Submitted by the Environmental NGOs Coalition

The proposals submitted here are presented as a contribution towards the work of the drafting committee on environmental information preparing for the Working Group in its third session. They are offered as the interim product of an ongoing discussion among environmental NGOs, and should not be regarded as an NGO 'blueprint' in any absolute sense.

The presentation used here is as follows:

- Relevant extracts from the text of 'Draft Elements for the Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking' (CEP/AC.3/R.1) are reproduced in plain type.

- Proposed insertions are indicated by underlining. Where text has been re-ordered, only the substantive additions are underlined.

- Proposed deletions are indicated by crossing out (thus).

- Commentary or explanation is provided in italics.

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Article 1

DEFINITIONS

For the purposes of this Convention,

( i ) "Party" means, unless the text otherwise indicates, a Contracting Party to this Convention;

(ii) "Public authority" means

(a) all governmental bodies, at national, regional and local level, including legislative or governmental advisory bodies, and

(b) other persons under the control or supplying a service under the control of a legislative or governmental body;

(c) international bodies under the control or made up exclusively of Parties.

Option 1 (insertions/deletions in/from existing text not indicated here, see Option 2)

(iii) "Environment" includes soil, atmosphere, water, climate, natural resources, the biosphere (including flora, fauna and genetically-modified organisms), human health and safety, outer space, everything under the surface of the earth, noise, radiation, land and landscape, cultural and natural heritage, historical monuments or other built structures, socio-economic conditions resulting from any of these factors, or the interaction among any of these factors; and "environmental" shall be construed accordingly.

(iii)bis "Environmental information" means any information in written, visual, aural, electronic or other form on or relating to

(a) the environment,

(b) actual or proposed legislation, programmes, plans, policies, activities or measures affecting, or likely to affect the environment; and

(c) actual or proposed legislation, programmes, plans, policies, activities or measures designed to protect the environment,

including economic or financial analysis used in environmental decision-making as well as, with respect to sub-paragraphs (b) and (c), administrative measures, negotiated agreements and environmental management programmes;

Option 2

(iii) "Environmental information" means any environmental information in written, visual, aural, or database electronic or other form in registers, reports and returns as well as computer records and other records kept otherwise than in a document. This information includes information on, inter alia,

(a) soil, air, atmosphere, water, climate, natural resources, human health and safety, the biosphere (including biodiversity, flora, fauna and genetically-modified organisms), outer space, everything under the surface of the earth, noise, radiation, land and landscape, and cultural and natural heritage, historical monuments or other physical built structures, it also includes information on socio-economic conditions resulting from alterations to those these factors, or the interaction among these factors, and

(b) actual or proposed legislation, programmes, plans, policies, activities or measures adversely affecting, or likely to affect these factors the elements in sub-paragraph (a), and

(c) actual or proposed legislation, programmes, plans, policies, activities or measures designed to protect these factors the elements in sub-paragraph (a),

including economic or financial analysis used in environmental decision-making as well as, with respect to sub-paragraphs (b) and (c), administrative measures, negotiated agreements and environmental management programmes;

(iv) Not addressed here.

(v) "The public" means one or more natural or legal persons.

Article 3

ACCESS TO ENVIRONMENTAL INFORMATION

1. Each Party shall take the necessary legal, administrative and other measures to ensure that, subject to paragraphs (2), (2bisA) and (7)(b) of this Article, public authorities shall, in response to a request for environmental information, provide and make available environmental information including copies of the actual documentation containing or comprising such information to the public;

We regard Article 3 as the article dealing with the obligations on public authorities to provide information in response to requests for information - the so-called 'passive' or reactive aspect of freedom of information. The proposed amendment is based on the presumption that the 'active' aspects are addressed in Article 4.

(a) without discriminating on the grounds of citizenship, nationality, or domicile, poverty or any other ground; and

(b) without an interest having to be proved, and stated.

(c) as soon as possible and at the latest within six weeks after the request has been submitted.

The proposal to delete sub-para (c) is conditional on the question of time limits being dealt with more fully elsewhere (see paragraph 2bisBbelow).

