The Gazette 1993

GAZETTE

JAN/FEB 1993 '

Freedom of Access to Information on the Environment Council Directive 90/313/EC

by Donal O'Leary BL On 7 June, 1990, Padraig Flynn, in his capacity as President of the EC Council of Environment Ministers, signed a council directive on freedom of access to information on the environment, (90/313/EEC). Article 9 directed that the member states "shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive by 31 December, 1992, at the latest." An examination of the directive is useful to indicate what the national legislation must encompass in order to comply with the directive. The following are the main provisions of the directive. Who May Request Information? Article 3(1) states that information relating to the environment shall be made available to any person natural or legal and without having to prove an interest. Who Must Make the Information Available? Public authorities (Art. 3) and bodies with public responsibilities for the environment and under the control of public authorities (Art. 6). How Is the Information To Be Made Available? The directive states that the member states shall define the practical arrangements under which information is effectively made available. The same terms and conditions governing how the public authorities make the information available applies also to bodies with public responsibility for the environment and under the control of the public authorities (Art. 6). What Information May Be Requested? Information relating to the environment. This is very broadly

• matters which are, or have been, sub judice, or under enquiry (including disciplinary enquiries), or which are the subject of preliminary investigation proceedings, • commercial and industrial confidentiality, including intellectual property, • the confidentiality of personal data and/or files, • material supplied by a third party without that party being under a legal obligation to do so, • material, the disclosure of which would make it more likely that the environment to which such material related would be damaged. Note, however, that information shall be supplied in part where it is possible to separate out information on items concerning the interests referred to above. Art. 3 (2). Finally, a request may be refused, Art. 3 (3), if it involves: • unfinished documents or data, • internal communications, or is • manifestly unreasonable, • too general. Must Reasons for A Refusal Be Given? Yes. The reasons for a refusal to provide the information requested must be given, Art. 3 (4). How Soon Must a Request Be Answered? As soon as possible and at the latest within two months, Art. 3 (4). Can a Refusal or an Inadequate Answer Be Appealed? Yes. A person who considers that his

Donal O'Leary defined in the directive at Art. 2 (a) as "any available information in written, visual, aural or data-base form on the state of water, air, soil, fauna, flora, land and natural sites, and on activities (including those which give rise to nuisances such as noise) or measures adversely affecting, or likely to so affect, these and on activities or measures designed to protect these, including

administrative measures and environmental management programmes."

Comment: This definition is very broad and must be welcome to all those interested in the environment. However, the exceptions need to be examined closely to see how effective this definition will be in practice.

What Information May Be Refused?

Article 3 (2) allows member states to provide for a refusal where the information requested affects: • the confidentiality of the • proceedings of public authorities, international relations and national defence, • public security,

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