.

Exceptions from duty to make environmental information available

10. -- (1) Subject to paragraphs (2) and (5), a Scottish public authority may refuse to make the enviromental information requested available if-

(a) there is an exception to disclosure under paragraphs (3) or (4), which exception shall be interpreted in a restrictive way; and

(b) in all the circumstances, the public interest in maintaining the exception outweighs the public interest in making the information available but a Scottish public authority shall exercise a presumption in favour of disclosure.

(2) To the extent that the information requested includes personal data, where the applicant is not the data subject of those personal data, then the authority shall not make those personal data available if either the first or second condition below is satisfied-

(a) the first condition is-

(i) where the information falls within paragraphs (a) to (d) of the definition of "data" in section 1(1) of the Data Protection Act 1998, that making of the information available to a member of the public otherwise than under these Regulations would contravene-

(aa) any of the data protection principles, or

(bb) section 10 of the Act (right to prevent processing likely to cause damage or distress) and in all the circumstances, the public interest in not disclosing the information outweighs the public interest in disclosing it, and

(ii) in any other case, that making the information available to a member of the public otherwise than under these Regulations would contravene any of the data protection principles if the exemptions in section 33A(1) of the Data Protection Act 1998 (which relate to manual data held by public authorities) were disregarded,

and in determining whether anything done before 24th October 2007 would contravene any of the data protection principles, the exemptions in Part III of Schedule 8 to the Data Protection Act 1998 shall be disregarded.

(b) the second condition is that by virtue of any provision of Part IV of the Data Protection Act 1998 the information is exempt from section 7(1)(c) of that Act and in all the circumstances, the public interest in not disclosing the information outweighs the public interest in disclosing it.

(3) For the purposes of paragraph (1)(a), a Scottish public authority may refuse to make environmental information available to the extent that-

(a) subject to regulation 11, it does not hold that information when an applicant's request is received;

(b) the request for information is manifestly unreasonable;

(c) the request for information is formulated in too general a manner and the public authority has complied with its duty under regulation 9;

(d) the request relates to material which is still in the course of completion, to unfinished documents or to incomplete date; or

(e) the request involves making available internal communications within the authority.

(4) For the purposes of paragraph (1)(a) a Scottish public authority may refuse to make information available to the extent that its disclosure would adversely affect-

(a) international relations, defence, national security or public safety;

(b) the course of justice, the ability of a person to receive a fair trial or the ability of a Scottish public authority to conduct an enquiry of a criminal or disciplinary nature;

(c) intellectual property rights;

(d) the confidentiality of the proceedings of one or more Scottish public authorities where such confidentiality is provided for by law;

(e) the confidentiality of commercial or industrial information where such confidentiality is protected by law to safeguard a legitimate economic interest;

(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 it to the Scottish public authority,

(ii) did not supply it in circumstances such that the Scottish public authority is entitled apart from these Regulations to make available, and

(iii) has not consented to its disclosure; or

(g) the protection of the environment to which the information relates.

(5) To the extent that the environmental information to be made available relates to emissions, a Scottish public authority shall not be entitled to refuse to make it available under an exception referred to in paragraph (4)(d) to (g).

(6) Nothing in this regulation shall authorise a refusal to make available any environmental information contained in or otherwise held with other information which is not made available by virtue of this regulation unless it is not reasonably capable of being separated from that other information.

(7) The Scottish Ministers may certify that making environmental information available would adversely affect national security.

(8) A certificate under paragraph (7)-

(a) shall be conclusive evidence of the matters contained in it; and

(b) may identify the information to which it relates in general terms and may be expressed to have prospective effect.

Transfer of a request

11. Where regulation 10(3)(a) applies and a Scottish public authority believes that another Scottish public authority holds the information requested then it shall either-

(a) transfer the request to the other authority; or

(b) supply the applicant with the name and address of that other authority,

and the applicant shall be informed accordingly with the refusal sent in accordance with regulation 6.