2. Subject to paragraph 2bisA of this Article, (e)ach Party may allow a request for environmental information that is held by a public authority to be refused only under the condition that the public interest served by the disclosure is outweighed against by the interest of non disclosure in each case and where

Grammatically, sub-paragraphs (g) - (j) do not follow correctly from the chapeau. Re-lettering the sub-paragraphs as shown below would be one way to tackle this problem.

(a) it disclosure would adversely affects:

(i) (formerly (a)) the confidentiality of the proceedings of public authorities, where that is specifically provided for by a rule of law which is in accordance with the provisions of this Convention and provided that any such refusal is based on a publicly available reasoned decision by a public authority based on explicit and transparent criteria,, international relations and national defence;

Regarding the exemption provision for the confidentiality of the proceedings of public authorities, unless this is carefully circumscribed, it could undermine the entire thrust of the Convention towards more open government.

(ii) (formerly (b)) national defence and public security;

While these concepts may cover types of information which it should be possible to withhold, we are concerned at their breadth and are interested in exploring ways of circumscribing them more precisely. No wording is proposed in this document.

(iii) (original text of (c) replaced) the ability of a person to receive a fair trial, or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

(iv) (formerly (d)) commercial and industrial confidentiality, including intellectual property, unless the requested information relates to emissions or impacts on the environment;

(v) (formerly (e)) the confidentiality of personal data and/or files;

(f) material supplied by a third party without that party being under, or being capable of being put under, a legal obligation to do so, and where that party has not consented to the release of the material;

This clause would allow certain environmental information to be exempt not on the basis of the content of the information but simply on the basis of the means by which the public authority came in possession of it. Information which might be available in one country where it is supplied to the public authority on a mandatory basis might not be available to the public in another country where it is supplied on a voluntary basis, even though the content of the information might be identical. In countries where mandatory reporting is quite weak, this clause could leave a considerable amount of environmental information outside the scope of the proposed Convention. Of course, if voluntarily supplied information falls into other exempt categories, it would remain possible to withhold such information without relying on this clause.

(b) (formerly (g)) the information requested contains material, the disclosure of which could endanger the environment, such as information on the breeding sites of rare species;

(h) the public authority to which the request is addressed does not hold the environmental information requested;

The whole of paragraph 2 only refers (in the chapeau) to information 'held' by public authorities, so (h) is redundant. The issue of requests for information which a public authority does not hold is in any case addressed in paragraph 3.

(c) (formerly (i)) the request is manifestly unreasonable or formulated in too general a manner;

(d) (formerly (j)) it would involve the supply of any material in the course of completion or internal communications of a public authority.

It is generally accepted by both governments and NGOs that there are valid reasons for keeping certain environmental information outside the public domain. On the other hand, attempts to legislate for this have usually resulted in the designation of excessively broad categories of exempt information which embrace types of information which should properly be in the public domain. The following proposal for a new paragraph, 2bisA, is an attempt to refine or qualify the exemption categories in paragraph 2.

2bisA (a) The provisions of paragraph 2 shall not apply where disclosure of the information requested would be likely to prevent or mitigate a threat to human health or the environment, or where the information requested relates to substantial damage to human health or the environment.

(b) Sub-paragraph (a)(iv) (formerly (d)) of paragraph 2 may only be invoked where

(i) it can be established that disclosure of the information requested would cause significant financial damage to an economic interest as a result of the information being used by a competing economic interest to further similar objectives;

(ii) where the body whose economic interests may be threatened has taken reasonable steps to protect the information requested;

(iii) where the information requested is not readily obtainable by other legitimate means and is not required to be disclosed under any other law; and

(iv) where the information requested does not concern the use of public funds.

(c) Sub-paragraph (b) (formerly (g)) of paragraph 2 shall not apply where the increased risk of damage to the environment resulting from disclosure would arise as a result of public efforts to highlight a threat to the environment.

(d) Sub-paragraph (d) (formerly (j)) of paragraph 2 shall not apply where the information requested provides the factual basis for decisionmaking by public authorities, or to data gathered on an incremental basis which has yet to be compiled in a composite document.

