NOU 2001: 2 - Right of access to environmental information (Summary)

Right of access to environmental information

Report by the committee appointed by Royal Decree of 30 October 1998. Submitted to the Ministry of the Environment on 19 December 2000.

Draft Bill relating to the right to environmental information

NOU 2001: 2 (In Norwegian)

Summary

The expert committee for environmental information was appointed by Royal Decree of 30 October 1998 and submitted its recommendation on 19 December 2000. The committee was composed of 15 members and chaired by Professor Hans Petter Graver, Centre for European Law and, later, the ARENA research programme at Oslo University.

Environmental information includes both information on the state of the natural environment and on activities that may have an impact on the environment. The theme dealt with by the committee is the right of access the public – each individual citizen – has to environmental information. By right is meant both the right to request information and the right to be informed when necessary. The duty to provide environmental information may apply to both private and public actors.

The right to environmental information was laid down in Article § 110 b of the Constitution of the Kingdom of Norway in 1992.

The right of access to environmental information has become an increasingly prominent theme in international environmental law. The UN/ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) is the most far-reaching international set of rules. There are also several EU regulations containing provisions on the public right of access to information about the environment. For the committee in its work, Council Directive 90/313/EEC on the freedom of access to environmental information (the environmental information directive) has been particularly important. The European Commission presented a proposal for a new environmental information directive in July 2000 (the directive proposal).

The public’s right of access to environmental information is based on a number of considerations. One is the idea that the public has a legitimate interest in knowing how public resources are used. Transparency also promotes legitimacy and trust and enables the public to "keep a check on" private and government actors. Another central consideration is democracy. Access to environmental information also enables environmentally aware market participants to act in accordance with their convictions and makes it easier for individuals to protect their health and the environment from damage.

There are both public and private considerations that may justify restrictions on the right of access to environmental information. The costs and work involved in providing information, the confidentiality of commercial and industrial information and the need for equal terms of competition in a national and international context are considerations that are particularly relevant. In some cases there may also be a need to retain silence to protect the environment itself, for example the nesting sites of threatened bird species.

The committee’s proposal is based on an assessment of the requirements in Article 110 b of the Constitution, the Aarhus Convention, the environmental information directive, the directive proposal and other international legislation, and on concrete assessments of the legislative amendments that should be carried out in order to fulfil the considerations described above. The Constitution contains guidelines for the assessment of the right to request information on the environmental impact of public and private activities. The Aarhus Convention is most important in the assessment of the right to request environmental information held by public authorities and the right to participate in public decision-making processes.

Main principles for determining who is responsible for informing the public

The committee holds the view that as a main principle each individual actor is responsible for providing information about its own activities and their impact on the environment. This principle is in keeping with the general principle by which the natural or legal person responsible for doing something that has a negative impact on the environment must pay the associated costs. To be able to take responsibility for such environmental impact, the actor must be aware of it. A natural consequence of this is that the actor also has the responsibility of providing the public with information about the environmental impact.

For the public administration, this principle will involve a duty to provide information about the environmental impact of decisions made in connection with the exercise of authority. This duty will apply to all the sectors within the public administration. In order for access to environmental information to have a democratic function, it is important that information is given in the course of the decision-making processes.

The committee finds that it is not possible to follow this principle to its full extent. To ensure that overview information is produced, the public authorities must have the overall responsibility, cf. Chapter 11. In the case of acute environmental problems, the authorities responsible for crisis management should also hold the main responsibility for conveying information, not the individual actor, cf. Chapter 13.

Environmental information from public and private actors

The committee has reviewed the existing rules for actors about the duty to know and provide information about the environmental impact of their activities. The Accounting Act and the Product Control Act are of central importance. However, there is no clear provision in these Acts for the public to request information about the environmental impact of the activities of public or private actors.

The committee therefore proposes that a general provision be introduced on the right to request information about any aspects of such activities that have a significant impact on the environment. Provisions relating to this have been incorporated in the proposed Act relating to the right of access to environmental information. The proposal includes actors that at present fall outside the Accounting Act, such as municipalities, government agencies and the agricultural sector. The committee proposes that the right of access should include information about pollution, energy use, waste management, land use, transport, resource use and noise.

The committee also proposes that a special provision be included in the Product Control Act on the public’s right to request environmental information about products. The provision will reflect the duty to possess knowledge that is already included in the Act. The provision includes information on whether a product contains components or has properties that may result in damage to human health or environmental disturbance, which components or properties these are and how the product is to be used to prevent this effect.

