ACCESS TO INFORMATION ON THE ENVIRONMENT€¦ · Access To Information On The Environment ....

ACCESS TO INFORMATION ON THE ENVIRONMENT

Discussion Basis to Inform a Submission by Comhar to the Department of the Environment On the Implementation in Ireland

of Directive 2003/4/EC on Access to Information on the Environment.

This Report has been compiled by Michael Ewing, B.Tech., G.Dip., M.Sc. for Friends of the Irish Environment

www.friendsoftheirishenvironment.net

January 14, 2005

Contents

1. Introduction. 2. Sustainability And Access To Information On The

Environment. 3. Relevant Elements of the Aarhus Convention. 4. The Principals Governing The Transposition Of European

Directives Into Irish Law. 5. A review of the transposition of Directive 90/313/EEC into Irish law. 6. Problems experienced in Ireland, using Directive

90/313/EEC.

7. Problems experienced across Europe in using Directive 90/313/EEC.

8. Proposals for inclusion in the regulations implementing Directive 2003/4/EC.

9. Draft Statutory Instrument implementing Directive

2003/4/EC.

Appendix 1.Recomendations for review and revision of 90/313/EEC based on the IMPEL workshop of January 2000.

Appendix 2. Ireland: Section 8 Report of June 1997 to the

European Commission.

Page

3

4

6

10

14

16

19

24

35

47

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Access To Information On The Environment Introduction

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1. Introduction

This document looks at: • the reasons for the replacement of Directive 90/313/EEC with Directive 2003/4/EC; • addresses some of the problems associated with the effective transposition of

European Directives into Irish law; • reviews the experiences in Ireland of those trying to access information on the

environment under Directive 90/313/EEC as transposed; and • outlines the factors that need to be incorporated into the new Regulations in order to

take into account the factors outlined in the previous chapters.

Following on from the above a draft proposal for the new Statutory Instrument is given, which attempts to incorporate the lessons learnt from those experiences, together with the spirit and letter of Directive 203/4/EC, whilst bearing in mind its purpose in being one step towards enabling the ratification of the Aarhus Convention. Much of this discussion document was informed by a workshop held in ENFO in December 2004 for practitioners in the environmental NGO sector who provided specific examples of the problems outlined in Chapter 6. There is no doubt that the weaknesses in S.I. 125 of 1998 have been a source of great frustration to those concerned in this sector with sustainable development in Ireland. The opportunity offered by the implementation of the new Directive affords our legislators a unique chance to ensure greatly increased openness and transparency in decision making and so make a positive contribution to cooperation between the public and those who make decisions on their behalf.

Access To Information On The Environment . tSustainability And Access To Information On The Environment

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2. Sustainability And Access To Information On The Environment.

In order to transpose Directive 2003/4/EC into Irish law it is first necessary to place it in the international and historical context from which it has emerged. It was the 1983 World Commission on Environment and Development (WCED) also known as the Bruntland Commission that first developed the idea of Sustainable Development, in its broadest sense. The WCED report in 1987 resulted from consultations at all levels of the global society, and attempted to balance the needs of future generations with those of our own. In essence it tried to promote both inter and intra generational equity. In its concluding statement, the commission stated that “existing decision making structures could not cope with the demands of sustainable development” (WCED.1987). The UN Conference on Environment and Development (UNCED or “The Earth Summit”), held in Rio De Janeiro 1992, addressed the problem of the lack of effective structures in environmental decision-making, as part of its overall remit. The two most relevant outcomes here are:

Agenda 21, and Principle 10 (P.10), of the ‘Rio Declaration on Environment and Development’.

Agenda 21, in its 40 chapters, lays a solid foundation for the promotion of sustainable development. Chapter 8, Section 1, calls on governments to seek broader public participation in policy making and decision making for sustainable development. Chapter 40 establishes two programme areas to ensure that decision making is based on sound information:namely, bridging the gap in availability, quality, coherence, standardization and accessibility that exists between developed and developing countries; and improving availability of information.

Principle 10 states:

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have

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appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”.

It would be difficult to overstate the significance of Principal 10 in providing a mandate for the development of regional and international environmental governance in the decade following the Rio Declaration, as well as to an underlying commitment motivating national law making. In the context of this study and from an Irish and European perspective, the most important initiative evolving from P.10 is The UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998 also known as The Aarhus Convention.

The ECE (Economic Commission for Europe) is a regional body of the United Nations and includes 55 countries. The European Commission and Ireland are both signatories of the convention but as yet have not ratified it. In order to enable ratification, the European Commission is developing a series of directives, including Directive 2003/4/EC, designed to bring the European Union in line with the convention.

Access To Information On The Environment The Aarhus Convention.

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3. The Aarhus Convention.

The Aarhus Convention sets out to put a shape on the aspirations of Principle 10 (P.10). It encapsulates the three main pillars of P.10; access to information, public participation in decision-making, and access to justice, and it sets the basic tenets for public participation to be ensconced in all European legislation on environmental decision-making. It is clear that in order for Pillar II to operate, Pillars I and III must also be well established, i.e. access to decision making cannot be effective without good access to information resources, and the possibility of enforcement of the rights established under the convention through ready access to justice. Pillar I – Access to Information.

Article 4 of Aarhus sets out the general right of persons to gain access to existing information, on request. In order to implement these articles, Directive 90/313/EEC (on the freedom of access to information on the environment), implemented in Ireland as S.I. 125, of 1998 (The Access To Information On The Environment, Regulations, 1998.), is being repealed and replaced by Directive 2003/4/EC (on public access to environmental information). The new Directive must be brought into Irish law by 14th February 2005. The changes in the new Directive include: * applicants for information do not have to state an interest; * an extended definition of "environmental information" which encompasses a wider range of matters related to the environment such as human health and safety, conditions of human life, cultural sites, cost-benefit and other economic analyses and assumptions used in environmental decision-making; * an extended definition of "public authorities" so that government at national, regional and local level is covered as well as persons who perform public administrative functions under national law, including specific duties, activities or services in relation to the environment, and other persons who have public responsibilities or functions, or providing public services, in relation to the environment under the control of Government or those performing public administrative functions (Article2, Section 2(c));


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* more detailed provision concerning the form in which information is to be made available so that information and, where requested, copies of the documentation containing or comprising the information must be made available in the form requested by the person seeking access to it unless it is reasonable (with the reasons given) for the public authority to make it available in another form or the information is already publicly available in another form (Article 3, Section 4); * definite response times and appeals procedures are laid down. Shorter deadlines for making available the information requested namely, one month after the request, with the possibility of an extension of this deadline by up to one further month where the volume and the complexity of the information requested so require; * limitations on the operation of exceptions: a request for "environmental information" may only be refused if disclosure would adversely affect one of the interests specified and public authorities are required to interpret the exceptions in a restrictive way taking into account the public interest served by disclosure; * express mention of emissions in the exceptions; * additional duties placed on national authorities for collecting and disseminating information going beyond the duty to disclose information when requested to do so; * improved procedures for review of actions or omissions of public authorities in particular, where a review by a court of law is provided, an expeditious procedure for reconsideration of a decision by the public authority concerned or for review of the decision by an independent and impartial body established by law must also be provided. “Course of Justice” exceptions refer to information that may adversely affect the course of justice (Article 4, section2 (c)) rather than the previous “sub-judice” exceptions. Pillar II – Public Participation in Decision-Making. Article 6 covers public participation (PP) in decisions on specific activities e.g. on the proposed locating, construction and operation of large facilities. Article 7 deals with PP in the development of plans programmes and policies relating to the environment, which includes sectional or land use plans, environmental action plans, and environmental policies at all levels.


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Article 8 covers public involvement in the preparation by public authorities of laws and regulations. In each of the Articles, 6, 7 and 8, early involvement of the public is encouraged. Pillar III – Access to Justice. Article 9 allows the public to challenge “acts and omissions” by either public authorities or private persons, as applied to articles 4 and 6, as well as allowing them a review of violations of domestic environmental laws. A level of standing is given to both individuals and NGO’s. The provisions of an expeditious, free, or very cheap, alternative review mechanism established by the courts is to be made available. Publicity about these procedures and removal of barriers to access are also stressed.

Shortcomings in the enforcement of environmental law throughout Europe, as outlined in the Sixth Environment Action Programme (6EAP), (Com (2002) 31, Final), will be the subject of a new Directive. In 6EAP it is recognized that better access to courts for NGO’s and individuals would have a number of helpful effects in relation the implementation of community law.