(e) Where, in performance of a regulatory function, a public authority has a statutory right to inspect environmental information which it does not hold, and such information is not held by any other public authority, it shall make practical arrangements to ensure that a request for such information be processed on the same terms (e.g. exemption provisions, time periods for response, charges) as if the information was held by a public authority.

Sometimes companies are required to carry out certain environmental monitoring activities and retain the data on the site of the company, where it is to be available for inspection by the regulatory authority at all reasonable times. This arrangement is done for administrative reasons rather than on confidentiality grounds, but it can enable the regulatory authority to argue that it does not 'hold' the information, thereby putting such information out of the public domain. The proposed clause attempts to remedy this deficiency. The possibility of invoking confidentiality or other exemption provisions would of course still apply.

(f) No public authority shall make information available to the public which would reveal the identity of an individual who has voluntarily provided information relating to a possibly unlawful or environmentally damaging activity without a financial or personal interest in so doing and who, having been asked, has refused to give consent to his or her identity being disclosed;

We propose that the more general principle that information should be provided quickly enough to prove useful and relevant to the public be addressed in a new recital in the preamble (text not provided here).

2bisB Each Party shall ensure that, following a request for environmental information from a member of the public to a public authority,

a) a response shall be issued by the public authority to the person making the request within one week, which

i) acknowledges the request,

ii) under normal circumstances, provides the information requested,

iii) where the public authority does not hold some or all of the information requested, notifies the person requesting the information that the request has been referred to the appropriate public authority where this is the case, in accordance with paragraph 3,

iv) where the request is manifestly unreasonable or has been formulated in too general a manner, offers to assist the requester in clarifying the request in accordance with para 4,

v) where it is proposed to refuse the request as provided for under para 2, indicates this, stating the grounds on which it is proposed to refuse the request in accordance with para 6, and

vi) where the public authority intends to comply with the request but requires more time to do so, indicates when the information will be provided together with the reason for the delay;

d) where the disclosure of the information requested would be likely to result in preventing or mitigating an imminent threat to human health or the environment, the information is provided immediately and without delay.

3. Each Party shall ensure that, where a public authority does not hold the environmental information requested by the public, but that public authority knows, or is reasonably expected to know, that another public authority holds the requested environmental information, the public shall be promptly request is, within the time period referred to in paragraph 2bisB(a), referred to the public authority that holds believed to hold the information, and the person requesting the information is notified of this. or to the officer as referred to in paragraph 3 of Article 2.

4. Each Party shall ensure that, where a request for environmental information is manifestly unreasonable or has been formulated in too general a manner, the concerned public authority assist the public in clarifying the request.

5. Each Party shall ensure that public authorities shall supply environmental information that has been requested and that is contained in the same record as, or otherwise held with, other information that is to be withheld because it falls within paragraph 2 of this Article unless it is incapable of being separated from the other information for the purpose of making it available.

6. Each Party shall ensure that a refusal or a partial refusal to comply with a request for information shall be stated in writing as soon as possible and at the latest within four weeks within the time period specified in paragraph 2bisB. The written refusal to comply with a. request for information shall include one or more of the reason or reasons for the refusal in accordance with paragraph 2 of this Article and relevant information on access to the judicial or administrative review procedure in accordance with paragraph 8 of this Article.

7. Each Party :

(a) may allow its public authorities to make a charge for supplying information, provided that charge does not exceed a reasonable cost. This charge may include the actual costs of reproducing and transmitting the information but shall not include the costs of compiling or retrieving the information.

(b) which decides to allow its public authorities to make a charge for supplying information shall publish and disseminate a schedule of maximum charges which may be levied, indicating the circumstances in which they may be levied and when the supply of information is conditional on the payment of such a charge;

Whereas it can be a useful practice to notify a requester of the costs of the information before providing it where significant costs are involved (and indeed requesters will often ask for this), to allow for payment in advance to be a condition of receiving the information could lead to extra delays in the provision of information, e.g. while cheques are being cleared. Where charges are to be levied, invoices should be issued together with the information.

(b)bis shall make provisions allowing for charges to be waived where information is requested in the public interest or is requested by members of economically disadvantaged groups.