With regard to environmental impacts in the course of the production process, a majority on the committee proposes that requests for this information may be made insofar as the information is available and a significant environmental disturbance is involved. No duty to possess knowledge of such effects will be laid down, but a majority proposes that a duty to direct an enquiry to the previous stage in the chain of distribution when a request for such information is made should be established. The minority does not support the proposal of making access to information about damage to human health and environmental disturbance caused by products in the production phase a statutory right.

The committee has reviewed existing rules and practice regarding environmental information in marketing and found that the rules safeguard the aim of preventing misleading marketing based on environmental arguments. The committee does not therefore propose any specific rules about this.

Environmental information held by and for public authorities

The right to request environmental information from public authorities is a central element in the right of access to environmental information. This right was established in Article 4 of the Aarhus Convention and in the environmental information directive.

There is a close connection between the right to request environmental information and the right of public access to documents, which is a familiar aspect of Norwegian public administration and became a statutory right under Act No. 69 of 19 June 1970 relating to public access to documents in the public administration (Freedom of Information Act). Both the international rules and the Freedom of Information Act regulate the public’s right to request information from public authorities. In other words, it is the person seeking information who takes the initiative in the communications process by contacting the authorities and specifying the information requested.

The Freedom of Information Act fulfils most of the international requirements referred to above that apply to Norwegian law. In the view of the committee, there is a need to strengthen the existing legislation on some points in order to ensure a correct implementation of the international rules. The committee therefore proposes new legislation on the right to request environmental information held by and for public authorities.

The legislation applies to public authorities, a term with a wider definition than the administrative agencies of the Freedom of Information Act. The concept also covers, for example, legal persons that under the terms of an Act or regulations, or on commission from the public administration are responsible for providing services to the public that may have a significant impact on the environment. A minority holds the view that it should not be a requirement that services may have a significant impact on the environment.

The legislation applies to the right to request access to environmental information held by and for a public authority. This includes both environmental information that a public authority actually holds itself, and information that a natural or legal person holds on behalf of the public authority.

According to the committee’s proposal, it is sufficient if the person requesting information states what information is requested. As a rule, it will be up to the public authority to locate the information. However, a request may be refused if there is not sufficient basis to identify the information requested.

The committee proposes that the person requesting the information should as a rule receive the information in the requested form. Exceptions may be made if the information is readily available in another form or it is reasonable to supply the information in another form or another format. Reasons should be given if the latter is chosen.

To meet the requirements in the international rules, the draft Bill includes the requirement that a request for environmental information should be decided on within specific time frames. There is a majority in favour of the decision being taken as soon as possible and at the latest within ten days of receiving the request. A minority proposes that the normal time limit should be one to three working days and with an absolute time limit of eight days. In special cases, the time limit may be extended. A majority is in favour of an extension of two months, while a minority proposes 45 days.

The committee proposes more stringent requirements as regards refusal and grounds for refusal than are required by the Freedom of Information Act, in order to fulfil Norway’s commitments under the Aarhus Convention.

Overview of the state of the environment

The committee has reviewed existing rules and practice regarding the information received by public authorities on the state of the environment. There are few regulations governing this in current legislation. However, by working on sectoral environmental action plans and State of the Environment Norway, central government authorities have embarked upon an important process of work to collect and systematize overview information. Local authorities have to varying degrees initiated similar work at the municipal level. The various reporting arrangements for the municipalities have produced a large amount of information that can form the basis for overview information. In addition, interested parties can obtain overview information themselves by directing an enquiry to public authorities.

A majority on the committee proposes introducing a statutory duty for public authorities to be informed about the state of the environment. A duty to make this information available to and to disseminate it among the general public is also proposed.

A minority on the committee is opposed to introducing such a statutory duty. Being informed and communicating information about the state of the environment should be a priority for the authorities at all times and should therefore not be made a statutory duty. In addition, the proposed statutory duty would be difficult to enforce as a legal rule.

Participation in public decision-making processes

One of the main reasons for the public’s right to environmental information is to enable people to take part in public decision-making processes that will have a significant impact on the environment. The Standing Committee on Foreign and Constitutional Affairs also emphasized this point in their deliberations on Article 110 b of the Constitution of Norway.

Briefly, the right to take part in public decision-making processes means the right to obtain information that a case is being processed and to receive details of the case, and then to be able to submit comments.

Several international conventions contain provisions relating to public participation in decision-making processes. The committee has primarily considered the Aarhus Convention.

