In Germany, although there is no such recognition at the federal level, the regions of Brandenburg and Mecklenburg-Vorpommern include the right of access to environmental information in their regional constitutions. Even so, it is not possible to exercise this right because the corresponding legislation has not yet been developed. Similarly, the right to access information is not recognized in the national constitution of Denmark; however, some interpretations say the character of the constitution points to the right of access. The constitution establishes that the main purpose of the environmental regulations in Denmark is to ensure a healthy environment for all, and administrative legislation, which recognizes the right to access to information, is prescribed on the basis of this constitutional precept.
| TABLE 3: Sources of the Righht to Information and/or Environmental Information | ||
|---|---|---|
| Access to information | Access to environmental information | |
| The right is based in the constitution | Austria, Germany,* Greece, Denmark, the Netherlands, Norway, Portugal, Spain | |
| Specific or general law regulating access to information | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Portugal, Spain, Switzerland, UK |
* The newly established East German States of Brandenburg and Mecklenburg-Vorpommern |
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Laws on Access/Provision of Information
Laws recognizing the right of citizens to access to information exist in all the countries included in this survey.
Laws on Access/Provision of Environmental Information
Together with legislation on access to information in general, regulations related to access to environmental information have recently been approved in seven of the surveyed Western countries (Austria, 1993; Denmark, 1994; Germany, 1994; Greece, 1995; Ireland, 1993 then updated in 1996 and 1998; Spain, 1995; United Kingdom, 1992). These regulations represent the implementation of Directive 90/313/EEC on the Freedom of Access to Information on the Environment. Modifications to these regulations are expected in the future due to the process of revision of the directive and the poor transposition of the directive in some cases.
In some countries, (Ireland, United Kingdom), the introduction of laws on access to environmental information preceded, and may have been a catalyst for, the development of more general freedom of information laws.
Since 1983 Switzerland also has had specific regulations related to access to environmental information. Under the EUROLEX legislation, Directive 90/313/EEC would have been transformed into Swiss law; but after the Economic European Area was rejected in December 1992, the directive was not finally adopted.
Apart from the existence of general regulations or specific regulations on access to environmental information, access to specific types of information is regulated in some countries by sectoral regulations (lex specialis) as opposed to more general regulations (lex generalis). This circumstance can be seen in several countries. For example, the Netherlands has a general law on access to information and also specific regulations, such as the Environment Management Act, which regulates licensing procedures and environmental impact assessment. Ireland regulates some environmental matters with the Local Government Acts and the Air Pollution Act, etc.; and the United Kingdom relies upon the Local Government Act.
Due to the distribution of competences between the central or federal authorities and the regions (states/lander/cantons/autonomias), the appropriate regulation must be found at the different levels: national, regional and even local. In Austria, the Federal Law on Environmental Information (July, 1993) is not applicable throughout the federation of states. Only three states adopted their own laws on access to environmental information, and in the others access to information of the competency of the federated states is based on their Laws on the Duty to Furnish Information. Similar situations occur in countries such as Germany and Spain. In the latter, the autonomous regions can adopt their own legislation on access to environmental information which can be different from the regulations that regulate access to information in the hand of the national authorities.
The definition of environmental information varies from country to country, though all of them have common patterns to follow: the EU Directive and the Sofia Guidelines.
Seven surveyed countries have specific provisions defining the term environmental information. The Netherlands, Norway, Portugal and Switzerland do not have such definitions for environmental information, although the Netherlands is about to amend its law to include a definition. This lack of definition does not, however, prevent breadth of interpretation that allows access to all the information described in the EU Directive and Sofia Guidelines. Nevertheless, financial and economic analyzes and information related to environmental agreements are somewhat difficult to obtain in practice. Norway applies a general rule of access to any document in the possession of the authorities unless it falls under an exception set out by law. Portugal does not define the term environmental information, but access is granted to all kinds of administrative documents prepared or held by the public administration, including reports, studies, opinions, records, actions, circulars, service rules, internal dispatches, instructions and guidance of legal interpretation or other informative elements. These documents can be in graphic, audio or visual format.
