IE
S.I. No. 133/2007 - European Communities (Access to Information on the Environment) Regulations 2007
Table of Provisions (15)
Statutory Text (15 Articles)
1. Not later than 14 February 2009, Member States shall report on the experience gained in the application of this Directive.
They shall communicate the report to the Commission not later than 14 August 2009.
No later than 14 February 2004, the Commission shall forward to the Member States a guidance document setting out clearly the manner in which it wishes the Member States to report.
2. In the light of experience and taking into account developments in computer telecommunication and/or electronic technology, the Commission shall make a report to the European Parliament and to the Council together with any proposal for revision, which it may consider appropriate.
Article 10
Implementation
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 14 February 2005. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
Article 11
Repeal
Directive 90/313/EEC is hereby repealed with effect from 14 February 2005.
References to the repealed Directive shall be construed as referring to this Directive and shall be read in accordance with the correlation table in the Annex.
Article 12
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 13
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 28 January 2003.
For the European Parliament
The President
For the Council
The President
P. Cox
G. Papandreou
ANNEX
CORRELATION TABLE
Directive 90/313/EEC
This Directive
Article 1
Article 1(a)
Article 1(b)
Article 2(a)
Article 2(1)
Article 2(b)
Article 2(2)
-
Article 2 (3)
-
Article 2(4)
-
Article 2(5)
-
Article 2(6)
Article 3(1)
Article 3(1) and Article 3(5)
Article 3(2)
Article 4(2) and Article 4(4)
Article 3(3)
Article 4(1)(b), (c), (d) and (e)
Article 3(4)
Article 3(2) and Article 4(5)
-
Article 4(1)(a)
-
Article 3(3)
-
Article 3(4)
Article 4
Article 6(1) and Article 6(2)
-
Article 6(3)
Article 5
Article 5(1)
-
Article 5(2)
-
Article 5(3)
Article 6
Article 2(2)(c), Article 3(1)
Article 7
Article 7(1), (2) and (3)
-
Article 7(4)
-
Article 7(5)
-
Article 7(6)
-
Article 8
Article 8
Article 9
Article 9
Article 10
Article 10
Article 13
-
Article 11
-
Article 12
GIVEN under my Official Seal,
28 March 2007
DICK ROCHE
Minister for the Environment, Heritage, and Local Government.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation)
These Regulations transpose EU Directive 2003/4/EC on access to environmental information. They revoke the
European Communities Act, 1972
(Access to Information on the Environment) Regulations, 1998 (S.I. 125 of 1998), which transposed an earlier EU Directive in relation to the same matter.
The Regulations define environmental information and the public authorities from which it may be requested. They also set out the manner in which environmental information is to be sought and provided, and the grounds on which public bodies may decline to provide information in certain circumstances. Provision is made for an appeals mechanism.
The Regulations provide that public authorities may charge a reasonable fee for making environmental information available. The Minister for the Environment, Heritage and Local Government is empowered to publish guidelines to which public authorities must have regard in implementing the Regulations.
1 OJ No. L 41, 14.02.2003, p.26.
1 OJ C 337 E, 28.11.2000, p.156 AND OJ C 240 E, 28.8.2001, p.289.
2 OJ C 116, 20.4.2001, p. 43.
3 OJ C 148, 18.5.2001, p. 9.
4 Opinion of the European Parliament of 14 March 2001 (OJ C 343, 5.12.2001, p. 165), Council Common Position of 28 January 2002 (OJ C 113 E, 14.5.2002, p. 1) and Decision of the European Parliament of 30 May 2002 (not yet published in the Official Journal). Decision of the Council of 16 December 2002 and decision the European Parliament of 18 December 2002.
5 OJ L 158, 23.6.1990, p. 56.
6 OJ L 281, 23.11.1995, p. 31.
3. Without prejudice to any specific reporting obligations laid down by Community legislation, Member States shall take the necessary measures to ensure that national, and, where appropriate, regional or local reports on the state of the environment are published at regular intervals not exceeding four years; such reports shall include information on the quality of, and pressures on, the environment.
