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FAQ: What is the disclosure regime for environmental information under the Government Information (Public Access) Act?

FAQ: What is the disclosure regime for environmental information unde

FAQ: What is the disclosure regime for environmental information under the Government Information (Public Access) Act?

19.07.2021 NL law

In this post, we answer some frequently asked questions about the specific provisions that apply to the disclosure of environmental information.

As outlined in an earlier blog, the Government Information (Public Access) Act (Wet openbaarheid van bestuur) ensures that everyone in the Netherlands can access information from administrative bodies. The Aarhus Convention, the European Directive on access to environmental informative (2003/4/EC), and Regulation (EC) 1367/2006) have made clear that environmental information is of particular importance in relation to public access. Therefore, the Government Information Act has more extensive disclosure obligations (compared to other types of information) for environmental information, and even further-reaching obligations if the requested information relates to emissions into the environment. This access can have significant consequences for companies that wish to protect sensitive or business-confidential information.

What is the definition of “environmental information” in the Government Information Act?

'Environmental information' and 'emission into the environment' are key terms in the Government Information Act, but they are not defined in the Act.

For environmental information, the Government Information Act refers to the Environmental Management Act (Wet Milieubeheer, "EMA"). Article 19.1a of the EMA contains an extensive definition of the term 'environmental information'. A detailed examination of this definition is out of scope for this blogpost, but in any case the definition includes information laid down in documents regarding the state of the environment such as air, water and soil.

All information laid down in documents related to the subjects listed in the EMA is defined as environmental information. Such information does not necessarily have to be a part of environmental decisions in order to be considered environmental information. The relevant criterion is whether the information concerns activities or measures that (can) affect or protect the environment. According to case law, the term 'environmental information' must be interpreted broadly (e.g. ECJ 26 June 2003, C-233/00, ECLI:EU:C:2003:371)

When does environmental information concern emissions?

For the definition of emissions, the Government Information Act again relies on the EMA. Section 1.1 EMA contains the following definition for the term 'emission': substances, vibrations, heat or noise directly or indirectly emitted from a source into the air, water or soil. This definition is also subject to a broad interpretation in case law (e.g. ECJ 26 November 2016, C-442/14, ECLI:EU:C:2016:890).

The broad scope of the regime governing information concerning emissions into the environment is due to the potential impact of such emissions on the environment and on personal health.

It is important to note that not only the emission itself is considered an emission in the sense of the EMA; information related to the effects of those emissions on the environment also falls under the scope of emissions in the EMA. Furthermore, decisions by competent authorities are frequently based on actual or foreseeable emissions. Additionally, information that enables the public to assess whether such decision-making process has been accurate also falls under the EMA scope of emissions.

Case law provides a few indications of how courts deal with the definition of emissions. For example, information about the fuel consumption of a plant is considered an emission (ECLI:NL:RVS:2009:BK1375). As concentrations of the plant’s emissions have a direct impact on the emission from a chimney (ECLI:NL:RVS:2010:BO7333), information related thereto also falls under the definition. Information about possible locations for transmission masts are not emissions in the sense of EMA, as they only entail information about the place where radiation takes place or will take place (ECLI:NL:RVS:2013:1425).

What kind of specific requirements apply to the disclosure of environmental information?

If a request under the Government Information Act concerns environmental information, the administrative body to which the request is addressed must deviate from the regular regime of the Wob. The main deviations relate to i) the timeframe when dealing with a request under the Government Information Act and ii) the grounds for exemption and restrictions. We explain these deviations below.

i. Timeframe (Article 6(6) Government Information Act)

If a request under the Government Information Act relates to environmental information, the administrative authority will decide on the request no later than two weeks after the date of receipt, instead of the four-week decision period that applies to other types of information.

In practice, stakeholders are often asked whether they object to the disclosure when it concerns information relating to them. In the case of requests under the regular regime of the Government Information Act, the term for the decision is suspended when stakeholders are involved, but in the case of environmental information, suspension is not possible. As a result, administrative bodies have to deal with requests quickly and the companies involved have to act fast in order to still be able to express their views on the disclosure decision.

ii. The grounds for exemption and restrictions

As mentioned in our previous post, the Government Information Act is based on the principle that information is public, unless there is an important reason for it not to be disclosed. As a result, certain restrictions are imposed on public access to information. The Government Information Act contains grounds for exemptions and restrictions on disclosure, some of which immediately call for the refusal of that information (absolute grounds) and some of which result in a balance of interests (relative grounds). When it comes to environmental information, the grounds for exemption and restrictions are limited. Some exceptions do not apply at all and some only to a limited extent or only if the information does not include emissions into the environment.

As the publication of environmental information is considered of great importance, the competent authority must apply the refusal grounds for environmental information restrictively. The rejection of requested information must be kept to a minimum, and information will only be blacklined if this is strictly necessary to comply with the refusal grounds.

Below, we explain two important differences from the regular regime.

Business confidential information

One of the absolute grounds for refusal under the regular regime is the presence of business confidential information. Normally, the competent authority has to reject the disclosure of requested information if it qualifies as business confidential information. However, if the business confidential information also qualifies as environmental information, the competent authority must balance the interest of the importance of confidentiality of the business confidential information on the one hand, and the importance of publishing environmental information on the other. The ultimate decision on publication depends on the outcome of this balance of interest. If the interest in nondisclosure of business confidential information outweighs the interest in the publication of environmental information, all or certain parts of the environmental information will not be provided.

If the requested business confidential information concerns emissions into the environment, the disclosure regime is even stricter. This information cannot be refused on the ground of business confidential information. Requests for information on emissions into the environment must be granted, even if it the request concerns business confidential information.

Disproportionate prejudice

The second key difference is the exception of disproportional prejudice. In principle, information does not have to be disclosed if the disclosure of that information does not outweigh the disproportionate disadvantage that disclosure causes to another party. This exception does not apply to environmental information; environmental information will be provided, even if it is considered disproportionally prejudicial.

What will change with the future entry into force of the Open Government Act?

The Open Government Act (in Dutch: Wet open overheid) is to replace the Government Information Act. We expect the Open Government Act to enter into force in 2023. In an earlier blog (in Dutch), we elaborate on the several changes to be introduced by this new legal framework. The future introduction of the Open Government Act also modifies a few aspects related to environmental information.

For example, the Open Government Act abolishes the majority of the procedural differences between requests related to environmental information and requests related to other information. The aforementioned difference between the applicable two weeks for environmental information requests, as opposed to the usual four weeks for other requests, will be eliminated. The Open Government Act puts the timeframe for responding to a request for environmental information on par with the timeframe for any other request for information.

In conclusion

In our experience, competent authorities are inclined to provide as much environmental information as possible. The degree to which certain environmental information is provided (or not) also depends on the nature of such information. Given the several disclosure regimes that apply, stakeholders wishing to express a view on a disclosure decision should distinguish the various types of information that the relevant documents include. For example, and as outlined in this FAQ, the distinction between environmental information in general, and environmental information related to emissions, is important. Competent authorities will refuse publication of information only if strictly necessary, and only the specific parts of information that are considered to fall within the refusal grounds will be rejected.

Team

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