| Dear Friends, Please find attached the ECO report from the fourth session of the intergovernmental Working Group responsible for drafting the Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking. As you will see, the negotiations have reached quite a difficult stage. Many of the positive elements in the original text are being attacked by certain countries, and are being left undefended by a silent majority. Due to the efforts of (especially) Russia and Germany, but also several others, and the apathy of many, we now face the real risk of ending up with a Convention which is nothing more than a reflection of the status quo in most countries. To avoid this scenario, it will not be enough for a small group of us to turn up in Geneva every few months and present nice arguments. Important as this is, it will need to be backed up by work at national level to build support for our positions. Your help could be very useful. It is not just a matter of tackling the most obstructive countries. The progressive countries who fail to defend in the Convention the values they already enjoy at home are as much to blame for what is happening. If we are successful, this could be a Convention, which will positively affect all of our efforts to protect the environment, whether as Environmental Citizens Organisations or as individuals. So it is an opportunity we should not miss. I will not repeat all the suggestions from my earlier messages, but here are a few: - Check up on what your government has been up to (or not) and let your Ministry officials have your opinion. - Demand that they hold proper consultations with environmental organisations over the positions they are taking, if they have not done so already. - Ask for an ECO/NGO rep to be included on your national delegation (this is not such a crazy idea - you can cite the cases of Slovenia, the Netherlands and Poland where this has already been done). - Publicise the issues at national level - especially if your government is one of the difficult ones. The attached report is, as on previous occasions, quite long and detailed. This is useful for those of you doing detailed lobbying work on the Convention but may be too much for most readers. Many of you will at most read the contents and summary, and maybe do a 'word search' for your country's name, to see what your government has been up to. Some people with old-fashioned software, slow modems or just too much to read have asked to just receive a short version of these reports (Contents, Summary and Countries Overview). Please let me know if you would like to be in that category in the future. To avoid overloading you without good cause, I am only sending the Annexes to those who request them. Yours sincerely, Jeremy Wates Co-ordinator ECO delegation to Public Participation Convention negotiations |
| • ECO REPORT FROM 4th NEGOTIATING SESSION AND PREPARATORY MEETINGS |
| Proposed UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking Geneva, 17-21/2/97 [Note: This report has been prepared by Jeremy Wates, European Environmental Bureau, with substantial input from Magda Toth Nagy, Regional Environmental Center for Central and Eastern Europe, and Steve Stec, US Public International Law and Policy Group, for the purpose of keeping interested ECOs (Environmental Citizens Organisations) and other NGOs and individuals in touch with the progress of the negotiations. Parts of it should be read in conjunction with the 'Draft Elements for the Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking', CEP/AC.3/R.1 and with other documentation contained in the Annexes, which are available on request.]
The fourth meeting of the ad hoc Working Group for preparing a draft UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking took place in Geneva from 19th-21st February 1997. It was preceded by two parallel informal meetings (17th-18th February), one on environmental information, the other on public participation and the definition of environmental decisionmaking. The informal groups also met on the morning of 21st, when the plenary was suspended. The informal group on information discussed Article 3 ("passive" information) and the first paragraphs of Article 4 ("active" information) in some detail. Half of the plenary session was devoted to the information theme, where Article 3.was discussed. The informal group on public participation, and the public participation discussions in the plenary (just half a day), focussed on the new Article 5 (participation in licensing/permitting-type decisions for projects or activities). The remaining time in the plenary was taken up with Article 6 on access to justice, a brief discussion on other parts of the draft Convention and organisational matters. A small drafting group was set up consisting of representatives of the UK, Russia, Germany, Albania, Poland and Denmark, together with an ECO representative (in an advisory capacity) and a representative of the European Commission. The drafting group will meet in early April and has been asked to produce a consolidated text for the June and July sessions of the Working Group.
1.2 Political overview and outlook The negotiations have entered a difficult period. During the fourth session, many of the positive aspects of the Draft Elements were attacked, mainly by Russia and Germany but also by several other countries, and few improvements were added. In short, the meeting saw a steady erosion of the "Draft Elements" text prepared by the Secretariat as the starting point for the negotiations. A number of factors contributed to this situation: * Russia continued to oppose binding provisions in all the most important areas of the Convention, frequently wanting issues to be left out of the text altogether, wanting the Convention to state that issues be dealt with at national level or proposing that the text be in the form of recommendations rather than requirements. This in itself was nothing new. However, what made Russia's input far more destructive than at previous sessions was the fact that, in addition to making sweeping statements against binding provisions, it showed a willingness to engage in more detailed criticisms of the text. This drew the middleground consensus significantly in Russia's direction, as countries attempted to involve Russia in compromise solutions. It is quite likely that there are other political factors behind Russia's stance in the negotiations (e.g. the sensitive issue of NATO expansion). * As on previous occasions, Germany consistently opposed progressive proposals throughout the session, seeking a minimalist approach wherever possible and citing the goal of deregulation. * These two countries - Russia and Germany - are effectively wrecking the prospects of a meaningful Convention. However, they are only able to do this because many other countries are lending support to this tendency. Foremost among these are France, Italy and the UK and to a lesser extent the Netherlands (specifically, during parts of the "information" discussions, where it supported Germany's deregulatory approach), Romania and Latvia. * Many delegations are taking positions, which appear to be based on the narrow interests of officials, rather than the interests of the public they are supposed to represent and who pay their wages. In a Convention which is very much about the relationship between governments and the public, it is important that governments consult widely with the public and public interest organisations. There are few indications that this has happened. * Belatedly, some of the more progressive countries (Sweden, Norway, Finland) have begun to wake up, joining countries like Albania and Belgium which have for the most part already been playing a constructive role. Unfortunately, these countries are still not as active as their more conservative colleagues, perhaps because they do not have such a strong interest in securing a good result (they will in any case be able to adopt progressive measures whatever the Convention says). Already there are signs that this fundamental asymmetry in the negotiations is resulting in a "lowest common denominator" syndrome. * The silent majority of countries, in both East and West, must also take some responsibility for the direction in which the negotiations are going. Unfortunately most of the CEE countries, some of whom have good practices (eg. Hungary, Czech Republic, Poland) are continuing not to be too active in the negotiations, especially in the plenaries. * The ECO delegation and other NGOs and quasi-NGOs, notably the Regional Environmental Center for Central and Eastern Europe (REC) and the Global Legislators' Organisation for a Balanced Environment (GLOBE) Europe, continued to play an active role in the negotiations. However, as the gulf widened between these delegations and the governmental delegations, there was an increasing impression that the officials were unable or unwilling to take into account the views of the public and public interest organisations. If the slide in the quality of the draft text continues, it is clear that the ECO delegation at least will have to carefully evaluate its role in relation to the negotiations. The outlook, at least in the short term, is not promising. The drafting committee contains Russia and Germany, unquestionably the two most difficult countries in the negotiations. While there is an argument for including the extremes in such a group, it is a gamble which can only pay off if all participants have an interest in reaching a meaningful conclusion. Indeed, it is questionable whether Russia should be in the negotiations at all at this stage, given that they have accepted hardly a single measure, which would require them to do anything in any way differently from the way they do it at the moment and are even opposing measures which they already comply with. The UK, another influential player in the negotiations, is traditionally quite conservative on participation and transparency issues, and Denmark is so intent on making sure that there is something to sign in Arhus that it is often reluctant to defend or promote the values it espouses at home. In the longer term, a successful conclusion to the negotiations will only be reached if more countries demonstrate the necessary political will. At this stage, it is not primarily a matter of finding technical drafting solutions (although there is much work to be done there), but about governments making a political commitment to a strong Convention. At present, it seems that this is unlikely to happen unless the public and NGOs in most of the 55 countries involved play a larger role in shaping the positions their governments are adopting on their behalf.