Records transferred to the Keeper

12. -- (1) This regulation applies to environmental information which is contained in a record transferred to the Keeper of the Records of Scotland ("the Keeper") by a Scottish public authority.

(2) Where environmental information is contained in a record-

(a) to which this regulation applies; and;

(b) a request has been made for that information to be made available by the Keeper under regulation 4(1),

the Keeper shall, so soon as practicable after receiving the request, send a copy of it to the authority which transferred the information.

(3) That authority, instead of the Keeper, shall come to a decision as to whether the information subject to an exception under regulation 10(1)(a) and determine any question then arising under regulation 10(1)(b).

(4) After receiving the copy, that authority shall, within such time as will make it practicable for the Keeper to comply with regulations 4(2)(b), 5(2)(a) or 6(1) as respects the request, inform the Keeper of the decision and of any determination required by virtue of that decision as mentioned in paragraph (3).

(5) The Keeper shall, as soon as practicable after receiving representations in accordance with regulation 13, send a copy of those representations to the authority and the authority, instead of the Keeper, shall review the decision and do anything which is to be done under that regulation.

(6) After receiving the copy representations, the authority must, within such time as will make it practicable for the Keeper to comply with regulation 13(3)(b), inform the Keeper of its decision and provide a statement of its reasons for so doing and it is that information and statement which the Keeper shall notify to the applicant.

(7) Paragraphs (2) to (6) also apply to information which is contained in a record transferred to the Keeper, before 1st July 1999, by the Secretary of State for Scotland; but for that purpose references in subsections (2) to (6) to "the Scottish public authority" and "the authority" are to be construed as references to the Scottish Ministers.

Review by Scottish public authority

13. -- (1) Subject to paragraph (2), an applicant may make representations to a public authority if it appears to the applicant that the public authority has not complied with its duty under regulation 4.

(2) Representations under paragraph (1) shall be made in writing to the Scottish public authority within 40 working days of the date that the applicant receives the decision which the applicant believes is in breach of the duty under regulation 4.

(3) The Scottish public authority shall on receipt of such representations-

(a) consider them and any supporting evidence produced by the applicant; and

(b) decide whether it has complied with its duty under regulation 4 and notify the applicant of its decision within 40 working days of receipt of the representations.

(4) Where the Scottish public authority accepts that it has not complied with its duty under regulation 4, it shall take steps to remedy the breach of duty immediately.

Enforcement and appeal provisions

14. -- (1) This regulation applies where an applicant has made representations under regulation 13(1) and the Scottish public authority has decided under regulation 13(3) that it is not in breach of its duty under regulation 4 or, if it accepts that it is in breach, it has failed to remedy the breach, or where the authority has failed to decide under regulation 13(3).

(2) Where this regulation applies, Part 4 of the Act shall have effect for the purposes of these Regulations as they have effect for the purposes of the Act but with the modifications specified in paragraph (3).

(3) In the application of any provision of the Act by paragraph (2) any reference to-

(a) the Act, other than a reference to a specific provision of that Act, includes a reference to these Regulations;

(b) the requirements of Part 1 of the Act includes a reference to the requirements of these Regulations;

(c) a Scottish public authority under the Act includes a reference to Scottish public authority under these Regulations;

(d) the code of practice under section 60 or 61 of the Act (issue of a code of practice by the Scottish Ministers) includes reference to any code of practice issued under regulation 16(1);

(e) sections 29, 31(1), 32(1)(b), 34, 36(1) and 41(b) in section 52(1)(b) of the Act includes reference to regulations 10(3)(e) and 10(4)(a), (b) (so far as related to the ability of a Scottish public authority to conduct an enquiry of a criminal nature), (d) and (e);

(f) a notice under section 21(5) or (9) of the Act includes a reference to a notice under regulation 13(3)(b); and

(g) the period allowed in section 21(1) of the Act includes a reference to the period specified in regulation 13(2).