Whilst the convention stands on three distinct pillars there are provisions within it that apply to the convention as a whole. These provisions can be found in Article 3 and can be seen as underlying the provisions of Directive 2003/4/EC. Article 3 obliges Parties to:

• take necessary legislative, regulatory and other measures to establish a framework for implementation of the convention;

• endeavour to ensure that public authorities assist and guide the public under all three pillars;

• promote environmental education and awareness, in general but especially with respect to the three pillars;

• recognize and support environmental associations, organizations or groups;


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• recognize that the provisions of the convention are only minimum requirements which implies the right to introduce more positive measures;

• discourage backsliding i.e. no derogation from existing rights is required; • promote the Convention’s principles in international environmental decision-making

processes and international organizations; • ensure that persons exercising their rights under the convention are not penalized;

persecuted or harassed. The powers of national courts to award costs in judicial proceedings are not affected by this;

• Ensure that the public should have access under all three pillars regardless of citizenship, nationality, domicile or in the case of a legal person where it has its registered seat or an affective centre of its activities.

Access To Information On The Environment The Transposition Of European Directives Into Irish Law

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4. The Principles Governing The Transposition Of European Directives Into Irish Law,

This chapter is based on the opinion of the Advocate General, Geelhoed, delivered on 23 September 2004 Case C-494/01 Commission of the European Communities v Ireland.

Article 249 EC lays down that directives addressed to the Member States are binding as to the result to be achieved, but leave the choice of form and methods to the national authorities. This does not imply, however, that the process of implementation is left wholly to the discretion of the Member States. Over the years the European Court has formulated a number of standards in order to assess the adequacy of measures adopted by the Member States for the implementation of directives. In setting out these requirements schematically, it distinguished between two phases in the implementation process:

• the transposition phase and • the operational phase.

The transposition phase, in turn, consists of two main aspects:

o the normative aspect and o the organisational aspect.

Article 249 EC "In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force."


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The normative aspect The normative aspect involves absorbing the substantive content of the directive into national law in sufficiently clear and precise terms within the time schedule set in the directive (Case C-197/96 Commission v France [1997] ECR I-1489, paragraph 15.). The national provisions concerned must be of a binding nature with the same legal force as those which must be amended (Case 102/79 Commission v Belgium [1980] ECR 1473). Paragraph 10). Ensuring the clarity and precision of provisions implementing a directive is particularly relevant where the directive is intended to create rights and duties for individuals, as in the case of Directive 2003/4/EC. It is a requirement of legal certainty that transposition measures are sufficiently transparent to enable individuals to ascertain the full extent of their rights under the directive. (Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 15 and Case C-197/96 Commission v France, cited in note 7, paragraph 15.) However, the requirement of precision also applies even where a directive is not specifically intended to produce rights for individuals. In that case there is an interest in ensuring that the provisions of the directive are applied correctly by all the authorities concerned within the national legal order (Case 262/85 Commission v Italy [1987] ECR 3073, paragraphs 39 and 44). In addition, it must also be clear that the adopted national provisions have a Community origin, so that, if necessary, they may be interpreted in the light of the objectives of the directive and that Community remedies are available in respect of decisions taken pursuant to them. The organisational aspect The organisational aspect of implementation is aimed at creating the legal and administrative framework for the proper application and enforcement of the national provisions incorporating the norms contained in the Directive. This involves:

� designating authorities competent for applying these provisions, � ensuring that these authorities are endowed with adequate powers, � creating facilities for monitoring compliance with these provisions, � providing guarantees for legal protection, � ensuring the availability of legal remedies, � laying down sanctions in case of offences against these provisions and � establishing enforcement structures in relation to offences.

http://curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79959076C19010494&doc=T&ouvert=T&seance=CONCL&where=()#Footnote9





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Directives often provide explicitly for such organisational measures to be taken, but even where they are silent on the matter, it may be inferred from Article 10 EC that the Member States are under an obligation to ensure that such measures are adopted.

Article 10 EC.

Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.

They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.

The operational phase The operational phase of implementation is the ongoing process in which the objectives of the directive must be secured by the full and active application, by the competent national authorities, of the national provisions transposing the directive into national law, and the credible enforcement of these provisions where they are breached. The implementation process, in other words, is not concluded with the correct transposition of the provisions of the directive and the establishment of the organisational framework for the application of these provisions; these two aspects must operate in such a way as to achieve in practice the result sought by the directive. As the Court observed in Marks & Spencer in a consideration relating to directives in general, ‘the adoption of national measures correctly transposing a directive does not exhaust the effects of the directive. Member States remain bound actually to ensure full application of the directive even after the adoption of those measures’ (Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 27). It is significant for the operation of directives in general, that in this judgment the Court went on to assert that individuals are entitled to rely on unconditional and sufficiently precise provisions against the State before the national courts ‘whenever the full application of the directive is not in fact secured, that is to say, not only where the directive has not been transposed or has been transposed incorrectly, but also where the national measures correctly transposing the directive are not being applied in such a way as to achieve the result sought by it’. This latter consideration of the Court confirms that implementation in the wider sense of the word is a continuous process entailing enduring obligations for the Member States. As regards the enforcement of the national legal provisions in which the directives are incorporated, it follows from both the general obligation to achieve the objective of a directive


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and Article 10 EC that the steps taken and machinery set in place for this purpose are effective. Effective enforcement means that offenders run a credible risk of being detected and being penalised in such a way as at least to deprive them of any economic benefit accruing from their offence. As was observed in an Opinion of the Advocate General concerning the common fisheries policy, control effort and the threat of repressive action must generate sufficient pressure to make non-compliance economically unattractive and therefore to ensure that the situation envisaged by the relevant Community provisions is realised in practice (Opinion of 29 April 2004 in Case C-304/02 Commission v France, paragraph 39). Beyond the ‘paper wall’ erected in the transposition phase, the Member States, therefore, are and remain, responsible for ensuring that a directive is applied and enforced correctly, in short, that its useful effect is achieved. Any negligence in this respect will not only lead to a situation which is different from that envisaged by the directive, it will also undermine the uniform effect of the directive within the Community and influence the conditions under which market participants operate on the internal market.

Access To Information On The Environment The Transposition Of Directive 90/313/EEC Into Irish Law.

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5. A Review Of The Transposition Of Directive 90/313/EEC Into Irish Law.

Bearing in mind the opinion of the advocate general, as outlined above, it is clear that, according to European law, the European Communities Act, 1972 (Access To Information On The Environment) Regulations, 1998 (S.I. 125 of 1998) fall short of achieving their purpose as a transposition of Directive 90/313/EEC.

• The text of S.I. 125 of 1998 does not include any reference to the Directive, and so does not make it clear that the adapted national provisions have a Community origin, and that, if necessary, they may be interpreted in the light of the objectives of the Directive and that Community remedies are available in respect of decisions taken pursuant to them.

• There is no mention in S.I. 125 of 1998 of the active provision of general information

as included in the preamble of the Directive.

• Article 1 of the Directive which outlines its objectives is not included.

• Contrary to Article 2 (a) of the Directive no definition of what constitutes information relating to the environment is given in S.I. 125 of 1998.

• No attempt is made to include Article 3 (1) of the Directive, which defines who is

entitled to the information.

• Article 6 which requires member states to take the necessary steps to ensure the information relating to the environment is made available was only partly transposed. Whilst in S.I. 125 of 1998 Public Authorities are required to make available information, there is no compulsion contained therein, on national government, to ensure that the capacity to operate the legislation is created.

• In S.I. 125 of 1998, sub-article 6(2)(a) requires requests for information to be made in

writing. Whilst this discriminatory measure was not precluded under Directive 90/313/EEC, it was contrary to the spirit of its preamble, which states that “it is

Access To Information On The Environment The Transposition Of Directive 90/313/EEC Into Irish Law.

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necessary to guarantee to any natural or legal person free access to available information on the environment in written, visual, aural or data-base form…”.

It is clear then that the normative stage of the transposition of Directive 90/313/EEC into S.I. 125 of 1998 was incomplete. It will also be clear from what follows that the organisational and operational phases of the transposition were even less complete.

Access To Information On The Environment Problems experienced in using Directive 90/313/EEC in Ireland

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6. Problems experienced in using Directive 90/313/EEC, as transposed into S.I. 125 of 1998, to access information on the environment in Ireland.

Bearing in mind the findings of the European Court and the assessment of the ‘normative phase’ of the transposition of Directive 90/313/EEC above, it is now necessary to assess the ‘organisational aspects’ and the ‘operational phase’. This is done here by assimilating the experiences of those attempting to access information on the environment. It is done with a view to using this cumulative knowledge to temper the quality of the transposition of Directive 2003/4/EC. What follows is a summary of the issues raised at the workshop held in the ENFO Lecture room on Saturday December 4th, 2004 by the representatives of Environmental NGOs that have had a great deal of experience of trying to access information on the environment from a wide variety of public bodies. It should be noted that people who deal with public bodies on a regular basis experienced these problems. It can only be imagined what problems less experienced people may have had, assuming that they even knew about the Directive.

1. A lack of clarity regarding the definition of what constitutes environmental information.

2. Restrictive interpretations regarding which bodies should be included under the directive, as for example in the claimed exclusion of Coillte, Bord na Móna and Aer Rianta.