1.3 Overview of specific issues discussed Definition of environmental information: A majority of countries which spoke preferred Option 2, the shorter and more inadequate option, but some of these (notably France and Germany) said they could accept it being non-exhaustive (leading in with 'such as...'). Access to documents: several countries (UK, Germany, Russia, France, Italy and Bulgaria) were opposed to the idea of providing access to copies of actual documents. They argued that the Convention should only provide access to the information contained in such documents. Sweden, Finland, Belarus and to some extent Denmark defended access to documentation. Time limits: Two main options emerged with respect to time limits on the supply of information:
Other options, which were presented and may be re-visited were:
(Each option also included "as soon as possible".) With respect to refusals, the two main options were:
(Again, each option also included 'as soon as possible'.) An ECO proposal for tighter wording for time limits in accident situations ("immediately and without delay") received some support in principle but it was agreed to deal with this in Article 4 for the time being (the priority being an active duty to inform the public) and only if necessary return to Article 3. Exemptions: There was little or no support for circumscribing the traditional exemptions for information the disclosure of which would adversely affect the confidentiality of the proceedings of public authorities, international relations, national defence or public security, or for internal communications. Areas where marginally more progressive proposals are gaining some limited support are commercial confidentiality, matters under various forms of enquiry or which are sub judice, personal data, voluntarily supplied information and material in the course of completion. However, there is little likelihood of any major changes from established models. The most promising sign with respect to exemptions was the broad support for an overriding public interest test to be applied in each case. Information not held: There was general agreement (Russia excluded) that where a public authority does not hold the information requested, it should refer the request on to another public authority which it believes holds the information. However, there was not agreement about the extent to which public authorities ought to know which public authorities hold which types of information, and also about whether the public authority should be obliged to notify the requester that the request has been referred on(Netherlands, Sweden, Moldova and Romania in favour, France and Germany against). Miscellaneous: An ECO proposal for a "whistleblowers protection" clause received no government support. Neither did an ECO proposal for equivalent terms of public access to information not actually held by public authorities but which public authorities are entitled to inspect for regulatory purposes, though the Chair wanted to keep the proposal on the table for future discussion. Charges: Most countries which spoke were opposed to the Draft Elements wording which would exclude the possibility of charging the public for the costs of compiling or retrieving information. However, most were in favour of a requirement to publish a schedule of charges (Russia and Czech Republic being exceptions). Some countries (Russia, Uzbekistan, Turkey, Belarus) were against the Convention having any role in relation to charges. The Netherlands introduced the idea that (as is the case under its national system) there must be at least one way by which the public can have access to information free of charge. Several countries felt that public inspection of information held on registers should be free of charge (an exception being Germany), but that it should not be obligatory to have all information on registers. Appeals: The two-tier information appeals provision (administrative and judicial) and the minimum requirements for the administrative appeals system proposed in the Draft Elements both came under attack (the former from Sweden, the latter from Russia and Italy). These issues will be taken up within the discussion on access to justice. Active information obligations: Several countries (especially Russia, Germany, France and the Netherlands) wanted a minimalist approach in this area, with few or no binding provisions. Even a general requirement for mandatory systems ensuring the flow of information to public authorities was opposed by Russia, France, Romania, Netherlands and Latvia. Russia was particularly opposed to the Convention dealing with Pollutant Release and Transfer Registers. (This latter issue was not yet properly discussed.) Information on Websites: The ECO coalition proposal that certain categories of information should be on publicly accessible Websites on the Internet was discussed briefly and received sympathetically, though no countries were ready to support the text as proposed. The proposal is still on the table. State-of-the-environment reporting: The idea that the Convention should specify the frequency of national state of the environment reports seems to have been accepted, with countries suggesting two or three year intervals (only Russia opposing any specific interval). There is limited support (principally from Norway, which supplied a written proposal) for the idea that the Convention should give an outline of the minimum contents of such reports, and also some opposition to this (Russia, France, Romania). Scope of decisions in which public participation occurs: Most countries supported the idea that there should be an Annex listing types of project or activity in respect of which public participation would be required. There were different opinions on where the threshhold to the Annex should be (the present draft Annex is based on the Annexes to the EU directives on EIA and IPPC) and on the extent to which projects or activities not falling within the Annex but nevertheless having environmental implications should be required by the Convention to be subject to public participation (in the present draft, public participation in sub-Annex-type decisions is at best recommended rather than required). Notification: Most countries agreed that the public concerned by a possible decision should be notified, though an ECO proposal that "standing lists" of ECOs should be notified did not get governmental support. Timing of public participation: There was broad support for a requirement that public participation should be provided for early in the decisionmaking process, though Russia felt this should only be a recommendation and an ECO proposal which would require public consultation prior to preparing an application failed to draw much governmental support. Scope of public input: Some countries (especially Russia) wanted to put constraints on the content of the public input, as their input would have to be taken into account by the public authorities. Some countries had problems with the right to propose alternatives (Italy) and the right to propose public participation in monitoring (Russia, Germany, Italy). Public participation methods: A proposal for an Annex listing public participation methods was supported by Italy and Bulgaria and opposed (even as an optional list) by Germany, Russia, the Netherlands, UK and France (though the last three countries would be happy to see such lists elaborated outside the Convention). Public input reflected in decision: According to the current draft, a decision must take "due account" of the outcome of public participation. A proposal that the public authority must make publicly available information on the extent to which the decision reflects comments and objections made by the public remains in square brackets (i.e. disputed), Russia being the main dissenter. Access to justice: Whereas several of the few countries which spoke on this issue regard it as a necessary albeit difficult pillar of the Convention, Russia is opposed to any binding provisions in this area and Germany would prefer to see it restricted to challenges against infringements of information and participation rights. On the issue of standing, no country supported the idea of individuals having unrestricted access to the courts (i.e. without having to establish an interest), though the Netherlands, Denmark and Belgium all supported the idea of NGOs having standing.
The ECO / Environmental NGO Coalition was represented in the plenary session by (including advisers): Jeremy Wates, European Environmental Bureau/Earthwatch (FoE Ireland) Olga Razbash, Public Interest Environmental Law Centre for Human Rights and Environmental Defence, Russia Peter Roderick, Friends of the Earth England, Wales and Northern Ireland and Earthrights, UK Sandor Fulop, Environmental Management and Law Association, Hungary Steve Stec, Utrecht University, Netherlands / Public International Law and Policy Group, US Brennan van Dyke, Center for International Environmental Law (CIEL).
Also present representing other NGOs or quasi-NGOs were: Magda Toth Nagy, Regional Environmental Center (REC), Hungary Nicolas Tavitian, GLOBE Europe As at previous meetings, some governments had ECO representatives within their delegations, notably Ralph Hallo of Stichting Natuur en Milieu, Netherlands, for part of the meeting, and Jerzy Jendroska of the Polish Environmental Law Association (Vice-President of the Working Group).
The information pillar of the Convention was discussed in the informal group on Monday and Tuesday, in the plenary on Wednesday and Thursday morning, and again in the informal group on Friday morning. In the informal meeting on information, proposals were not generally taken up unless there were at least two governmental delegations wanting them to be kept as options. However, sometimes this was applied on the presumption of tacit support, at the discretion of the Chair. The informal meeting on 17th-18th culminated in a revised draft of Articles 1(iii) and 3 (Annex 1 of this report), which formed the basis for subsequent discussions. [As the same issues were often discussed both in the informal group and in the plenary, and because the themes and positions adopted are more important to ECOs than when or where the discussion took place, this section groups the descriptions thematically, at the same time indicating where the remarks were made. So in this section of the report, a paragraph beginning [IG:] refers to the informal group meetings (and the paragraphs immediately following unless otherwise indicated), whereas those referring to the plenary begin [P:].]
