2.3 Access to environmental information: key elements and good practices

2.3 Access to environmental information: key elements and good practices

The following discussion considers a number of the most important elements for an effective mechanism to provide access to environmental information.

2.3.1 Type of instrument

Access to information principles or standards may be set out in constitu-tional provisions, legislation, or guidelines.

Constitutional provisions most often state a right of access to information in general terms or express a general principle in favour of access. Constitutional provisions also generally require implementing legislation to become effective. Moreover, access to information requires a more developed structure than a constitutional provision alone can give. Such a structure works out matters such as the authorities covered, the exceptions, costs provisions, etc. This is a task for which legislation is more suited. In comparison with guidelines, legislation also has the additional advantage of being binding.

2.3.2 Principle of access

The legislation or other instrument should state a general rule in favour of access for any person upon request without their having to show an interest in the information requested. The Directive takes this approach. A general rule in favour of access establishes a presumption that information is available upon request and requires a refusal to be justified in terms of one of the exceptions to access. Extending the right of access to any person, natural or legal, is the most open approach and avoids divisions along lines of citizenship or other criteria. If no interest need be proved or even stated, it is clear that the right of access to information belongs to any person and that inquiries into the reason why a person is seeking information are improper. Such inquiries or even the possibility of such inquiries can discourage individuals from exercising their right of access to information.

2.3.3 Information covered

How environmental information is defined is important since whatever information is not considered to be environmental information will not be available. Although the Directive defines environmental information broadly, important categories of information, such as health-related information, can fall outside the scope of the Directive's coverage.

Systems which recognise a right to all information in possession of the public authorities have a significant advantage. In Sweden or the Netherlands, for example, where there is such a general right to information, the question of whether information is environmental information or not and therefore available or not simply does not arise.

2.3.4 Public authorities and other bodies covered

Similarly, it is obviously of great importance that all environmental information held by public authorities comes within the scope of the legislation. The Directive applies to authorities with "responsibilities ... relating to the environment" and also excepts bodies acting in a judicial or legislative capacity.

It sometimes happens therefore that a public authority will claim that it is not responsible for the environment but for transportation or for housing construction, etc. It will therefore deny access to environmental information in its possession.

In some countries, including the Netherlands and the United Kingdom, an attempt has been made to list or otherwise specify the bodies which fall within the scope of the legislation.

There is also the possibility that the exception for bodies acting in a judicial or legislative capacity can be stretched to cover public authorities not primarily judicial or legislative in character.

A further issue arises with the definition of a public body in connection with privatisation. In many countries, important public functions are carried out by privatised or private bodies. If such bodies are considered to fall outside the scope of the application of legislation on access to environmental information, then the environmental information they hold will not be accessible for public scrutiny.

The Directive attempts to address this concern by a specific provision (article 6) which provides that environmental information "held by bodies with public responsibilities and under the control of public authorities" be made available on the same terms as apply to public authorities. The precise meaning of the requirement that the body concerned be "under the control of" a public authority is not well established.

2.3.5 Formal requirements

In general, the definition of requirements concerning the form of the request has not been considered necessary. The Directive itself states no formal requirements for a request. Thus, requests may be made orally or in writing. An oral request has the advantage of speed. A written request has certain advantages, too. It can more easily be passed on and it can add to the clarity of the request to spell it out in writing. Moreover, a written request can be preferable in connection with the time periods for response and in obtaining a written response. Moreover, it may be necessary, as in the Netherlands, to obtain a written response in order to be able to commence an appeal. Finally, information should, wherever possible, be made available in the form (e.g. photocopy, diskette, inspection) preferred by the person requesting it.

2.3.6 Exceptions

Exceptions to the general rule in favour of access to environmental information exist to protect certain legitimate interests which would be harmed by disclosure of information in a particular case. In order that the exceptions in any legal instrument not overwhelm the right of access, they should be specified in clearly-defined terms and invoked only after balancing the harm disclosure would cause against the public interest in access to information.

The Directive, like most legal instruments regulating access to information, includes exceptions designed to protect the confidentiality of international relations, national defence, public security and personal privacy. Other exceptions of particular importance for environmental information requests concern confidential commercial and industrial information; matters under inquiry; information voluntarily supplied; and internal communications and unfinished documents.

Commercial confidentiality interests can be protected by an exception strictly limited to information which is a confidential trade secret - that is information not known to parties other than the company and the public authority - the release of which would significantly harm the company and assist its competitors. If commercial confidentiality is understood to protect any information which affects a company, then access to much environmental information will be denied. Moreover, the company in question should have actively indicated its desire that the information concerned be given confidential treatment, preferably when it supplied it to the public authority. In the Netherlands, if confidential commercial information has been removed from a document before its release, a so-called 'second text' must be supplied. This redacted document indicates where information has been removed and, in a general way, the substance of the information withheld.

An exemption for proceedings and inquiries can best be limited to ongoing court proceedings and investigations that might result in criminal charges. The exemption should not apply to legislative proceedings.