3. The narrow interpretation of Article 6 (2) (a) of S.I. 125 of 1998, which in itself narrows the accessibility to information by insisting that requests for information be made in writing. Many authorities exclude the use of e-mail. The insistence on written requests is discriminatory, creating a barrier to those with certain disabilities and those persons with literacy difficulties.

4. The lack of knowledge of the existence of the Directive/ Regulations shown by many of the bodies covered by the legislation.

5. Slow response times to requests for information are widespread. Where information is required in order to make submissions regarding planning applications, licensing, permits etc, time is of the essence.

6. Many examples of evasion exist where the information that is requested is said not to exist and yet appears at a later date, or was known to exist previously.


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7. The use of the Data Protection Act, 1988 to refuse access to information, when that information is publicly available elsewhere.

8. Requests for information made under the Freedom Of Information Act, 1997, but for information to which the Directive/Regulations apply, incurred charges under the Freedom Of Information Act, 1997, in breach of the Directive, with no attempt being made to enlighten the person making the request.

9. Requests for information made under the Freedom of Information Act, 1997 to which the Directive and Regulations apply have been evaluated under the Act without reference to the Directive and have been refused for reasons which are not legitimate under the Directive and have therefore breached the Regulations.

10. Some officials working in authorities covered by the Regulations denied that it applies to them.

11. Where requests were made to the wrong section of government, no attempt was made to redirect the request to the correct department or body.

12. The absence of any concerted effort to publicise the existence of the Directive/ Regulations or to train the staff of the relevant bodies in the operation of same.

13. The lack of coordination between access to information under the Directive/Regulations, and access to information using the Section 15 and Section 16 manuals available under The Freedom Information Act, 1997.

14. The lack of a proper assessment of the success or failure of the implementation of the Directive/Regulations, coupled with an absence of any public register of complaints regarding the operation of same.

15. The misuse of the discretionary grounds for refusal of access to information. 16. The imposition of exorbitant charges for copying information. 17. Restrictions on the number of pages that may be copied from a particular

document. 18. The existence of enormous financial barriers to achieving access to justice where

rights of access to information are denied, since legal challenges can only be made in the High Court. This is coupled with considerable time delays.

19. The lack of timeliness in issuing emergency information to enable persons to act to protect themselves and/or the environment.

20. The absence of any mechanism for tracking the progress of a request for information.


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21. The inability of the Ombudsman to deal with complaints within a meaningful timescale to enable the use of information requested in time-limited situations.

22. The confusion that arises from the fact that the Ombudsman oversees complaints in relation to the Regulations whilst the Information Commissioner oversees complaints in relation to the Freedom Of Information Act. Although these are the same person they are separate legal roles with separate bureaucracies.

Access To Information On The Environment Problems experienced in using Directive 90/313/EEC across Europe

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7. Problems experienced in using Directive 90/313/EEC across Europe.

In a report, bringing together national reports produced under Section 8 of Council Directive 90/313/EEC, from the European Commission to the Council and the European Parliament, on the experience gained in the application of the Directive (Document 52000DC0400), it was shown that implementation of the Directive had brought some positive results. Nonetheless, experience gained in the application of the Directive as described in this Report enabled the identification of a number of concrete difficulties encountered by Member States, NGOs and those requesting access to environmental information. The main problems were found to be in the following areas (which are also the areas where provisions of the Aarhus Convention improve on the provisions of the Directive). Problem areas * The definitions of the information required to be disclosed and of the public authorities and

other bodies required to disclose it. The Commission considered that these should be clarified with the aim of extending each of the categories concerned.

* The practical arrangements for ensuring that information is effectively made available.

The Commission considered that these should not be prescribed in detail in a Directive and are best left to the discretion of Member States. Nonetheless, it is apparent from the national reports that Member States can learn from each other as respects the best means for facilitating access to information. Among the best practices adopted by some Member States were the following:

o Registers describing the existence, types and amount of environmental data

available from the various authorities and bodies within the scope of the Directive.

o Allowing a person seeking information to request that it be supplied in a specific

form.

o Ensuring special contact officials or services are responsible for handling requests for information.

o Making information accessible by means of computer-supported databases or

the Internet.


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o Placing a legal duty on relevant authorities and bodies to help and advise those inquiring about access to information.

o Issuing Circulars or other guidance documents to the authorities and bodies

subject to the duties in the Directive in respect of practical arrangements.

* The exceptions from the duty to provide access The Commission recognised that there is a potential conflict between allowing free access to information and protecting legitimate interests on the basis of broadly framed exceptions. Drawing on the experiences of some Member States, it seems desirable to draw exceptions more narrowly and to make provision for the carrying out of a proper balancing exercise between the conflicting interests.

* The duty to "respond"

Having regard to the stated objectives of the Directive, an excessively narrow interpretation of this duty seems misplaced. Some Member States had claimed that "respond" required no more than an indication of whether the information would or would not be made available without further indicating when it would in fact be supplied. This is now the subject of a case pending before the Court of Justice: Commission -v-Germany (C-29/00). In the Commission's view, a full response should be given, within the time-limits, to the person seeking information. Such a response should consist either of the making available of the information requested, in whole or in part, or a reasoned refusal of a request, in whole or in part.

* The time-limits for fulfilling the duty

In the Commission's view, those seeking information are entitled to a full response as quickly as is reasonably practicable. It is recognised, however, that a minority of requests may cause difficulties, for example, because a request is inadequately formulated at the beginning or on account of the sheer amount of information requested. From the national reports, it did not appear that those Member States whose transposing legislation laid down a time-limit shorter than that allowed by the Directive had experienced greater problems in practice than those Member States which had made provision for the full 2 month time-limit. A shorter initial period for responding to requests seems desirable with


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the possibility of extending it for specified reasons which should be notified to the person making the request.

* The duty to give reasons for a refusal

Where the response to a request for provision of information is a refusal, article 3(4) of the Directive requires that the reasons are given to the person making the request. The national reports revealed that several member states, in their transposing legislation, had provided that a failure to respond within the time-limits should be deemed to constitute a decision of refusal. The justification given was usually the need, in the national legal order, to have a "decision", even if fictitious, to enable the person making a request to have recourse to the review procedure after the expiry of the deadline. In the Commission's view, such a legal fiction should not be taken in any way to relieve public authorities and other bodies from the duty to give reasons for a refusal within the time-limit specified in the Directive. It appears desirable, therefore, that the position should be clarified.

* Procedure for review of decisions to refuse access to information

The national reports showed that Member States had adopted different approaches in providing review procedures. Some had provided only for a judicial procedure, others an administrative procedure for objection with the possibility afterwards of a judicial review. Several Member States combined these procedures with access to an Ombudsman. In the Commission's view, a review procedure must be both timely and inexpensive if it is to aid those seeking access to environmental information. The Commission recognises that recourse to the courts is desirable in some cases but is not persuaded that judicial review alone is the best option. Administrative procedures which enable decisions to be reconsidered without excessive formality are likely to be quicker and less costly than judicial procedures and the Commission considers that these should be available in all cases.

* Charges

From the national reports, it appeared that most Member States, in law or practice, made no charge for responding to simple requests or for allowing consultation of information on the premises of the authorities concerned. Often only the cost of photocopies was charged. However, other Member States had fixed charges and there had been complaints to the


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Commission of excessive charging. The Commission accepts that charges must be made in some cases, especially where the complexity of the request and the amount of the material justifies it, and believes that the fixing of charges should be left, as at present, to the discretion of Member States. Nonetheless it is considered that persons requesting information should, before or at the time they make the request, have adequate information about the charging policy applicable to their case.

* Active supply of information

Member States reported a number of initiatives they had taken to supply information on environmental matters to the public at large or to particular sections of the public. There is no doubt that public interest in environmental matters is growing. Furthermore developments in information technology provide ever greater opportunities for a wider dissemination of environmental information. Member States will have to become even more active in meeting the demand for information and using the latest technological tools. It seems desirable to strengthen the provisions of the Directive in respect of these matters.

The main problems highlighted by the complaints in relation to the specific requirements of the Directive were: Art. 2(a): definition of "information relating to the environment". In some Member States a strict interpretation had led to refusals to provide information considered not to fall within the scope of the definition. Examples of such information included information on the public health effects of the state of the environment, on radiation or nuclear energy and on financial or needs analyses in support of projects likely to affect the environment. Art. 2(b): definition of "public authorities" In some cases, organs of the public administration which were not environmental authorities in the strict sense of the term claimed that their responsibilities did not relate to the environment and so refused to give access to environmental information which they held. Art. 3(2) and 3(3): interpretation of the exceptions Some complaints showed that access to information had been refused even though disclosure


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would not have undermined the protection of the legitimate interests covered by the exceptions in Article 3(2) or 3(3). Art. 3(4): time-limits In some cases, the information requested was only supplied after the deadline of two months had elapsed. In other cases, no answer at all was provided to the applicant. Art. 3(4): failure to respond When transposing the Directive into national law, some Member States had made provision to the effect that failure to reply to a request for access to environmental information should be considered as a refusal. This undermines the requirement in article 3(4) which specifically requires that the reasons for a refusal must be given. Art.4: review procedures Several complaints raised the high costs and long delays associated with the review procedures. Art. 5: cost of information. In some cases, unreasonable charges had been demanded. In other cases, the requested information had been refused on the basis of one of the exceptions but a charge had still been made. There were complaints about the lack of information about charges before requests for access to information were made.

