According to the Constitution of Moldova, concealing or distorting information on factors that are harmful for people's lives is prohibited by law. In Ukraine, the constitution states that nobody can classify environmental information as secret. This right is backed by administrative and criminal responsibility as stipulated by the administrative and criminal codes of Ukraine. Similarly, it is a crime to withhold information about dangers to the health and lives of people in cases of emergency, according to the Constitution of the Russian Federation and by the new Russian Criminal Code.
These strong provisions are important as a guarantee of every citizen's right of access to information. However, they are only declarative because, unfortunately, they are seldom enforced.
| TABLE 1: Right to Information and Environmental Information | ||
|---|---|---|
| Access to information | Access to environmental information | |
| The right is based in the constitution | Armenia, Belarus, Moldova, Russia, Ukraine | Belarus, Moldova, Russia, Ukraine |
| A specific law regulates access to information | Russia, Ukraine | Moldova* |
| There is no right | Moldova | |
|
* Draft law |
||
In the other three countries there is no specific law, but access to information is possible through the Law on State Secrets in Belarus, the Law on Presenting Petitions in Moldova, and the Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens in Armenia.
Different opinions exist in the NIS about this draft law. Some experts believe there is no reason for a special law because the laws on information cover all types of information. Others believe it is necessary and important to have such a law for clear and detailed regulation of access to environmental information. Each NIS country can decide whether to pass this law. The determination of what constitutes environmental information, principle of its openness, information about the state of the environment and its impact on the health of population in emergency situations, public-interest test possibility and other specific questions that are not answered in current laws of NIS countries could be regulated by this law. Therefore, its usefulness is evident.
Even without a specific law, provisions protecting access to environmental information exist in a number of laws of four of the observed countries:
There is no definition of "environmental information" in current legislation of observed countries of the NIS region. By analyzing different laws, we can define this term as information about the state of environment and its elements — water, air, soil and fauna, including human health and measures undertaken for the protection of the environment — in all countries. Radiation conditions or levels of radiation are part of the definition in Belarus and Ukraine; the sanitary-epidemiological situation of the environment is included in Armenia and Russia. In Moldova, legal doctrine and practice interpret environmental information to be the state of waters, soils, fauna, flora, natural zones and the activities and measures which do or can unfavorably influence them, as well as activities and measures aimed at the protection and rational use of the environment.
In all five countries the public can get environmental information in written or oral form. There is no possibility in the legislation to obtain databases, electronic data or documents. In practice it is always difficult to obtain this kind of information.
Compared with the international standards (i.e. Sofia Guidelines, EU Directive on Information, EU Directive on EIA and draft Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters), the laws of the countries of the NIS region omit many aspects and types of information, especially information on landscape and natural sites; biological diversity and its components including genetically modified organisms; energy and noise; environmental agreements, policies, legislation, plans and programs affecting or likely to affect the elements of the environment; cost-benefit and economic analysis and assumptions used in environmental decisionmaking; and cultural sites and built structures, in as much as they are or may be affected by the elements of the environment.
In the draft Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, "environmental information" means any information in written, visual, aural, electronic or other material form. It is important to include all these aspects of environmental information in national legislation of NIS countries after signing and ratification of the Convention, including the possibility to obtain information in electronic form.
Public Authority is Obliged to Provide Information and/or Environmental Information
In all five countries, according to their constitutions, there exists a general obligation connected with the rights and freedoms of citizens for public authorities to provide information.
In Moldova, the obligation of public authorities (state organs of public administration, ministries, departments and agencies) to give information is stipulated by the Law on Presenting Petitions. The same obligation of public authorities exists according to the Law on Petitions of Citizens in Ukraine.
Ukrainian officials have a further obligation to provide environmental information. The Ministry of Environmental Protection and Nuclear Safety of Ukraine and its local bodies are obliged to prepare an annual national report on the state of environment and to present it to parliament; to provide all interested state and public bodies, enterprises, institutions, organizations and citizens information on the state of environment; to give the reasons and impact of its extreme pollution and recommendations concerning measures aimed at reducing negative impact on natural objects and on the health of the population, consequences and results of liquidation of these phenomena, to give anecological prognosis and information about responsibility for environmental transgressions according to the Law on Protection of Natural Environment (Article 25).
The following state authorities are obliged to provide environmental information in the countries of the region:
There is no special state authority responsible for providing information and/or environmental information in Armenia, but any public authority must respond to a demand for information according the Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens.