Some of the countries that do have a legal definition follow the pattern established by the EU directive. This is the case in Germany, Greece, Ireland, Spain and the United Kingdom. The Greek legislation makes special reference to reports, studies, files, statistical elements, circulars, directives, responses of the administration, opinions and decisions. In other countries, such as Austria and Denmark, the definitions are slightly more detailed, but the Austrian definition leaves out access to all information that is not kept in databases. In some countries, the definition established by the Draft of the Public Participation Convention would permit the inclusion of elements that are not currently contemplated or that could be interpreted as not contemplated by the definition (i.e. construction, cultural sites, energy, radiation, conditions of human life, financial and economic analysis, and safety matters).
Conditions for Obtaining the Information
Public authorities with environmental functions that hold information on the environment are responsible for providing information upon request from the members of the public in all of the countries surveyed. This covers all levels of the public administration (i.e. local, prefectural, provincial, federal, regional, and national). Legislative and judicial bodies are generally excluded from the obligation to provide environmental information.
In Norway, the general rule is that all central and local governmental bodies are obliged to provide information unless they are exempted by a statute or a decree, and the same provision is set out for any private persons or companies making decisions or issuing regulations on behalf of central or local governmental authorities.
On the other hand, businesses are not generally obliged to provide information to the public. The only obligations in place are those regarding major accidents, which require business to provide information about risks and applicable measures when accidents occur. This obligation also applies to public and semi-public enterprises and companies partly owned, controlled or supervised by public authorities, except in Austria and Germany, where private enterprises are excluded from fulfilling public assistance functions if they do not act directly as a governmental agency.
In Spain, individual entrepreneurs or companies that manage public services are also obliged to make the environmental information they possess available to the public, but only through the administration responsible for the service they manage and never directly. Under Swiss legislation, the information received by the administration from individuals and private entities may be made public if it is of general interest; the concerned parties must be consulted before any such information is made public, and trade and business secrecy must be preserved. Finally, in the UK there is a dispute as to whether this obligation is applicable to publicly regulated privatized utilities.
In the majority of these countries, following the criteria of the EU Directive and the Sofia Guidelines, any natural or legal person has the right to request and receive environmental information without having to prove any evidence of legal entitlement or legal interest. Nevertheless, some criteria are set out in two of these countries. In Spain, for instance, discrimination criteria are based on nationality, domicile and the applicability of the principle of reciprocity. In Switzerland, access may be limited to requesters who can demonstrate that they are interested or affected parties.
Few countries grant requesters the right to receive the information in the format they prefer. This right is granted in Austria, the Netherlands ("whenever possible"), and Spain ("if the information is available in different formats"). In Germany, the Federal Administrative Court ruled in 1996 that the authority is generally obliged to give information in the format requested by the applicant and significant reasons must be cited if a different format is chosen. In Denmark, it is common practice to provide information in the requested format even though there is no legal obligation to do so.
The time limits vary for providing a response to requests for environmental information. The shortest time limits are set in Norway ("without undue delay," which in practice means two to three days); Portugal (10 days); the Netherlands (as soon as possible, within two weeks); and Denmark (the legal time limit is two months but in practice it is within 10 days). The countries with the longest time limits are Germany, Spain and the United Kingdom (two months). In the UK, there is a Code of Practice on Access to Government Information, which states the intention to provide citizens with requested information within 20 days. In Ireland, the Netherlands, Norway and Portugal there are certain circumstances in which the time limit may be extended; in Ireland to one extra month and in the Netherlands and Norway to a maximum of two extra weeks.
In some countries the information must be provided within the time set out for answering the request. No such provision is made in Spain. In Denmark, the time limit for actually providing the information is from 10 days to two months.
Not all the countries have a special time limit for issuing a refusal, though this is the case in Denmark (two months) and in Norway (two weeks).
In some countries, in clear non-compliance with what is established by Directive 90/313/EEC, negative administrative silence is permitted. This means refusing access to environmental information by not replying, thus refusal is inferred and does not require the authorities to state the reasons why information was denied. This is the case in Germany and Spain. In Germany this implies in practice that access to information can be refused up to three months after the request is made. In Spain, at the national level, negative silence would be inferred after the expiration of the two month time limit for responding to the request for information. At the regional level, the lack of regulations on access to environmental information could allow periods for negative silence of up to three months.