Art. 6: interpretation of the expression "bodies with public responsibilities for the environment". This expression had given rise to diverging interpretations. Functions traditionally performed by the State are increasingly transferred to quasi-public or private bodies. The final outcome had often been the denial to the public of access to environmental information held by bodies which should have fallen within the scope of the Directive. The introduction to the report of the Irish Government to the European Commission under Section 8 made in 1997 and can be found in Appendix 3.

Access To Information On The Environment Proposals For Inclusion In the Regulations

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8. Proposals For Inclusion In the Regulations Implementing Directive 2003/4/EC

These proposals by the participants in the COMHAR-sponsored ENGO workshop of December 2004 are seen as necessary for the full transposition of the new Directive taking into account the aspirations of Principle 10, and the need to ratify the Aarhus Convention. The topics covered in the proposals are in the same order as they arise in Directive 2003/4/EC.

(1) SI 125 of 1998 should be replaced by an entirely new Regulation. Directive 90/313/EEC was replaced by Directive 2003/4/EC. This was done for the sake of clarity and to ease interpretation, by those whose rights it seeks to uphold. The same consideration should apply in the drafting of the new regulations.

(2) The new regulations should include Article 1 (Objectives) as well as parts (1), (5),

(8), and parts (12) to (20) of the preamble to the Directive. The underlying principle of this Directive is that wider and more effective access to information on the environment leads to better decision-making on matters relating to the environment, and ultimately to greater protection of same. Public authorities should implement their responsibilities in the light of these objectives, working towards a greater awareness and use of environmental information resources, as well as developing those resources to make both the information and the information increasingly accessible. The applicant should not be left, as is so often the case, feeling frustrated and angry as a result of the treatment received attempting to gain access to information.

(3) The definition of ‘environmental information’ contained in sub-article 2.1 of the

Directive should be transcribed verbatim into the new regulations. It was noted that SI 125 of 1998 contained no definition of environmental information even though Directive 90/313/EEC did, and that this had led to ambiguity in the interpretation of the 1998 Regulations. It was also noted that the definition in the new Directive was much broader, and included information regarding the effects of environmental change on cultural sites and built structures, reports on the implementation of environmental legislation, economic analyses used in decision-making on the environment as well as the state of human life and safety.


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(4) The definition of a ‘public authority’ contained in sub-article 2.2 parts (a), (b)

and (c) should be transcribed verbatim into the new regulations, with the addition of a part (d), which is a transcription from SI 125 of 1998 of sub-article 4(2), with the amendment that in paragraphs (vii) and (viii) the words ‘the majority of’ will replace the word ‘all’. A non-exclusive list of public authorities, as defined, should be included in the regulations. The list of public authorities should at least include the following:

An Bord Pleanála; Bord Na Móna; Coillte Teoranta; Aer Rianta;

Iarnród Éireann. The Environmental Protection Agency An Bord Gais Commissioner for Energy Regulation Commissioner for Communications Regulation Dublin Docklands Authority Ballymun Regeneration Limited Údarás na Gaeltachta E.S.B. Eirgrid Waterways Ireland Fisheries Boards

Applications for information made under 90/313/EEC to Aer Rianta, Coillte Teoranta and Bord Na Mona have been rejected by these bodies with statements that the Directive did not apply to them. Persons contracted to work for public authorities are now clearly included as public authorities themselves under the new Directive and so they should also be included under the regulations. The fact that a public authority does not appear to have environmental responsibilities should not exclude it from the provisions of the new regulations if it is the holder of information on the environment.


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(5) The provisions of the new regulations should include all information used by public authorities in making decisions on the environment. Public authorities have previously refused to give access to information used in making decisions on the grounds that the information was only on loan to them at the time and that it is no longer in their possession. When the owner of the information was not covered by the regulations the information was then not accessible, even though it had been used as part of the decision-making process.

(6) No provisions of the new Regulations should discriminate against any person.

The new Directive gives a clear definitions of an ‘applicant’ and of the ‘public’. These definitions should be transcribed verbatim, including also the statement in the preamble, and repeated in sub-article 3.1, that a person does not have to state an interest in requesting information. SI 125 of 1998 required that requests be made in writing, and this was interpreted as meaning writing on paper by most public authorities. There are two issues here.

The first is one of discrimination. Persons with learning disabilities, poor written English (due to their Nationality), literacy problems, visual impairment, or who were socially deprived, were all to some degree excluded under this interpretation of Directive 90/313/EEC.

The second issue is one of speed. Clearly, requests made and responded to using electronic media can be dealt with in a much shorter time frame than using paper documents delivered, processed and responded to by the traditional external and internal postal systems. A difference of perhaps 6 days in turning round an urgent request regarding a time-limited decision-making process could be vital.

(7) Public authorities shall do all in their power to encourage and assist persons

making requests for information on the environment. Where a person makes a request for information on the environment, but does not do so under the Directive or its implementing Regulations, the public authority involved should inform the applicant of the pertinent rights that apply to the applicant, the provisions regarding the application process, returning any request fee erroneously provided. Whilst some public authorities embrace the concept of the public’s right to access information on the environment, many more do not. It should be noted that article 3 paragraph 9 of the Aarhus Treaty requires public authorities to


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allow access to information and access to justice even to citizens or residents of other countries and requires organisations to be provided with this access even if their centre of activities is in another country. Requests for information under Directive 90/313/EEC were most likely to be met with one or more of the following:

• Evasion. For example the use of the Data Protection Act, 1988 to prevent access to information readily available through other public authorities.

• Denial. The authority claims to be exempt from the provisions of the regulations, or the information is refused because the authority claims that it doesn’t exist (see next proposal).

• Redirection to the wrong authority. This is possibly due to the absence of readily available registers showing which authority has which information. Whatever the reason, this is a waste of the resources of both the applicant and the authorities concerned, and can lead to cynicism by the latter. Once again the time factor is critical here, with a written redirection taking another 4-6 days at best, before the request is even addressed.

• Refusal, with no help as to where to look. The authority, rather than using its own resources and knowledge to facilitate the applicant gives a blank refusal.

(8) Where a request is formulated in too general a manner the public authority

should offer assistance to the applicant in the use of the public registers and in formulating a more precise request. Public authorities must however recognise that sometimes, particularly where registers don’t exist, it is necessary for applicants initially to ask broad questions before honing the search down to the more specific.

(9) Where a public authority claims that information that has been requested does

not exist, or cannot be found, the non-existence or unavailability of the information must be certified by a public servant of at least Principal Officer grade or equivalent, or in the case of a company by a Director of same. There have been several instances where an authority has claimed that requested information


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doesn’t exist, and yet this same information was publicly used by the authority prior to the request, or reappeared, after the time period in which the applicant intended to use it.

(10) Public authorities must have easily accessed and user-friendly registers of all environmental information, as defined in the Directive, available both electronically and in their offices. This is essential to enable applicants to search for information, and for officials to respond quickly and efficiently and to enable them to redirect requests in the same fashion. The registers produced under sections 15 and 16 of the Freedom of Information Act, 1997 could be adapted, where these exist already.

(11) In order to create the capacity within public bodies to fulfil their obligations

under the Directive, the following measures are essential (i) the designation of information officers in each public authority ; (ii) the training of all staff, but in particular information officers and

officers designated under the Freedom of Information Act, 1997, in each public authority, in the proactive operation of these regulations;

(iii) the establishment and maintenance of facilities for the examination of the information required;

(iv) the creation of registers or lists of the environmental information held by public authorities;

(v) the placing of notices in the offices and on the web-sites of the relevant public authorities informing the public of the regulations and their operation, and the rights of persons under same;

(vi) information points, with clear indications of where such information can be found;

(vii) the inclusion of information drawing attention to these regulations in all the forms and publicity material distributed under the Freedom of Information Act, 1997.

(viii) making available in each public authority a register of complaints made under the regulations;

(ix) making available a national register of complaints made under the regulations;


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(x) the establishment of procedures that enable the applicant to track the processing of the request for information.

(12) Public authorities must accept requests for information and reply to those requests using the format chosen by the applicant. They should also send a receipt for the request within 5 working days, attached to which should be information regarding the rights of the applicant and complaints procedures together with an official complaints form.