4. Without prejudice to any specific obligation laid down by Community legislation, Member States shall take the necessary measures to ensure that, in the event of an imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information held by or for public authorities which could enable the public likely to be affected to take measures to prevent or mitigate harm arising from the threat is disseminated, immediately and without delay.
5. The exceptions in Article 4(1) and (2) may apply in relation to the duties imposed by this Article.
6. Member States may satisfy the requirements of this Article by creating links to Internet sites where the information can be found.
Article 8
Quality of environmental information
7. (1) A public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.
(2) (
a
) A public authority shall make a decision on a request and, where appropriate, make the information available to the applicant as soon as possible and, at the latest, but subject to paragraph (
b
) and sub-article (10), not later than one month from the date on which such request is received by the public authority concerned.
(
b
) Where a public authority is unable, because of the volume or complexity of the environmental information requested, to make a decision within one month from the date on which such request is received, it shall, as soon as possible and at the latest, before the expiry of that month—
(i) give notice in writing to the applicant of the reasons why it is not possible to do so, and
(ii) specify the date, not later than 2 months from the date on which the request was received, by which the response shall be made,
and make a decision on the request and, where appropriate, make the information available to the applicant by the specified date.
(3) (
a
) Where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless—
(i) the information is already available to the public in another form or manner that is easily accessible, or
(ii) access in another form or manner would be reasonable.
(
b
) Where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefor shall be given by the public authority in writing.
(4) Where a decision is made to refuse, in whole or in part, a request for environmental information, the public authority concerned shall—
(
a
) subject to paragraph (
b
), notify the applicant of the decision not later than one month following receipt of the request,
(
b
) in a case to which sub-article (2)(
b
) applies, notify the applicant as soon as possible but not later than 2 months following receipt of the request,
(
c
) specify the reasons for the refusal,
(
d
) inform the applicant of his or her rights of internal review and appeal in accordance with these Regulations, including the time within which such rights may be exercised.
(5) Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.
(6) Where sub-article (5) applies and the public authority concerned is aware that the information requested is held by another public authority, it shall as soon as possible—
(
a
) transfer the request to the other public authority and inform the applicant accordingly, or
(
b
) inform the applicant of the public authority to whom it believes the request should be directed.
(7) Where a request is made to a public authority which could reasonably be regarded as a request for environmental information but which is not a request that has been made in accordance with—
(
a
) article 6(1), or
(
b
) the Freedom of Information Acts 1997 and 2003,
the public authority concerned shall inform the applicant of his or her right of access to environmental information and the procedure by which that right can be exercised, and shall offer assistance to the applicant in this regard.
(8) Where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.
(9) Where, in a request for information on factors affecting or likely to affect the environment, the applicant specifies that he or she requires information on the measurement procedures, including methods of analysis, sampling and pre-treatment of samples, used in compiling that information, the public authority shall, as Article 8(2) of the Directive requires, either make the information available to the applicant or refer the applicant to the standardised procedures.
(10) A public authority shall, in the performance of its functions under this article, have regard to any timescale specified by the applicant.
Grounds that, subject to article 10, mandate a refusal
8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information—
(
a
) would adversely affect—
(i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law,
(ii) the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information,
(iii) the protection of the environment to which that information relates, or
(iv) without prejudice to paragraph (
b
), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts);
or
(
b
) to the extent that it would involve the disclosure of discussions at one or more meetings of the Government, is prohibited by Article 28 of the Constitution.
Discretionary grounds for refusal of information
9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—
(
a
) international relations, national defence or public security,
(
b
) the course of justice (including criminal inquiries and disciplinary inquiries),
(
c
) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest, or
(
d
) intellectual property rights.
(2) A public authority may refuse to make environmental information available where the request—
(
a
) is manifestly unreasonable having regard to the volume or range of information sought,
(
b
) remains formulated in too general a manner, taking into account article 7(8),
(
c
) concerns material in the course of completion, or unfinished documents or data, or
(
d
) concerns internal communications of public authorities, taking into account the public interest served by the disclosure.