As explained above and shown in Table 4, there are different solutions with regard to established time limits. Not all countries follow the six week time period set out by the Sofia Guidelines. Having access to information within a short period of time is obviously imperative if the information is to be useful. It should also be noted that access to information in an adequate time frame permits the development of effective public participation systems. In this sense we find examples of good practice in terms of access to information in some countries, while the situation in others is to maintain the long two month time period set out by the EC directive.
| TABLE 4: Time Frame for Provision of Information | ||||
|---|---|---|---|---|
| Time limits for: | Up to 8 days | Up to 15 days | Up to 1 month | Up to 2 months |
| Refusal | Denmark Norway |
Denmark | ||
| Provision of information | Norway | Denmark1 the Netherlands Portugal |
Greece Ireland |
Denmark2 Austria Germany Spain UK |
| Possibility of prolongation | the Netherlands Norway |
Ireland Portugal |
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1. In practice 2. Legally |
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Refusal to Provide Information
Public authorities can refuse to provide access to certain information in all the countries considered. However, the general principle sides in favor of access to information, so authorities are usually required to state the reasons for denying access to information. In some countries though, as mentioned above, negative silence is permitted.
The majority of countries have a set list of mandatory or discretionary (depending on the country) exemptions, sometimes also called limitations, to access to environmental information. These lists generally include information regarding the following:
| TABLE 5: Information Excluded from the Right Access to Information | |
|---|---|
| Type of information classification | Countries in which classification can be used to withhold information |
| Confidentiality of the proceedings of a public authority | Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| International relations | Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| National Defense | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| Public Security | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| Matters which are, or have been, awaiting judicial determination | Denmark, Germany, Greece, Ireland, the Netherlands, Portugal, Spain, Switzerland, UK |
| Subjects of preliminary investigative proceedings | Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| Commercial and industrial confidentiality | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Portugal, Spain, Switzerland, UK |
| Intellectual property | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Portugal, Spain, Switzerland, UK |
| Confidential personal data and files | Denmark, Germany, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, United Kingdom |
| Information supplied by a third party not legally obliged to do so | Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| Material whose disclosure could cause further environmental damage | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Norway, Portugal, Spain, Switzerland, UK |
| Material contained in unfinished documents, data or internal documents, or when the request is manifestly unreasonable or formulated in a too general manner | Austria, Denmark, Germany, Greece, Ireland, the Netherlands, Spain, UK |
A request also can be denied regarding information contained in unfinished documents, data or internal documents, or when the request is manifestly unreasonable or formulated in too general a manner.
In Greece, authorities cannot refuse to provide information on the basis of the protection of privacy, medical, industrial or commercial confidentiality if this information is related exclusively to the person requesting it.
Most of the countries allow the possibility of providing information in part, after extracting the part of the information subject to an exemption. In the Netherlands, for instance, when the confidential business exception is applied, a so-called "second text" must be provided. This means confidential information will be withheld while access to the rest will be granted.
The list of possible exceptions set out by the EC Directive is similar to that established by the Sofia Guidelines and by the Draft Convention on Public Participation.
Public interest is only required to be taken into account in withholding information in two of these countries: Austria and the Netherlands. In Austria, it applies only to exceptions regarding commercial and industrial secrets. In such cases, the authority is required to investigate in detail whether there are confidential interests at stake, whether these interests are actually subject to protection and whether the confidential interests outweigh the public interest in access to information. In the Netherlands, if the requested information falls under a relative exception it must be assessed. The interest protected by the exception is weighed against the interests of open government, meaning the public interest and not the interest of the individual making the request. Thus, the public interest test is applied in the following cases: investigation and prosecution of criminal acts; inspection, monitoring and oversight by or on behalf of public authorities; personal privacy; and the interest of the person concerned to be the first to obtain the information.
In Denmark, although the description of exceptions offers a wide margin for breadth interpretation, this interpretation has been restrictive in practice, with more weight given to the general principle of access to information. In other countries, the situation regarding the application of exceptions, which in general are rather vague and leave a lot of room for arbitrary interpretation, would clearly improve with the adoption of provisions that require restrictive interpretations and public interest tests. This is the tendency set out in the draft of the Convention on Public Participation.
| TABLE 6: Public Interest Test | |
|---|---|
| No possibility of a public interest test | Denmark, Germany, Greece, Ireland, Norway, Portugal, Spain, Switzerland, UK |
| Possibility does exist | Austria, the Netherlands |
If an Authority does not Possess the Information
In most of the countries there is no obligation for an authority to whom a request is addressed to generate, gather or obtain information which is not in its possession. Only a few countries set out in their legislation the obligation for an authority who receives a request for information and does not hold the requested information or is not competent for providing it to forward the request to the authority which holds or is competent for the requested information. This occurs in Denmark, Germany and the Netherlands. In Austria, only for environmental information, the authorities can forward their request. However, in most of these countries it is legally established or common practice to help the requester identify the authority which possesses or is responsible for the requested information.
