Posts Tagged Access to information

Information law: when something is “on” an environmental measure

Aarhus, Access to Environmental Information Directive. Review of Henney [2017] EWCA Civ 844 .

 

UK Human Rights Blog

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

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On ‘reasonable amounts’, Aarhus, and the price of environmental information. Sharpston AG in East Sussex County Council.

In East Sussex County Council Case C-71/14, the question under consideration is the application of Directive 2003/4 ‘s reasonableness test. Article 5 of the Directive provides that in situ access to information to for example public registers has to be free of charge. Further, that charges for supplying any environmental information must be ‘reasonable’.

In particular, how ‘objective’ must a reasonable cost be, seen against the light of English statutory law which allows local authorities to specify access (and other) fees providing that the amount ‘shall not exceed an amount which the public authority is satisfied is a reasonable amount’. Application in that case is made by a property search group with a view to commercial conveyancing. Sharpston AG on 16 April 2015 opined that even for commercial applicants, authorities’ hands are quite tied. In particular,

  • that Article 5(2) of Directive 2003/4 does not authorise a public authority to recover, through a charge for supplying information, all or part of the costs of establishing and maintaining a database in which it has organised the environmental information it holds and which it uses to answer requests for information of the type listed in a questionnaire such as that at issue in the main proceedings.
  • that a charge which does not exceed a reasonable amount within the meaning of Article 5(2) of Directive 2003/4 is a charge which: (i) is set on the basis of objective factors that are known and capable of review by a third party; (ii) is calculated regardless of who is asking for the information and for what purpose; (iii) is set at a level that guarantees the objectives of the right of access to environmental information upon request and thus does not dissuade people from seeking access or restrict their right of access; and (iv) is no greater than an amount that is appropriate to the reason why Member States are allowed to make this charge (that is, that a member of the public has made a request for the supply of environmental information) and directly correlated to the act of supplying that information; that
  • In particular, a charge of a ‘reasonable amount’ under Article 5(2) of Directive 2003/4 is to be based on the costs actually incurred in connection with the act of supplying environmental information in response to a specific request. That will include the costs of staff time spent on searching for and producing the information requested and the cost of producing it in the form requested (which may vary). However, it is not permissible for such a charge also to seek to recover overheads such as heating, lighting or internal services. And that
  • Article 5(2) of Directive 2003/4 requires public authorities to ensure that their charges do not exceed a reasonable amount, judged by the yardstick of what a ‘reasonable amount’ means objectively under EU law. That does not, as such, preclude a rule of national law according to which a public authority must satisfy itself that a charge levied meets that standard, however, Member State to ensure that there is (first) administrative and (then) judicial review of whether a public authority’s decision on what constitutes a reasonable charge is in conformity with the autonomous EU law meaning of what is ‘reasonable’ under Article 5(2) of Directive 2003/4.

In other words: the current wording in the relevant English statute, in the view of the AG, does not infringe the Directive. (It does in my view at least however add a layer of complication: for the authority’s subjective finding of reasonableness subsequently has to be checked, in two tiers of appeal (administrative cq judicial), against the Directive’s objective standard).

Aarhus is considered throughout the appeal and hence Charles Banner’s book on the Aarhus Convention, just out with Hart, a timely publication I would think.

Geert.

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RERA: a weee chance of US Basel ratification?

Many thanks to Gideon Kracov for pointing this out to me: the proposed Responsible Electronics Recycling Act (a private member’s Bill) would install an EU-type regime on the export of electric and electronic waste outside of the US. The US have signed but not  ratified the Basel Convention : RERA would amount to implementation of the Convention in practice. The Bill also recognises the relevance of recovering the many rare earth materials contained in WEEE.

Here’s the blurb (the official summary of the Bill, in fact):

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Introduced in House (07/23/2013)

Responsible Electronics Recycling Act – Amends the Solid Waste Disposal Act to: (1) prohibit the export of restricted electronic waste to countries that are not members of the Organization for Economic Cooperation and Development (OECD) or the European Union (EU), or Liechtenstein; (2) require the Administrator of the Environmental Protection Agency (EPA) to develop and promulgate procedures for identifying certain electronic equipment as well as additional restricted toxic materials contained in such equipment which poses a potential hazard to human health or the environment; and (3) establish criminal penalties for knowingly exporting restricted electronic waste in violation of this Act. Allows certain exceptions to such export ban.

