Following our report into Reforming Freedom of Information in the UK, there were several pieces of research that didn’t fit inside the final report. This exploration of differences in outcome and response times is one of them.
The right to access environmental information in the UK is the result of the implementation of an international convention (Aarhus Convention 1998) to provide greater access to environmental information, public participation in environmental decision making and a legal framework that allows challenge to decisions that run against the above. There are separate regulations creating the right for EIRs in Scotland (Environmental Information (Scotland) Regulations 2004) and rUK (Environmental Information Regulations 2004). Unlike FOI there are no substantial differences in the legal basis of EIR requests in Scotland. In both cases, it is a local implementation of directive 2003/4/EC of the European Parliament and of the Council and exceptions and time scales are the same in both jurisdictions.
The key differences are:
- EIR applies to a narrower range of information than FOI.
- EIR applies to more types of organisations than FOI.
- EIR requests have a higher bar to rejection.
EIR information is a subset of FOI information but a different set of exceptions apply and all exceptions include a public interest test. Authorities have to pass a harder test to withhold information in general. For emissions data, there are even fewer exemptions that can be used to withhold information. Data on usage in Scotland suggests that this leads to a higher rate of information being initially granted, and that appeals against use of exceptions are more successful. 79% of EIR requests yielded at least some of the requested information, compared to 75% of FOISA requests. There is also a slightly higher success rate for internal reviews for EIR requests. In 57% of EIR reviews the original review was upheld, compared to 60.4% in FOISA that were wholly/partially upheld. Direct comparison is difficult as by definition they are requests for different kinds of data, but EIR requests do seem to be more likely to return the information requested.
The regulations governing environmental information requests (EIRs) entered into force at the same time as the respective Freedom of Information Acts, but there are important differences between the two frameworks. The regulations apply only to Environmental Information, and so cover less information than FOI law does, but also bring new organisations into scope that are not covered by FOI laws. For instance, the ICO found in early 2020 that Heathrow airport was subject to EIR as it had functions entrusted by law. Bodies that carry out aspects of public administration are subject to EIR, but may not be to FOI. On the other hand, bodies that are only partially covered by the Freedom of Information Act may be exempt from EIR requests (for instance, the BBC).
Differences in Scotland
As in rUK, the definition of a Scottish public authority is wider under EIR than FOISA. This includes publicly-owned companies and those more generally under the “control” of a public authority. There are two points of distinction between the UK and Scottish legislation around what is covered. The first is that private bodies added under s.5 of the FOI Act are also explicitly added into coverage of EIR (the equivalent section in the UK says that inclusion under s.5 does not mean a body is subject to FOI). The second is a smaller point of distinction that the UK EIR reflects the language in the European directive that “any other body or other person, that carries out functions of public administration” are subject to EIR, but this is not present in the Scottish EIR. The result is that UK case law elsewhere that is focused on the definition of public administration is less applicable in Scotland, whereas as the OSIC put it (page 10), “[t]he decisions issued in Scotland have therefore focussed on the definition of “control” rather than of “public administrative functions”. That said, issues of control are not ignored in rUK case law with an upper tribunal judgement arguing this could only be engaged when “an entity had no genuine autonomy”. This distinction is of interest, because there are clear examples of when a body has been seen subject to EIR in Scotland but has been held not to be in rUK.
Through a combination of political decisions and OSIC decisions there are differences in equivalent bodies being subject to EIR in Scotland and rUK. Registered social landlords in Scotland were as of 2019 subject to EIR as a result of being added explicitly to FOISA, but the OSIC has held since 2014 that they were covered by EIR as they were under the control of the Scottish Housing Regulator. In the UK, the Upper Tribunal has ruled that similar registered social landlords in rUK are not “public authorities”. There are three possible explanations for this difference:
- A different legal context – the presence of a defined test around public administration has led to a more binary view of the importance of control in rUK law, compared to a more nuanced approach taken by the OSIC in the absence of a public administration test.
- A different regulatory context – the relationship between specific regulator and social landlord may be sufficiently different to pass “control” tests in Scotland that are not passed by the UK housing regulator.
- A different oversight context – OSIC may have been mistaken in their control test, but was not legally challenged.
This difference is mostly immaterial as Scottish FOI’s larger expansion to private organisations has made the difference on EIR irrelevant, but this reflects that differences in the practical availability of information rights can flow from for practicalities in regulation and oversight, as well as the law.
Fees are an example of regulatory difference where information is more accessible under UK EIR. Both EIR and FOI/FOISA regimes allow for a cost to be attached to the provision of information but FOI has a minimum ‘appropriate limit’ before this is engaged, and so most responses are uncharged. EIR has no minimum limit, and so all requesters may be charged the (small) costs of providing the information if the authority has made their charging regime public. As EIRs in Scotland and rUK are regulated by different bodies, practical differences in regulation even where the underlying law does not differ.
In a 2019 case, an ICO decision found that a ‘reasonable’ charge under EIR should effectively track the idea of an ‘appropriate limit’ in the Freedom of Information Act. The official guidance has not yet been updated to reflect this decision (through correspondence, this is still planned). The existing 2016 guidance did already argue that public authorities should ‘avoid routinely charging for all EIR requests’, but the equivalent OSIC guidance does not. The practical result of this is the ICO may uphold a complaint that Croydon Council should not charge a £50 fee for access to environmental information at all, whereas OSIC would agree that Glasgow City Council could charge £50 if this price was listed publicly. In practice, fees are rarely practically charged for EIR in Scotland but when the regulations are identical the dynamics of different regulators following different processes lead to differences in the practical implementation of EIR.
For more information, OSIC have published details on the distinction between EIRs and FOISA in Scotland. Paul Gibbons’s series in the Freedom of Information journal is a useful guide to the practical differences between the two legal regimes in rUK.
: As FOIA and FOISA have specific exemptions for environmental data, in general requests that can be considered under EIR should be, rather than under FOI rules