REGRESSIONS IN THE RIGHT OF ACCESS TO ENVIRONMENTAL INFORMATION, ARTICLES 6 AND 7 OF THE REGIONAL AGREEMENT
Written by George Grant on October 10, 2017
Civil society is extremely disappointed with the regressive nature of the access to information provisions in a region which has some of the strongest right to information legislation in the world. The regional agreement is a backward move in that it fails to meet the standards outlined in the Inter-American Regional model law on access to information and provides no categories or types of environmental information which can be definitively deemed as public information across the region.
The failure to include an exception regime unbalances the agreement as it provides no substantive guidance on a regional standard for the release of environmental information under reactive regimes. It also fails to provide innovative and progressive mandatory proactive disclosure regime to improve access to critical information including information on emissions, EIA, permits etc.
The main regressions we see in articles 6 and 7 are:
 There is no regional standard for an exceptions regime
 There is no category of environmental information whose access can never be denied by the states
 There is no general duty of states to provide assistance to persons making a request for access to environmental information
 There is not a mandatory list of information to be included in environmental information systems
 There is regression in the provision of access to public documents that impact the environment
There is no regional standard for exceptions
The text adopted in article 6 on access to information, while enshrining the principle of maximum disclosure in paragraph 1, restricts its application by not establishing a clear, limited and standardized system of exceptions for the whole region and instead allows each country to apply its own general domestic regime of exceptions, however restrictive when denying access to information. The exemption regime is critical to the operation of an effective and transparent system of access to environmental information. To create a regional agreement the Parties needed to create a list of information that would be exempt.
The provision is also incongruous. It indicates that Parties may apply the exceptions. In no country a party applies exceptions, it should be a public authority that applies exceptions. A clear regime of exceptions would also provide clear guidance to the signatory countries who currently do not have access to information legislation such as St. Kitts and Nevis, Dominica, Grenada and St. Lucia. The list of exemptions that exists does not meet with the standard for the model law in the region and there was no response or substantive discussion with these countries on these provisions.
Finally, the text only encourages each Party to adopt an exception regime that favours the disclosure of information. It does not require this.
- The text also does not establish any category of environmental information whose access can never be denied by the states.
In the sixth version of the compiled text, Article 6.7 stated that information concerning factors that negatively affect the environment and human health and safety would not be considered as being exempt from disclosure. This article, which was deleted by the states in the negotiation in Argentina, provided for information of fundamental importance to the protection of the right to health and a healthy environment was always brought to the attention of the citizens. Similar articles are included in other instruments of international law such as the Aarhus Convention, which states that information on emissions of pollutants to the environment should always be delivered, and the Inter-American model law on access to information, which states that in no case access to information may be denied in cases of serious violations of human rights or crimes against humanity.
Art 6.6 now contains a vague and unprecedented obligation to ‘take into account’ human rights obligations when applying the exceptions regime. There is no meaningful standard in this article as countries are already obligated to apply the human rights instruments they are parties to. It is unclear how this is expected to operate in this context as it is not expressed as an exemption to the exceptions regime and it does not form part of the public interest test. This will undoubtedly create problems in implementation as it is a binding obligation which is difficult to interpret and apply. This has ramifications both for the public and public authorities as public authorities will have difficulty establishing they have complied with this requirement and the public will have difficulty understanding the scope of this requirement in the first place.
- The general duty of states to provide assistance to persons making a request for access to environmental information was excluded
Article 6.2. stated certain rights that states must guarantee to the people when a request for environmental information is made such as: make a request without mentioning any special interest or explain the reasons for the request, be informed promptly if the authority has the information requested, and be informed of their right to appeal if the information is not given, however, this article did not include the general duty of states to offer assistance to individuals when making a request. The duty to assist is important to ensure that petitioners receive information in a timely manner. When authorities help petitioners clarify their requests for information they can reduce time spent searching for information. This duty is found on The OAS Inter-American Model Law on Access to Public Information states, s. 25(2) and access to information legislation in Jamaica and Trinidad and Tobago among others. Although Article 5(3) refers to assistance to be provided to the public when exercising access rights, the language used in that article is “shall endeavor” and is therefore non-binding.
There is not a mandatory list of information for environmental information systems which must be proactively disclosed.
The failure to provide a regional exception regime is made worse by the refusal of Parties to agree on a minimum set of information which must be proactively released to the public as a regional standard. This will undermine the ability of the public to be able to get access to key environmental information which currently is not available in many countries including permits, EIAs, contracts, monitoring reports, enforcement information. The access to environmental information proactive provisions in the regional agreement do not then substantially take the region forward requiring progressive improvement at the national level. States committed in article 7.3 to have environmental information systems but failed to agree on a mandatory list of information that should be included in environmental information systems, and simply included a list that established certain voluntary guidelines.
There is regression in the provision of access to public documents that impact the environment
The regional instrument should address the provision of access to documents and information in relation to the use and exploitation of natural resources. The new Article 7.9 states that: “Each Party shall promote access to environmental information contained in concessions, contracts, agreements or authorizations granted involving the use of public goods, services or resources, in accordance with national legislation.” This article is problematic because it circumvents the standards of many countries whose legislation already enshrines that documents such as concessions and public contracts will be public, and instead provides that the parties will promote access to environmental information in such documents, but not to the whole documents as such. There is much information in these documents that despite not being strictly environmental impacts the environment, and should be public knowledge.