Freedom of Environmental Information

Freedom of Environmental Information Presented by: Prof. Reid Date: 10 October 2023 Right of Access to Environmental Information - An Introduction - The right for individuals to be given information held by the state about the environment • State of the environment, factors affecting the environment, and plans which will affect the environment • All public authorities and private companies performing environmental functions for the state - Right to access environmental has two elements • Proactive disclosure of environmental information • Disclosure of environmental information on request General Benefits of Making Information Available - There are a range of benefits associated with making state-held information available to the public • Increase the openness and transparency of government • Increase the accountability of government • Improve quality of government decision-making • Improve public understanding of government • Increase public trust in government • Increasing public participation in government Benefits Underpinning the Right - Connection between environmental information and public participation - Enhancing environmental protection efforts and protecting the right to a healthy environment - Aarhus Convention - Enable individuals to fulfil their moral duty to "protect and enhance the environment" - The Three Legged Convention • Environmental Democracy  Information  Participation  Justice Implementing the Right into Law - International Law • United Nations Conference on Environment and Development (The Rio Declaration), Principle 10 • UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) - European Union Law • EU Directive 90/313/EEC on the Freedom of Access to Information on the Environment • EU Directive 2003/4/EC on Public Access to Environmental Information • EU Regulation 1367/2006/EU on the application of the provisions of the Aarhus Convention - Domestic Law • Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 • Open Government Act 2022 (Wet Open overheld) Legal Obligations - Proactive Disclosure and Article 5 of the Aarhus Convention - The state has an overarching duty to possess and update environmental information that is relevant to its purpose - There is a duty to create a "mandatory system" to create a flow of environmental information from the state to the public • Distinct dissemination duties where an environmental emergency creates an imminent threat to human health of the health of the environment - Proactive disclosure can occur in a variety of ways • Electronically, in particular through websites • In situ registers or noticeboards Legal Obligations - Requesting Disclosure and Article 4 of the Aarhus Convention - Minimal obligations are imposed on members of the public seeking to request access to environmental information - • Requests can take any form (e.g. email; letter; telephone call; request in-person) • Does not need to specify why the individual wants the information • Must be sufficiently specific to identify what information is being asked for • Public authority obliged to offer assistance and advice to requester In response to a request, the state must make the requested information available • In the form requested • As soon as possible, or at the latest within 1 month • The state may charge for this information, but the charge cannot exceed a "reasonable amount" Legal Obligations - Refusing to Disclose - What happens if the state does not want to disclose the requested environmental information? • - State can apply one of the listed exceptions to the right What happens if the state does not want to disclose the requested environmental information? • General exceptions  E.g. State does not hold the requested information; information is in the course of completion; request is "manifestly unreasonable" • Exceptions protecting specific interests  E.g. International relations; national security; confidentiality of commercial or industrial information; the safety of the environment - Interest-based exceptions have additional elements which must be met before information can be withheld • Exceptions are to be interpreted in a restrictive way and must take into account the public interest in disclosure • - Stricter tests to justify refusal to disclose information about emissions Refusals to disclose must state the reasons for the state withholding the requested environmental information, and detail how their decision can be appealed