3.1 Definition of environmental information [IG:] The revised draft of the definition of environmental information prepared at the third session was discussed in the informal group (this draft definition was annexed to the ECO report from the 3rd session). Russia objected in principle to such a definition being elaborated at international level. It proposed to insert something along the lines of "as defined in the national legislation of the Party and which may include, inter alia, ..." in the chapeau. This approach was criticised by Moldova, Croatia and the ECOs, which felt that the definition was fundamental to the Convention and that the Russian approach was tantamount to having no definition. Russia gained no support for its approach. However, with this rather major qualification, Russia felt the definition was quite good and proposed the term 'inter alia' in recognition that any renumeration of elements could not be complete. [P:] Russia repeated its reservations in the plenary, saying that its views were not reflected in the informal group text. It proposed the following definition: 'Environmental information shall mean any information in any form relating to, in accordance with the legislation of the State party, environmental questions'. It felt that the definition was straying away from the guiding principle of public participation in environmental decisionmaking, and said the text was for an environmental convention, not a political one. It said it would only sign the Convention if it was happy with the text. Russia's stance on this issue drew criticism from several countries and the Chair. Italy said Russia must decide whether it wanted an international Convention or not. The Chair pointed out that the drafting task could be very short if every delegation took Russia's view. Austria accused Russia of being afraid of being bound by the Convention, and urged it to see the Convention as a tool to help elaborate national legislation. Denmark sought clarification that Russia's proposal was in effect tantamount to having no definition (which Russia confirmed), and then distanced itself from that position. The ECOs said that the definition of the environment was fundamental anchor point in the Convention and that whether any country signed or did not sign it would be of little interest to NGOs and the public if it made no difference on the ground. GLOBE reminded the meeting that administrations were not winning the battle to save the environment, and that as well as giving certain rights to the public, the Convention could give opportunities to the administrations, enabling them to use the public to support their efforts. Russia rejected these criticisms, referring to its own environmental protection laws and saying that it was necessary to refer to national legislation in the Convention to make sure the Convention would not weaken national legislation. Russia referred on several occasions to the ECE Guidelines, prompting Belgium, supported by Bulgaria, to suggest that this could be a basis for a possible compromise. The Chair invited Russia to provide the meeting with information on its national legislation. Russia later said its national legislation did not define 'environment' as it was considered to be self-explanatory. Italy said the EU directive and the ECE Guidelines should be taken as a minimal basis for the definition. The only discussion should be about what extra should be added in. [IG:] In the informal group discussion on Options 1 and 2 for (a), Sweden supported Option 2 (short exhaustive definition) but could live with Option 1 (longer non-exhaustive definition). France said it was flexible but preferred a shorter, more precise definition. Romania said it preferred Option 2 but that it was important to take account of the EU directive definition (which is closer to Option 1). [P:] In the plenary, Belgium was the only country to express a preference for Option 1 (at the previous session, nine or ten did so, with only three preferring Option 2). The ECOs also expressed a preference for Option 1, pointing out that elements such as climate change, the ozone layer, landscape, sites of natural or cultural interest and the built environment would not necessarily be covered in Option 2 and emphasising the importance of any list of elements being non-exhaustive. Germany preferred Option 2, but said it could live with Option 1. However, Germany said it was difficult to make a list without missing something and that it would accept 'such as' instead of 'namely'. Uzbekistan, Bulgaria, UK and Netherlands preferred Option 2. Italy. France and Denmark said they could live with Option 1 or 2, though France preferred to say 'less rather than more', indicating a preference for Option 2. However, like Germany, France was willing to accept 'such as'. Belarus and the UK expressed preferences for the text to be short. Romania advised to follow the EU directive. The Chair concluded that there was more support for Option 2 and that this would form the basis for working, noting also the Russian position as a separate option. [IG:] Italy proposed to insert 'the state of' in front of 'elements of the environment', in both a) and b). Croatia supported this, saying that the Convention should not cover the case of a person wanting general biological information on flora and fauna. The ECOs cautioned against this limitation on the grounds that information on trends or projections might not be covered, but did not gain support from any governments. [P:] This same debate surfaced later, and more heatedly, in the plenary, when Italy repeated its proposal, supported by France who asked if the intention was to cover information about the digestive system of a cow or atomic structures. The ECOs countered by citing the case of BSE: environmentalists researching this phenomenon might indeed want to obtain relevant scientific reports on bovine anatomy, and not simply to know how many cows had BSE. Bulgaria suggested 'quality of' instead of 'state of'. [IG:] The term 'biodiversity' was again discussed. Croatia felt the term covered flora and fauna and that these latter elements did not need mentioning. The ECOs said there was a risk that biodiversity might be seen as a measure of the diversity of biological lifeforms and that it would be safer to refer to the components of biodiversity as well. [P:] Denmark observed that 'biological lifeforms' is a tautology as all lifeforms are biological, and proposed to use the term 'biodiversity' as it is an accepted term, used in the Biodiversity Convention which 160 countries have signed. The ECOs repeated the comments made in the informal group and were supported by the UK, which cited the Biodiversity Convention. Croatia expressed concern in the informal meeting that the term 'water' might not include sea, and if it did not, that it should be explicitly included. [P:] Uzbekistan wanted a reference to 'soil' after 'land'. [P:] Belgium proposed 'sites and built structures of natural or cultural interest' (a compromise between removing the square brackets around 'built structures' and deleting it). GLOBE emphasised the importance of including the built environment and urged that the square brackets be removed. [IG:] The ECOs proposed to the informal meeting to retain the reference in the Draft Elements to the interaction among the elements of the environment. [P:] REC proposed that the interaction among the elements, factors and impacts should be included in a), b) and c) respectively. In (b), Sweden wanted to add 'light, vibration' to noise and radiation. Russia wanted to delete '(such as noise and radiation)'. Albania wanted to keep these words, and was happy to add vibration but not light. Norway wanted to keep noise and radiation but not to add any other examples. Uzbekistan wanted to make it clear that the factors were of a physical nature. [P:] Belgium suggested to expand the words in parentheses in (b) to read '(such as substances, energy, noise, radiation and micro-organisms)'. [IG:] France felt that 'factors' were already covered by 'activities' and could therefore be omitted, but the ECOs argued that 'factors' covered events not caused by humans, e.g. a meteorite shower. France seemed to accept this but wanted it to be made clear that factors referred only to factors not caused by human activities. [P:] Germany questioned whether policies really fell under the category of 'factors', perhaps hinting that it was not too happy with policies being covered, but it did not argue explicitly against policies. France still had problems with the term 'factors'. [IG:] It was agreed in the informal group to remove the square brackets around 'voluntary agreements', with only France expressing the reservation that this should be covered in Article 5. [P:] The Netherlands proposed the term 'environmental agreements' instead of 'voluntary agreements'. [P:] Belgium reserved its position on the question of 'economic or financial analysis used in environmental decisionmaking'. Italy however was in favour of removing the square brackets around this phrase. The UK wanted to delete the phrase altogether, saying that some economic or financial information might be environmental information but some not. The Netherlands was happy to keep 'economic or financial analysis' but wanted to delete 'used in environmental decisionmaking'. The ECOs pointed out that those making proposals affecting the environment often attempt to justify these proposals by reference to the economic or financial benefits, which the public are asked to accept but not allowed to assess. [IG:] In (c), Italy, supported by Russia, wanted to replace 'impacts' with 'effects' or 'influence'. Italy felt that 'impacts' contained the idea of evaluation or assessment. The ECOs said 'effects' would be better than 'influence'. It was agreed to keep both impacts and effects as alternative options. [P:] In the plenary, Belgium and France supported 'effects' (instead of 'impacts'). Belgium also suggested that the effects of 'factors, activities and measures' on 'elements of the environment' (the effects of (b) on (a)) was still missing from the definition, and proposed to begin (c) with 'the effects of the factors, activities or measures referred to in subparagraph (b) on the elements referred to in subparagraph (a) and on human health, safety and quality of life ... etc.' Belgium later circulated a written proposal for a revised definition, incorporating this and some of the other comments made (Annex 4 to this report). [IG:] Some countries had problems with the quality of life. Norway felt it should be linked more clearly with human health, Italy felt it was important but not the right term, and Moldova wanted to delete it (also France?).or to delete socio-economic conditions and cultural heritage as these were covered by quality of life. Moldova, supported by Russia, wanted 'socio-economic conditions and cultural heritage' to be put in square brackets, but Norway and Lithuania defended these terms, and France and Italy said it would complicate the work of the plenary. [P:] Germany too had problems with health ('it could be a large concept or a small concept'), the quality of life, safety, socio-economic conditions and cultural heritage (in inverted commas, of course). It did not want to have to give out general information on socio-economic conditions. Romania supported this position. Belgium pointed out that these elements were not covered in the definition per se. Italy sympathised with Germany but said the quality of life, health etc should only be included where they are affected by changes in the state of the environment. Italy was happy for these 'EIA-type' concepts to be included but was not happy with the formulation in (c).and would have preferred to see them in (a). The Netherlands was also not happy with the wording in (c). The UK was opposed to including the reference to epidemiological and toxicological data, saying that some such data might be environmental information and some not.