In principle, the committee holds the view that when considering which decision-making processes the public should be able to participate in, emphasis should be given to factors such as whether the decision will have a major impact on the environment, whether the effects are particularly controversial, and whether for environmental reasons a decision must be made quickly.

Furthermore, the committee feels that decision-making processes that the public will be participating in should meet the following general requirements:

- Participation must take place at stages in the process when it is possible to influence the result.

- Action must be taken to ensure that broad sectors of the population are given the opportunity to submit their comments.

- The authorities should actively inform the public in a way that ensures that any groups having an interest in the decision are aware of the decision-making.

- The time frames for public participation must allow sufficient time for the public to have a real opportunity to submit comments.

- The authorities must have a duty to consider the comments submitted by the public.

On the basis of these considerations, the committee has reviewed the requirement for transparency in administrative procedures that is laid down in a number of regulations. The committee has chosen to distinguish between the decision-making processes that result in an individual decision, and those that result in general decisions, such as Acts, regulations and plans.

With regard to individual decisions, requirements relating to public participation in decision-making processes can be found in a number of Acts.

Article 6 of the Aarhus Convention requires public participation in decision-making processes relating to projects and activities of a certain size. Under Norwegian law, these projects are covered by the environmental impact assessment provisions in the Planning and Building Act, the Petroleum Act and the Pollution Control Act. The rules of administrative procedure in Norwegian regulations in this area seem mainly to meet the requirements of the Aarhus Convention. The committee proposes minor amendments to these regulations to ensure a correct implementation of Article 6 of the Aarhus Convention.

The committee holds the view that it may also be desirable to strengthen the public’s right to participate in public decision-making processes related to individual decisions in other areas.

A minority in the committee proposes a provision in the Act relating to the right to environmental information that would assure the right of the public to participate in public decision-making processes with regard to projects that have or may have a significant impact on the environment.

General decisions made by central government or local authorities will in many areas have a more significant impact on the environment than individual decisions, because they determine the framework for the individual decisions that can be made. This applies to Acts, regulations, local and central government planning and decisions relating to the formulation of government policies. The term decision must be understood in a broad sense so that it includes plans and programmes that do not necessarily contain binding decisions but an overview of aims and methods, for example.

Key Norwegian regulations relating to general decisions are the Instructions for issuing official documents and regulations, the provisions on regulations in the Public Administration Act and the planning provisions in the Planning and Building Act.

Articles 7 and 8 of the Aarhus Convention regulate the right to participate in decision-making processes related to plans, programmes and strategies and regulations and other general, legally binding rules that may have significant environmental effects. As the rules are formulated in vague terms, it is to a great extent left up to the States to consider how the requirements should be implemented.

The committee proposes a general provision about the public’s right to participate in decision-making processes related to the preparation of regulations, plans and programmes. A majority in the committee feels the rules should apply to regulations, plans and programmes that have or may have a significant impact on the environment. A minority feels that having a significant impact on the environment should not be made a requirement. It is proposed that the provision be included in the Act relating to the right to environmental information. The provision will give a correct implementation of Articles 7 and 8 of the Aarhus Convention.

Crises – acute environmental problems

The right of the public, and particularly of the local population, to be informed in the event of environmental crises is a central aspect of the right to environmental information. Information is essential to be able to protect oneself against the consequences of a crisis.

In relation to crises, only having a duty to inform upon request would not be sufficient. The public needs to be actively informed throughout the various stages of a crisis.

Firstly, it may be of interest to the public to be informed about and to have the opportunity to participate in the preparation of contingency plans for environmental crises. This is a requirement in several international regulations. The committee proposes that this requirement be laid down in the relevant legislation. How participation is implemented should be decided by the competent authorities, although this should be based on the principles the committee has outlined in Chapter 12.

Secondly, it will be important to inform the local population of any potential crisis risk in the local environment. There are extensive rules on this point. The committee has therefore not submitted concrete legislative proposals.

Thirdly, the committee feels it is very important that the public is informed when an environmental crisis has occurred so that people can take the necessary action to protect themselves, their property and the environment. It is important that information is communicated quickly and that it is correct, relevant and easy to understand. There are currently no provisions that expressly concern the public’s right to be informed in connection with an environmental crisis. Information management must be a central element in contingency planning. There is no coherent legislation for contingency planning that would present a natural context for regulations on the responsibility for information. The committee has therefore not submitted concrete legislative proposals.

Legal restrictions on the right to environmental information

The right to environmental information must allow for restrictions when other legitimate public considerations so require. The international rules about environmental information all allow for certain restrictions in the right to environmental information. There are also some international rules that set certain limits on the right to environmental information.

