Scottish Statutory Harbour Authorities must make “environmental information” publicly available

For the first time the Scottish Information Commissioner (the “SIC”) has decided that a Scottish statutory harbour authority must comply with the requirements of the Environmental Information (Scotland) Regulations 2004 (the“EIRs”).

Scottish statutory harbour authorities have not typically considered themselves to be subject to the EIRs although, south of the border, the UK Information Commissioner has previously held on a number of occasions that English statutory harbour authorities are subject to the corresponding UK regulations.

A statutory harbour authority is a body which has statutory powers or duties of improving, maintaining or managing a harbour.  The SIC decided that these functions are clearly carried out in the public interest, are environmental in nature and therefore satisfy the test for the application of the EIRs.

This is a significant decision which brings the Scottish position in to line with the rest of the UK by requiring all Scottish statutory harbour authorities to comply with the additional transparency obligations under the EIRs.  These include requirements to:

• actively disseminate environmental information, particularly by electronic means
• make environmental information available to any person who requests it within 20 working days (or 40 days in exceptional cases)
• provide advice and assistance to someone who has made, or wishes to make, a request for environmental information
• transfer requests for environmental information if they do not hold the information but believe another authority does.

As a result of this decision, statutory harbour authorities should swiftly take the following steps to ensure compliance with the EIRs:

1. conduct an audit of information held with a view to determining whether this constitutes “environmental information” (and whether there is any information which should no longer be held);
2. consider how to disseminate that information (e.g. on the authority’s website);
3. develop polices and procedures for recording, maintaining and disseminating environmental information (including handling requests for such information) on an ongoing basis; and
4. become familiar with the Scottish Information Commissioner’s guidance on EIRs (“What do the EIRs require Scottish public authorities to do?”), which can be found online at www.itspublicknowledge.info/foi-law

Our specialist team works with public sector and private organisations across all FOI and EIR issues, both at a UK and Scottish level, and can help you set up compliant systems of working.  Get in touch with Hazel Moffat, Andrew Little, Rebecca Roberts or Louise McErlean if you have any questions.