December 6th, 2019
Citizens across Europe continue to face difficulties in gaining access to information on environmental matters despite clear national, EU and international rights, a new report has found.
An analysis carried out by the European Environmental Bureau (EEB) shows that citizens are becoming increasingly engaged in a desire to access information held by public authorities and governments in line with the Aarhus Convention.
The Convention is an international treaty, that both the European Commission and EU Member States must abide by, gives citizens rights to access information, participation in decision making and access to justice on environmental matters.
Under our Access to Information on the Environment Regulations, for example, Irish citizens are entitled to ask public bodies for documents on the likes of air, water, biodiversity, pollution, emissions, and waste, as well as documents linked to policies and plans likely to affect the environment.
The EEB report found, however, that there are various barriers to accessing environmental information across Europe, including the refusal to release information on dubious grounds.
Access to document requests can be refused by Member States or EU institutions on limited grounds, including public security, international relations, privacy protection or a determination that the information requested is not environmental in nature.
In general, however, exceptions must be interpreted narrowly and take into account the public interest served by disclosure of documents and to allow for maximum transparency in environmental decision making.
Numerous problems have been flagged in accessing environmental information from departments, state bodies, public authorities and semi-state bodies in Ireland over the years.
For example, the Department of Climate Action has previously refused requests from The Green News for documents linked to policy on coal-burning for power generation on the basis that the requested documents were not environmental in nature.
Last month, the state agency Bord Bia refused to release documents to The Green News on a new publicity drive with the meat and dairy industry due to a confidentiality agreement with private partners in the venture.
The decision was appealed internally, and today Bord Bia came to the same conclusion, stating that the disclosure of the requested records could “potentially adversely affect the commercial or industrial confidentiality of the meat and dairy sector”.
“[Bord Bia] have no doubt but that the release of this information would have a chilling effect on third party participation with Bord Bia initiatives in the future, which would undermine the statutory objectives of Bord Bia contrary to the public interest,” the decision reads.
In addition, Bord na Mona and the ESB – both semi-state bodies – have refused requests for information from their subsidiaries on the basis that they do not qualify as public authorities under the AIE Regulations.
Decisions made in this regard by both companies are currently being challenged through appeals to the Office of the Commissioner for Environmental Information (OCEI) and in the courts.
Length of time to answer
Another problem with access to information, the EEB report states, is the length of time to provide answers to those requesting information, with French authorities, for example, taking an average of 130 days to respond to requests in 2018. EU law requires that environmental information is made available within one month of receipt of the request.
According to the EEB, such delays act as “serious barriers” to citizens exercising their right to environmental information and also diminishes their capacity to influence ongoing policy processes.
As such, the Bureau recommended that decisions should be provided as soon as possible, and that time extensions should be used as an “exception rather than the rule”.
In addition, the EEB recommended that more resources are made available to public authorities to process requests quickly and for the active dissemination of information in the first place to reduce the number of requests received by authorities.
Numerous journalists, environmental groups and legal experts have highlighted a growing trend in Ireland whereby decisions on requests – no matter how limited in scope – are frequently delayed by an additional month as allowed for under the Irish regulations.
In addition, there is a large backlog of appeals against decisions on environmental matters before the OCEI that can take over a year to resolve.
In 2016, the transparency group Right To Know brought a case before the Aarhus Convention Compliance Committee (ACCC) in relation to “overwhelming decision-making delays” from the OCEI and the courts.
Costs for requests
The EEB report also recommended that the costs for requesting documents are kept to a minimum in order to ensure that citizens are not prevented from exercising their right to access information.
The EEB recommended that authorities should provide all environmental information free of charge whenever possible and that information should be provided electronically and then be published online to keep administrative costs at a minimum.
Public authorities are entitled to charge fees for supplying environmental information, however, there are clear limits to such fees to ensure that they are not prohibitively expensive.
In some German states, for example, people were charged up to €180 per request in 2017 for documents that should already have been made publicly and freely available, the report states.
In Ireland, there is no fee to send a request for information. Public authorities, however, can set fees depending on the numbers of estimated staff hours required to compile requested documents, as well as costs for photocopying documents.
Concerns about cost estimations have been raised in the past, with The Green News hit with several cost estimations between hundreds and thousands of euros over the years.