Defines “restricted electronic waste” to include electronic equipment (excluding parts of a motor vehicle), such as computers, televisions, printers, copiers, video game systems, telephones, and similar used electronic products, that contain cathode ray tubes, batteries, switches, and other parts containing lead, cadmium, mercury, organic solvents, hexavalent chromium, beryllium, or other toxic ingredients.

Requires persons who handle restricted electronic wastes to permit appropriate EPA and state officials access to such wastes upon request.

Directs the Secretary of Energy to establish a competitive research application program to provide grants for research in the recovering and recycling of critical minerals and rare earth elements found in electronic devices.

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‘Public administrative functions’ – CRUZ VILLALÓN AG gives an EU definition in Fish Legal and jumpstarts European administrative law

Postscript the ECJ held in December 2013. The referring court held on substance in February 2015 (the water companies are public authorities because they have ‘special powers’).

Postscript 12 November 2015 see for similarish cosniderations under Human Rights law (rejection of Facebook as a hybrid public authority)Richardson v Facebook.

In Case C-279/12 Fish Legal, CRUZ VILLALÓN AG opined on 5 September last.

The case concerns private companies which manage a public service relating to the environment (water and sewage services) and the dispute centres on whether, in the circumstances of the case, the management of that service is of such a nature that, even though the companies concerned are private, they have to be regarded as ‘public authorities’ for the purposes of Directive 2003/4 and, in consequence, must comply with the request for information addressed to them by two private individuals.

In England and Wales, water and sewerage services may be provided only by companies which have been appointed by the Secretary of State or (now) by OFWAT (the economic regulator of the water industry in England and Wales) as water supply and/or sewerage undertaker for a particular area of England or Wales. Only a limited company may be appointed as a water or sewerage undertaker (Section 6(5)). The companies are run by boards of directors, accountable to the shareholders. The companies are run in accordance with normal commercial principles, as set out in their memoranda and articles of association, with the aim of generating profits for distribution to shareholders as dividends and for reinvestment in the business. The companies are subject to the rules binding upon all other public limited companies or limited companies. They receive no public subsidy. Neither borrowing nor investment decisions are directly dictated by government or any other public body. Nor is any borrowing by the companies backed by the State. Accordingly, each company’s funds are generated by charges to customers, the sale of shares and other rights issues, borrowing through the capital markets at normal commercial rates, and other commercial activities such as the sale of land and other assets.

In the case before the referring tribunal, access was sought by a non-profit-making organisation and by a natural person to information held by companies which the national authority did not regard as ‘public authorities’ for the purposes of Directive 2003/4.

Article 2(2) of directive 2003/4 reads

2. “Public authority” shall mean:

(a) government or other public administration, including public advisory bodies, at national, regional or local level;

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).

Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity. If their constitutional provisions at the date of adoption of this Directive make no provision for a review procedure within the meaning of Article 6, Member States may exclude those bodies or institutions from that definition.’

That EU law generally requires autonomous interpretations is not in doubt; within the specific context of access to information, the ECJ had already also confirmed that in Flachglas Torgau.  

As an aside, of note here is the AG’s view that ‘Admittedly, the concept in question is not relevant solely in the context of EU law; on the contrary, it comes within the ambit of an international convention – the Aarhus Convention – which is binding on the European Union and in the light of which Directive 2003/4 must be construed. Obviously, that directive is not decisive when it comes to the interpretation of the Aarhus Convention but it is decisive for the purposes of ensuring that the European Union meets its obligations in relation to that convention, since it can only do justice to them if it is able to ensure that, in the context of the European Union, the concept of ‘[n]atural or legal persons performing public administrative functions under national law’, as used in Article 2(2)(b) of the Aarhus Convention, is uniformly construed in all the Member States.’ I am not sure I agree but I am not an external relations expert and perhaps the extract just needed slightly more precise language: the Aarhus convention is a ‘mixed agreement’: both the EU and its Member States are a Party to it, for their respective spheres of competence. Does the EU have a calling (duty or even right to meddle) in the application of the Convention in the Member States?

