Practical Seminar - Environmental information Kevin Dunion Director, Centre for Freedom of Information Colin MacFadyen, OSIC 21 May 2014

Welcome - Kevin Dunion Presentation - What is environmental information? Q&A First Case study Group Case studies Group Feedback Final Q&A Outline 2

Defining environmental information Colin MacFadyen 21 May 2014

Background to ‘the EIRs’ Regulation 2 - What is environmental information? Why is it important to identify what is environmental information? Resources Outline 4

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Aarhus Convention'), (1998) Directive 2003/4/EC of European Parliament and Council The 3 pillars, which are 1. Right to know 2. Right to participate 3. Right to access to justice The EIRs implement the Directive for Scotland Background to ‘the EIRs’ 5

“ environmental information has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on…” It is a wide definition - ‘any…’ But only recorded information Only if held at time of request An authority does not need to create information to respond Information defined 6

On…. “(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” Ordinary meaning of words Wide definition with examples Decision 190/2013 – Mrs Ramsden and Highland Council communications relating to contaminated land, flood issues and mitigation issues at Fort Augustus Abbey Environmental information defined 7

“(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)” Need not be detrimental effect Element for (a) may also be a factor (b) ‘Affecting’ - balance of probabilities E.g. Request for recommendations on a planning application – administrative measure that may affect factors (energy, waste, etc) and elements (land, landscape) Environmental information defined 8

“(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” Decision 221/2013 Mr Robb and SNH - licence in respect of monitoring, photographing and ringing a pair of nesting peregrine falcons. NB: link to (a) and (b) of definition - See Decision 174/2012 Mr Henderson and Transport Scotland – correspondence on national speed limits as it relates to climate change Environmental information defined 9

“(d) reports on the implementation of environmental legislation” Information in d) may also fall under part c) But what is ‘Environmental legislation’? E.g. request for reports held by authority on dealing with EIRs? NB: No geographical restriction on the information - not need to be geographically Scottish information. Environmental information defined 10

“( e) costs benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c)” Recognition that economics may underpin environmental decisions Decision 153/2012 -Mr Vass and the Scottish Ministers - the scores for economic suitability allotted to TIF (Tax Incremental Financing ) applications NB: Regulation 4 gives examples of environmental information (duty to be proactive in publishing environmental information) Environmental information defined 11

“(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)” NB: Difference: affected by the state of the elements… Decision 166/2013 Mr Scott and Historic Scotland - report by the North Ronaldsay Trust relating to the Old Beacon. Decision 088/2013 Mr X and SPS - the fire loading standards and the capacity of sprinkler systems installed in a prison…held (a), (b), c) and (f) of the definition applied Environmental information defined 12

In essence, it’s the law but… Proportionality in dealing with requests (esp. mixed requests) NB: EIRs vital when different from FOISA – e.g. charging or excessive costs Or when exception is different from the equivalent exemption Or when exemption has no equivalent (e.g. section 26 of FOISA – Decision 182/2006 Mr Sandison and Fisheries Research Services) Or if there are technical differences between FOISA/EIRs involved: oral requests, extend timescales, late reviews, transfer of requests. Why important to get it right? 13

OSIC Technical EIRs guidance OSIC searchable decision database UK Information Commissioner (ICO) (EIR) (ico.org.uk) Information Tribunal (EIR) (informationtribunal.gov.uk) UK case law (bailii.org) EU case law (eur-lex.europa.eu) Aarhus Compliance Committee (unece.org) The Aarhus Implementation Guide (unece.org) Resources 14

Scottish Information Commissioner Kinburn Castle Doubledykes Road St Andrews KY16 9DS T: E: W: Further information Contact us

“I would like to receive the following information about the authority-owned Climbing Centre: a) The number of visitors recorded by the Centre in financial year b) A breakdown of the number of tickets issued and revenue generated, by classification e.g., adult, child, concession, multi-pass, c) Has your authority conducted any lightning tests for the building of the Centre - and if so can I have the raw data for any lightning test results for the last year. Could I also have a copy of the lightning risk assessment report undertaken? d) The number, and a breakdown by type, of incidents recorded in the Centre’s Accident Log in , including any notes relating to the cause of such accidents and action taken to address deficiencies. e) Why was the Centre closed to the public in September and October 2013?” First Case Study 16

“I would like to request information about two of the schools (School X and School Y) in your area. Please provide under FOISA: a) The planning application and any representations received on the planning application for the proposed school X on the X site. Also, was there an environmental impact assessment carried out? If so, I would like a copy of that assessment. b) Information on the projected pupil numbers for proposed school X. c) Any legal advice (internal or external) received by your authority on compliance with regulations on class size for the proposed school at X. d) All information on accidents reported by members of the public or school staff in relation to the public footpath that leads to the south entrance of school Y, and details of maintenance work carried out to the public footpath. e) Also, why were speed bumps added on road R outside School Y? They would be far better located on road Z.” Scenario 1 17

“I would like to know if your authority owns any electric cars. If so: a) How many electric cars do you have, and what make are they? b) When were they purchased and what was total cost? Was it all paid for by the authority or were any grants obtained? If so please specify the amounts. c) Can I have all information (minutes of meetings, policies, correspondence, cost analysis etc) relating to your authority’s decision to purchase such electric cars. d) All information about any traffic offences committed by any employee of your authority whilst using an electric car. e) Please provide me with a copy of any transport policy that your authority has developed. ” Scenario 2 18

“a) I would like to receive more information about the investigation by environmental health officer, Mr A of your authority into a property owned by Z. If you hold an investigation report or other information on this, can I have the original copy? I understand that Z was found guilty of failing to comply with orders or notices in respect of the Prevention of Damage by Pests legislation and the public Health legislation. Media reports have stated that the properties in question were fire hazards due to risk of crowding, and that hygiene was poor. b) I also understand that Mr A has recently left your authority. Could you please tell me why Mr A left your authority? c) I would like to receive a copy of all presentations that Mr A gave whilst he was an employee of your authority. Also any blog posts by Mr A. d) Also, please provide me with the name, title, address and direct telephone number of the member of staff in your authority who has responsibility for enforcement of the Environmental Health legislation and to whom I can correspond in future about my concerns.” Scenario 3 19

“Please give me all the data you hold of ALL incidents regarding fish farms in Loch Z. In particular, I would like details of: a) The date and number of escapes of salmon from cages at each site. b) The estimated volume of waste deposited on the sea bed at each site. Do you have comparative data for any other EU country? c) The estimated volume of sea lice treatment discharged into the loch. I would like to be given all the statistical information in a.csv format. d) How many people are employed on the fish farms in Loch Z? e) Please provide me with the cost of travel by any staff of your authority to meetings with Z Ltd, the Norwegian company who specialise in the study of infectious salmon anaemia.” Scenario 4 20

“ Environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on– (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); Definition 21

Q&A