(13) Public authorities must respond to requests for information as soon as possible,

taking the time-scale needs of the applicant as the guideline. At the latest the requested information should be provided within 15 working days, or a reason given as soon as possible, or at the latest within 15 working days. Where the reason for not meeting the 15-day time limit is that it is not possible to assemble the information required in the given time, then a further period of 15 working days may be added to the search time. However, in this case, the applicant must be informed of the changed timescale as early as possible and the reasons given for the change. Any information already gathered at this point must be passed on to the applicant with the notification. These time limits are based on those used to great effect in the European Commission regarding public access to information and allow for the intervention of public holidays.

(14) Where a public authority does not possess the requested information it should

refer the request to the public authority that does. This referral should not alter the administrative time limit. The applicant should be informed of the referral in the receipt for the request and within 5 working days. This is currently the system operating in Hungary, and is one which protects the rights of the applicant without placing undue pressure on the relevant authorities, especially if they are able to conduct the processing electronically.

(15) Sub-articles 3.3 and 4.1(c) should be transposed together in the interest of

clarity.


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(16) Where a request is made concerning material in the course of completion or unfinished documents, that material should be supplied to the person making the request, on the condition that the material is not be quoted in public until the public authority has completed said material, unless the authority has already used the said information as part of a decision-making process. The public authority concerned should inform the applicant of the proposed date on which said material would be completed and/or documents finished.

(17) Where a request is made concerning data, it shall be supplied to the person

making the request, even when the data gathering process is incomplete, and even where the data is being gathered as the basis of a report which has not yet been compiled.

(18) Sub-Article 4.1(e) should not be included. There would be problems with defining

what were internal documents and what were not. The ECE Aarhus Convention Implementation Guide points out that the Convention in sub-article 4.3(c) only provides for the exemption of internal communications where such an exemption is already provided for in national law or customary practice. Were it to be included, then there should be very clear and well enforced guidelines requiring that the grounds for refusal to be weighed very carefully against the public interest served by disclosure, and then the reasons for refusing a request clearly stated to the applicant.

(19) The grounds for refusal of information under article 4 must be very restrictive,

and the way in which the rights of the applicant were weighed against the interest served by refusal should be clearly stated in the notice of refusal. For example the department should no longer be able to refuse to release information regarding the population of Golden Plover on the Curragh on the grounds of national security.

(20) Any list of criteria on the basis of which an authority may decide how to handle

requests should be given as a schedule to the regulations.

(21) In responding to requests for information on the environment, public authorities shall photocopy up to 20 pages of A4 text free of charge and may then make a charge at cost for supplying any further copies. Such charges shall be in line with


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Regulation (EC) 1049/2001 (regarding access to the documents of the European Parliament) and not exceed a reasonable amount. Experience in Europe shows that in order to ensure that financial barriers are not an impediment to access to information, and to ensure that every person can afford information; public authorities often waive fee requirements for individuals and NGOs. The policy of free photocopies and printouts of information, applied in the library of ENFO, should be broadened to apply to all public authority sources of environmental information, where the information is for non-commercial use. Access to ENFO should be broadened to by greater promotion of its services, and easier access to same regardless of geographical location.

(22) The Government should establish a new, independent and impartial body, The

Commission for Access to Information and Decision-Making on the Environment headed by a Commissioner for Access to Information and Decision-Making on the Environment. There is a great deal of confusion around the dual but legally separate roles of the person who is both the Ombudsman and the Information Commissioner. This new body would have a dual purpose. Firstly, in relation to Directive 2003/4/EC and its implementing Regulations, it would act as the administrative review body for complaints regarding rights denied under same. Secondly, the Commission would be the body responsible for promoting and developing the rights of access to information and decision-making on the environment and for enabling the ratification of the Aarhus convention.

(23) Once established, the Commissioner, in the spirit of Principle 10, should consult

widely on the ways in which the Commission and the new Regulations may together change the way that information on the environment is gathered, stored, processed made available. The Commission should then produce a programme based on the findings of the consultative process, initially to enable the ratification both in spirit and in letter of the Aarhus Convention, and then to ensure its continued implementation. One of the issues at present is the uneven way in which the current Directive is implemented. For example public submissions relating to planning applications were not available to the public in one planning office, and they were in another.


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(24) Any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with, should have access to a free procedure in which the acts or omissions of the public authority concerned can be reconsidered by the Commissioner for Environmental Information. The basic principle of a right to access to information is meaningless unless there is access to a mechanism to protect that right. Placing financial constraints on an appellant could easily restrict access.

(25) The findings of the Commissioner for Environmental Information shall be

binding on the relevant public authority or authorities, subject to legal review.

(26) The Commissioner for Environmental Information shall make findings known to the appellant and the relevant authority as soon as possible but definitely within 15 working days. The Commissioner for Environmental Information shall not consider a complaint to be dealt with until the public authority complies with the findings of the Commission. Where a public authority does not respond to requests from the Commissioner for an explanation as to why the application was refused, within 5 working days, then the decision of the authority is automatically overturned, subject to legal review.

(27) In addition to the review procedure, referred to above, an applicant should have

access to a review procedure before a court of law in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. The court of law may be any one of the following: the District Court, the Circuit Court, or the High Court. Third parties incriminated by the disclosure of information may also have access to legal recourse. Final decisions should be binding on the public authority holding the information. Reasons should be stated in writing where access to information is refused. There should be no financial cost or penalty imposed on the applicant seeking review. Access to justice must be accessible to all and expeditious, if it is to be of any real value. These requirements cannot be fulfilled if the only court of recourse is the High Court. Indeed the financial implications of going to the High Court can be very serious.


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(28) The training of the judiciary in relation to the Aarhus convention and where relevant the consequent European directives, is already on going in many of the ECE member states, and should begin in Ireland as soon as possible.

(29) The Commissioner should produce an annual report showing the success or

otherwise of the implementation of the Directive.

(30) As part of its commitment to the implementation of Directive 2003/4/EC, the Government should make available sufficient funds to enable independent ongoing research to complement the work of the Commissioner for Access to Information and Decision-Making on the Environment, using an established and internationally comparable and approved methodology, such as The Access Initiative, to measure the effectiveness of the measures taken to ratify and implement the Aarhus Treaty in the spirit of Principle 10 on which it was based.

(31) The Government should make available funding for the development of

independent sources of information and information sharing on the environment, in the form of an information brokerage. Research shows that one of the biggest barriers to effective dialogue on environmental issues is the absence of independent and credible sources of information and expertise. The provision of a brokerage would go some way to resolving this problem, and so lead to more effective decision-making in protecting the environment.

(32)The information to be made available and disseminated shall be updated as

appropriate and shall include at least:

(a) texts of international treaties, conventions or agreements and of Community, national, regional or local legislation, on the environment or relating to it;

(b) policies, plans and programmes relating to the environment; (c) progress reports on the implementation of the items referred to in (a) and (b)

when prepared or held in electronic form by public authorities; (d) the reports on the state of the environment; (e) data or summaries of data derived from the monitoring of activities affecting,

or likely to affect, the environment;


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(f) authorisations with a significant impact on the environment and environmental agreements or a reference to the place where such information can be requested or found;

(g) environmental impact studies and risk assessments concerning the

environmental elements or a reference to the place where the information can be requested or found.

The following information should always be available:

(i) Files generated under the Planning Acts (ii) Licensing, leasing, consents and permitting under the Air Pollution

Acts, the Water Pollution Acts, the Waste Management Act, 1996, the EPA Act, 1992, the Foreshore Acts, the Harbour Acts 1946, the European Communities (Natural Habitats) Regulation, 1997, Directive/79/409/EEC, and the Forestry Acts

Regarding the timeliness of information, there is clearly not much point in having planning notices on a planning authority web-site if the notices take at least five weeks to appear on the site, by which time the public right to comment has passed. This however is the situation in at least one such authority.

(33) National, and, where appropriate, regional or local reports on the state of the

environment shall be published at regular intervals not exceeding two years; such reports shall include information on the quality of, and pressures on, the environment.

(34) Where there is an apparent high risk of, or in the event of, an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information held by or for public authorities which could enable the public likely to be affected to take measures to prevent or mitigate harm arising from the threat shall be disseminated, immediately and without delay.

Access To Information On The Environment Draft Statutory Instrument implementing Directive 2003/4/EC.

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9. Draft Statutory Instrument implementing Directive 2003/4/EC.

In order to bring European law into line with the Aarhus Convention it was deemed appropriate in the interest of increased transparency to replace Directive 90/313/EEC in its entirety with a new Directive. In the light of this it would seem appropriate that S.I. 125 of 1998 should also be replaced completely with a new statutory instrument.

In transposing the Directive it is necessary to bear in mind all the factors mentioned

previously, and to ensure that both the spirit and the letter of the Directive are included in the new Statutory Instrument. To this end, what follows is a draft Statutory Instrument, incorporating all the essential elements required to transpose the Directive, and bring Irish Law into line with the Aarhus Convention, together with the proposals contained in chapter 8, above.

1. Citation. These Regulations may be cited as the European Communities Act, 1972 (Access to Information on the Environment) Regulations, 2005.

