Chapter 1: Access to Environmental Information

Legal Protection for Public Rights of Access to Information

• constitutional provisions;
• laws or regulations dealing with general environmental protection, nature conservation, licensing, EIA, etc. or general administrative procedures;
• laws or regulations specifically designed to deal with access to (environmental) information.

Constitutional provisions can be important in providing a framework for the development or interpretation of legislation and perhaps sometimes in the handling of individual cases. However, such provisions of necessity tend to be broadly worded and unless fleshed out with further legislation, tend to be of limited value.

Where access to information is provided under laws or regulations dealing with other aspects of environmental protection, this often results in provisions which are too general to be useful in specific cases. Specific laws or regulations on access to (environmental) information tend to be the most effective means of providing the level of detail which is needed in order to really safeguard the interests of the public in this area. As the saying goes, "the devil is in the detail."

Geographically, there are significant discrepancies in the types of legal framework prevailing in the different regions.

Constitutional provisions safeguarding the right of public access to information are common to virtually all of the CEE and NIS countries studied. In some cases, specific reference is made to environmental information. Several of the Western European countries studied also have such provisions but several others do not, even though more detailed laws on access to information have been developed.

As regards specific laws covering access to information or environmental information, the geographical picture is more or less the reverse. Virtually all the Western countries studied have such laws, as do some of the CEE and NIS countries. However, in most CEE countries and some NIS countries the right of access to environmental information is only provided in a limited way by other environmental protection laws or regulations. The absence in most of those countries of laws dealing specifically with access to information or environmental information leads to a lack of clarity about the procedures and conditions for obtaining information and the remedies available to the public if access is denied.

In general, it can be said that specific legislation providing for access to (environmental) information is more useful than a broad constitutional provision on its own, or legislation which has a different primary purpose and which only incidentally deals with information requirements.

Furthermore, one can generalize by saying that the further east one goes, the less detailed the provisions are. But it should be emphasized that this is just a generalization which contains exceptions.

In the period under consideration, important developments are taking place in both the East and West. Several CEE and NIS countries are at various stages in the process of developing specific laws on access to information or environmental information (e.g. Czech Republic, Slovakia, Poland, Russia, Moldova). Some have no doubt been influenced in this both by the EU legislation (especially those with an interest in the accession process) and by the drafting process for the Aarhus Convention. The latter instrument is likely to stimulate other countries interested in becoming parties to start reviewing their laws in order to prepare for ratification.

In West European countries, the current review of Directive 90/313/EEC on freedom of access to information on the environment is prompting the EU countries to re-examine their laws. Again, the Aarhus Convention is likely to have an influence both on the directive review process and directly on the member states themselves.

In view of these developments, the time is ripe for making major steps in strengthening right-to-know laws in Europe.

Conclusion: Specific detailed laws on access to general information should be introduced, or, failing this, on access to environmental information. Constitutional provisions should be introduced or strengthened in a number of countries, but it is not enough to rely on constitutional provisions or incidental access to information provisions in other laws.

Definition of Environmental Information

Even where there is no explicit definition of environmental information, it is usually possible to deduce the effective scope through analyzing other laws. From this, it can be said that the NIS countries laws tend to cover information on the state of water, air, soil and fauna, and measures taken to protect them. Furthermore, unlike the definition in some West European countries, they also cover human health. However, they do not generally cover other important aspects such as information on policies, programs, plans, legislation and environmental agreements affecting or likely to affect the environment, or economic analyses used in environmental decisionmaking. They also fail to cover elements such as landscape, energy, noise, biological diversity and GMOs. A similar situation exists in CEE countries, though some have definitions in their environmental protection laws (Albania, Bulgaria, Slovenia) and others are developing definitions in their new draft laws which are similar to the EU directive definition.