3.2 Passive information obligations (Article 3) General obligations [P:] Russia wanted to insert in the chapeau of 3.1, after 'measures', 'in accordance with its national legislation'. Russia also proposed a new paragraph intended to prevent (ab)use of the provisions of the Convention by 'unprincipled economic operators' and to protect information in relation to military, defence and nuclear issues (Annex 6 to this report). Russia objected to the many references by delegations to the EU directive, informed the meeting that it would not be taking these into account and urged delegates to desist from making such references in the future. The Chair said he was not in a position to prevent delegations citing examples from their own experience.
Access to actual documentation [IG:] Some countries (UK, France and Russia) wanted to only refer to access to information, and to delete the reference in 3.1 to access to the documentation containing or comprising the information. This was opposed by the ECOs, who suggested that inserting 'copies of' before the documentation might help to clarify what was intended here. [IG] [P:] This issue again surfaced in the plenary, when Germany, Italy, the UK, Russia and Bulgaria spoke out against copies of actual documentation being made available. Again, the ECOs vigorously defended the provision, arguing that some documents might be open to different interpretations, and if officials were required to extract information from a document, there was a risk of distortion. GLOBE also supported access to documentation, referring to a possible contradiction with the new 3.1(c) (a revised version of 3.7(d) in Draft Elements) which would give the right of the requester to specify the form in which the information would be provided, if it were available in that form. Germany suggested it should be discussed under (c). Denmark was willing to follow the majority on the issue of documentation. Denmark also said it was not role of public authorities to act as booksellers. Published material available in libraries or bookshops should be obtained from those sources. There should be an indication in the text that public authorities were not obliged to supply information which has been independently published.
Right to specify form of information Overlapping with the issue of access to documents, there was a discussion on the new 3.1(c) (a revised version of 3.7(d) in Draft Elements) which would give the right of the requester to specify the form in which the information would be provided, if it were available in that form. Sweden supported the right of the public to obtain a copy of actual documentation, saying that if (c) were deleted, it would be essential to keep the reference to actual documentation in the chapeau. Germany countered that it should be at the discretion of the public authorities to decide in what form the information should be given. A German court had argued that the public authorities had this discretion, and Germany did not want the Convention to change this. Normally in Germany, the information must be provided in the form requested but there are exceptions. Germany supported the idea that a person should be able to see the actual documentation, whether or not they were entitled to obtain a copy. The Netherlands suggested a compromise whereby the public authority would be obliged to supply it in the form requested unless this would 'disturb the smooth running procedures of the public authority'. Later the Netherlands and Italy separately circulated written proposals, which would require public authorities to '[take] into account the preference of the applicant about the form in which the information is to be provided'. GLOBE said that if delegations had problems about the cost implications of new (c), they should recall that public authorities would be entitled to make a reasonable charge. The UK could live with new (c) as drafted but argued that it is the information to which a person is entitled, not the medium. It considered it 'not helpful' to expose a particular official (presumably, by revealing the signatory of an official letter). The ECOs pointed out that while providing access to documentation, it was still possible to separate out exempt from non-exempt information; and that one of the main reasons this clause would be important to the public would be in a situation where large amounts of information were available in both paper and electronic form and where the public authority opted to only make it available in paper form at considerable expense (albeit still a 'reasonable' charge in relation to the amount of copying) instead of providing it at low cost in electronic form. Denmark could also accept (c), but suggested it was more helpful to the public to provide the information rather than the documentation, with the option of obtaining the documentation as well. Finland said it provided access to copies of documentation, with the confidential parts deleted. Belarus supported access to documentation.
The 'any person' principle (3.1(a)) [IG:] Romania, supported by Moldova, proposed to delete sub-para (a) in Article 3.1 (which established the 'any person' principle). Russia suggested it should perhaps be kept as a recommendation. The EU Commission said there was some doubt about the interpretation of the EU directive in regard to this (later, it was clarified that this remark referred to the fact that the Commission had not so far taken action in relation to the rather questionable Spanish transposition of the directive, which grants access to citizens of non-EU countries only where reciprocal arrangements exist with those countries). The ECOs strongly attacked this proposal, arguing that the 'any person' principle was fundamental to an effective freedom of information regime. Moldova withdrew its support for the proposal, and Sweden supported the ECO's position. [P:] Denmark did not seem to be very happy with the idea that for example a person from China should be entitled to information, but said it could live with it. The UK supported the 'any person' principle. Russia wanted a 'qualified legal explanation' of this clause. With respect to 3.1(b), Sweden, Netherlands, Germany, UK, Denmark and Belgium all supported changing 'proved' to 'stated' (to avoid a situation where even if a person did not have to prove an interest, they might still be asked to state their interest). Russia preferred 'proved', and Poland also had problems with the proposed amendment (or maybe the whole clause?).
