Environmental information

Environmental information#

Environmental information has its own legal regime in Scotland, with rules that differ from Freedom of Information (Scotland) Act 2002 (FOISA) in several important ways.

The law#

The Environmental Information (Scotland) Regulations 2004 (the EIRs) give you the right to request environmental information from Scottish public authorities. The regulations implement the Aarhus Convention, an international treaty that recognises access to environmental information as a fundamental right linked to democratic participation and the protection of the environment.

Although the UK has left the EU, the EIRs remain in force. Your rights under them haven’t changed.

Could this be environmental?#

The definition of environmental information is much broader than most people realise. If any of the following apply to your request, then the EIRs may cover it:

• Planning applications or development decisions
• Road building, transport schemes, or traffic management
• Flood defences or flood risk assessments
• Wind farms, solar farms, or other energy projects
• Waste collection, recycling, or landfill operations
• Noise complaints or noise assessments
• Air quality monitoring or pollution incidents
• Water quality or sewage discharge
• Tree felling, green space management, or biodiversity
• Building construction or demolition (energy use, emissions, environmental impact)
• Agricultural land use or pesticide application
• Contaminated land assessments

A council’s decision about where to locate a new school could involve environmental factors like traffic, emissions, and land use. A health board’s report on legionella in a water system would count, as would a housing association’s asbestos survey.

When in doubt, consider whether the issue impacts the physical environment in any way. If it does, then the EIRs likely apply.

Good to know: The legal definition in the EIRs covers six broad categories: the state of the environment (air, water, soil, land, landscape, natural sites, biological diversity); factors affecting the environment (emissions, waste, noise, radiation); measures designed to protect the environment (policies, plans, programmes); reports on implementing environmental legislation; cost-benefit analyses used in environmental decisions; and the state of human health and safety where affected by environmental conditions. If you need to argue that your request falls under the EIRs, these categories from regulation 2(1) are where to start.

Key differences from FOI#

The EIRs differ from FOISA in several ways that matter in practice.

You can ask verbally#

Under FOISA, your request must be in a form that can be kept for future use, such as a letter, email or recording. Under the EIRs, you can make a request by phone or in person. The authority must still respond within the same timescale. This is useful if you need to access information quickly or find written communication difficult.

More bodies are covered#

The EIRs don’t just apply to the public authorities listed under FOISA, but also to bodies carrying out public administrative functions relating to the environment, and to bodies under the control of a public authority that have environmental responsibilities. This can include private companies that wouldn’t be covered by FOISA alone.

Exceptions, not exemptions#

The EIRs use “exceptions” rather than “exemptions.”

Every exception requires a public interest test. Under FOISA, some exemptions are absolute (no public interest test needed). Under the EIRs, the authority must always weigh the public interest in disclosure against the public interest in withholding. There are no absolute exceptions, except in relation to personal data — and even there, a balancing test may still apply.

Good to know: Information about emissions into the environment gets extra protection under the EIRs. Several exceptions, including confidentiality of commercial information, cannot be applied to emissions data at all. If your request involves emissions, it is hard for the authority to withhold it.

Stronger presumption of disclosure#

The EIRs contain an explicit presumption in favour of disclosure. FOISA has no direct equivalent, though where the public interest arguments are evenly balanced, FOISA also requires release. The regulations implement the Aarhus Convention, and courts have consistently held that they must be interpreted in a way that supports the Convention’s principles of transparency and increased public participation. In borderline cases, this can tip the balance towards release.

Extended deadline for large requests#

Under FOISA, the authority has 20 working days to respond to your request, with no general option to extend. Under the EIRs, the authority can take up to 40 working days if the request is complex and involves a large volume of information. They must tell you about the extension and explain why it’s needed before the original 20-day period runs out.

Different fee and cost rules#

Under FOISA, the cost thresholds are fixed: no charge below £100, a capped charge between £100 and £600, and an outright refusal if the cost exceeds £600. The EIRs work differently. Authorities can charge a “reasonable amount” for making environmental information available, and each authority must publish its own charging schedule. There is no lower or upper cost limit.

However, an authority can refuse an EIRs request if it is “manifestly unreasonable,” which includes cases where the cost or burden of responding would be excessive. Unlike the £600 ceiling under FOISA, there is no fixed threshold — the authority must show that the burden is genuinely disproportionate, and the refusal is still subject to the public interest test. In practice, many authorities don’t charge for routine environmental requests.

Why this matters#

If your request is about the environment in any way, it may be worth framing it as an EIRs request. You don’t have to, and the authority should identify the correct law to use and apply it whether you mention it or not.

Authorities do sometimes get this wrong. They may handle an environmental information request under FOISA instead of the EIRs, applying stricter rules than the law requires. If you think your request involves environmental information and the authority has dealt with it under FOISA only, you should raise this when you ask for an internal review.

Reviews and appeals#

The review and appeal process for EIRs requests follows the same pattern as for FOISA. You should first ask the authority for a review, then appeal to the Scottish Information Commissioner if needed. You have 40 working days to request a review, and six months to appeal to the Commissioner. See Challenging a refusal.

What next?#

For a quick summary of all your rights, see Your rights at a glance.

Or go back to How to make a request if you’re ready to write your request.