However, the Greek legislation sets out that a competent public authority cannot legally refuse to supply copies of documents or material on the grounds that it is not the service who prepares the document requested or for not being the service primarily responsible for it, since this body has the legal competence on the grounds that it is responsible for collecting the information requested and supplying it.
In any case, with a view to speeding up information requests, especially in those countries with complicated competency frameworks, it would be desirable to see the publication and distribution of information about what environmental responsibilities are held at the different levels of administration. This would make it easier to know to whom a request for information should be addressed in each case.
| TABLE 7: If a Public Authority Does Not Possess the Information | |
|---|---|
| Agency will... | Countries |
| Search for information | |
| Provide contact to the institution that possesses the information | |
| Forward request to the institution that possesses the information | Austria, Denmark, Germany, the Netherlands, Norway |
| Refuse to provide information | Ireland, Portugal, Spain, Switzerland, UK |
Costs of Obtaining Information
Austria, Denmark and Norway have provisions to provide information free of charge. In Austria, this practice has two exceptions: when the requested information is available in a publication with a purchase price, or when the request is extensive. In the first case the requester is charged the publication price; in the second, the petitioner must pay a total amount that "may not exceed a reasonable cost." In Denmark, information is provided free of charge or sometimes charged at the cost of the report, etc. In Norway, though inspection of documents is always free, charges may be applied for reproduction.
Several country surveys stress that unreasonable costs can be a barrier to access to information. In Germany, federal regulations on fees for the work of federal authorities performed under the Federal Access to Environmental Information Act are mentioned as an example of charge regulations that act as an obstacle to general access to information. In Spain, a case was cited that is subject to an infringement proceeding by the European Commission based on unreasonable charges. In other countries, such as the Netherlands, charges are considered to be reasonable.
The EC Directive's provision about charges being reasonable is not observed in all the legal systems studied. These reasonable costs may include not only reproduction costs but also the costs of the staff or other costs connected with searching for, retrieving, compiling and copying the information.
| TABLE 8: Costs of Information | |
|---|---|
| Costs are not regulated | |
| Reasonable charges | Austria1, Denmark1, Greece, Ireland, the Netherlands, Norway1, UK |
| Costs cover only copying of information | Portugal, Spain, Switzerland |
| Costs cover processing of information | |
| Costs can be an obstacle | Germany, Spain |
1. Generally information is provided for free, though reasonable fees can be charged to cover costs. |
|
The obligation for public authorities to actively inform the public about the environmental situation is clear in the case of emergency situations. All the countries provide for this in one way or another, and in these cases authorities are obliged to actively inform the public, especially information about how to act. Most of these provisions have their origin in the so-called Seveso Directive on the major accident hazards of certain industrial activities.
The following countries set out additional legal provisions to guarantee public authorities actively disseminate information on the environment: Denmark, Germany, Ireland, the Netherlands, Norway, Portugal, Spain, and the United Kingdom. It is common practice for environmental authorities responsible for different environmental sectors and at different levels to publish periodic reports on the state of the different elements of the environment. It is also common to find a comprehensive report on the State of the Environment in each country. The regularity of these publications varies from once a year to once every four years, depending on the country.
In this respect, the draft convention sets out a more specific regulation regarding provisions on the active dissemination of information which may help to harmonize the existing situation.
| TABLE 9: Dissemination of Information on the Internet | ||
|---|---|---|
| Type of Information | Is available on the Internet | Is required to be on the Internet |
| State of environment | Austria, Denmark, Germany, Norway, Spain, Switzerland | |
| Legislation | Denmark, Germany, Spain | |
| Other | Austria, Denmark, Germany, Spain | |
In some countries, such as the United Kingdom, there are mailing lists of NGOs who periodically receive information about policy, new legislative developments, etc. In many countries there are also specific environmental authorities responsible for actively spreading information on the environment, such as the Institute for Environmental Promotion in Portugal and the Environmental Protection Agency in Ireland.
Electronic Means of Dissemination
None of the countries incorporate in their legislation an obligation to disseminate information electronically. However, this is an increasingly common form of storing and disseminating information. Furthermore, websites allow the responsible authorities to save money and resources. Improving the electronic provision of environmental information reduces the number of requests for information (and the authority work load) because the information is already in the hands of the public via the website.