Time limits [IG:] France felt that the proposed time limit of six weeks for supplying information was too short and that it was important to differentiate between simple and complicated requests. It put forward a proposal including a timetable of 'four to eight weeks after the request has been submitted, depending on the complexity and volume of the information requested'. This was supported by Romania (which initially wanted 2 months), Russia and Italy. One country (Norway?) proposed the additional criterion of urgency of the request (which unlike volume and complexity, would be a reason to shorten the time period). No one objected to this but it was not taken up in the options presented to the plenary. Sweden thought 'as soon as possible' should mean what it said, but the ECOs said in practice this was difficult to enforce. The ECOs put forward two options for revised versions of their proposal for differentiated time limits presented at the previous meeting (Annex 8 to this report). This failed to gain support but the ECOs pointed out that in the previous plenary, six countries not represented in the informal group had supported this approach. The ECOs then said there was a risk of the French proposal being interpreted as an eight-week deadline and proposed a variation whereby the deadline was four weeks but with the possibility for extending the period by up to a further four weeks where the volume and complexity of information justified this. France seemed happy with this amendment but Romania was not. An ECO proposal that there should be some obligation to keep the public informed of how the request was being processed before the aforementioned time limits elapsed gained a sympathetic response from the Chair ('in Poland this is done and it is not a problem') and Sweden. However, France, supported by Norway, felt it would overburden the system. This matter was deferred. [P:] The original French proposal, and the French proposal as amended by the ECOs, were presented to the plenary as Options 1 and 2 respectively. Denmark, Sweden, Moldova, Romania and Finland supported Option 2. Germany preferred Option 1 and described Option 2 as 'simply unbearable', predicting that there would be a court case in Germany over the meaning of 'volume and complexity'. France pleaded for flexibility and expressed a slight preference for Option 1. Between the two, Italy preferred Option 1 but wanted to delete 'depending on the complexity and the volume of the information requested'. It said it was willing to look at other proposals. Later, Italy circulated a written text proposing an eight-week deadline (with the usual 'as soon as possible' lead-in) (Annex 5 to this report). The UK was not in favour of either option, preferring the 'as soon as possible' plus a single deadline, e.g. six weeks (as in the Draft Elements). The Netherlands wanted to make a distinction between making a decision on a request, and actually supplying the information. In the Netherlands, the time limits (which are relatively short) only apply to the former; there is no time limit on the supply of information. In an access to justice context, the decision is the important element to which the appeal relates. Therefore the Netherlands wanted to amend the chapeau of 3.1 accordingly, so that it only obliged the public authorities to 'decide upon' a request. The Netherlands also felt it was important for the requester to be notified of the decision and told how soon the information would be supplied. In practice, in most cases information would be supplied at the same time as communicating a positive decision. Russia supported the distinction being made by the Netherlands. It said its own practice was to make the decision within 30 days, and where necessary to inform the applicant how much more time is needed. It proposed that Options 1 and 2 should be amended, and a reference to 'customary administrative practice' included. Bulgaria also said it had a 30-day response time but sometimes it could take longer to provide the information. Sweden was unconvinced by the Netherlands argument, and reiterated its preference for Option 2. If the decision was negative, or if no decision was taken, there was recourse to the Ombudsman; if positive, receiving the information was the important thing to the public, not the decision. The ECOs also said that whatever about the importance of the decision, ultimately what was important for the public was to receive the information. The Chair invited Germany and the Netherlands to explore the possibility of a text incorporating their different concerns. Later, the Netherlands circulated a text which was not discussed (Annex 7 to this report). The main elements of this proposal are:
(of the decision, not the request, as worded - though maybe this was not intended);
Time limits for refusals (3.6) [IG:] The ECOs, supported by Albania, Georgia and Norway, proposed that the time limit for providing a refusal should be two weeks, not four. Romania preferred to stick with four weeks. [P:] The UK reiterated its opposition to a multi-tiered approach (different time limits). [NB The UK's written proposal on Article 3 (Annex 9 to this report) did not propose to amend the four weeks proposed in 3.6 of the Draft Elements.] Italy also saw no reason for different time limits but could accept four weeks for refusals.
Time limits in accident situations (new 3.1(e)) [IG:] An ECO proposal for more restrictive time limits ('immediately and without delay') where the release of information would be likely to prevent or mitigate an imminent threat to health or the environment was supported in principle by Sweden and Albania. Italy (whose representative at the first session had proposed a similar idea) said that different countries might have different threshholds for when this clause might apply (i.e. different interpretations of 'imminent threat'), but the ECOs said they were not proposing to harmonise these threshholds through their proposal. It was agreed to present it as an option to the plenary. [P:] The ECO proposal was presented to the plenary by the Chair of the informal group, where it prompted the following reactions: Bulgaria and Russia sympathised with the concept but felt it would hard to specify either what 'immediately' meant or when a threat was imminent. Germany felt it was trying to be too perfect (over-prescriptive?). Austria, Netherlands, Denmark and GLOBE supported the proposal. Austria suggested to add 'such as nuclear accidents etc'. Italy and France supported the idea but not the proposal, feeling that this did not need to be in the Convention as it should already be covered at national level by general obligations on all officials. (Italy: 'this just says to some criminal people not to be criminal'.) Sweden said that in Sweden as in Italy, this situation would already be covered under such general provisions but pointed out that this might not be the case in all countries. The UK said it was OK in principle but not in practice, and warned of hundreds of requests for information claiming that an 'imminent threat to health' was involved. It proposed that the issue be dealt with in Article 4. (In introducing the proposal, the ECOs had said Article 4 was the main place for this to be addressed but that there was also a need to address it in Article 3.) Romania supported the comments of the UK and Italy. Norway sympathised with the idea but felt 'as soon as possible' was sufficient. It was agreed to deal with this issue in Article 4, and if it then proves necessary, return to Article 3. Exemptions: 'Manifestly unreasonable' (3.2(b)) [P:] Sweden questioned the need for an exemption for 'manifestly unreasonable requests', asking what its purpose was. Germany defended the exemption and gave the example of a person requesting published material which was available in bookshops or libraries. Sweden said if this was the purpose of the provision, it should be stated more precisely. Otherwise, there was a risk that such a provision could be abused, for example by applying it to requests for large amounts of information. Denmark supported Germany, saying that if this exemption provision were wrongly invoked, the requester would have access to an appeals process. Belgium said the provision could be difficult to apply in practice. It referred to the European Court of Human Rights where 40 pages of reasons might be needed to show that a request was unfounded. The ECOs supported Sweden and Belgium. The UK felt it was not easy to abuse and defended the provision. The Chair proposed to leave the provision for the time being.
Exemptions lead-in (3.2A) [IG:] The UK proposed that the lead-in to the exemptions should be 'if the information relates to' (the Draft Elements lead in with the narrower formulation 'where it adversely affects'). The ECOs, supported by Sweden, said that 'relates to' was too vague and proposed to re-word the Draft Elements wording as 'if the disclosure would adversely affect'. This was agreed. [P:] The Netherlands tried to introduce an alternative lead-in to the exemptions avoiding the term 'adversely', something like 'if its importance does not outweigh the following'. This was not taken up.
Confidentiality of proceedings of public authorities (3.2A(a)) [IG:] The UK proposed to delete the requirement that the confidentiality of the proceedings of public authorities should be specifically provided for in a reasoned decision of a public authority for this provision to apply. The ECOs, on the other hand, argued that the reasoned decision should be publicly available and based on explicit and transparent criteria, and proposed to add a further qualification, namely that the designation of such proceedings as confidential should be provided for in law. Norway said that public authorities need peace for their deliberations. As the ECO proposal was not supported by any government, the other two options (UK and Draft Elements) were put to the plenary. [P:] The ECOs repeated their concerns expressed in the informal group but they were not taken up by the meeting.
International relations, national defence, public security (3.2A(b)) [P:] The ECOs reiterated their concerns expressed on previous occasions about the need to circumscribe these exemptions but received no support.
Matters under inquiry, sub judice etc. (3.2A(c)) [IG:] The UK proposed to broaden the exemption proposed in the Draft Elements (3.1(c)) by deleting the 'exemption to the exemption' of enquiries/proceedings which are subject to public participation. The ECOs proposed to tighten the exemption by referring to the goal of not prejudicing the course of justice and limiting the type of enquiry to criminal or disciplinary ones. France and Sweden were willing to consider the ECO proposal, or otherwise the UK one, so both were kept as options. [P:] Option 1 (based on the ECO proposal) was supported by Sweden. Option 2 (based on the UK proposal) was supported by Germany (which qualified its position by saying it was currently undergoing a trial in the European Court of Justice, the outcome of which might have a bearing on its position), Russia (which also wanted an explicit reference to administrative inquiries), the UK and France. The ECOs pointed that under Option 2, by not including the final sentence in the Draft Elements text, the exemption could be applied even where a public participation procedure existed, e.g. land use inquiries. Belgium said that 'proceedings' was too broad, secrecy should not be possible for all proceedings, and proposed a combination of Options 1 and 2.
