Ports, harbours and environmental information – a key decision by the Scottish Information Commissioner

Landmark decision on the Environmental Information (Scotland) Regulations 2004 (EIRs)

On 25 May 2023, the Scottish Information Commissioner issued a landmark decision (Decision 051/2023) under the Environmental Information (Scotland) Regulations 2004 (EIRs), finding that Cromarty Firth Port Authority (CFPA) is a Scottish public authority under the terms of the EIRs and has to comply with those Regulations, including dealing with a request for environmental information (as defined in Regulation 2 of the EIRs) that it received on 9 October 2021.

The Commissioner’s Decision Notice can be found here. It is subject to a right of appeal to the Court of Session within 42 days from the date on which it was issued to CFPA.

This is the first time that a Scottish harbour authority has been deemed to be a Scottish public authority for the purposes of the EIRs. It carries potentially wide-ranging and significant implications for ports and harbours across Scotland and those seeking to access environmental information that they hold.

Although harbour authorities are not listed as Scottish public authorities in Schedule 1 to the Freedom of Information (Scotland) Act 2002 and so do not need to comply with FOISA, the decision of the Commissioner is significant because it confirms that they may still fall within the scope of the EIRs.

The Request

In the case in question, CFPA received a request for copies of information contained in some 62 complaints made to it concerning the drilling rig, the Ocean Endeavour. The Commissioner had to decide whether the CFPA fell within the definition of a ‘Scottish public authority’ in terms of Regulation 2(1) of the EIRs and in particular under paragraph (c) of Regulation 2(1).

The Commissioner answered that question in the affirmative, with the decision turning on the terms of Regulation 2(1)(c) (giving effect to an EU Directive of 2003), in light of CFPA’s governing order and developments in case law, in particular the points considered by the European Court of Justice in the case of Fish Legal v Information Commissioner [2014] 2 CMLR 36.

Meaning of a ‘Scottish public authority’

The Commissioner’s decision notes that Regulation 2(1)(c) of the EIRs provides that a Scottish public authority for the purposes of the EIRs includes “any other Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998)”. Regulation 2(1)(c) gives effect to Article 2(2)(b) of EU Directive  2003/4/EC that a “public authority” includes “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment”.

The Commissioner drew particular attention in reaching his decision to the terms of section 7 of the Order contained in the Cromarty Firth Port Authority Order Confirmation Act 1973, setting out the general duties of the CFPA, namely to take all action they consider necessary or desirable for, in connection with, (a) the improvement and conservancy of the Port, (b) the provision, maintenance, operation and improvement of port and harbour services and facilities in, or in the vicinity of, the Port, and (c) the control of development in the Port and promotion of development in and around the Port.

Duties under the EIRs

Bodies falling within the scope of the EIRs are subject to a range of statutory duties in relation to environmental information, with compliance enforced by the Scottish Information Commissioner, including duties to actively disseminate environmental information, deal with requests for environmental information within a statutory framework and timescale, provide advice and assistance to requesters and co-operate with investigations and comply with notices issued by the Scottish Information Commissioner who enforces the EIRs in Scotland.

Wider interest

This decision breaks new ground in terms of the reach of the EIRs and will be of significant interest to ports and harbours across Scotland, to those who interact and share environmental information with them and to those seeking to access environmental information.

For more information or help to understand the implications of this decision

Harper Macleod’s Public Sector and Corporate, Commercial & Regulatory teams have significant and long-standing expertise in relation to the Environmental Information (Scotland) Regulations 2004, as well as the terms of the governance frameworks that apply to ports and harbours across Scotland. For more information about this decision and its impact, contact Chris Kerr.