2. Commencement. These Regulations shall come into operation on the 14th day of February 2005. 3. Revocation. It is appropriate in the interest of increased transparency to replace S.I. No 125 of 1998 rather than to amend it, so as to provide interested parties with a single, clear and coherent legislative text.

The European Community’s Act, 1972(Access to Information on the Environment), Regulations, 1998 (S.I. No 125 of 1998) initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures for the exercise of the right of public access to environmental information which should be developed and continued. This Statutory Instrument expands the existing access granted under S.I. No 125 of 1998. 4. Interpretation.

(1) The objectives of these regulations are:

(a) to transpose Directive 2003/4/EC into Irish law and so


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(b) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and

(c) to ensure that, as a matter of course, environmental information is

progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.

(2) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.

(3) On 25 June 1998 the Irish government signed the UN/ECE Convention on

Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’). Provisions of Irish law must be consistent with that Convention with a view to its ratification by Ireland.

(4) It is necessary to ensure that any natural and legal person has a right of access to

environmental information held by or for public authorities without his having to state an interest.

(5) Environmental information which is physically held by other bodies on behalf of

public authorities should also fall within the scope of this Statutory Instrument.

(6) Environmental information should be made available to applicants as soon as possible and within a reasonable time and having regard to any timescale specified by the applicant.

(7) Public authorities should make environmental information available to

applicants unless it is already publicly available in another form or format or it is reasonable to make it available in another form or format. In addition, public authorities should be required to make all reasonable efforts to maintain the environmental information held by or for them in forms or formats that are readily reproducible and accessible by electronic means.

(8) Arrangements made by the relevant authorities shall guarantee that the

information is effectively and easily accessible and progressively becomes available to the public through public telecommunications networks, including publicly accessible lists of public authorities and registers or lists of environmental information held by or for public authorities.

(9) The right to information means that the disclosure of information should be the

general rule and that public authorities should only be permitted to refuse a request for environmental information in specific and clearly defined cases.


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Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the time limit laid down.

(10) Public authorities should make environmental information available in

part where it is possible to separate out any information falling within the scope of the exceptions from the rest of the information requested.

(11) Public authorities should be able to make a charge for supplying

environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. A schedule of charges should be published and automatically made available to applicants together with information on the circumstances in which a charge may be levied or waived.

(12) Applicants should be able to seek an administrative and/or judicial

review of the acts or omissions of a public authority in relation to a request.

(13) Public authorities should seek to guarantee that when environmental information is compiled by them or on their behalf, the information is comprehensible, accurate and comparable. As this is an important factor in assessing the quality of the information supplied, the method used in compiling the information should also be disclosed upon request.

(14) In order to increase public awareness in environmental matters and to

improve environmental protection, public authorities should, as appropriate, make available and disseminate information on the environment that is relevant to their functions, in particular by means of computer telecommunication and/or electronic technology, where available.

5. Definitions

(1) ‘Environmental information’ shall mean any information in written, visual, aural, electronic or any other form on:

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); (c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the


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elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; (d) reports on the implementation of environmental legislation; (e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in (c); and (f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).

(2) ‘Public authority’ shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level; (b) any natural or legal person performing public administrative functions, including specific duties, activities or services in relation to the environment; (c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b); and

(d) shall include

(i) a Minister of the Government (ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act, 1941,

(iv) a harbour authority within the meaning of the Harbours Act, 1946,

(v) a health board established under the Health Act, 1970, (vi) a board or other body established by or under statute,

(vii) a company in which the majority of the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or

(viii) a company in which the majority of the shares are held by a board, company, or other person referred to in paragraph (vi) or (vii)

(ix) Notwithstanding the above, for the purposes of these regulations, the following bodies shall be deemed public authorities:

An Bord Pleanála;

Bord Na Móna; Coillte Teoranta; Aer Rianta;

Iarnród Éireann. The Environmental Protection Agency


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An Bord Gais Commissioner for Energy Regulation Commissioner for Communications Regulation Dublin Docklands Authority Ballymun Regeneration Limited Údarás na Gaeltachta E.S.B. Eirgrid Waterways Ireland Fisheries Boards

(3) a public authority as defined in sub-articles (2)(a) and(2)(b) shall, in relation to any public authority as defined in sub-article (2)(c) which it controls, decide whether the powers, functions and the duties assigned under these regulations will be exercised by the public authorities as defined in sub-articles (2)(a) and(2)(b) or by the public authority as defined in sub-article (2)(c).

(4) ‘Information held by a public authority’ shall mean environmental information in its

possession which has been produced or received by that authority, whether or not the information received by it was provided to it at its own request. ‘Information held by a public authority’ shall also mean environmental information used to enable decision-making processes even though said information is no longer in possession of that authority.

(5) ‘Information held for a public authority’ shall mean environmental information that is

physically held by a natural or legal person on behalf of a public authority. (6) ‘Applicant’ shall mean any natural or legal person requesting environmental information,

whether on their own behalf or on behalf of another person, or an unincorporated association

.(7) ‘Public’ shall mean one or more natural or legal persons, and their associations,

organisations or groups.

6. Access to environmental information upon request (1) Public authorities are required, in accordance with the provisions of this Regulation, to

make available environmental information held by or for them to any applicant at that person’s request and without that person having to state an interest. The request may be made in any written format, including electronic. Where a person desiring to make a request is unable to do so in a written format, the public authority shall make provisions for the request to be processed in another appropriate format.

(2) Subject to Article 7, and having regard to any timescale specified by the applicant, all

applicants shall receive an acknowledgement of receipt of their request within 5 working days, together with a leaflet outlining the applicants rights under these regulations, and a form for registering any complaint regarding infringement of those rights.

The requested environmental information shall be, made available to an applicant:


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(a) as soon as possible or, at the latest, within 15 working days after the receipt by the public authority referred to in sub-article (1) of the applicant's request; or

(b) within working 30 days after the receipt of the request by the public authority if the

volume and the complexity of the information is such that the 15 day period referred to in (a) cannot be complied with. In such cases, the applicant shall be informed as soon as possible, and in any case before the end of that 15 working day period, of any such extension and of the reasons for it.

(3) If a request is formulated in too general a manner, the public authority shall as soon as

possible, and at the latest within the timeframe laid down in sub-article (2)(a), ask the applicant to specify the request and shall assist the applicant in doing so, e.g. by providing information on the use of the public registers referred to in sub-article (6)(c).

(4) Where an applicant requests a public authority to make environmental information

available, but does not make reference to these regulations, the public authority shall inform the applicant about these regulations and the relevance of them to the applicant’s request.

(5) Where an applicant requests a public authority to make environmental information

available in a specific form or format, including in the form of photocopies, the public authority shall make it so available unless:

(a) it is already publicly available in another form or format, which is easily accessible

by applicants; or (b) it is reasonable for the public authority to make it available in another form or

format, in which case reasons shall be given for making it available in that form or format.

For the purposes of this sub-article, public authorities shall make all reasonable efforts to maintain environmental information held by or for them in forms or formats that are readily reproducible and accessible by computer telecommunications or by other electronic means. The reasons for a refusal to make information available, in full or in part, in the form or format requested shall be provided to the applicant within the time limit referred to in sub-article (2)(a).

(6) For the purposes of this article;

(a) officials are required to support the public in seeking access to information; (b) lists of public authorities covered by this Regulation are to be kept complete, up to

date, publicly accessible and well publicised; and that (c) the practical arrangements shall be defined for ensuring that the right of access to

environmental information can be effectively exercised, these to include:

(i) the designation of information officers in each public authority; (ii) the training of all staff, but in particular information officers and officers

designated under the Freedom of Information Act, 1997, in each public authority, in the proactive operation of these regulations;


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(iii) the training of the judiciary in the interpretation of these regulations in the light of article 4.

(iv) the establishment and maintenance of facilities for the examination of the information required;

(v) registers or lists of the environmental information held by public authorities;

(vi) the placing of notices in the offices and on the web-sites of the relevant public authorities informing the public of the regulations and their operation;

(vii) information points, with clear indications of where such information can be found;

(viii) the inclusion of information drawing attention to these regulations in all the forms and publicity material distributed under the Freedom of Information Act, 1997.

(ix) making available in each public authority a register of complaints made under the regulations;

(x) making available a national register of complaints made under the regulations;

(xi) the establishment of procedures that enable the applicant to track the processing of the request for information.

7. Exceptions (1) Public authorities may provide for a request for environmental information to be refused

if:

(a) the information requested is not held by or for the public authority to which the request is addressed. In such a case, where that public authority is aware that the information is held by or for another public authority, it shall immediately transfer the request to that other authority and inform the applicant accordingly. The right of the applicant to receive the information within the time limits set down in article 6 shall still apply.

(b) the request is manifestly unreasonable; (c) the request is formulated in too general a manner, taking into account sub-article

6(3);

(2) (a)Where a request is made concerning material in the course of completion or unfinished documents, that material shall be supplied to the person making the request, but that material shall not be quoted in public until the public authority has completed said material, unless the authority has already used the said information as part of a decision-making process. The public authority concerned shall inform the applicant of the proposed date on which said material will be completed and/or documents finished.