The West European countries which have a definition of environmental information broadly follow the EU directive and the Sofia Guidelines - which, incidentally, are considerably more limited in scope in this respect than the draft Aarhus Convention. The latter contains a more comprehensive list of elements of the environment (including landscape, atmosphere and GMOs) which is non-exhaustive; covers measures and factors affecting or likely to affect the environment (as well as activities); explicitly mentions policies, plans, programs, legislation, environmental agreements and economic analyses used in environmental decisionmaking; and includes environment related information on human health and safety, cultural sites and built structures. Implementation of this aspect of the convention would therefore bring about improvements in both the East and West.

Conclusion: General freedom of information laws are usually the best solution. However, in their absence, an explicit but non-exhaustive definition of environmental information, at least covering the elements in the Aarhus definition, should be applied.

Who has Access?

Conclusion: The right to information should apply to any person without their having to prove or even state an interest and without distinction on the basis of citizenship, nationality, domicile or any other ground.

Which Public Authorities must Provide Information?

Where the laws deal only with environmental information, the obligation is put on those public authorities having environmental functions, again at all levels. In some countries, this has been interpreted narrowly, so that it is not always possible to obtain important environmental information from non-environmental ministries (e.g. agriculture, transport) which only take account of environmental matters incidentally, though in most countries they would be covered.

Bodies having public responsibilities for the environment and under the control of public authorities are also by and large covered. In EU countries, this is a requirement under the directive, though there are differing interpretations of how this applies to privatized bodies providing environmental services (for example some privatized energy utilities in the United Kingdom¹ [UK] have argued that they are not covered).

Legislative and judicial bodies, or (which is a slightly different thing) bodies acting in a legislative or judicial capacity, are generally excluded.

For active provision of information, many countries have set up information departments or centers to publish and disseminate environmental information. These are also playing an increasing role in servicing information requests which formerly were dealt with at a higher level.

Conclusion: It is important that all publicly funded bodies and bodies providing public services are covered by freedom of information laws, and that environmental information is not withheld simply because the body holding it does not have an environmental function. There is no reason why legislative bodies should be exempt from transparency requirements.

Obligation to Provide Business Information

In the NIS region, the private sector is quite new, and in some NIS countries (e.g. Belarus) most enterprises are still state-owned. The obligation to provide information in those countries, stemming from their constitutions, applies not only to state authorities but also to the private sector. However, the obligation for businesses to give information directly to the public is not specified in legislation.

There has been a noticeable trend in some countries toward companies monitoring their own performances and then making the results available to the public authority. Making available often means that the data remains in the possession of the company but the public authority has a right to inspect it at all reasonable times. This conserves the limited resources of the public authority, which may still reserve the right to carry out spot checks. However, this trend has important implications for the level of public access to information, because freedom of information provisions in many jurisdictions only apply to information held by public authorities (or by bodies under the control of public authorities and providing public services).

Conclusion: In principle, environmental information held by the private sector should be available to the public on the same basis as information held by public authorities (also with the same exemption possibilities), though the private sector could have the option of discharging this obligation by supplying the information via the public authority.

Time Limits for Providing Information

Some countries make a distinction between the time limits for responding to the request, for supplying the information and for issuing a refusal. Some also have an initial deadline for supplying the information but have the possibility for extending this by a further specified amount where this can be justified. In some cases, such an extension must be notified to the requester, together with the reasons for the delay. Different countries address in different ways the situation where a public authority fails to respond at all. These and other factors, as well as the actual practice, must be taken into account in assessing whether a country performs well with respect to time limits.

Examples of countries with fairly short time limits for responding are Norway (without undue delay, which in practice means two or three days), Finland (similar to Norway), Portugal (10 days), Denmark (as soon as possible, but within 10 days), Ukraine (10 days), Netherlands (two weeks), Hungary (15 days). In some cases (e.g. Hungary), the information would also have to be supplied within the same time period or the normal practice is to do so for the bulk of requests, but in most cases there is a further period allowed for actually providing the information. At the other extreme, several EU countries (e.g. Germany, Spain and the UK) use the full two months provided for in the EU directive in their national legislation, and some of the NIS countries have extension possibilities which give them a similar degree of latitude (Armenia, Belarus).

Countries which specify a different time limit for refusals include Albania (guideline of one week), Hungary (eight days) and Norway (two weeks).