Incidental provisions relating to refusal of information
10. (1) Notwithstanding articles 8 and 9 (1)(
c
), a request for environmental information shall not be refused where the request relates to information on emissions into the environment.
(2) The reference in sub-article (1) to information on emissions into the environment does not include a reference to any discussions on the matter of such emissions at any meeting of the Government.
(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.
(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
(5) Nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
(6) Where a request is refused pursuant to article 9(2)(
c
) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
(7) Where a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period.
Internal review of refusal
11. (1) Where the applicant’s request has been refused under article 7, in whole or in part, the applicant may, not later than one month following receipt of the decision of the public authority concerned, request the public authority to review the decision, in whole or in part.
(2) Following receipt of a request for a review under sub-article (1), the public authority concerned shall designate a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker to review the decision and that person shall—
(
a
) affirm, vary or annul the decision, and
(
b
) where appropriate, require the public authority to make available environmental information to the applicant,
in accordance with these Regulations.
(3) A decision under sub-article (2) shall be notified to the applicant within one month from receipt of the request for the internal review.
(4) Where the decision under sub-article (2) affirms a decision under article 7, or varies it in a way that results in the request being refused in whole or in part, the public authority concerned shall—
(
a
) specify the reasons for the decision under sub-article (2), and
(
b
) inform the applicant of his or her right of appeal in accordance with these Regulations, including the time within which such right may be exercised.
(5) In sub-article (1) and article 12(3)(
a
), the reference to a request refused in whole or in part includes a request that—
(
a
) has been refused on the ground that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations,
(
b
) has been inadequately answered, or
(
c
) has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (including the ground that the amount of the fee charged under article 15(1) is excessive).
Appeal to Commissioner for Environmental Information
12. (1) There is established the office of Commissioner for Environmental Information and the holder of the office shall be known as the Commissioner for Environmental Information and shall be independent in the performance of his or her functions.
(2) The holder of the office of Commissioner for Environmental Information shall be the person who, for the time being, holds the office of Information Commissioner under the Freedom of Information Acts 1997 and 2003.
(3) Where—
(
a
) a decision of a public authority has been affirmed, in whole or in part, under article 11, or
(
b
) a person other than the applicant would be affected by the disclosure of the environmental information concerned,
the applicant or other person affected may appeal to the Commissioner against the decision of the public authority concerned.
(4) (
a
) An appeal under this article shall be initiated—
(i) not later than one month after receipt of the decision under article 11(3), or
(ii) where no decision is notified by a public authority, not later than one month from the time when a decision was required to be notified under article 11(3).
(
b
) Where the Commissioner is satisfied, in the circumstances of a particular case, that it is reasonable to do so, he or she may extend the time for initiating an appeal under this sub-article.
(5) Following receipt of an appeal under this article, the Commissioner shall—
(
a
) review the decision of the public authority,
(
b
) affirm, vary or annul the decision concerned, specifying the reasons for his or her decision, and
(
c
) where appropriate, require the public authority to make available environmental information to the applicant,
in accordance with these Regulations.
(6) The Commissioner may, for the purposes of this article, do any of the following
(
a
) require a public authority to make available environmental information to the Commissioner and, where appropriate—
(i) require the public authority concerned to attend before the Commissioner for that purpose, and
(ii) where the public authority is a body corporate, require its chief officer to attend,
(
b
) examine and take copies of any environmental information held by a public authority and retain it in his or her possession for a reasonable period,
(
c
) enter any premises occupied by a public authority and there require to be furnished with such environmental information as he or she may reasonably require, or take such copies of, or extracts from, any environmental information found or made available on the premises.
(7) A public authority shall comply with a decision of the Commissioner under sub-article (5) within 3 weeks after its receipt.
(8) Where a public authority fails to comply with a decision of the Commissioner within the period specified in sub-article (7), the Commissioner may apply to the High Court for an order directing the public authority to comply with that decision and, on the hearing of such an application, the High Court may grant such relief accordingly.