(b)Where a request is made concerning data, it shall be supplied to the person making

the request, even when the data gathering process is incomplete.


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(c) Where a request for information is made, and the request refused on the grounds

that either the information does not exist, or that it cannot be found, then the applicant shall receive a statement to that effect signed by a Principal Officer or the equivalent, or where the authority is defined, as in sub-sections 5(2)(d)(vii) and 5(2)(d)(viii), by a Director of that company

(3) Public authorities may provide for a request for environmental information to be refused if

disclosure of the information would adversely affect:

(a) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for by law;

(b) international relations, public security or national defence; (c) the course of justice, the ability of any person to receive a fair trial or the ability

of a public authority to conduct an enquiry of a criminal or disciplinary nature; (d) the confidentiality of commercial or industrial information where such

confidentiality is provided for by the law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy;

(e) intellectual property rights; (f) the confidentiality of personal data and/or files relating to a natural person where

that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by law;

(g) the interests or protection of any person who supplied the information requested on a voluntary basis without being under, or capable of being put under, a legal obligation to do so, unless that person has consented to the release of the information concerned;

(h) the protection of the environment to which such information relates, such as the location of rare species.

The grounds for refusal mentioned in sub-articles (1) and (2) shall be interpreted in a

restrictive way, taking into account, for the particular case, the public interest served by disclosure. In every particular case, the public interest served by disclosure shall be weighed against the interest served by the refusal, taking into account the provisions of article 4. Public authorities may not, by virtue of sub-articles (2) (a), (b), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment.

(3) Environmental information held by or for public authorities which has been requested by an applicant shall be made available in part where it is possible to separate out any information falling within the scope of sub-article (2) from the rest of the information requested. The reasons for supplying only part of the requested information shall be given to the applicant.

(4) A refusal to make available all or part of the information requested shall be notified to the

applicant in writing or electronically, if the request was in writing or if the applicant so requests, within the time limits referred to in article 6(2)(a) or, as the case may be, 6(2)(b). The notification shall state the reasons for the refusal and include information on the review procedure provided for in accordance with Article 6.


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(5) A list of criteria on the basis of which an authority may decide how to handle requests

should be given in schedule 1.

8. Charges (1) Access to any public registers or lists established and maintained as mentioned in Article

3(5) and examination in situ of the information requested shall be free of charge. (2) In responding to requests for information on the environment, public authorities shall

photocopy up to 20 pages of A4 text free of charge and may then make a charge at cost for supplying any further copies. Such charges shall be in line with Regulation (EC) 1049/2001 and not exceed a reasonable amount.

(3) Where charges are made, public authorities shall publish and make available to applicants

a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.

9. Access to justice

(1) A new, independent and impartial body, The Commission for Access to Information and Decision-Making on the Environment headed by a Commissioner for Access to Information and Decision-Making on the Environment shall be established.

(2)The role of the Commission.

(a) Any applicant who considers that his request for information has been ignored, wrongfully refused (whether in full or in part), inadequately answered or otherwise not dealt with in accordance with the provisions of Articles 6, 7 or 8, shall have access to a procedure in which the acts or omissions of the public authority concerned can be reconsidered by the Commissioner for Access to Information and Decision-Making on the Environment.

(b) The findings of the Commissioner for Access to Information and Decision-Making on the Environment shall be binding on the relevant public authority or authorities, subject to legal review. (c) The Commission for Access to Information and Decision-Making on the Environment shall make its findings known to the appellant and the relevant authority as soon as possible but definitely within 15 working days. The Commissioner for Access to Information and Decision-Making on the Environment shall not consider a complaint to be dealt with until the public authority complies with the findings of the Commission. (d) Where a public authority has been requested by the Commissioner for Access to Information and Decision-Making on the Environment to explain the reasons for their decision to refuse to give the information requested, and that authority fails to reply within 5 working days, the decision of the local authority to refuse access to information is automatically reversed.


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(3) In addition to the review procedure referred to in sub-article (2), an applicant shall have access to a review procedure before a court of law in which the acts or omissions of the public authority concerned can be reviewed and whose decisions may become final. The court of law may be any one of the following: the District Court, the Circuit Court, or the High Court. Third parties incriminated by the disclosure of information may also have access to legal recourse.

(4) Final decisions under paragraph (3) shall be binding on the public authority holding the

information. Reasons shall be stated in writing, at least where access to information is refused under this Article.

(5) Any person, having exhausted the remedies open to them nationally, may seek review in

the European Court of Justice as to whether their rights under Directive 2003/4/EC have been upheld.

10. Dissemination of environmental information (1) Public authorities shall take the necessary measures to organise the environmental

information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available. The information made available by means of computer telecommunication and/or electronic technology need not include information collected before the entry into force of these Regulations unless it is already available in electronic form. Public authorities shall ensure that environmental information progressively becomes available in electronic databases, which are easily accessible to the public through public telecommunication networks.

(2) The information to be made available and disseminated shall be updated as appropriate

and shall include at least:

(a) texts of international treaties, conventions or agreements and of Community, national, regional or local legislation, on the environment or relating to it;

(b) policies, plans and programmes relating to the environment; (c) progress reports on the implementation of the items referred to in (a) and (b) when

prepared or held in electronic form by public authorities; (d) the reports on the state of the environment referred to in paragraph 3; (e) data or summaries of data derived from the monitoring of activities affecting, or

likely to affect, the environment; (f) authorisations with a significant impact on the environment and environmental

agreements or a reference to the place where such information can be requested or found in the framework of Article 6;


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(g) environmental impact studies and risk assessments concerning the environmental elements referred to in Article 5(1)(a) or a reference to the place where the information can be requested or found in the framework of Article 6.

Notwithstanding the above, the following information should always be available:

(iii) Files generated under the Planning Acts (iv) Licensing, leasing, consents and permitting under the Air Pollution Acts,

the Water Pollution Acts, the Waste Management Act,1996, the EPA Act,1992, the Foreshore Acts, the Harbour Acts 1946, the European Communities(Natural Habitats) Regulation,1997, Directive/79/409/EEC,the Forestry Acts

(3) National, and, where appropriate, regional or local reports on the state of the environment

shall be published at regular intervals not exceeding two years; such reports shall include information on the quality of, and pressures on, the environment.

(4) Where there is an apparent high risk of, or in the event of, an imminent threat to human

health or the environment, whether caused by human activities or due to natural causes, all information held by or for public authorities which could enable the public likely to be affected to take measures to prevent or mitigate harm arising from the threat shall be disseminated, immediately and without delay.

(5) The exceptions in Article 7(1) and (2) may apply in relation to the duties imposed by this

Article. (6) The Government may satisfy the requirements of this Article by creating links to Internet

sites where the information can be found, provided that the existence of these links is made widely known. This sub-article does not apply to sub-article (4)

11. Quality of environmental information (1) Public authorities shall ensure that any information that is compiled by them or on their

behalf is up to date, accurate and comparable .(2) Upon request, public authorities shall reply to requests for information pursuant to Article

4(1)(b), and report to the applicant on the place where information can be found on the measurement procedures, including methods of analysis, sampling, and pre-treatment of samples, used in compiling the information, or referring to a standardised procedure used.

(3) Where information exists only in the form of data, public authorities shall on request

provide applicants with explanations of its significance and relevance.

12. Review procedure


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(1) The Commissioner for Access to Information and Decision-Making on the Environment shall report annually to the Minister on the implementation of these regulations.

(2) Sufficient funding shall be made available to enable an ongoing independent review of the

implementation of these regulations, as part of a study of the implementation of Principle 10 of the Rio Declaration, 1992, and the Aarhus Convention, 1998.

13. Schedule 1

A list of criteria on the basis of which an authority may decide how to handle requests should be given.

Access To Information On The Environment Appendix 1.

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Appendix 1.

RECOMMENDATIONS FOR REVIEW AND REVISION OF DIRECTIVE 90/313/EEC The Report published by the Dutch organisation, Stichting Natuur en Milieu, based on the conclusions of the IMPEL Workshop of January and a variety of other sources made recommendations which can be summarised as follows. (1) The Directive should expressly state that access to environmental information is a right. so that limitations on its exercise would have to be applied in a narrow and specific way. (2) Article 1 refers to information "held" by public authorities but, increasingly, information is held by other bodies subject to the control of a public authority. The Directive should specify that a public authority "holds" information if that information is available to it but physically in the possession of a private entity which is subject to the regulation of the public authority. (3) The Directive's definition of "information relating to the environment" should be amended to make it clear that it covers information on health, radiation and nuclear energy as well as information (including financial or economic information) on activities or proposals which may affect the environment. (4) The Directive currently applies to public authorities with "responsibilities... relating to the environment". The Directive should, however, apply to environmental information held by any public administration irrespective of whether they have responsibilities relating to the environment. Publication of indicative (but not exhaustive) lists of bodies covered by the Directive could be useful. (5) The Directive excludes bodies acting in a judicial or legislative capacity from the definition of public authorities. This exception has in some cases been interpreted to mean that a body which sometimes acts in a judicial or legislative capacity always falls outside the scope of the Directive. The Directive should therefore clarify that the exclusion of a body applies only on the occasions when such a body is acting in a judicial or legislative capacity. (6) Increasingly, functions traditionally performed by governmental authorities are being transferred to quasi-public or private bodies. Article 6 is intended to bring them within the scope of the Directive but is limited to those "under the control" of public authorities". Therefore article 6 needs to be clarified and extended to cover bodies, controlled, directed, influenced or established in whole or in part by government to carry out a public service or a governmental function and the current requirement for such bodies to have "public responsibilities for the environment" should be deleted.


