2.7 Conclusions: Toward a culture of openness

2.7 Conclusions: Toward a culture of openness

The discussion above reviews the existing legal instruments and their scope. The question whether existing access to environmental information legislation is working well has not been addressed.

In the EU member states, issues have arisen over whether to define the practical arrangements; the scope of the public bodies covered and the extent to which the legislation applies to privatised bodies; the application of the legislation to public authorities when they act in a (quasi-)judicial capacity; over whether the Directive provides a right to a copy of a document or only a right to inspect it; obtaining responses to requests within the two-month time period set by the Directive; what should be understood as a reasonable cost; the appeals mechanism; and the scope of the exceptions, in particular for commercial information, public proceedings, matters under enquiry, and internal communications.
As this list of issues indicates, the transposition of the Directive in national law is but the beginning of a gradual process of improving access to environmental information. Time and experience is required to make legislation work well in practice. Thus, the Directive's yield of information can be expected to grow, especially if legal provisions and practice draw on the experience gained to date and improvements are made.

Moreover, experience to date indicates that the quality of the environmental information made available can be disappointing and therefore of limited utility for public input in decision-making processes. This can be because public authorities themselves often do not hold the information desired or because the information that they do have is not in usable or comprehensible form¹⁵.
This illustrates, that the value of the access to environmental information instrument is dependent on the quality of the information that public authorities gather. The development of systems of sampling, monitoring and reporting on the part of public and private actors whose activities affect the environment is therefore of critical importance. Examples of such systems include emissions registers or requirements that environmental license holders measure and report on their pollution discharges at such regular intervals and with such specificity that it is possible to determine whether they are meeting or violating the license requirements.

Court decisions are another avenue which can lead to improvements in the effectiveness of the legislation. Decisions by administrative or civil courts can contribute significantly to make laws more effective.

There is no doubt, however, that access to (environmental) information legislation marks an important turning point in the relationship between officials and the public.

It should be no surprise that the transition from a standard of official secrecy to one of openness is not easily accomplished. This is the experience under the Directive in member states with distinguished systems of professional bureaucracy where official secrecy was a firm rule, such as Germany and the United Kingdom, and in those states where democratic systems are of more recent vintage, such as Spain. It suggests, that in Central and Eastern Europe the transition to openness will also not be a matter of enacting legislation alone.

An interesting phenomenon to observe in countries where access to information legislation is firmly established, such as the Netherlands or Sweden, is that government officials act in the spirit as well as the letter of the law. In practice, the formalities for requests for information are often waived and the information provided without delay.

The effects of the Directive on the climate in the member states can also be observed. In the member states where access to information laws already existed, little has changed. In the member states where implementation was necessary and was accomplished more or less promptly, the beginnings of a climate of openness can already be observed. In contrast, in the member states where implementation has been late, the Directive has to date had less effect.

The Directive has had a notable effect on environmental organisations, however. Many of these, particularly in member states where the right of access to environmental information is new, have been vigorously campaigning for, and on the basis of, the rights meant to be provided by the Directive. In Central and Eastern Europe, environmentalists are also acutely aware of the importance of the right of access to information and are campaigning for national legislation to be at least as strong as the EU Directive.

Finally, the anxiety about a flood of requests for information has proven to be unfounded. Opponents of access to information laws often fear that a vast increase in the workload and administrative burden on public authorities will result. Experience to date shows that public authorities are well able to manage the volume of requests. Indeed, the development of practical mechanisms and structures to respond to public requests for information often helps the authorities to better manage their data collection, storage and retrieval systems.

In fact, the more attention given to the practical arrangements, the easier it is to manage the requests that are made. The establishment of information points, public registers, and other measures identified above, all contribute to incorporating access to information into the routine business of a public authority.

As far as Central and Eastern Europe is concerned, there has been uneven progress in shedding the systems of secrecy which characterised the former governments. Steps are being taken to establish the legislative framework needed in the first instance to generate environmental information and to strengthen the data collection systems. In some cases, access to environmental information rules are now being put into place.

In the broader UN ECE context, the Guidelines go further than the Directive in some respects and cover a greater geographical area, including some states without any tradition or legislation for public access to environmental information. The Guidelines are limited in their effect, however, by their non-binding character. The negotiation of a Convention, which would contain binding provisions, is therefore a logical next step.

¹⁵For a study illustrating this point in some detail, see C. Wattiez, Information available to the public on industrial pollutant releases and transfers in Belgium, WWF PRTR/North Sea Inventory Project, WWF (Brussels, 1995).