Consultant and solicitor Daradjeet Jagpal dissects the Scottish Information Commissioner’s latest decision notice regarding a request for information to Ayrshire Housing and underline the importance of RSL compliance.

A Scottish Information Commissioner (SIC) decision notice highlights that RSLs still fail to recognise requests for information as environmental information requests under the Environmental Information (Scotland) Regulations 2004 (EISRs), despite it being over two years since the SIC determined that RSLs are subject to the EISRs.

The applicant, Mr. Hill, requested from Ayrshire Housing information regarding the ownership of an area of land and the persons responsible for its maintenance and associated costs. Ayrshire Housing informed Mr. Hill that the requested information was not environmental and did not provide it. The SIC decided that it was environmental on the basis that it concerned measures affecting or likely to affect the state of elements of the environment (maintenance of the landscape) and measures designed to protect those elements (responsibility for maintenance and associated costs) and that Ayrshire Housing should have considered Mr. Hill’s request in line with the EISRs.

The decision portrays a negative picture of RSLs as being resistant to the disclosure of information. In my experience of advising RSLs, this is not in fact the case and RSLs are generally willing to disclose information on request. Indeed, this is evident from the responses to the Scottish Government’s consultation on the Scottish Social Housing Charter, from which it appears that RSLs are sufficiently open and transparent.

However, the failure lies in RSLs preferring the comfort of familiarity by viewing all requests for information as routine “in the course of business” requests instead of diagnosing them and dealing with them as requests for environmental information under the EISRs, where appropriate. In my opinion, this can be attributed, first, to a lack of awareness within the RSL sector that the EISRs apply to them and, secondly, to a lack of appreciation of the broad spectrum of information that is “environmental information” for the purposes of the EISRs.

The first of these factors can be addressed by training staff and implementing appropriate policies. Training should not be restricted to staff who ordinarily handle requests. Front of house staff, who are more likely to be exposed to service users and the public, should be trained on: how to recognise requests (requests need not assume a specific format and requests made orally are valid); how to provide advice and assistance to prospective requesters (including catalogues of information and schedules of charges to help prospective requesters formulate requests and find out how much they will cost); and who within RSLs requests should be directed to. Staff involved in handling requests should be trained in dealing with and responding to requests, including: arranging internal meetings with departments likely to hold requested information to analyse requests and assess what information might be held and where; reviewing information and determining what can be disclosed, withheld or redacted using exceptions; and formulating robust responses to requesters that meet EISRs requirements. Review procedures for dealing with dissatisfied requesters should also be implemented.

The second factor necessitates a recognition and acceptance that environmental information for EISRs purposes is broader than pollution, emissions and energy usage information – an approach favoured by the SIC. It includes anything in any form on the state of elements of the environment, human health and safety and reports on the implementation of environmental legislation. For RSLs, it covers, for example, property condition reports, photographs of property, advice from environmental consultants and tenders for regeneration, architectural and construction works.

The Scottish Government is likely to extend the Freedom of Information (Scotland) Act 2002 (FOISA) to RSLs in 2017, with a consultation due on this shortly. Similar extension consultations have already been undertaken numerous times but this one is likely, given recent developments (including an extension petition presented to the Scottish Parliament), to finally give rise to an order extending FOISA to RSLs. My advice to RSLs is this: an RSL with its house in order so far as the EISRs are concerned stands itself in good stead when it comes to meeting the additional compliance challenges presented by FOISA. Otherwise, it may find itself the subject of enforcement action by the SIC and / or complaints to the Scottish Public Services Ombudsman.