Nearly 1,000 unanswered information requests have been binned by the Scottish Government’s environmental watchdog without requesters being told.
The Ferret has learned that in March 2023, the Scottish Environment Protection Agency (Sepa) closed 893 unanswered freedom of information (FoI) requests which were submitted before 9 January 2023. The body also closed 92 unresolved formal reviews requested by members of the public who were unhappy with the way their FoIs were handled.
The decision was sanctioned by the Scottish Information Commissioner, Daren Fitzhenry – who enforces freedom of information law – and was aimed at dealing with a backlog of requests caused by the Covid-19 pandemic and a criminal cyber attack on Sepa.
But Sepa has confirmed to The Ferret that, although it published details of the decision to close the FoIs on a section of its website in March, it did not inform people individually that their requests were not going ahead.
The information commissioner’s office told The Ferret it was “disappointing to learn” that requesters had not been told about the closure of their FoIs. It had contacted Sepa to discuss the matter.
Environmental campaigners questioned how individuals could know to re-seek information “in the absence of any notification” that their request had been closed. One freedom of information advocate claimed the decision to close the requests had created a “transparency vacuum” about the state of Scotland’s environment.
Sepa is the Scottish Government’s environmental regulator. It’s responsible for the health of Scotland’s natural environment and for ensuring businesses don’t break rules on pollution.
FOI and EIR requests
The Freedom of Information (FOI) and Environmental Information (EIR) regulations provide the public the right to request information from public sector bodies. Information has to be released wherever possible.
Supporters of the regulations claim they provide the public with tools to hold the government to account about the decisions it takes.
Scottish Information Commissioner
The independent official responsible for promoting and enforcing freedom of information law in Scotland.
Environmental Rights Centre for Scotland (ERCS)
ERCS is a campaign group which aims to use the law to improve protection of Scotland’s environment.
Campaign for Freedom of Information in Scotland
A campaigning organisation which works to ensure access to information laws are implemented effectively.
Sepa said it takes its “responsibilities to provide public information very seriously indeed”. The body added it recognised closing the requests was “not the high level of service that we wish to provide” and was investing in its “access to information service”.
The Ferret is investigating the role of Sepa as the Scottish Government’s major environmental watchdog, following growing concern from readers. We are publishing a series of stories exposing its record on tackling pollution, transparency, and funding.
Pandemic and cyber attack
The Ferret found out about Sepa’s closure of the information requests after questioning abnormalities in the body’s reporting of its FoI response rates when researching this series.
Sepa claims the pandemic prevented it from responding to some FoI requests because it was unable to access information stored in its offices during lockdown restrictions.
According to its website, the body’s ability to deal with requests was “more seriously impacted” by the cyber attack it suffered at the hands of the international criminal gang, Conti, on Christmas Eve 2020. The attack left staff without access to systems and unable to respond to information requests.
The backlog of overdue FoIs caused by the two events in turn impacted Sepa’s ability to respond to new requests. By May 2022, only 10 per cent of FoI requests were being responded to within the legal 20 working day timeframe.
Among the unanswered FoIs closed by Sepa was a request made by The Ferret asking for correspondence about environmental issues caused by radioactivity at the Faslane and Coulport nuclear weapons bases.
We were only told that the request – first submitted back in 2019 – had been closed after we contacted Sepa to ask about its FoI response rates.
Meanwhile the campaign group, the Environmental Rights Centre for Scotland (ERCS), said it only found out about the closure of its requests when we contacted it for comment on this story.
That’s despite the Scottish Information Commissioner, Daren Fitzhenry, claiming in March that Sepa had provided requesters with a “practical route” to resubmit their request.
Ben Christman, in-house solicitor at ERCS, called on Fitzhenry to explain why he approved the closure of the requests. He queried how that approval is consistent with the information commissioner’s “statutory responsibility to enforce the right of access to information”.
“We were not informed that any of our non-answered requests were closed,” Christman told The Ferret. “How could requesters know to ‘reseek information’ in the absence of any notification?”
“Sepa routinely fails to respond to our requests for information. They seem to have taken the approach that FoI law is optional.”
James Curran, who retired as Sepa’s chief executive in 2015, was also critical of the decision. “As an environmentally concerned citizen, I’m really shocked by this failure,” he said.
“We all know that environmental decisions, policies and laws are commonly criticised and undermined by vested interests.
Curran added: “The only recourse for public bodies is good science, hard evidence and absolute openness and honesty. It seriously jeopardises the preservation of our environment, and therefore the health and wellbeing of every one of us, if the requirements for responding to questions aren’t strictly observed.
“As an ex-chief executive of Sepa, our regular internal performance reports used to highlight how we were doing on replying to our external enquiries. It was one of several key success measures for me, and was always at or close to 100 per cent.
“Sepa has suffered catastrophic disruption over recent years, doubtless seriously aggravated by long-term under-funding by the Scottish Government. That must be reversed.”
“There is a transparency vacuum created because so much of the requested information is being hidden from the public,” Ewart claimed.
Kieron Gallagher, head of governance at Sepa, said the organisation had a “strong record on information rights” and rejected suggestions it considered these “obligations as optional”.
“Since a serious and significant cyber attack by international organised criminals, we’ve been open and transparent on our response and our recovery, publishing regular updates on our service status, including access to information.”
He acknowledged that closing the outstanding FoIs was not a “high level of service” but was an attempt at “improving our service and protecting information rights”. He claimed Daren Fitzhenry was “kept fully informed throughout”.
“We’re investing significantly in our access to information service and improved our target response time from 15 per cent of enquiries in April 2022 to 80 per cent of enquiries in July 2023,” Gallagher added.
“Our priority for 2023 is making our processes more efficient, publishing more data proactively and exploring avenues to further improve performance and achieve the consistent target of 80 per cent of enquiries responded to within the timescales set out in legislation by the end of 2023 at the latest.”
Daren Fitzhenry’s spokesperson, Paul Mutch, pointed out that many of the FoI responses which were closed had “timed out”, meaning that requesters had lost review and appeal rights.
“While it was by no means an ideal situation, therefore, the commissioner acknowledged that the quickest and most practical route for requesters who still wished to receive the information in these circumstances was for a new request to be made,” he said
“It is disappointing to learn, however, that the steps taken by Sepa to communicate the closure of these cases and the way forward for requesters who still wish to obtain the information do not appear to have reached all of those affected.”
Mutch added: “Please be assured that, having had this issue brought to our attention, we have contacted Sepa to discuss this matter, setting out that further steps should be taken to notify those affected.”
The Ferret’s investigation into the Scottish Environment Protection Agency has been supported by members of the Environmental Funders Network, a UK-based network of foundations and donors supporting environmental causes. The Ferret maintains complete editorial control.
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