Five key steps for RSLs to prepare to comply with regulations
Registered Social Landlords in Scotland will now have to respond to requests for environmental information following a decision from the Scottish Information Commissioner (SICs) last week.
Until now, RSLs had been entitled to refuse requests for environmental information – including material on energy efficiency and the implementation of environmental legislation – on the basis that they were not Scottish public authorities under the Environmental Information (Scotland) Regulations 2004 (EISRs).
However, the SICs decision notice on a case involving Dunbritton Housing Association has changed this.
In light of this decision, all Scottish RSLs must now take steps to comply with the terms of the EISRs and respond to any requests for environmental information that they receive. Any Scottish RSL that fails to respond to a request for environmental information may find itself subject to enforcement action by the SIC.
The Environmental Information (Scotland) Regulations 2004 (the "EISRS") provide for a right of access to environmental information held by Scottish public authorities and other bodies. Environmental information is broadly defined and includes any material in any form on, amongst other things, the state of the elements, reports on the implementation of environmental legislation and the state of human health and safety.
Requests for environmental information can be made by anyone and can take any form – even an oral request made by telephone is sufficient. Requests must be complied with within 20 working days of receipt, and applicants cannot be charged in excess of the cost of providing the information. Requests may be refused by a written notice within 20 working days of receipt and applicants may seek a review of such refusals. There are a number of exceptions from disclosure where environmental information need not be provided to applicants. Dissatisfied applicants may appeal to the Scottish Information Commissioner ("SIC"), who may ultimately issue a decision notice requiring a Scottish public authority to take specified steps to comply with the EISRs.
The EISRs apply to Scottish public authorities to whom the Freedom of Information (Scotland) Act 2002 applies ("FOISA") and also to bodies that are under the control of the latter and have public responsibilities or functions relating to the environment. The scope of the EISRs is therefore potentially far-reaching and could cover private sector entities that provide public services in relation to the environment, such as utility and waste disposal companies.
Are RSLs Scottish public authorities for the purposes of the EISRs?
While it is settled in England that RSLs are public authorities for the UK equivalent of the EISRs, until now RSLs in Scotland have been entitled to refuse requests for environmental information on the basis that RSLs are not Scottish public authorities for the purposes of the EISRs.
It was, however, only a matter of time before a case would be referred to the SIC involving the EISRs and a Scottish RSL. The SIC issued her decision notice in such a case last week, in which she determined that Dunbritton Housing Association ("DHA") – and therefore any Scottish RSL – is a Scottish public authority for the purposes of the EISRs for two reasons.
Firstly, the SIC was of the view that DHA is under the control of the Scottish Housing Regulator ("SHR"), a Scottish public authority for the purposes of FOISA. While the SIC acknowledged that DHA is an independent voluntary organisation, the SIC noted that DHA is "clearly subject to considerable regulation by the SHR", evidenced by the SHR's "extensive powers of intervention in situations of alleged misconduct, mismanagement or underperformance and its powers to require remedial action" and concluded that the SHR could "oversee and direct" DHA's affairs by virtue such powers.
Secondly, the SIC considered that DHA has public responsibilities relating to the provision, construction, improvement and management of social housing, all of which can have significant effects on energy use. Moreover, the SIC noted that the Scottish Housing Quality Standard, which RSLs are required to meet by April 2015, contains energy efficient criteria, including standards for effective insulation and efficient heating. Such standards fall within the definition of environmental information contained in the EISRs. Accordingly, DHA has public responsibilities relating to the environment for the purposes of the EISRs.
The SIC therefore required DHA to process the request that it had received in line with the requirements of the EISRs.
What steps should Scottish RSLs now take?
Five initial steps that Scottish RSLs should now take are to:
- consider what of the information that the RSL holds could fall within the definition of environmental information. RSLs of necessity deal with land and built structures and much, if not most, of this information is likely to fall within the scope of the EISRs;
- provide staff training to help them "diagnose" and handle a request as soon as it is received. This is crucial because whilst Scottish RSLs will now have to provide environmental information on request (subject to exceptions), they need not comply with FOISA requests for non-environmental information;
- prepare to provide advice and assistance to those requesting environmental information by, for example, compiling catalogues or indexes of environmental information held in order to assist applicants in specifying more precisely the particular information that they are looking for. Key to this will be the development and implementation of records management policies;
- put in place appropriate review processes for dealing with dissatisfied applicants. Such review processes will need to comply with the guidance issued by the Scottish Government, which provides that reviews should be carried out in an impartial and as fair manner as possible. This may involve having different staff review the request from those who initially responded to it. All correspondence with the applicant and internal communications relating to the same should be recorded, as these may be invaluable should the applicant refer the matter to the SIC for enforcement action; and
- review tender arrangements. There is a possibility that information submitted by prospective service providers as part of the tender process may require to be disclosed in response to an EISRs request, unless the information is not environmental in nature or is otherwise except from disclosure.
Daradjeet Jagpal is an Associate in Harper Macleod's Public Sector & Housing team, in particular providing advice and assistance in relation to regulatory, governance and compliance issues.