The practice in several countries of complying with information requests within relatively short time periods shows that it is possible where there is the political will and a reasonably efficient administration.

Conclusion: A response to a request for information should be provided within a short time period, for example one week. The information itself should normally be provided at the same time, but failing this a further specific period should be allowed where it can be justified and provided that the requester is notified of the extension, up to a maximum of one month from the date of the request. Refusals should be issued within the shorter time period.

Form of Information

In the NIS countries, it is normally possible to get information in written or oral form. However, there is no legal right to obtain it in electronic form, and in practice it is always difficult to do so.

The issue of information being accessible in electronic form is particularly crucial, as this can overcome many of the traditional obstacles to access to information (like photocopying time and costs). The fact that the public are not able to demand that information be provided in electronic form where it is already held in that form is a major deficiency in the legislative framework. Regrettably, the Aarhus Convention fudges the issue and will be of little help in this regard.

Conclusion: Public authorities should have an unequivocal obligation to provide information in the form specified by the requester, provided that the information exists in that form.

Exemptions

Exempt categories which are common to virtually all countries cover information the disclosure of which would affect:

• national defense;
• public security;
• international relations;
• commercial confidentiality;
• ongoing court proceedings or criminal and other investigations;
• personal privacy.

These exemptions may be worded in a more or less restrictive way. For example, the EU directive allows member states to exempt information affecting matters which have been sub judice (even when they are no longer so), or which are the subject of preliminary investigation proceedings - a very broad concept. More generally, the directive does not require that the effect of disclosure on these interests (national defense, etc.) be adverse - so the exemptions can be used even where there is no suggestion of an adverse consequence from disclosure.

Most CEE and NIS countries have a broad category of state secrets which can cover many things. In CEE countries, another category used is official secrets which can be even more vague and broad-ranging, giving a high degree of discretion to high-level public officials to designate information as secret. West European countries use categories such as confidentiality of the proceedings of public authorities, national security and defense, public security or internal communications to withhold much of the same information.

Most countries have an exemption for commercially confidential information. Some-times this exemption is used in a very broad way to suppress any information connected with businesses. However, sometimes the exemption is restricted, for example by putting the onus on the company to establish that its interests would be damaged by disclosure, or by preventing use of the exemption where the information concerns pressures on the environment (e.g. Slovenia). In Hungary, the data protection ombudsman has ruled that information on pollution should be public and open, even if disclosure of the information could harm the economic and competitive interests of the enterprise in question. The new draft convention aims to prevent the use of this exemption in connection with information on emissions which is relevant for the protection of the environment.

Exemptions which are generally used in the West but not in the NIS include the exemption for voluntarily supplied information and intellectual property - perhaps because the private sector is still relatively new in those countries. However, not all West European countries have the voluntary supplied information exemption (e.g. Norway). Other exemptions used in the West but not in the NIS or CEE are for internal communications, unfinished documents, material the disclosure of which would adversely affect the environment (e.g. information on the breeding sites of rare species) and where the request is manifestly unreasonable or formulated in too general a manner.

Clearly, designations such as state secrets, official secrets, internal communications and confidentiality of the proceedings of public authorities carry more than a hint of circularity: the information is confidential/ internal/secret because it is confidential/ internal/secret. Depending upon how these categories are applied and what other controls are in place, they have the potential to substantially undermine the transparency which access to information laws are supposed to bring.

Most West European countries require non-exempt information to be separated out from exempt information and supplied (indeed, this is a requirement of the EU directive). For example, in the Netherlands, where part of the information requested is commercially confidential, a second text must be supplied with the exempt information edited out. Another way of limiting arbitrary or excessive use of exemptions is by requiring that the public have the right to know which documents are being withheld.