Average citizens in the NIS do not know how or where they can obtain environmental information or that certain state bodies have an obligation to give it. Because of this, the citizens rarely exercise their right to information. On the other hand, state and governmental officials expect the public to be uneducated. They try to select information that could be given to public without upsetting them. Officials generally do not support enforcement of the above-mentioned provisions, and they do not like the public to be aware or to take initiative because answering public requests brings trouble and additional work for officials. According to one high-level governmental official who was speaking at the open Parliamentary Committee on Environmental Policy meeting dedicated to the discussion of the draft Convention in Ukraine, public requests "waste valuable time and a lot of scarce paper, especially in the regions where the public has not calmed down yet."
Other main obstacles to implementation of these provisions are the lack of traditions of transparency in state and governmental decisionmaking and a lack of lawyers specialized in the sphere of environmental law who can help citizens obtain environmental information and show them how to use it to protect their rights. The need for environmental and legal education and for raising the awareness of the public in the NIS is evident.
Obligation for Business to Provide Information and/or Environmental Information
Because the right of access to information is guaranteed by the constitutions and laws of these countries, not only state authorities but all institutions, organizations and enterprises with any form of property, as well, are obliged to provide information to the public in four countries of the region (Armenia is the exception).
It should be noted that this obligation for businesses to provide information to the public is not specified in the legislation. In all the countries, the process of privatization has only begun, and most enterprises are state owned (for example, in Belarus only 4 percent of the GNP was generated by the private sector in 1996). In Belarus, businesses dealing with environmental matters are obliged to provide the public information on issues that affect public health and safety.
Under the Law of Trade Unions of Russia, the employees of enterprises have the right to request and obtain information on labor and safety conditions directly from the business concerned. In case of emergency, officials of any entity must not withhold from the people any information about dangers to their health and lives. Otherwise administrative or criminal liability is provided in the Constitution of the Russian Federation and is detailed in new administrative and criminal codes.
Access to business information depends on the classification of commercial secrets. For instance, in accordance with the Directive of the Cabinet of Ministers of Ukraine on the List of Data That Is Not Subject to Commercial Secrecy (9.08.1993), information about environmental pollution and the awareness that products (i.e. food products) have a potential health risk is not considered a commercial secret. Therefore, businesses are obliged to present such information when requested.
Time Frame for Provision of Information and/or Environmental Information
The response as to whether or not a request can be met should not be longer than 10 days in Ukraine and one month in Russia. There is no special term for response to a request in the other countries of the region.
In all five observed countries of the region, the information itself should be provided within one month. A citizen's request that does not require a detailed study or investigation must be responded to immediately, no later than 15 days from the day the request was received.
Response time to the request can be prolonged, but not longer than one month in Moldova and Russia, two months in Armenia and Belarus, and 45 days in Ukraine. However, the reasons for delay and the time required to produce the information must be indicated (in Ukraine) and the requester should be informed about this (in Moldova).
One can see that time limits for the response to the request and for the provision of information are rather advanced in NIS countries in comparison with international standards or at least correspond with them. The EU Directive on the Freedom of Access to Environmental Information stipulates the time limit for public authority to respond to the requests as soon as possible and maximum within two months. In the Sofia Guidelines, the time for response for information is as soon as possible but not more than six weeks; in the draft Convention it is as soon as possible and at the latest within one month after the request has been submitted, unless the volume and complexity of the information justifies an extension of this period up to two months after the request. The applicant shall be informed of any extension and the reasons justifying it. This obligation for public authorities exists only in the legislation of Moldova.
The time limit for issuing a refusal to grant information is 10 days in Ukraine and one month in Russia. There is no separate time limit for issuing a refusal in Armenia and Belarus.
The time limits for provision of information are summarized in Table 2.
| TABLE 2: Time Limits for Provision of Information | ||||
|---|---|---|---|---|
| Time limits for: | Up to 8 days | Up to 15 days | Up to 1 month | Up to 2 months |
| Refusal | Ukraine | Russia | ||
| Provision of information | Armenia* Belarus* Moldova* Russia* Ukraine* |
Armenia Belarus Moldova Russia Ukraine |
||
| Possibility of prolongation | Moldova Russia |
Armenia Belarus Ukraine |
||
|
* In all NIS countries the term for providing information is 15 days if it is not necessary to collect the information |
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Refusal to Provide Information and/or Environmental Information
In all countries of the NIS region, a request to provide information and/or environmental information can be refused if the requested information is a state secret or classified governmental information.