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(7) Article 3(1) of the Directive requires public authorities to make information "available" but is unclear about whether authorities are required to make it available for inspection or for copying The Directive should provide for the person seeking the information to decide how he or she wishes to have the information made available. (8) Article 3(1) currently states that any person may make a request without his having to "prove" an interest. The Directive should make clear that a person may request information without having to offer any explanation to the public authority. (9) The Directive only requires Member States to define the practical arrangements for making information effectively available without providing further for what constitutes such arrangements. The Directive should address, at least, the following matters: * the designation of information units or officers for each relevant public authority * the keeping of registers of information held * the making of arrangements for forwarding information requests to the proper authorities * the establishment of inspection facilities at reasonable locations and open at reasonable hours * the publication of cost schedules * the organisation of training programmes for officials. (10) Article 3(2) provides for a long list of broadly formulated exceptions which are capable of undermining the Directive's stated object. They should be carefully limited to those strictly necessary to protect legitimate public and private interests. Exceptions should apply only if it can be demonstrated that disclosure of information would adversely affect the protected interest and that the harm which would result from the release of the information would exceed the benefit to the public interest in giving access to the information. Clear and specific reasons should be given for a refusal of access. (11) In addition to the provision recommended in paragraph (10) : * the reference to the "confidentiality of the proceedings of public authorities" should be narrowed to more specific kinds of "proceedings" and to "confidentiality" as established by law or comparable rules. * the too broad exception by reference to "matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings" should be limited to matters currently sub judice and to what is necessary to prevent the release of information which would adversely affect the right of a fair trial or the course of justice. The protection for "preliminary investigation proceedings" should be clearly limited to investigations which would result in criminal charges.


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* the exception related to "commercial and industrial confidentiality" should be limited to sensitive commercial information (such as trade secrets) which has been designated as confidential by the company concerned and the disclosure of which would significantly harm its commercial interests and assist a competitor. A person claiming the protection of commercial confidentiality should have to justify the claim. The Directive should specify that data relating to releases into the environment (emissions, waste etc) cannot be confidential. * the exception concerned with "material supplied by a third party" can be difficult to apply in practice as it may be unclear whether information was supplied to meet a legal obligation or not. Moreover, much of the information which public authorities hold for the purpose of environmental protection is supplied voluntarily The need for confidential treatment of information should be based on its contents and not on the manner in which a public authority obtained it and so there should be no general exception for voluntarily supplied information. (12) As respects Article 3(3): * "unfinished documents" should not be capable of being withheld if they have been considered by a public authority in arriving at a decision * "unfinished data" should be deleted from the grounds for refusal as the notion that data can be withheld pending processing is difficult to defend. * the Directive should clarify when communications between different public authorities can be withheld as "internal communications". * the ground for refusal which refers to a request being "formulated in too general manner" should be reviewed. A request may need to be formulated in a general manner if the public authority does not keep lists or registers of information held which would help a person to make a more specific request. (13) Article 3(4) should be amended to provide that a response must be made as soon as possible and the information must be supplied at the latest within a specified time period. The current two months deadline should be drastically reduced as requests for information are often time-sensitive and data are increasingly stored in computerised form which can be accessed and transmitted quickly. (14) As respects Article 4, the Directive should expressly require that there should be the opportunity of an administrative review of the matters currently covered as well as of related matters (such as overcharging) while preserving the opportunity of ultimate recourse to judicial review of the administrative decision. This should help to mitigate the high costs or the long delays associated with review proceedings at present in cases where they are a component of the existing judicial system in the Member State concerned. Furthermore the


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Directive should provide that, in accordance with the relevant national legal system, the review process should be characterised by low cost and by swift, independent, binding and transparent decision-making. (15) As respects Article 5, the Directive should: * require the establishment and publication of a schedule of maximum costs; * make explicit that inspection is free of charge; * provide that there should be no charge for a set initial amount of search time; and * provide for the possibility of a reduction or waiver of charges for requests for non-commercial purposes. (16) The Directive should establish sanctions against public authorities which improperly withhold information. (17) Article 7 should be strengthened to respond to public interest in environmental information and also brought up-to-date in the light of developments in information technology. (18) Since all Member States have now transposed the Directive, a relatively short period such as 12 months should be allowed for transposing any amendments which may result from the Article 8 review. There should again be provision for evaluation and review with a clearer statement of the date by which Member States should submit their reports.

Access To Information On The Environment Appendix 2. .

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Appendix 2.Ireland: Report of June 1997 Introduction The Directive was first transposed into national law in 1993 by regulations made under the Environmental Protection Act 1992 ("the 1993 Regulations"). These regulations complemented a wide range of already existing legislation, listed in Annex A to this Report, designed to give access to specific categories of environmental information. The 1993 Regulations were reviewed in the latter half of 1994. As a result of concerns expressed by those consulted as part of the review, new legislation was adopted in 1995 and 1996 [10]. The 1995 legislation gave improved access to information held by the national planning appeals board ("ABP") as well as information concerning integrated pollution control. The 1996 Regulations replaced the 1993 Regulations, clarifying several matters including the definition of "public authority", reducing the general response time for requests for information to one month, and limiting the number of discretionary grounds for refusing access to information. [10] See entries (9), (12) and (16) for Ireland in Annex A to this Report. Definitions in Article 2 Initially there had been a concern in relation to the exception for bodies acting in a judicial or legislative capacity in the Article 2(b) definition. An Bord Pleanála was considered to be acting in a judicial capacity and so outside the scope of the Directive and the 1993 Regulations. This was remedied by the 1995 legislation; and, in any event, the view had subsequently been taken that the ABP acted in an administrative capacity. Furthermore the definition of "public authorities" in the 1996 transposing legislation was wider than that in the Directive as it covered authorities holding information relating to the environment irrespective of whether their responsibilities related to the environment. Practical arrangements under Article 3(1) Detailed definition of arrangements in the 1996 Regulations had been considered impracticable. Nevertheless Guidance Notes, issued by the Irish Government in 1993, provided practical guidance to public authorities covering matters such as providing assistance to the public in formulating requests, registration of requests early notification of any charges payable before granting a request and internal reviews before any request is refused. Exceptions in Article 3(2) and (3) The 1996 Regulations restricted the scope of the exceptions provided for in the 1993 Regulations. The discretion to refuse information as mentioned in the third indent of Article

Access To Information On The Environment Appendix 2. .

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3(2) was restricted to matters currently sub judice, under inquiry or the subject of preliminary investigation proceedings. The discretion to refuse access on the grounds of the confidentiality of the deliberations of public authorities was simply deleted. The discretion to refuse a "manifestly unreasonable" request was changed to require the authority to have regard to the nature or range of the information sought. Time-limits in Article 3(4) The 1994 review of the 1993 Regulations had identified the two month time-limit as being far too long. As a result, the 1996 Regulations reduced the general time-limit to one month, while allowing for an extension of a maximum of one month where there were specific reasons which had to be notified to the person requesting the information. Review procedure under Article 4 No special review mechanisms had been introduced in the transposing legislation: normal administrative and judicial remedies applied. The 1994 review had identified the lack of an all-embracing administrative appeals system as a deficiency. In the meantime, the Ombudsman had played an important role in respect of complaints relating to refusal of access to information. In respect of the discretionary refusals, the Ombudsman had applied a "harm test" even though this was not provided for in the 1993 and 1996 Regulations or the Directive. Charges under Article 5 Charges are discretionary under the Irish legislation, and the 1993 Guidance Notes suggested that there should be a presumption in favour of free provision of information where costs were not significant. Some public authorities had provision for minimum or maximum charges. Where charges were made, it appeared that the critical determinant was the volume of work required to respond to a request. Active information policy under Article 7 There was statutory provision for "state of the environment reports" to be published by the Environmental Protection Agency every five years. The Agency also published environmental quality reports in different sectors from time to time. The Department of the Environment had an environmental information service which operated a public enquiry service, distributed information leaflets and organised exhibitions, lectures and other activities. In addition to its own Internet site, the information service also had a data-base connected to 36 public libraries.

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