(9) (
a
) The Commissioner may refer any question of law arising in an appeal under this article to the High Court for determination and shall postpone the making of a decision until after the determination of the court proceedings.
(
b
) The High Court or, on appeal from that Court, the Supreme Court, may order that some or all of the costs of an applicant or other person affected in relation to a reference under this sub-article be paid by the public authority concerned.
(10) The Commissioner shall be assisted by the staff of the office of the Information Commissioner and by such other resources as may, from time to time, be available to that office.
Appeal to High Court on point of law
13. (1) A party to an appeal under article 12 or any other person affected by the decision of the Commissioner may appeal to the High Court on a point of law from the decision.
(2) An appeal under sub-article (1) shall be initiated not later than 2 months after notice of the decision under article 12(5) was given to the party to the appeal or other person affected.
(3) Where an appeal under this article by an applicant or other person affected is dismissed by the High Court or, on appeal from that Court, the Supreme Court, the Court may order that some or all of the costs in relation to the appeal of any person affected be paid by the public authority concerned, if it considers that the point of law concerned was of exceptional public importance, and but for this sub-article, would not so order.
(4) In an appeal under this article to the High Court or, on appeal from that Court, the Supreme Court, the Court shall, where appropriate, specify the period within which effect shall be given to its order.
Guidelines
14. (1) The Minister may publish guidelines in relation to the implementation of these Regulations by public authorities.
(2) A public authority shall, in the performance of its functions under these Regulations, have regard to any guidelines published by the Minister under sub-article (1).
Fees
15. (1) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(2) Where a public authority charges a fee pursuant to sub-article (1), it shall make available to the public a list of fees charged, information on how they are calculated and the circumstances under which they may be waived.
(3) Subject to sub-article (4), a fee of €150 shall be charged for making an appeal to the Commissioner under article 12.
(4) In respect of an appeal pursuant to article 12 by—
(
a
) a holder of a medical card,
(
b
) a dependant of a holder of a medical card, or
(
c
) a person referred to in article 12(3)(
b
),
the fee charged shall be €50.
SCHEDULE Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,
Having regard to the proposal from the Commission
1
,
1 OJ C 337 E, 28.11.2000, p.156 AND OJ C 240 E, 28.8.2001, p.289.
Having regard to the opinion of the European Economic and Social Committee
2
,
2 OJ C 116, 20.4.2001, p. 43.
Having regard to the opinion of the Committee of the Regions
3
,
3 OJ C 148, 18.5.2001, p. 9.
Acting in accordance with the procedure laid down in Article 251 of the Treaty
4
in the light of the joint text approved by the Conciliation Committee on 8 November 2002,
4 Opinion of the European Parliament of 14 March 2001 (OJ C 343, 5.12.2001, p. 165), Council Common Position of 28 January 2002 (OJ C 113 E, 14.5.2002, p. 1) and Decision of the European Parliament of 30 May 2002 (not yet published in the Official Journal). Decision of the Council of 16 December 2002 and decision the European Parliament of 18 December 2002.
Whereas
(1) Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.
(2) Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment
5
initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures for the exercise of the right of public access to environmental information which should be developed and continued. This Directive expands the existing access granted under Directive 90/313/EEC.
5 OJ L 158, 23.6.1990, p. 56.
(3) Article 8 of that Directive requires Member States to report to the Commission on the experience gained, in the light of which the Commission is required to make a report to the European Parliament and to the Council together with any proposal for revision of the Directive which it may consider appropriate.
(4) The report produced under Article 8 of that Directive identifies concrete problems encountered in the practical application of the Directive.
(5) On 25 June 1998 the European Community signed the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”). Provisions of Community law must be consistent with that Convention with a view to its conclusion by the European Community.
(6) It is appropriate in the interest of increased transparency to replace Directive 90/313/EEC rather than to amend it, so as to provide interested parties with a single, clear and coherent legislative text.