The laws dealing with environmental information do not state any exemptions. Moreover, as mentioned above, information on the state of the environment, quality of food and housing equipment or things of everyday use, as well as information on environmental pollution and its potential health risk to the population, may not be considered secret and therefore cannot be refused on this basis.
Lists of Exemptions
Information can be refused in certain cases as listed in special Laws on State Secrets (Belarus, Russia and Ukraine), the Law on State Secrets and Classified Governmental Information (Armenia), the Law on Information (Ukraine) or other legislation of observed countries of the NIS region. The lists are rather long, especially in Armenia and Russia. In summarizing them, the following is an approximate list of mandatory exemptions common for all countries of the region. These exemptions are also summarized in Table 3.
| TABLE 3: Information Excluded from the Right of Access to Information | |
|---|---|
| Type of Infromation | Countries in which classification can be used to withhold information |
| Commercial confidentiality | Armenia, Belarus, Moldova, Russia, Ukraine |
| Personal confidentiality | Armenia, Belarus, Moldova, Russia, Ukraine |
| National defense | Armenia, Belarus, Moldova, Russia, Ukraine |
| National security | Armenia, Belarus, Moldova, Russia, Ukraine |
| National secret | Armenia, Belarus, Moldova, Russia, Ukraine |
| State secret | Armenia, Belarus, Moldova, Russia, Ukraine |
| Official secret | Armenia, Belarus, Moldova, Russia, Ukraine |
| Professional secret | Ukraine |
| Economic secret | Armenia, Russia |
| Public security | - |
| Confidential activities of government | Armenia, Russia |
| Unfinished draft documents | - |
| Information disclosure of which might damage environment | - |
| Location of protected species | - |
| Public authority does not possess information | - |
| Request is too general or unreasonable | - |
Compared with international standards, some types of information are described more widely in the national legislation of the observed countries, especially in relation to national security and military issues (i.e. location, utilization and exploitation of military objects). Other types of information that are secret elsewhere are not classified under NIS laws, including intellectual property, materials supplied by a third party without that party being under obligation to do so or if that party did not consent to release the material (mentioned in the EU Directives on Information and on EIA, Sofia Guidelines, draft Convention) and materials whose disclosure would adversely affect the environment, namely the breeding sites of rare species (Sofia Guidelines, new Convention).
Public-Interest Test Possibility
As shown in Table 4, the possibility of a public-interest test exists in the legislation of four observed NIS countries (Armenia is the exception), but it is weak, not clearly developed and is rarely exercised in practice.
| TABLE 4: Public Interest Test | |
|---|---|
| No possibility of PIT | Armenia |
| Provisions for PIT | Belarus, Moldova, Russia, Ukraine |
In Belarus, according to the Law on State Secrets, information cannot be classified as a state secret if a danger to the safety and health of citizens arises as a result of not revealing data on emergencies, natural disasters, etc., or if the withholding of information distorts the perception of the real situation in the field of environment.
The possibility to obtain secret information as a result of public initiative exists also in the Law on State Secrets of Moldova, Article 14, which gives citizens, enterprises, institutions, organizations and public administrative bodies the right to make an inquiry to the Interministerial Commission on the Protection of State Secrets. An inquiry should be considered within three months, and the reply to the inquiry should be motivated. The legitimacy of declaring information a state secret can also be appealed to the court.
In Russia, a public-interest test possibility can be revealed by legal research and comparison of different laws and regulation. This test is possible in administrative (pre-court) procedure, but it happens more often in the court via the appeals process.
During recent years of democratization, much classified information became available in Russia under pressure from the public. Many legal norms on openness and accessibility of information concerning citizens' rights and freedoms were also adopted because of public pressure. Environmental information (i.e. data on emissions, pollution, the state of environment and health of population, emergency situations, etc.) was never classified or closed.
According to the Law on State Secrets of Ukraine, the inclusion of any data in the category of state secret is prohibited if classifying the information violates the constitutional rights of citizens or if it harms public health and safety. Secrecy can be changed or canceled at the conclusion of a state secret issues expert. The head of an institution has a certain degree of discretion in regards to disclosure of classified information if he/she thinks the petitioner's application well-grounded.