In some countries, the use of exemptions is to be subject to a public interest test. In its weaker form, this can be a recommendation or (slightly stronger) a requirement to take into account the public interest served by disclosure (the draft Aarhus Convention uses such a formulation). In its stronger form, the exemptions can only be applied if the public interest served by disclosure would be outweighed by the harm which would arise from disclosure. Through their endorsement of the Sofia Guidelines, CEE countries have accepted an intermediate form of public interest test, at least as a guideline (a weighing process is to be applied but use of the exemption is not explicitly dependent on the result). However, in practice, only a few countries have incorporated this approach in their national systems (for example, in Poland and Austria with respect to industrial secrecy, or in the Netherlands with respect to discretionary exemptions).

Whereas the Aarhus Convention would require only minor adjustments to the wording of the exemptions which are commonly used in most countries, it does introduce the notion that the exemptions should be interpreted in a restrictive manner and that the public interest should be taken into account if the exemptions are to be applied. It also makes it clear, unlike the EU directive, that the effects of disclosure should be adverse if the exemption is to be invoked.

Where information is to be withheld, EU countries (in accordance with the EU directive) generally require that the requester be informed of the grounds for the refusal. The Sofia Guidelines add that the reasons should be given in writing. This is seen as establishing a clear basis for access to justice should an appeal be lodged.

Failure to reply at all to requests is quite a widespread problem in some countries and is not always properly addressed in legislation. For example, in Spain and Germany, a failure by a public authority to reply within the statutory two-month period is deemed to constitute a refusal. However, this delays the start of the appeals process, not only because the full two months must elapse before an appeal can be lodged but because it can take a further amount of time to ascertain on what grounds the information is being withheld.

Conclusion: All exemptions should be governed by a strict public interest test so that information may not be withheld under circumstances where the public interest in disclosure outweighs the harm that would arise from disclosure. There should be no exemption for voluntarily supplied information. Failure to respond to a request should carry penalties.

Information not Held

Clearly the publication of information directories indicating what information is held where can reduce the number of wrongly directed requests. The designation of particular officials responsible for handling such requests can also help. However, it is inevitable that public authorities will continue to receive requests for information which they do not hold, and in this situation there are several ways in which the public authority can facilitate the requester:

1. the public authority can obtain the information from whichever public authority holds the information (assuming there is one) and supply it to the requester;
2. the public authority can forward the request to another public authority which it believes to hold the information, and notify the requester of this;
3. the public authority can direct the requester to another public authority which it believes to hold the information.

In none of the countries studied is there an obligation on the public authority to seek out the information as in the first option. Most countries in the CEE and NIS regions apply the second option (with or without an obligation to notify the requester: Bosnia and Herzegovina, Croatia, Hungary, Lithuania, Macedonia, Serbia, Czech Republic and Poland from CEE; Armenia, Belarus, Moldova, Ukraine from NIS), and a slightly smaller number the third option. Most countries in the West, and several CEE countries (Albania, Romania, Lithuania, Serbia and Macedonia) apply the third option, either through establishing a legal obligation or through actual practice.

In some countries, there is no obligation to pursue any of these three options (Estonia, Latvia, Serbia, Montenegro, the Czech Republic, Slovakia) and this can represent a gap in the collective responsibility of government to meet the information needs of the public.

Neither the EU directive nor the Sofia Guidelines provide much guidance on this matter; the directive primarily applies to information held by public authorities and the guidelines refer to all environmental information but are non-binding. It is however addressed in the draft Aarhus Convention, which gives the choice between the second and third options (with slightly different wording).

Conclusion: Public authorities must be required to accept their collective responsibility to deal with all information requests, including requests for information they do not hold, in a timely manner. "Delegating responsibility" is not acceptable.

Charges

However, in other West European countries, charges have emerged as a significant barrier to access to information, effectively limiting public access to those who can afford it. This is the case even though the EU directive requires that charges may not exceed a "reasonable" cost. For example, in Germany charges are very often an obstacle to access to information because a number of authorities have charged high administrative fees, ranging up to several thousand Deutschmarks. Spain appears to have failed to incorporate the directives reasonable limit into its domestic legal system and is currently facing infringement proceedings as a result.

Many CEE countries do not have regulations setting limits on costs but, despite this, in practice charges have not usually prevented access, even where large volumes of information are concerned. Bulgaria is an exception, as charges are often used there by state officials as a pretext for obstructing access to information.