Further discussion may be needed on what 'in the public interest' means. See for example the U.S. Freedom of Information Act, 5 U.S.C. 552(a)(4)(A)(iii): "Documents shall be furnished without any charge or at a [reduced charge] if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor."

(c) shall provide access to the for the public to inspect environmental information which is contained in public registers free of charge, and shall ensure that publicly accessible, decentralised facilities with copying equipment are provided for this purpose;

(d) shall ensure that where information is held in various forms, it shall be provided in the form specified by the person requesting the information, eg in written, visual, aural or electronic form at low cost format.

8. Each Party shall ensure that any member of the public who considers that his request for information has been wrongfully refused, whether in part or in full, or ignored, or has been inadequately answered by a public authority, or that it has been overcharged, or has not been processed in a timely manner in accordance with paragraph 2bisB, shall be provided with access to an administrative or quasi-judicial appeals procedure which is transparent, independent, inexpensive, timely, binding unless challenged at judicial level and has competence in relation to all aspects of access to environmental information in accordance with this Convention. Each Party shall also provide access to judicial review of administrative and quasi-judicial decisions relating to access to information, in accordance with the relevant national legal system.

9. Failure to provide the public with environmental information in breach of the provisions of this Convention shall be deemed an illegal act. Each Party shall introduce appropriate national/domestic legislation to prevent and punish such an act, including legislation which punishes any individual who wilfully refuses to make environmental information available to the public in accordance with the provisions of this Convention.

 Annex 3 to ECO report on PPC3:

Submitted by the Environmental NGO Coalition

The proposals submitted here relate to the draft text prepared by the ECE Secretariat (CEP/AC.3/R.1). They are presented as a contribution towards deliberations of the Working Group in its fourth session, and for use by the drafting committee on environmental information preparing for that session. As with the comments submitted in relation to the proposed Article 3, they are offered as the interim product of an ongoing discussion among environmental NGOs, and should not be regarded as an NGO 'blueprint' in any absolute sense.

The presentation used here is as follows:

- Relevant extracts from the text of 'Draft Elements for the Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking' (CEP/AC.3/R.1) are reproduced in plain type.

- Proposed insertions are indicated by underlining. Where text has been re-ordered, only the substantive additions are underlined.

- Proposed deletions are indicated by crossing out (thus).

- Commentary or explanation is provided in italics.

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Article 4

DUTIES WITH RESPECT TO ENVIRONMENTAL INFORMATION

New opening paragraph: The Parties shall collect and actively disseminate to the public on a timely basis all such information as may necessary for informed private and public decisions about health and environmental protection.

This paragraph could also go in the General Provisions (Art 2).

1. Each Party shall ensure that:

(a) Relevant Public authorities regularly collect and update important all environmental information for which they are responsible relevant to their functions; and

(b) Mandatory systems are established for ensuring that there is an adequate flow of information to the public authorities about planned proposed and existing activities significantly affecting which may affect the environment to the public authorities.

2. Each Party shall ensure that the way in which they public authorities make environmental information available to the public is transparent. Such measures shall include:

(a) making the public aware of the type and scope of environmental information held by relevant public authorities; and the basic terms and conditions under which such information is made available and accessible and the process by which it can be obtained; and

(b) the establishment and maintenance of public registers; and

(c) the designation of officers in accordance with paragraph 3 of Article 2 responsible for supporting the public in seeking access to environmental information and in facilitating its participation in environmental decisionmaking;

Noting the concern that some delegations have expressed about a requirement to designate officials, an alternative option for new (c) (and similar wording could be used in Article 2, paragraph 3) would be as follows:

(c) the designation of officers in accordance with paragraph 3 of Article 2 responsible for supporting allocation of responsibilities within public authorities to specific officials who are easily identifiable by the public, so as to assist the public in seeking access to environmental information and facilitate its participation in environmental decisionmaking in accordance with paragraph 3 of Article 2;

(e) where appropriate, processing information to render it more accessible or comprehensible to the public (e.g. by providing non-technical summaries of complex or technical documents), provided the unprocessed information also remains available to the public.

New para on availability of information on Websites

(e) pollutant release and transfer registers, as required under paragraph 6bis.

