The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is referred to as the Aarhus Convention. It provides for access to environmental information held by public bodies. It allows for participation by the public in decision-making and access to justice in environmental matters.
The Convention guarantees rights of access to environmental information, arrangements for access and provisions for requiring access to be made available unrequested by authorities.
The Convention has been entered by the EU and is given force by a Directive and domestic regulations.
The EU Access to Information on the Environment Regulations implement the Directives in Ireland.
Public authorities are to make environmental information held by them available on request without requiring that the person has any specific interest in the information.A public authority includes
- all governmental or other public administration, including public advisory bodies at the national, regional or local level.
- any natural or legal person performing public administrative functions under national law including duties or services in relation to the environment.
- any natural or legal person having public responsibilities or functions or providing public services relating to the environment under the control of the above bodies.
Accordingly, it covers most governmental, local governmental and State corporations and companies having environmental responsibilities. Bodies with statutory functions or which provide public services are likely to be public authorities under the legislation.
Public authorities must inform the public of its rights under the regulations and provide information and guidance on those rights. It must make all reasonable efforts to maintain environmental information held by it in a manner that is readily accessible and reproducible by information technology or other electronic means.
Information to be Maintained
It must ensure that environmental information compiled is kept up to date, accurate and comparable. It must maintain registers or lists of environmental information held by it and designate an information officer or information point to assist in the location of such information.
The following environmental information must be maintained at a minimum.
- text of international treaties, conventions or agreements and national legislation.
- policies plans and programmes.
- progress reports.
- summaries of monitoring data where the information is relevant to their function.
Duties of Authorities
The Minister must publish a list of public authorities covered by the regulations. The authorities must maintain registers or lists of environmental information held. They must provide a designated information officer. Public authorities may not charge for access to public registers information lists or examination of information.
The authority must respond to a request for environmental information as soon as possible and in any event within one month. Where it is unable to deal with a request, due to complexity or volume of information, it should set out why this is the case and give a date by which it will respond. This is to be no more than two months from the original application.
Where information is requested, in a particular format, the authority should endeavour to provide it in that format, unless it is available in another format publicly or another means of access would be more efficient.
Generally, applicants for information are to be facilitated. If the authority is aware that information is held by another authority, it should transfer the request and inform the person making the request. It may instead redirect the applicant to the other authority. Where the request is in too general terms, it must notify the applicant and assist the applicant in reforming the request.
Exceptions & Refusals
There are grounds for an exception to the right of access. They include:
- personal information protected by confidentiality reasons;
- material supplied voluntarily by a third-party entity which is not obliged to make that information available;
- confidential proceedings and minutes of public authorities;
- cabinet discussions.
A body may refuse on the following grounds:
- international relations,
- defence or public security;
- the subject matter of legal proceedings or investigations before the EU;
- the release of information could be detrimental to commercial or industrial interests;
- disclosure would adversely affect intellectual property rights;
- the materials are incomplete or in draft form;
- internal communications between public bodies and their officials;
- the request is unreasonable due to the volume of information requested.
Even if the information might otherwise be protected, where it relates to emissions, discharges or releases into the environment, an overriding public interest requires that it should be released. Authorities are to weigh the public interest against the above interest.
The grounds of refusal should be interpreted narrowly. Where it is possible to furnish some of the information without the above grounds applying, the authority should endeavour to separate the same. Where no decision is given within the requisite time limits, there is deemed to be a refusal. The refusal should be notified within one month.
Appeal & Review
There must be a right of appeal. This must allow access to a procedure in which the public authority’s decision can be reviewed administratively by an independent and impartial body. The appeal procedure is to be speedy and inexpensive.
The Irish regulations provide that a refusal may be reviewed by another official within the body concerned. There is an appeal to the Commissioner for Environmental Information if the decision is confirmed following internal review.
The Commissioner reviews the case and may uphold, vary or reverse the decision of the public authority.
The appeal must be made within one month following the completion of the internal review. Public authorities are obliged to comply with the decision of the Commissioner within three weeks. The Commissioner may apply to the High Court for an order compelling compliance in the event that the public authority fails to comply.
There is a further appeal on a point of law to the High Court. The Commissioner may stay a decision and refer issues to the High Court on points of law. A party to an appeal or the Commissioner may appeal to the High Court on a point of law from a decision. It is to be made within two months. A court may order that the cost of the appellant or a third-party are met by the authority.
Authorities may impose reasonable charges for information supplied. However, they should not exceed the actual cost of producing the material in question. Authorities should publish a schedule of charges and information as to how they apply. It appears that the costs should not include indirect costs or overheads but only those incurred in meeting the request.
Fees are payable on appeal to the Commissioner at a standard rate.
Participation in Decision Making
The second aspect of the regulation provides for public participation in the formulation of plans and policies relating to the environment. Most schemes of planning and environmental legisl\tion have inbuilt provision for consultation with the public, receipt of comments etc. which must be taken into account.
The convention provides for access to justice. In this context, this means a right of redress and a review procedure before an independent body in relation to environmental matters.
There must be adequate and fair remedies, which must be available in a timely manner, which is not prohibitively expensive. Decisions must be recorded in writing and publicly accessible.
Parties having a sufficient interest or maintaining impairment of a right (where this is a condition for access to the appeal or review body) may challenge the legality of decisions, acts or omissions. National laws determine what constitutes a sufficient interest.