The Importance of readily available environmental information in European law

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INTRODUCTION

The importance of readily available and accessible information on the environment cannot be under estimated if individuals and environmental groups are to play an effective role as environmental watchdogs. Ultimately, increased public access to environmental information contributes to 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. Stavros Dimas, the current EU Commissioner for the Environment, has commented, “Information can be a powerful catalyst for change towards increased protection of the environment…”

It is also imperative that any publicly accessible environmental information is up-to-date in content because delayed or out-dated information may well turn out to be ineffective and meaningless in war against environmental disregard. Certainly, the importance of readily available information is evident in the area of planning law where individuals are subject to specific time limits, when they intend to enter either submissions or objections to either local planning authority or An Bord Pleanála stage, respectively. Moreover, an effective right of access to information is also critical, where an individual seeks to challenge decisions of public bodies through the process of judicial review, as an appellant is required to file for same within 28 days of the public bodies decision.

The central task of this of paper is to examine the extent to which Irish rules and regulations governing access to information on the environment meet European Community law requirements in this field. Specifically, I consider the position of European Community law in the area and its precise demands on EU States. Next, I entertain the position of Irish law, with particular attention given to The European Communities Act 1972 (Access to Information on the Environment) Regulations 1998

and the Freedom of Information Act 1997, as amended by the Freedom of Information (Amendment) Act 2003, and its approach to Community demands. Furthermore, I explore the existing confusion surrounding the complex matrix of laws relating to access to information on the environment. Finally, I discuss the key points of comparison and divergence between European and domestic law.

THE EUROPEAN DIMENSION: A BACKGROUND

Prior to February 14th 2005, Council Directive 90/313 EEC (“the old Directive”) provided for the freedom of ‘access to information on the environment’. Effectively, this instrument, by itself, has been seen as setting into motion a greater climate of transparency, accountability and openness, through informing European Union citizens about environmental issues. According to Meehan, Directive 90/313 EEC represented “the EC law standard below which public access [to environmental information] is not to fall”.

Before the implementation of the old Directive however, it was commonly considered, across industrial Europe, that certain records, containing information relating to recorded emissions of factories were totally confidential and the property of no one but the factory owner. Environmentalists had conversely argued that since these emissions leave the factories, and thereafter enter the public domain and form part of the air that we, as European citizens breathe – the public should have a right to know what these emissions are.

Moreover, it has always been widely believed that environmental issues, in general, are best handled with the participation of all concerned and informed citizenry at the relevant level. Public awareness and involvement depends above all on public access to information. Mullany has commented, that the Directive represented “both a departure from a widespread tradition of public secrecy and an ongoing desire to directly involve the citizen in environmental protection”. In this regard it is submitted that, in general, developing EU environmental policy has harmonised with the wide-scale shift in ‘attitudes towards individual rights and especially towards the protection of individual autonomy’, in the second half of the twentieth century. In particular, the ‘access to environmental information’ Directive has proved a useful tool, for the questioning and challenging of ‘public authorities’ in relation to information in their possession.

While the operation of the Directive was largely successful, it was not without its critics. In fact, its operative weaknesses and problematic issues were examined when, in accordance with Article 8 of the old Directive, the Commission issued a report to the Council and the European Parliament, on the 29th of June 2000, which took account of the experience gained by the Member States in the operation of the old Directive. The report highlighted that some of the problematic areas included:

  1. The actual definition of “information relating to the environment”,
  2. Art.2 (b): definitions of “public authorities”,
  3. Art. 3(2) and 3 (3): interpretation of expectations,
  4. Art. 3 (4): failure to respond
  5. Art. 4: review procedures, etc.

Accordingly, new proposals were drafted to provide for these shortcomings, which ultimately mandated the adoption of a new Directive on ‘access to environmental information’ i.e. Directive 2003/04/EC (“the new Directive”).

The new Directive can be seen to have taken off from where the European Court of Justice’s (ECJ) had stopped, in terms of its application of the old Directive. The ECJ in its interpretation had always adopted a purposive approach. As Ryall comments, “it is apparent from the case law that the Court is concerned to ensure that the fundamental objective of the directive, articulated in Article 1, is not undermined”. Furthermore it is clear from the available case law that the ECJ has always focused on a broad and far-reaching right of access. In Mecklenburg v. Kreis Pinneberg-Der Landrat, the Higher Administrative of Schleswig-Holstein made a preliminary reference to the ECJ concerning the correct interpretation of Article 2(a) and Article 3(2), third indent. Here the Court held that the concept of “information on the environment” in Article 2(a) of the directive should be interpreted broadly (also see Commission v Germany). It is now proposed that the important features of the new Directive are more closely examined, so as to establish a measure of Community demands on Member States in this particular area.

THE NEW DIRECTIVE:

In response to the adoption of the new Directive Stravos Diams, Commissioner for the Environment, said: “Europe’s citizen now have not only the freedom but also the right to obtain environmental information that is held or produced by public authorities”. Furthermore it provides that every natural or legal person, regardless of citizenship, nationality or residence, has a right of access to environment information held or produced by public authorities.

The main features of the new Directive can be summarised as follows:

  • It grants a right of access to environmental information (as opposed to freedom of access under the old Directive) and to ensure that environmental information is made available and disseminated actively to the public;
  • It provides a broader definition of environmental information as well as a more detailed definition of public authorities;
  • It establishes a deadline of one month (reduced from two months under the old Directive) for public authorities to supply the information requested;
  • It clarifies the circumstances, i.e. exemptions, under which authorities may refuse to provide information. Access to information shall be granted if the public interest served by the disclosure out-weights the interest served by a refusal.
  • It identifies two types of review procedures for the public to challenge acts or omissions of public authorities relating to requests for environmental information.

Clearly, the new Directive, by broadening the definitions of ‘environmental information’ and ‘public authority’, seeks to ensure each public authority is responsible for providing information about its own activities and their impact on the environment. It is submitted that this principle is in keeping with the general principle by which a natural or legal person responsible for doing something that has a negative impact on the environment must pay the associated costs i.e. ‘The Polluter Pays Principle’.

To be able to take responsibility for such environmental impact, the authority must be aware of it. A natural consequence of this is that the authority also has the responsibility of providing the public with information about the environmental impact. The Directive embraces this principle by imposing the duty to provide information, within a specific time-frame, about the environmental impact of decisions made in connection with the exercise of authority. This duty will apply to all the sectors within the public administration. Furthermore it is obvious that the Directive is aware that in order for access to environmental information to have a democratic function, it is important that information is given in the course of the decision-making processes.

It is now proposed to consider the position of domestic law in this particular area. This should allow for a clear image of domestic law, which shall then be superimposed on Community commitments in order to ascertain the extent of compliance and overlap.

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THE EXISTING MATRIX OF DOMESTIC MEASURES

The focus of this section will be on providing an overview of the rights of access to environmental information conferred by The European Communities Act 1972 (Access to Information on the Environment) Regulations 1998 (hereinafter referred to as “the 1998 Regulations) and the Freedom of Information Act 1997 (hereinafter referred to as “the FOI Act”), as amended by the Freedom of Information (Amendment) Act 2003. While both of the aforesaid instruments provide general provisions for access, it is important to keep in mind that a number of other, more

specific, provisions exist, which also ...

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