Commercial confidentiality (3.2A(d)) [IG:] Three options resulted from the discussion in the informal group: 1. Draft Elements text as is (3.1(d)) (supported initially by Albania); 2. A UK proposal to remove the 'exemption from the exemption' of information relating to emissions or impacts, but to add a requirement that disclosure should be unwarranted and would harm the competitive position of a third party; 3. An ECO proposal which deleted the reference to intellectual property in the other proposals and added a number of other elements (supported as an option by Norway). [P:] Russia, supported by Germany, preferred Option 2 but wanted to delete the words 'whose unwarranted disclosure would harm' and add 'or the competitive position of a third party'. Belgium repeated its objection at the third session to including intellectual property here - intellectual property considerations affect the right to copy, not the right of access. This issue might need to be addressed in the provisions relating to the making of copies. Sweden supported this position and Germany was willing to consider it. Option 3 was supported by the ECOs (who gave Option 1 as their second preference and said it was a matter of priority between environment and health matters and property rights) but not by any governments. Germany described it as a lawyers' paradise, which it considered to be a bad thing.
Personal data (3.2A(e)) [IG:] The UK proposed an addition to the standard clause protecting the confidentiality of personal data, which would make it a condition that the person has not consented to the release of the information. This was generally supported. [P:] Belgium expressed concern that the word 'person' could cover legal persons, which it felt was not the intention. The purpose was to protect the personal privacy of individuals. It should be specifically limited to natural persons. The UK and the ECOs agreed that the clause should not be applied to legal persons. However, Russia did not agree, and wanted it to explicitly apply to 'natural or legal person[s]' ("the key thing is that there is no violation of the confidentiality of data").
Voluntarily supplied information (3.2A(f)) [IG:] The ECOs proposed that this exemption provision be deleted. This was supported by Norway. [P:] Russia proposed to expand the exemption provision by deleting the requirement that this clause could only be applied where the third party was not under, or capable of being put under, a legal obligation to supply the information. In other words, even where the third party was legally obliged to supply the information to a public authority, it (the information) could still be covered by the exemption provision. The UK appeared to support Russia (which would represent a step back from the EU directive). Finland said that the entire exemption provision was unnecessary, because other exemption provisions were available to protect the interests of third parties. The Chair asked if Finland could live with the exemption if most delegations wanted it. The ECOs asked those delegations supporting the provision what information would be covered by it which would not be covered by another exemption provision. No answer was forthcoming.
Internal communications, material in the course of completion (3.2(c)) [IG:] Russia wanted the exemption for internal communications to extend to communications between public authorities, as well as to those within a public authority. The ECOs proposed limiting this provision to exclude material which provided the factual basis for a decision, but gained no support for this. [P:] Both Russia and Germany were opposed to the public interest test being applied to this exemption. Germany was afraid there would be lots of court cases with the present text. Italy, the UK, Finland and the ECOs defended the public interest test. Italy, responding positively to earlier suggestions by the ECO delegation, felt 'material in the course of completion' might be too broad and suggested adding something like 'provided that such completion is not unnecessarily delayed'. This was supported by Sweden, Norway, Denmark and Finland, but opposed by the Netherlands, which said that it had had such a provision and that it had made no difference. The ECOs said the provision should only apply to internal communications within a public authority, not those between public authorities. This was supported by Norway, which said other exemptions could be used where it was necessary. The ECOs warned of the risk that this could pose in the context of privatisation (e.g. correspondence between a privatised water authority and a government department).
Whistleblower protection clause (3.2B) [IG:] The ECOs proposed a new clause intended to protect the identity of 'whistleblowers' - persons who provided information relating to unlawful or environmentally damaging activities. This was kept as an option for the plenary. [P:] The Chair and the UK questioned the need for such a provision given the exemption of personal data, and Russia opposed it because it felt it might cover information on illegal actions. Sweden found the proposal problematic for it because the name of an informer must be disclosed in Sweden. However, it agreed to consider it further. The ECOs said that 3.2A(e) was not sufficient to cover such cases, citing a case of a judge in the UK ruling that the name of an individual was not protected by the 'personal data' clause. It was emphasised that the purpose of the clause was to encourage the flow of information to the authorities about breaches of environmental laws etc. Noting lack of governmental support, the Chair proposed the ECOs keep it to themselves for the time being.
Information not held by a public authority [IG:] There was some discussion on whether the situation where a public authority is asked for environmental information, which it does not hold should treated as an exemption, or whether the basic obligation in 3.1 should only apply to information in possession of public authorities (in which case no exemption would be needed). At the previous meeting, only Lithuania and Russia had supported the latter option. Most countries favoured the former. There was then a discussion about a UK proposal (supported by Moldova and Romania) to exempt information not held, where the public authority does not know of any other public authority holding the information. The ECOs and Sweden felt it was illogical to deal with the issue of whether or not a public authority knows of another public authority having the information in the exemption clause, and argued that this situation should be addressed in para 3. (This was mainly an argument about finding a logical structure for the Article rather than the substantive issue of how public authorities should deal with requests for information they do not hold.) [P:] In the plenary, the ECOs repeated this argument and were supported by Sweden and the UK. Germany proposed that the entire exemption provision be deleted. The ECOs said they were willing to support the German proposal provided that 3.1 be amended to read 'subject to paragraphs 2, 3 and 7(b)'. [IG:] With respect to the substantive issue of how a public authority deals with a request for information that it does not possess, the UK put forward a proposal that the public authority should 'promptly transfer the request to any public authority that is known to hold the information' (in contrast to the approach in 3.3 of the Draft Elements whereby the requester is referred to the other public authority). The ECOs put forward a proposal which, like the UK proposal, also obliged the public authority to transfer the request on, in this case to the public authority believed (rather than known) to hold the information. The ECO proposal also contained an obligation to notify the requester that this had been done, and to do so within two weeks. France and Germany favoured the UK proposal and were opposed to an obligation to notify the requester that the request had been transferred. France suggested a possible trade-off: if there was a notification obligation, the time limit for supplying the information should date from the date of notification; if there was no obligatory notification, the time limit would date from the original request. Moldova, supported by Romania, was in favour of the UK proposal being backed up with an obligation to notify the requester but without a time limit on this. So this was kept as an option. [P:] The ECOs presented their proposals to the plenary, with one modification, replacing the words 'that is known to hold' with 'responsible for holding', on the basis that the force of the obligation should not depend upon the actual level of awareness within a public authority but rather on the role it is supposed to serve. In remote areas, a requester could very often reach a dead end with the response 'we do not have this information and we do not know who else has it'. Moldova supported the ECOs. Russia opposed the ECOs' proposals and the original version. It felt there could be 'unjustified financial obligations' involved and wanted to see it as a recommendation rather than a requirement. Sweden defended the provision, and the Netherlands supported the removal of square brackets around the obligation to notify the requester. However, both Germany and France had problems with an obligation to notify the requester (even though France said it is common courtesy/practice in that country).
Information not held but required for regulatory purposes (3.3A) [IG:] As a qualification on the exemption for information not held, the ECOs put forward a proposal whereby the public would have equivalent access to environmental information not actually held by any public authorities but which public authorities, in performance of their regulatory functions, are entitled to inspect. Requests for such information would be subject to the same terms as for other information held by the public authorities (in terms of exemption provisions, time limits, etc). Sweden supported the proposal. [P:] Russia, the UK, Sweden (reversing its position in the informal group) and Germany opposed the proposal. The UK said whether or not a public authority held the information was the point to draw the line. Germany conceded that there was a loophole but seemed able to live with this. The Netherlands wanted clarification of 'on the same terms'. Despite this negative reaction, the Chair proposed to keep the idea alive, feeling that it was important to accommodate the situation where for practical reasons public authorities leave information on the site of the company they are regulating..
Clarification of requests formulated in too general a manner (3.4) [IG:] Russia and Moldova proposed to delete 3.4 requiring public authorities to assist the public in clarifying a request formulated in too general a manner. This was accepted as an option. [P:] Russia, Moldova, Germany, Georgia and Belarus wanted to delete 3.4. The Netherlands, Belgium, UK, Finland, Sweden, Romania and the ECOs broadly supported it, though Belgium and UK, supported by the Netherlands, suggested it could be a recommendation rather than a requirement, and Sweden, Romania and Finland were open to seeing it restricted in some way.