Since the priority of environmental safety principle exists in the legislation of Ukraine, it is theoretically possible to obtain information about activities which cause essential harm to the environment and health of the population even if it is related to state secrets. An example of such a practice could be the public investigation into the Chernobyl disaster by the national association Green World in 1989. The organization began searching for information about the consequences, the reasons and the personal responsibility of governmental officials for the Chernobyl disaster, and this information was published in the newspapers under public pressure. The materials were given to the prosecutor general with a request to open a criminal investigation and to the parliamentary commission. However, nothing was done. The prosecutor general closed the case in 1994 because the statute of limitations had ended.
According to the Sofia Guidelines and the new Convention, the grounds for refusing a request for information shall be interpreted in a restrictive way taking into account, the public interest served by disclosure and whether the information requested relates to emissions into the environment. The reasons for a refusal to a request for information should be stated in written form.
These clear provisions should be included in national legislation of the NIS after the ratification of the Convention. It will make the possibility for a public-interest test more realistic. However, the public-interest test needs to be exercised and enforced by the public.
If Public Authorities do not Possess the Information
In all observed NIS countries, public authorities responsible for the provision information and/or environmental information are not obliged to get it from other agencies if the public authorities do not possess that information. There is no special provision regulating the action of an agency which does not have environmental information requested by the public.
| TABLE 5: If Public Authority Does Not Possess the Information | |
|---|---|
| Agency should ... | Countries |
| Search for information | Russia |
| Provide contact to the institution that possesses the information | Russia2 |
| Forward request to the institution that possesses the information1 | Armenia, Belarus, Moldova, Russia2, Ukraine |
| Refuse to provide information | Russia, Ukraine |
|
1. This often happens when the authority does not have competence to handle the request. 2. In practice, institutions often do not do or only rarely do. |
|
The State Committee on Environment of Russia as well as Ministry of Environmental Protection and Nuclear Safety of Ukraine have the right and competence to request necessary environmental information from all other ministries and agencies, enterprises and organizations and to collect such information and thus help a member of the public to obtain requested information.
Legislation of the observed countries of NIS region does not contain special regulations that oblige public authorities to provide contacts within the agency that possesses the information and/or environmental information. However, at least in four NIS countries (Armenia, Belarus, Moldova, Ukraine) responsible public authorities that do not have requested information are obliged to forward a request to the agency that does possess the information within five days and to inform the applicant about this. This provision is stated by the Law on Citizens' Petitions of Belarus, the Law on Presenting Petitions of Moldova, the Law on Citizens' Petitions of Ukraine. Informational requests are not a kind of citizens' appeal, petition or call; however, the laws mentioned above can be applied in this case.
In Moldova, it is prohibited to forward a request to those organs or public officials whose actions or decisions are being appealed.
According to the new Convention, when a public authority does not hold the environmental information requested, the public authority shall, as promptly as possible, tell the applicant where it might be possible to apply for the information requested or transfer the request to that other authority and inform the applicant.
From the NIS reports it impossible to deduce that in four countries (Armenia, Belarus, Russia and Ukraine), public authorities often refuse to provide this information even though refusal to provide the information can be appealed in court.
In Moldova, the public authority has no right to refuse to answer to any applicant (i.e. any physical or legal person) because public officials are responsible for the preparation of the answer. If a public authority does not answer a request, the responsible people can face disciplinary, administrative and criminal liability.
According to the EU Directive on the Freedom of Access to Information on the Environment and the new Convention, a request for information can be refused if answering it would involve the supply of unfinished documents or data or internal communication, or if the request is manifestly unreasonable or formulated in too general a manner. The Sofia Guidelines also contain, as a reason for refusing a request, any documents which are in the final stage of their preparation.
Such provisions do not exist in the legislation of the observed countries. However, their absence could be evaluated as a progressive phenomenon in terms of public access to information especially because of the possibility for governmental officials to broadly interpret the terms "unreasonable or formulated in too general a manner."
Certain public authorities are obliged to collect, update and actively disseminate information in all observed countries. The Ministry of Information and/or the National Informational Agency (or other similar institutions) is obliged to collect and actively spread information. This means, first of all, that laws and other acts of parliament, decrees of the president and decisions of local government which involve public interest (e.g. according to the Law on Local Public Administration of Moldova, 1994) are published.