The committee proposes a reference to the exemption rules in the Freedom of Information Act. These exemption provisions are relatively wide and some of them are impractical in relation to environmental information. To ensure that these grounds for exemption are not utilized more widely than was intended, the committee proposes the following provisions:

- A requirement stating that information shall not be exempted unless there is a real and relevant need for this in a specific case. This provision will result in a more correct implementation of Article 4 of the Aarhus Convention.

- A requirement stating that public authorities shall weigh the environmental and public interests served by disclosure against the interest served by a refusal. If the environmental and public interests outweigh the latter interest, the information shall be made available. This provision is proposed in order to achieve a more correct implementation of Article 4 of the Aarhus Convention.

- A requirement stating that information about certain matters may never be refused. This includes

a) information about environmental pollution that is harmful to health and the environment,

b) the properties of a product that are harmful to health and the environment, and if necessary an explanation of what causes them,

c) precautions to prevent or reduce damage to health or the environment from products or pollution, and

d) illegal intervention in or illegal damage to the natural surroundings.

In the opinion of a minority on the committee, the word pollution should be replaced by emissions.

Litra a is proposed in order to implement the requirements of the Aarhus Convention.

- A requirement that in cases where access to some of the information requested may be refused, the remainder of the information shall be made available unless it cannot be separated out from the information to which access is refused. This provision is necessary to ensure a correct implementation of Article 4 of the Aarhus Convention.

In many cases it may be particularly difficult to assess whether environmental information constitutes a trade secret subject to a duty of secrecy under the Public Administration Act or other legislation and to which access must therefore be refused. The facts that are needed in order to make a real assessment of the terms of the Act are often not available to the public authorities. To ensure that the decisions taken by the public authorities are correct, thereby guaranteeing due process of law both for the person requesting the information and the person to whom the information refers, the committee proposes a set of rules relating to the duty of identification and justification in relation to the confidentiality of commercial and industrial information that shall apply to the person to whom the information refers.

The committee has assessed the relationship between the right to environmental information, the protection of privacy and copyright. The committee has come to the conclusion that there is no conflict between the Personal Data Act and the Act relating to the right to environmental information. However, the Act relating to the right to environmental information may conflict with the Copyright Act. The committee feels that, in principle, copyright legislation should not unnecessarily involve a restriction on the public’s right to environmental information. The committee has, on the other hand, observed that the consequences for the current organization of the collection and communication of environmental information may be considerable if the right to environmental information were to take precedence over the Copyright Act. This might also be in conflict with Norway’s international obligations. The committee therefore proposes that a provision be included stating that the Copyright Act shall have precedence.

Access to justice

The committee proposes that an independent appeals board be established for those aspects of the committee’s proposal that deal with the right to request information about environmental effects caused by the activities of public and private actors. When establishing such an appeals board, it should be considered whether its authority should be restricted to cases where claims are made against actors that are not public authorities.

The proposal reflects the need recognized by the committee for a simple and easily accessible arrangement whereby issues relating to environmental information of this nature may be reviewed. From experience, the judicial system will not be used to any great extent for cases dealing with the right to information. The committee proposes that the appeals board be established by special agreement between the central government, the private sector and other concerned parties. The committee proposes that the appeals board secretariat be connected with an existing arrangement so as to reduce costs. The appeals board should conduct its proceedings in writing. Its decisions should for the time being be advisory and not subject to enforcement.

With regard to environmental information from public authorities, the committee proposes that the existing appeals system under the Freedom of Information Act be applied with any adaptations necessary to cover legal persons to whom the Freedom of Information Act does not currently apply and to provide for a comprehensive appeals procedure.

Economic, administrative, environmental and other major consequences

The committee has had an independent assessment prepared on the economic and administrative impact of the most important of the committee’s proposals. The assessment shows a high level of uncertainty and does not provide a clear answer as to how far the proposals would be profitable. This applies both to private economic profitability and the socio-economic profitability of the proposals.

The assessment concludes that the committee’s proposals with regard to the right to information about the environmental impact of an actor’s activities would have little economic or administrative impact for those actors to which the provisions in the Accounting Act relating to annual reports currently apply. Although quantification is difficult with regard to public authorities, a not insubstantial increase in expenditure must be expected. Separate assessments have been conducted of the proposal concerning environmental information about products.

With regard to the changes in the rules for participation in public decision-making processes, the report concludes that the proposals will not have any major economic or administrative consequences.