(7) Disparities between the laws in force in the Member States concerning access to environmental information held by public authorities can create inequality within the Community as regards access to such information or as regards conditions of competition.
(8) It is necessary to ensure that any natural and legal person has a right of access to environmental information held by or for public authorities without his having to state an interest.
(9) It is also necessary that public authorities make available and disseminate environmental information to the general public to the widest extent possible, in particular by using information and communication technologies. The future development of these technologies should be taken into account in the reporting on, and reviewing of, this Directive.
(10) The definition of environmental information should be clarified so as to encompass information in any form on the state of the environment, on factors, measures or activities affecting or likely to affect the environment or designed to protect it, on cost-benefit and economic analyses used within the framework of such measures or activities and also information on the state of human health and safety, including the contamination of the food chain, conditions of human life, cultural sites and built structures in as much as they are, or may be, affected by any of those matters.
(11) To take account of the principle in Article 6 of the Treaty, that environmental protection requirements should be integrated into the definition and implementation of Community policies and activities, the definition of public authorities should be expanded so as to encompass government or other public administration at national, regional or local level whether or not they have specific responsibilities for the environment. The definition should likewise be expanded to include other persons or bodies performing public administrative functions in relation to the environment under national law, as well as other persons or bodies acting under their control and having public responsibilities or functions in relation to the environment.
(12) Environmental information which is physically held by other bodies on behalf of public authorities should also fall within the scope of this Directive.
(13) Environmental information should be made available to applicants as soon as possible and within a reasonable time and having regard to any timescale specified by the applicant.
(14) Public authorities should make environmental information available in the form or format requested by an applicant unless it is already publicly available in another form or format or it is reasonable to make it available in another form or format. In addition, public authorities should be required to make all reasonable efforts to maintain the environmental information held by or for them in forms or formats that are readily reproducible and accessible by electronic means.
(15) Member States should determine the practical arrangements under which such information is effectively made available. These arrangements shall guarantee that the information is effectively and easily accessible and progressively becomes available to the public through public telecommunications networks, including publicly accessible lists of public authorities and registers or lists of environmental information held by or for public authorities.
(16) The right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases. Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.
(17) Public authorities should make environmental information available in part where it is possible to separate out any information falling within the scope of the exceptions from the rest of the information requested.
(18) Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question. Instances where advance payment will be required should be limited. In particular cases, where public authorities make available environmental information on a commercial basis, and where this is necessary in order to guarantee the continuation of collecting and publishing such information, a market-based charge is considered to be reasonable; an advance payment may be required. A schedule of charges should be published and made available to applicants together with information on the circumstances in which a charge may be levied or waived.
(19) Applicants should be able to seek an administrative or judicial review of the acts or omissions of a public authority in relation to a request.
(20) Public authorities should seek to guarantee that when environmental information is compiled by them or on their behalf, the information is comprehensible, accurate and comparable. As this is an important factor in assessing the quality of the information supplied the method used in compiling the information should also be disclosed upon request.
(21) In order to increase public awareness in environmental matters and to improve environmental protection, public authorities should, as appropriate, make available and disseminate information on the environment which is relevant to their functions, in particular by means of computer telecommunication and/or electronic technology, where available.
(22) This Directive should be evaluated every four years, after its entry into force, in the light of experience and after submission of the relevant reports by the Member States, and be subject to revision on that basis. The Commission should submit an evaluation report to the European Parliament and the Council.
(23) Since the objectives of the proposed Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(24) The provisions of this Directive shall not affect the right of a Member State to maintain or introduce measures providing for broader access to information than required by this Directive,
HAVE ADOPTED THIS DIRECTIVE
Article 1
Objectives
The objectives of this Directive are
(
a
) to guarantee the right of access to environmental information held by or for public authorities and to set out the basic terms and conditions of, and practical arrangements for, its exercise; and
(
b
) to ensure that, as a matter of course, environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information. To this end the use, in particular, of computer telecommunication and/or electronic technology, where available, shall be promoted.
Article 2
Definitions
For the purposes of this Directive