In access to information systems with a list of exceptions which protect legitimate interests in confidentiality, there is no need for a further exemption for voluntarily supplied information. The other exceptions provide protection for confidential information based on its contents - not on the manner by which the public authority obtained it. Moreover, in systems where mandatory reporting of environmental information to public authorities is less well developed, a correspondingly greater amount of environmental information may be obtained voluntarily. In such systems, an exception for voluntarily supplied information threatens to exclude much of the available information from public access.

Any exemption for unfinished documents should be limited in time and not apply to any documents which have been used or considered by a public authority in arriving at a decision.

2.3.7 Practical arrangements

Practical arrangements are an essential component of effective access to information. Where the practical arrangements have been organised with care, the usefulness of access to environmental information legislation is substantially increased. The Directive authorises the member states to define the practical arrangements for organising access to environmental information within their own system.

Practical arrangements include such matters as establishing reasonable hours and reasonable places for inspection of documents or mechanisms which allow the public to identify which public authority has what information. Introduction of such arrangements also benefits public authorities as it helps make access to information easier to administer.

Some member states have developed practical arrangements that help provide practical access to information. Examples of practical arrangements that can be useful are the designation of an information officer for each ministry, department or public authority. The establishment and maintenance of registers is also useful and helps the person seeking information quickly to get an idea of what information a public authority holds. Some member states require the public authority to provide assistance to a requester to help him or her make the request as specific as possible, or to direct it to the proper public authorities. Some public authorities have arranged for proper inspection facilities that are comfortable and convenient for the user.

2.3.8 Costs

If requested information is made available at excessive cost, the exercise of the right of access to environmental information is frustrated. The Directive permits charging for supplying information provided the charge does not exceed a reasonable cost. Unreasonable costs obviously operate to restrict the access to information intended by the Directive.

Fortunately, reasonable fees are being charged as a rule. Charges for photocopies are generally only somewhat higher than the costs of a photocopy at a copy-shop; for computer discs, cost price. Inspection is free and there is often no charge for a small number of copies. A number of member states have assisted the public by establishing - and publishing - standard lists of charges for photocopying and other means of supplying information. Charging for search time is the exception, moreover.

2.3.9 Appeals

To be effective, the appeals process should be timely, transparent, affordable, independent, comprehensive, and result in a binding decision. A decision on an appeal should be made in time for it to be relevant in the context of the proceeding for which the information is sought.

The decisions should be made known so that the decisions can provide guidance to both the public and the public authorities. The use of special administrative tribunals exclusively concerned with access to information cases may be a desirable way to establish experience and expertise with these matters.

The process should not entail such high costs that the right of appeal cannot be effectively used. The recovery of the costs of appealing and of lawyers costs, if any, should be possible if the appeal is successful.

While an internal review of a decision to refuse a request by the public authority holding the information may be a first step in the appeals process, the process should further provide for review by a body independent of the public authority itself.

The appeals process should cover all public and quasi-public authorities.

The appeals process should, ultimately, result in a decision binding on the authority.

The Directive requires that an avenue of appeal exist where a request for information has been denied in whole or in part. The appeals process is a component of the existing legal system in the country concerned. Thus, in some countries, the high cost of proceeding can discourage appeals. This can be the case where appeals must be taken to courts rather than to administrative bodies, since the costs of administrative appeals are generally more reasonable. The speed of decision-making is also a factor. A favourable decision on appeal is of little value if the proceeding for which the requested information is relevant has already been completed.

Some countries, notably France and Portugal, have created a special administrative tribunal to deal exclusively with appeals in cases concerning access to information. Such tribunals can have significant advantages, even when their opinions are not binding on public authorities, because the tribunal has the greatest expertise and experience in these matters and its views will generally be followed.

2.3.10 Time limits

The Directive specifies that requests must be answered as soon as possible and at the latest within two months.

In a number of countries, within and outside the EU, legislation sets a shorter deadline for responding to requests. In these countries, requests are often dealt with promptly and without undue administrative burden. Such shorter time frames, e.g. ten days or two weeks, reflect the time sensitive nature of many requests. In many cases, the moment in, for example, administrative proceedings for which the requested information would be useful will have passed if the information is received after a delay of two months.

It is also possible to establish a system of staggered time limits with, for example, shorter time limits for response than for supply. Thus, if the request is to be refused, that must be communicated within say two weeks whereas four weeks would be the time limit for actually supplying the information. Or four weeks could be the standard time limit for supply, unless exceptional circumstances, such as the volume of documents requested, justified extending the period by a further four weeks.

2.3.11 Active information

Mention may be made of the Directive's single provision concerning active information. The Directive requires member states to provide general information to the public on the state of the environment without specifying how or at what intervals.

This single reference makes clear that the Directive is primarily concerned with the passive right to information and does not attempt to address in any extensive way the various aspects of active information. Such provisions might include notice requirements, environmental reporting provisions, pollution release and transfer registers, etc.

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