Active dissemination

15. -- (1) A Scottish public authority shall take reasonable steps to organise and keep up to date the environmental information relevant to its functions which it holds, and in particular the types of information listed in paragraph (2), with a view to-

(a) its active and systematic dissemination to the public; and

(b) making it progressively available to the public by electronic means unless it was collected before 1st January 2005 in non-electronic form.

(2) The types of information referred to in paragraph (1) are-

(a) texts of international treaties, conventions or agreements, and of Community, national, regional or local legislation, on the environment or relating to it;

(b) policies, plans and programmes relating to the environment;

(c) progress reports on the implementation of the items referred to in (a) and (b) when prepared or held by Scottish public authorities in electronic form;

(d) reports on the state of the environment;

(e) data or summaries of data derived from the monitoring of activities that affect or are likely to affect the environment;

(f) authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or found;

(g) environmental impact studies and risk assessments concerning those elements of the environment referred to in paragraph (a) of the definition of environmental information contained in regulation 2; and

(h) facts and analyses of facts which the public authority considers relevant and important in framing major environmental policy proposals.

Issue of a code of practice and functions of the Commissioner

16. -- (1) The Scottish Ministers may issue, and may from time to time revise, a code of practice providing guidance to Scottish public authorities as to the practice which it would, in the opinion of the Ministers, be desirable for those authorities to follow in connection with the discharge of their obligations under these Regulations and with the keeping, management and destruction of their records.

(2) The code may make different provision for different Scottish public authorities.

(3) Before issuing or revising any code under this regulation, the Scottish Ministers shall consult the Commissioner.

(4) The Scottish Ministers shall lay before the Scottish Parliament any code or revised code issued under this regulation.

(5) The powers and duties of the Commissioner under sections 43(1) to (3) and (5) to (8), 44, 45 and 46 and section 63 (disclosure of information to Scottish Public Services Ombudsman or to Information Commissioner) of the Act shall have effect for the purposes of these Regulations as they have effect for the purposes of the Act but with the modifications specified in paragraph (6).

(6) In the application of any provision of the Act by paragraph (5) any reference to-

(a) the Act, other than a reference to a specific provision of that Act, includes a reference to these Regulations;

(b) the code of practice under section 60 of the Act (issue of a code of practice by the Scottish Ministers) includes reference to any code of practice issued under paragraph (1);

(c) the code of practice under section 61 of the Act includes a reference to a code of practice under regulation 16(1) so far as it provides guidance in connection with the keeping, management and destruction of records; and

(d) section 1(1) of the Act includes a reference to regulation 4(1).

Offences

17. -- (1) Where-

(a) a request for environmental information has been made to a Scottish public authority under regulation 4; and

(b) the applicant would have been entitled to that information in accordance with that regulation,

any person to whom this paragraph applies who alters, defaces, blocks, erases, destroys or conceals any record held by the Scottish public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to which the applicant would have been entitled, is guilty of an offence..

(2) Subject to paragraph (4), paragraph (1) applies to the Scottish public authority and to any person who is employed by, is an officer of or is subject to the direction of, that authority.

(3) A person guilty of an offence under this regulation is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(4) Paragraph (1) and paragraph 10 of Schedule 3 to the Act (offences in relation to the execution of a warrant) apply to-

(a) a member of the staff, or a person acting on behalf of, the Scottish Parliament or the Scottish Parliamentary Corporate Body;

(b) a member of the staff of the Scottish Administration,

as they apply to any other person, but none of those bodies is liable to prosecution under these Regulations.

Revocation of Regulations

18. The Environmental Information Regulations 1992(^e) and the Environmental Information (Amendment) Regulations 1998(^f) are hereby revoked so far as they have effect in relation to Scottish public authorities.

A member of the Scottish Executive
St Andrew's House,
Edinburgh
2004

EXPLANATORY NOTE
(This note is not part of the Regulations)

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