We are uncertain as to whether 'Website' and 'Internet' are the correct legal terms here. The meaning should however be unambiguous. The list presented here is very much an indicative list in the sense that the elements it contains are a minimum. The possibility of adding further elements should be explored.

3. Each Party shall at regular intervals not exceeding three years, on an annual basis, publish and disseminate general information on the present and projected state of the environment with respect to (i) the quality of the environment; (ii) the pressures on the environment; (iii) the sensitivity of the environment, with particular reference to environmental sustainability criteria (e.g. critical loads data).

- noise emissions.

4. Each Party shall publicize the availability of

(a) important documents on national, regional, local and international environmental strategies, programmes, action plans to which the Parties are committed and progress reports on their implementation; and

(b) texts and draft texts of international legal instruments, which are related to the environment and to which it is, or may become, a party, in its national language or languages.

(c) texts and draft texts of national legal instruments related to the environment.

New paragraph on information in accident situations

4bis Each Party shall ensure that in the event of any major and sudden threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate that threat and which is held by a public authority shall be disseminated immediately and without delay to members of the public who may be affected. Parties shall take measures to render failure by officials to comply with this obligation a criminal offence.

5. Each Party shall inform the public of its possibilities of submitting information to international bodies concerning non-compliance with international rules and obligations.

6. Each Party shall encourage require entities whose activities have a significant adverse impact on the environment to report regularly annually to the public on the environmental impact of their activities. In addition to the obligations contained in 6bis, each Party will require permit applicants to submit relevant background data to support applications and such information available to the public on request.

(b) compiled through a standardised reporting form that serves as a basis for a structured computer database to aggregate data by chemical, regional, sector, company and facility.

A draft text for the proposed Annex is not presented here. The intention is that such an Annex would set out essential requirements of PRTRs, including a minimum list of chemicals, threshholds, activities, and so on. This option is seen as preferable to the adoption of a Protocol, which would involve delay in the introduction of these important provisions.

7. Each Party shall encourage ensure public access to environmental information generated by voluntary schemes of private industry such as eco-auditing and the use of eco-labelling schemes for more environmentally friendly products.

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and related Article 5 provisions

1. We agree that the definition should be simple and workable. One way to accomplish this would be to incorporate by reference the types of decisions enumerated and discussed in Article 5. This list should be considered inclusive rather than exhaustive in order to ensure that categories of decisions, the impact of which cannot be predicted at this time, may be included under the scope of this Convention. This is in line with the precautionary principle embodied in a number of international agreements, including the Treaty on European Union.

For example, one textual option for the definition of "Environmental Decisionmaking" would be:

"a process by which a public authority makes any decision affecting the environment, including but not limited to those decisions and processes addressed in Articles 5(?) to 5(?)"

(b) the definition avoids the use of a threshhold due to the difficulties that would arise in identifying the meaning of "significant" or similar qualifiers, accounts for impossibility of preliminary assessments on the impact of certain decisions, and minimizes the use of Annexes.

Another option would be to enumerate the types of decisions (inclusively) instead of referring to the Article numbers.

Finally, we could support the proposal of the Italian delegation so long as the use of explanatory Annexes is inclusive rather than exclusive, and includes law making, rulemaking, andenforcement among the listed categories. We urge the drafting group to consider the possiblity of including these categories, recognizing that the corresponding public participation requirements may be drafted in a manner which accommodates the different national legal traditions.

2. Article 5 should included the following:

•general provisions

•list of types of decisions and corresponding public participation requirements, including but not limited to:

1) projects, licensing, and permitting

2) policies, plans, and programmes

3) enforcement

4) international instruments and policies: It may not be necessary to include a separate sub-article on this subject, however, the Convention must be sufficiently clear that policies developed at the national level for discussion in international fora are included in the scope of the Convention and require the same participatory processes as other national policies. Additionally, the Convention should include a ccommitment by the parties to take appropriate measures to promote participation and transparency in international fora. This should not be regarded as an attempt to regulate the proceedings of other international bodies. Rather, it is merely an expression of support for the principles enshrined in this Convention in all undertakings of the Parties.