A few CEE countries do have explicit limitations on charges. For example, in Lithuania all official information financed from the state budget is required to be made available free of charge. The Hungarian code of litigation on charges contains fee waiver provisions based on the characteristics of the information or of the applicant (e.g. covering NGOs which qualify for tax exemption).

In some countries, even though the information is normally provided free of charge, there are practical constraints due to the lack of adequate facilities for copying (e.g. Romania). Self-operated copying machines for obtaining copies of information upon payment are rare, and getting copies of documents from public authorities can take a long time in some countries.

In NIS countries, costs do not in practice tend to present a significant obstacle to access to information, even though there is little or no regulation of charges which may be levied. A greater problem is the lack of facilities for making copies.

Conclusion: Charges should not exceed a reasonable amount and should generally be limited to the actual costs of copying and transmitting the information. Fee discount provisions should be introduced for small volumes and for non-commercial requesters. Electronic availability can solve many cost problems.

Collection and Dissemination of Information by Public Authorities

Various mechanisms are used by public authorities to gather information. Countries in all parts of Europe impose reporting requirements on certain activities. Frequently this is done through self-monitoring by companies because the public authorities do not have the resources to do all the monitoring. Environmental auditing of potentially polluting activities is carried out under the European Union's Eco-Management and Auditing Scheme (EMAS). While the scheme is voluntary, registered sites must produce environmental statements which include figures on consumption of raw materials, energy, water, emissions and waste production.

The use of pollutant release and transfer registers (PRTRs), maintained through periodic reporting by certain polluting activities on the releases and transfers of a specified range of chemicals, is a powerful tool for gathering information and putting it in the public domain, but it is poorly developed in most countries in the region. While some countries have developed PRTR-type systems (e.g. Netherlands, Poland, UK) and others have plans to do so (Czech Republic, Hungary), Europe lags behind the United States on this issue.

Many countries periodically produce state of the environment reports, at frequencies typically ranging from one year (e.g. Russia, Ukraine, most CEE countries) to four years (e.g. Germany, Lithuania), or at no specified frequency. In virtually all CEE countries, to produce such reports is a legal requirement. Unfortunately, some of the reports are not particularly comprehensive, their dissemination is ineffective or there are long delays before they are published (Ukraine, Moldova).

All countries studied have provisions requiring them to actively disseminate information in the event of an emergency. For EU countries, most such provisions have their origin in the so-called Seveso Directive on major accident hazards of certain industrial activities. In CEE countries, there is usually an obligation to actively notify people in cases of air pollution, dangerous smog levels, immediate health threats, effects of chemicals, hazardous and toxic materials, waste management or effects of hazardous or toxic waste among other things.

Conclusion: All countries should introduce and maintain pollutant release and transfer registers and environmental audits, based on the best international practice. Annual, comprehensive state of the environment reports should be published and made widely accessible, with international harmonization to facilitate comparability.

Use of the Internet for Making Information Available

None of the countries studied make it a legal requirement that certain environmental information be made available through the Internet. However, it is increasingly common practice for public authorities to make information available in this way, and now virtually all West European countries, most CEE countries and some NIS countries do so. Types of information which are made available in this way include laws, policy documents, data on chemical releases and information on the state of the environment.

One of the most progressive uses of electronic communications is to be found in Hungary, where the government regularly disseminates information electronically through the Green Spider network of NGO contacts. What makes this example so interesting is the fact that as well as circulating completed documents, the government also uses the network to circulate draft laws and policy documents for consultation. It is thus used as a means of facilitating NGO participation in decisionmaking.

NGOs are also active in using the Internet to make information accessible, sometimes more so than governments. An example of this was where Friends of the Earth took publicly available data from the UK government's chemical release inventory and made it accessible in a user-friendly form on a website.

Conclusion: Public authorities should be legally obliged to put certain information on websites. Priority should be given to overcoming practical obstacles to using the Internet (e.g. in certain NIS countries).

NOTE

1. Throughout this assessment United Kingdom refers to England and Wales only.