The Environmental Protection Ministry (or other similar institutions) and/or the Ministry of Health, according to the legislation of all observed countries of the region, is obliged to collect, observe, study, keep, analyze and actively spread environmental information including radioactive data and information on the level of illnesses connected with the state of the environment, as well as to inform the public about the state of environment.
Unfortunately, in spite of the above-mentioned provisions of legislation about the necessity to inform the public about the state of the environment, public authorities usually unlawfully ignore active dissemination of this information.
The Ministry of Environmental Protection or similar institutions (e.g. the Department of Environmental Protection of the Government in Moldova) are obliged to present annual reports on the state of environment to parliament. The problem is that these reports are usually published after a long delay (about a year and a half in Ukraine) or issued in so few copies that they cannot be considered adequate publication and dissemination.
In case of emergency, certain special state bodies are responsible for actively spreading information in all observed countries. This duty lies with the Department of Emergency Situation in Armenia, the Ministry of Emergencies and Center for Radiation Control in Belarus, the Department of Civic Protection and Extraordinary Situations in Moldova, the Ministry of Environmental Protection and Nuclear Safety and the Ministry of Health in Ukraine.
Interesting regulations and practice exist in Moldova. The Government of Moldova adopted the Program on Moldovan participation in the U.N. International Decade on the Reduction of the Calamities' Danger in 1995. The program includes measures on prevention (i.e. reduction) of the danger of extraordinary natural and technical situations. All ministers are obliged to present annual reports on the work done according to this program to the national commission.
Additionally, the Law of Moldova on Civic Protection (1994) outlines the system of state measures which should be undertaken in peaceful and military time to ensure protection of the population in conditions of calamities, catastrophes, environmental catastrophes, accidents and fire.
In Russia, a federal program on prevention of emergency situations of natural and technogenic origin was elaborated. All ministries and agencies are obliged each year to inform Ministry of Emergency Situations of the Russian Federation (MESRF) not later than December 1 about all measures undertaken to prevent and diminish the consequences of an emergency situation. The executive bodies of the Russian Federation and its subjects provide necessary standardized information for such annual state reports.
Some progressive regulations on the obligation of state bodies to spread information about emergency situations appeared in Ukraine rather early, in 1990, as a result of real information about consequences of the Chernobyl disaster having been hidden. According to Resolution No. 100, adopted by the Council of Ministers on April 28, 1990, information about cases of extreme pollution, accidents and other emergency situations must be dispersed immediately to the state bodies which manage the environment. Information about possible consequences of pollution and recommendations for reducing or eliminating damage to the environment and public health must be shared with the mass media. The results of investigation, notification of the cessation of negative consequences and information about the liability must also be distributed once it is gathered.
There is no legal or formal obligation to spread information and/or environmental information electronically in the observed countries of the NIS region. On the other hand, there is no prohibition against doing so, and as Table 6 shows, information is available electronically in a few countries.
| TABLE 6: Dissemination of Information on the Internet | ||
|---|---|---|
| Type of Information | Required to be on the Internet | Is available on the Internet |
| State of environment | - | Ukraine* |
| Legislation (policies, plans) | - | Ukraine, Belarus** |
| Draft environmental legislation | - | - |
| List of institutions with various licenses | - | - |
|
* National report on the state of the environment in Ukraine ** Website maintained by the NGO Ecoline |
||
Computerized legal information is available in Ukraine. According to the Directive on the State Environmental Monitoring, the state executive power that conducts the monitoring is obliged to gather, study and keep the data on the state of environment due to new computer technologies. Nevertheless, the placement of such information on websites is not required.
During the discussion of the draft Public Participation Convention at the roundtable, organized by Ecopravo-Lviv and Open Parliamentary meeting in Ukraine, the proposal of NGOs to place environmental information on the Internet was rejected by governmental officials as expensive and unrealistic amid current economic difficulties. However, the National Report of Ukraine on the State of Environment is accessible via the Internet.
There is no environmental information from Armenia or Moldova available on websites.
In Belarus, the NGO Ecoline maintains the Belarus Environmental Web pages, which contain information on environmental legislation, independent environmental news and other environmental topics.
According to the new Convention, each party shall ensure that environmental information progressively becomes available in electronic databases that are easily accessible by the public through public telecommunications networks. Information accessible in this form should include:
The countries of the NIS region must improve their legislation and practice to make the above-mentioned types of environmental information available in electronic form.