Separation of non-exempt information (3.5) [P:] Russia wanted to add something saying that a condition of separating out non-exempt information would be that no harm should be done to the exempt information. No other delegation had problems with the original wording.
Procedure for refusing requests (3.6) [IG:] The UK's written proposal (Annex 9 to this report) contained two amendments to the Draft Elements: first, the obligation to provide a written refusal or partial refusal would only apply where the request itself was in writing; and second, the refusal should include all the reasons for the refusal (so that the public authority could not keep invoking different reasons one after another). These proposals were generally welcomed. The ECOs proposed that the written refusal 'shall inform the person .. of their rights to avail of the judicial or administrative review procedure in accordance with paragraph 8 of this article' (The Draft Elements had only obliged the refusal to contain 'relevant information' on access to this procedure.) This was supported by Germany and Albania. [P:] Russia thought that the question of refusals should be covered by normal administrative practice and that this provision should only have the status of a recommendation rather than imposing a requirement ('should endeavour to' instead of 'shall') The Netherlands said that it would be circulating a written proposal supported by Germany, which was mainly about 3.1 but which had a bearing on 3.6. (See section on time limits above for a description of this proposal.) The UK supported the ECOs option on informing the person whose request was refused of their rights of appeal (but for grammar, suggested 'avail himself')
Charges for information (3.7) [IG:] The UK proposed an amendment to 3.7(a) which involved substituting 'reasonable charge' for 'reasonable cost', and deleting the provision that the costs of reproducing or transmitting the information could be included but the costs of compiling or retrieving it could not. The UK proposal was supported by Germany and Romania and was forwarded to the plenary, with only the ECOs objecting. [P:] Russia proposed that the issue of charges should be determined at national level and that 3.7(a) should be deleted. Uzbekistan, Turkey and Belarus broadly supported this view, with Belarus suggesting it could be a recommendation. The ECOs pointed out that the re-wording introduced by the UK simply allowed public authorities to make reasonable charges, without preventing them from levying unreasonable ones. The Chair suggested that this was probably not the intention of the amendment and that the ECOs' comment should be taken into account. The ECOs also said that in many countries, charges were levied in a capricious and arbitrary manner, and that the original text in Draft Elements was preferable to the new text proposed. Sweden also expressed a preference for the Draft Elements text. Germany and Belgium could accept the new text, with Belgium saying it was open to editorial changes. Bulgaria said it supported the ECOs but also that CEE/NIS countries needed to be able to make charges. Croatia said the Director-General (in the Ministry?) has the power to set charges. [IG:] The UK made some proposals to amend 3.7(b) (about the requirement to publicise a schedule of charges), which were accepted. These included the removal of any obligation to disseminate the schedule (publishing was considered sufficient), deletion of 'maximum' before 'charges' (which changes the impact of 'may' as in (a)) and an obligation to indicate circumstances in which charges may be waived if there are any (not an obligation to create waiver provisions). [P:] Sweden, Belgium, Lithuania, Finland and REC supported (b). Czech Republic and Russia wanted it deleted. France said it had no objection with the idea of (a) and (b), but as worded it could be interpreted that each piece of information had to have a price label, which would be a huge and pointless task. The ECOs said this was not what the public needed, rather an indication of price per page of copying etc. Armenia felt it was unnecessary to consider (b) if there were no (a).
Information appeals provisions (3.8) [IG:] The UK proposed to cater for the possibility that a third party (i.e. other than the requester) might use the appeals procedure to prevent the release of information (presumably through some sort of injunctive procedure - the UK was not there to present its proposal, which was submitted in writing). Germany and Sweden opposed this aspect of the UK proposal, and no one supported it. The UK also proposed to delete the word 'administrative', and this was supported by Sweden. Sweden also wanted to delete the last sentence, favouring a single requirement for an appeals procedure without specifying whether administrative or judicial, rather than the two-tier administrative-plus-judicial system proposed in Draft Elements. The ECOs defended the two tier approach, suggesting to add 'or quasi-judicial' to 'administrative' to cater for the UK situation (where the tribunal system is not considered administrative). This was not agreed. Germany and Russia wanted to keep the last sentence. Russia was particularly impressed by 'in accordance with the relevant national legal system' and wanted these words in the first sentence alongside 'in accordance with the provisions of this Convention' - which caused some confusion. The ECOs expressed concern that the term 'ignored' might not cover all situations in which there was failure to comply with time limits, and proposed alternative wording along the latter lines. This was not agreed, some delegations feeling that 'ignored' was sufficient. Sweden then argued that while there should be some form of redress for breach of time limits, the word 'appeals' was inappropriate as an appeal implied that there was a decision to be appealed. This was left unresolved. [P:] Russia wanted to delete all the proposed requirements for the appeals procedure (independent, transparent, inexpensive, timely, binding etc). Italy, while accepting the gist of the paragraph, also had problems with the text, implying that it would require changes in its own appeals system which it felt were not necessary. The ECOs emphasised the importance of the appeals system being independent. Belgium felt that drafting improvements could be made but suggested the text could be e-examined in the informal group on access to justice.
Penalties [IG:] The ECOs proposed penalties for failure to provide information in accordance with the provisions of the Convention. Germany said this point could be made in respect of breach of any provisions of the Convention so it was not appropriate here, and Sweden said that under its domestic law there is a general provision saying a civil servant can be punished for breaking the law, so there was no need to introduce a penalty clause in the Convention for such a specific case.
3.4 Active Information Obligations (Article 4) Article 4 was only discussed in the informal group, first on Monday morning (17th) then on Friday morning (21st). The Draft Elements text provided the basis for the discussion.
Obligation for public authorities to keep informed (4.1) The informal group agreed with an ECO proposal that Article 4 should begin with an introductory paragraph setting out the obligation on public authorities to keep themselves informed and keep the public informed. Russia proposed that para 1 should contain an obligation to ensure that public authorities, 'in accordance with national legislation, have sufficient information about activities affecting the state of the environment'. It opposed any interference in the 'sovereign right of any country to decide whether measures should be mandatory or not'. Along similar lines to Russia, Kazakhstan wanted to qualify the obligation with 'as far as it possibly can' after 'Each Party'. Kazakhstan also said it would be happy with the Russian proposal. Belarus seemed to support the Russian proposal, but was also happy with the Draft Elements text. The ECOs, supported by Moldova, proposed that the obligation in para 1(a) should apply to public authorities in general (not just 'relevant' ones), and that it should be an obligation to collect 'all environmental information relevant to their functions' (not just 'important information for which they are responsible'). The ECOs also proposed to remove the 'significantly' threshhold in 1(b). Armenia supported the deletion of the 'important' threshhold in (a) and the 'significantly' threshhold' in (b), and wanted to reverse the order of (a) and (b). Belgium preferred the Draft Elements text over the Russian proposal, but supported the ECO proposal for 'relevant to their functions' in (a) and pointed out that the interpretation of this phrase would in any case take place at national level. The Netherlands also supported this proposal. Uzbekistan wanted to delete (a) because it felt the collecting and updating of information is what public authorities are there for, so to mention it was redundant. It felt that the 'updating' obligation was in any case covered in para 3 (though that only deals with state of the environment information). France, Germany and the Netherlands all spoke out in varying degrees against any binding obligations in this area. France seemed alarmed at the prospect that a public authority might have to go out and look for information, or 'regularly collect' it. Germany said it sympathised with the Russian proposal, and that too much regulation was counterproductive. The Netherlands seemed opposed to the idea of creating too many 'active' information obligations, and suggested that (a) should only apply to information 'which is important for [public authorities'] policies or their decisionmaking'. Like Germany, the Netherlands argued that 'the more you regulate, the less authorities are prepared to provide information'. The ECOs attacked the deregulation argument, saying it was misleading to suggest that a voluntary approach yielded better results for the public. This prompted Russia to associate itself with Germany's remarks. Germany then said it would be hard to enforce binding obligations in this paragraph, which it considered to be peripheral. France said public authorities should have or be in possession of the information, not have to collect it. It proposed 'possess and update' instead of 'collect and update', and 'relevant to the discharge of their duties' rather than 'relevant to their functions' or 'for which they are responsible'. Germany said it could accept this. Russia said it would study the French proposal but reaffirmed its position. France, Romania, Netherlands and Latvia wanted to delete (b), and Lithuania opposed the reference to mandatory systems. Belgium, Estonia, Czech Republic and the ECOs defended (b). The ECOs proposed a new sub-paragraph (c) requiring transparency in the systems for collecting information. No countries supported this but it was agreed that the ECOs could reintroduce this proposal later. During the plenary, the UK delegate circulated some proposals in a personal capacity dealing with duties with respect to information, but this text was not discussed.
