Disclosure of information
Section 39 - Disclosure of information to Environmental Standards Scotland
152.Section 39 ensures that public authorities are able to make appropriate disclosures to Environmental Standards Scotland.
153.Subsection (1) states that no statutory or common law prohibition or restriction on the disclosure of information prevents a public authority from providing Environmental Standards Scotland with information necessary for the exercise of its functions, in accordance with the authority’s duty to co-operate under section 23(1) or an information notice issued under section 24(1).
154.However, subsection (2) sets out that a public authority is not required to provide information in certain circumstances. Firstly, where it would be entitled to refuse to provide it in civil proceedings on grounds of confidentiality of communications. Secondly, where it would be entitled (or required by common law) to refuse to provide it in civil proceedings on grounds of public interest immunity. In addition, subsection (3) (as read with subsection (4)) states that nothing in this Chapter requires or authorises disclosure of information which would contravene data protection legislation as defined by section 3(9) of the Data Protection Act 2018.
Section 40 - Confidentiality of proceedings
155.Section 40 provides for the confidentiality of information obtained under the duty of cooperation or information notice power, and correspondence relating to ongoing proceedings, where Environmental Standards Scotland is considering further action.
156.Subsection (1) prohibits Environmental Standards Scotland disclosing information or correspondence that relates to ongoing proceedings, subject to certain exceptions set out in subsection (2). Environmental Standards Scotland may disclose information it has obtained where the disclosure is made: with the consent of the public authority who provided the information or correspondence (although this does not apply to disclosure of an information notice, a compliance notice or an unpublished draft of an improvement report); for purposes connected with the performance of its functions; to the Office for Environmental Protection, or any other environmental governance body, for purposes connected with the exercise of an environmental governance function; in respect of information, or correspondence, that relates only to a matter in relation to which Environmental Standards Scotland does not intend to take any further action; for the purposes of civil proceedings; for the purposes of the investigation or prosecution of any offence or suspected offence or for the purposes of the prevention or detection of crime; in pursuance of an order of a court or tribunal; in accordance with any other enactment requiring or permitting the disclosure.