Terms for making information available to the public (4.2) The Netherlands felt that 4.2 in the Draft Elements was too detailed and would lead to administrative obligations more appropriate for determining at national level (e.g. putting in a handbook). It proposed to delete the sub-paragraphs and add to 'transparent' at the end of the first sentence in the chapeau 'and effectively accessible within the timeframes referred to in Article 3'. This was supported by Russia (which also wanted 'in accordance with national legislation' in the text), Germany (which reiterated its deregulation mantra), Latvia and France. Lithuania proposed to use 'may' instead of 'shall' in the opening sentence. Russia had a problem with finding a suitable Russian equivalent of the word 'transparent'. Belarus echoed this. (Belgium suggested 'glasnost'...) The ECOs supported the Netherlands' proposed addition to the first sentence but strongly opposed the deletion of the sub-paragraphs, arguing that far from being highly detailed, these contained some quite basic obligations which should apply in any country anywhere in the ECE region. GLOBE also supported retaining the full paragraph and adding a reference in (a) to information held by public officials (as well as public authorities). Sweden, invoking the Guidelines, also supported keeping the sub-paragraphs in 4.2. Belgium proposed a compromise wording which involved using some (but not all) of the content of (a) in the first sentence.as expanded by the Netherlands. This was supported by Italy, Albania (but along with the ECOs, preferring 'type and scope' rather than 'nature') and Sweden, but the Netherlands, France and Germany continued to support the shorter version proposed by the Netherlands.. Romania supported the written proposal circulated by the UK (see Annex 9 to this report), which retained (a) and part of (b) (excluding designation of responsible officials), and proposed a new (c) providing for access to information held in registers free of charge (this was taken from 3.7(c) of Draft Elements). The Netherlands said that under its national system, there must be at least one way by which the public can have access to information free of charge. Normally, this is through inspection (i.e. being able to examine it). Sweden described how under the Swedish system, all correspondence is on public registers. Germany said it had registers for some information, mainly in the field of water, but not in other areas such as air pollution. It was in favour of making more use of registers as it was a simple and accessible way of collecting and storing information, especially where it could be done electronically. However, each of the 16 Lander might have their own views about how to make information available. Also, not all information on registers is free of charge. In short, Germany was against the Convention prescribing this as an obligation. Moldova felt it should just be optional rather than obligatory, as it would be 'impossible' to make such a register in Moldova. Russia was unclear about the meaning of 'registers', and said the Russian translation was a word like 'archives'. France said the issue of whether it was free of charge or not should be addressed in Article 3. Belgium said it would not want public registers to be obligatory but the idea that information should be available free of charge was important. Sweden supported this emphasis. Belgium also supported the designation of information officers.
Information on Websites The ECO coalition put forward a proposal in the informal group that by a certain date (2000 was suggested as an example), governments should ensure that certain categories of information were on publicly accessible Websites on the Internet. This broad concept was supported by Italy (as one system among others, use 'inter alia'), France, Russia (as a recommendation only) and Sweden (which claimed to 'strongly' support it but only as a strong recommendation, and gave the example of how students have made use of its EPA's Website). It was opposed by Moldova (which feared cost implications and felt the Convention should not specify the means by which information was made accessible) and Latvia (which felt it would not be relevant for the general public or even NGOs, as they were not very rich in Latvia). Some (Sweden, Chair) felt the terms 'Website' and 'Internet' should not be used, as new technologies or systems might be available in the future. Romania supported Moldova and France (sic) and suggested the deadline could be addressed in a protocol. Sweden addressed Latvia's concerns by suggesting that access could be provided on a local basis (through local information centres connected to the Internet), and that of course paper copies would still be made available for those wanting the information in that form. The ECO coalition said the costs should be investigated but offered its view that they were fairly modest and if there were technical or financial difficulties for some countries in implementing this kind of provision, perhaps the possibility of assistance from other countries could be explored.
Languages The ECO proposal that environmental information should be provided in languages spoken by significant minorities gained no support and was strongly opposed by Romania and Moldova. Sweden and Estonia supported the idea that information should be available in the official language or languages. The ECO coalition conceded that it was not feasible to expect all environmental information to be made available in all languages spoken by significant numbers of people, but said that for a certain sub-set of information this could be the case. This was left open for further discussion.
Non-technical summary The ECO proposal that where appropriate, non-technical summaries of environmental information should be provided (in addition to the raw unprocessed information) was opposed by Latvia, Moldova and Romania, who claimed not to understand the need for it. The issue was left open but so far gained no explicit support.
State-of-the-environment reporting (4.3) Different preferences were expressed for the frequency of state of the environment reporting: Romania, Italy (3 years); Albania, Croatia (2 years); ECOs (1 year). Norway, supported by France, cautioned that more frequent reporting might be achieved at the expense of the quality of the reports and that this should be avoided. Russia, although undertaking annual reporting itself, proposed that the Convention should only say that state of the environment reports should be produced 'on a regular basis in accordance with national legislation'. It was agreed not to try to reach a common position in the informal group on the question of frequency. The ECOs presented a proposal elaborating on what the minimum contents of such reports would be, emphasising the value in some harmonisation in this area for the preparation of regionwide reports by the EEA. Norway proposed that some of the detail in the ECOs proposal was more appropriate for a protocol. There was then some discussion on whether the text in the body of the Convention should give any guidance on what should be in such a protocol. Norway offered to draft some text (not for the protocol), and later circulated this to the plenary (there was no time to discuss it in the plenary). France, Romania and Russia preferred to stay with the Draft Elements text. France said if there were to be a list of contents for such reports, it should be optional rather than mandatory. France was also opposed to reports covering the projected state of the environment, preferring the scope to be limited to actual, verified data. However, it could accept the idea of trends being included (past trends, presumably). Russia was opposed to enumerating the elements of such reports, as no list could be exhaustive.
Active information obligations in accident situations The ECOs presented a proposal in the informal group for a requirement on public authorities to immediately provide any information which could reduce the risk of any imminent threat to health or the environment to members of the public who may be affected, with failure to do so being punishable as a criminal offence. This was supported by Croatia and Moldova, with Croatia wanting to extend it to the general public, not just the public likely to be affected. Latvia questioned the need for such a provision, saying that there were other Conventions (nuclear, transboundary EIA, etc) dealing with such situations. The Chair pointed out that these were mainly looking at transboundary effects, whereas the new provision would cover non-transboundary effects and would not be limited to a specific type of accident. [See also the plenary session discussion on time limits with respect toaccidents in the context of 'passive' information obligations.]
Pollutant release and transfer registers The ECO proposal to deal with PRTRs in Article 4 (instead of Article 7) was agreed in the informal group and noted in the plenary, where it was supported by the UK. However, in the plenary, Russia strongly objected to the content of 7.2(g), saying that it went beyond the provisions of the Convention and that it would resolutely object to the inclusion of such provisions. Neither meeting discussed the substance of the text on PRTRs. |
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