Coming back to the issue under consideration: despite the need for autonomous interpretation, the specific EU provision under consideration itself refers to national law: Article 2(2)(b): ‘any natural or legal person performing public administrative functions under national law, (emphasis added). The AG suggests that this provision should be read purely in a factual sense: EU law cannot determine which persons or institutions actually perform those functions in each Member State, that is for the Member State to decide. However it is for EU law alone, to establish what those functions are and in what they consist. Put differently, ‘since certain functions are defined under EU law as ‘public administrative functions’, it will then be necessary to determine, in accordance with national law, which bodies – in addition to the public authorities in the strict sense – may perform such functions and are therefore covered by Article 2(2)(b) of Directive 2003/4.’ (emphasis in the original)

The AG then defines ‘‘public administrative functions’, within the context of the provision, as ‘functions by virtue of which individuals have imposed on them a will the immediate effectiveness of which, albeit subject to review, does not require their consent.‘ The AG suggests that ‘Article 2(2)(b) refers to individuals who, by virtue of a formal, express delegation of authority, exercise with some degree of autonomy certain official powers, whereas Article 2(2)(c) encompasses individuals who, without substantive autonomy, are instruments of the State for the purposes of the latter’s actions in the sphere of private relationships as a mere individual. Accordingly, both cases involve the State, either because an individual exercises public authority which is the monopoly of the State or because an individual allows the State (directly or via an intermediary) to act through him as an individual governed by private law.’ (at 103)

Finally the AG reviews how far the duty of information (and transparency) goes, and distinguishes two possible situations (at 117 ff – footnotes omitted)):

‘ (i) the situation of bodies or persons whose activities are limited to the management of a service under conditions which mean that they must be regarded as public authorities for the purposes of Directive 2003/4; and (ii) the situation of bodies or persons who, in addition to managing a service under such conditions, also perform other, completely unconnected, activities, an example being bodies or persons who also manage a service relating to the environment in another territory but under free competition conditions and without it being possible to classify them as ‘public authorities’ for the purposes of Directive 2003/4.

As far as the persons or bodies in situation (i) are concerned, the question is answered by Directive 2003/4 itself, Article 3(1) of which provides that ‘Member States shall ensure that public authorities are required, in accordance with the provisions of this Directive, to make available environmental information held by or for them to any applicant …’  In short, Directive 2003/4 imposes on the State – both the State stricto sensu and a ‘public authority’ in the broader sense of Article 2(2)(b) of Directive 2003/4 – the obligation to permit access to environmental information held by it, regardless of the capacity in which it obtained that information: in other words, both where that information is the result of exercising its imperium and where it is the result of its activities as a body governed by private law.

As far as the persons or bodies in situation (ii) are concerned, it is my view that they do not warrant the same treatment. They may be regarded as public authorities only to the extent that they perform activities relating to the environment in circumstances which may be classified as ‘control’ within the meaning of Article 2(2)(c) of Directive 2003/4; in other words, in so far as they act ‘under the control’ of the public authorities. Aside from that, they are merely individuals and, as such, are not subject to the requirement laid down in Article 3(1) of the directive.

I accept that, as the parties have observed, the foregoing may, in certain circumstances, give rise to a ‘hybrid’ situation which is difficult to handle in practice. In so far as that is the case, it is my opinion that, in the light of the spirit of Directive 2003/4 and its objective of promoting access to information held by the public authorities in the broadest sense of the term, situations of uncertainty should always be resolved in favour of the person requesting information.’

For EU law, the Court’s judgment will be of tremendous importance. ‘Public authorities’ is a concept which is used extensively in EU law. While formally opined vis-a-vis the environmental information Directive, it is clear that the analysis of the AG may be of general use for EU law and consequently will have an impact on the ever-increasing trend of privitisation and outsourcing of public functions.

Geert.

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Limits to calling upon intellectual property to justify non-disclosure of environmental information – The ECJ in Greenpeace and PAN Europe v Commission (glyphosate)

The ECJ yesterday morning held in an important case with respect to the EU’s transparency regime.

Regulation 1049/2001 constitutes the general regime on access to documents held by EU Institutions. Regulation 1367/2006 implements the Aarhus Convention as far as the EU Institutions are concerned. Directive 91/414 is the plant protection Directive. Under the plant protection Directive, Germany had been the Member State with responsibility to report on the acceptability of approving glyphosate. Greenpeace and Pesticide Action Network Europe had requested access to

–        a copy of the draft assessment report issued by Germany, prior to the first inclusion of glyphosate in Annex I to Directive 91/414;

–        a complete list of all tests submitted by the operators seeking the inclusion of glyphosate in Annex I;

–        the full, complete and original test documents supplied by the operators seeking the inclusion of glyphosate in Annex I, in so far as concerns all long-term toxicity tests, all mutagenicity tests, carcinogenicity tests, neurotoxicity tests and all reproduction studies.

The Commission, upon assist by Germany, granted access to the draft report, with the exception of volume 4 thereof, which the German authorities refused to disclose and which includes the complete list of all tests submitted by the operators seeking the first inclusion of glyphosate in Annex I. Germany was of the opinion that the document at issue contained confidential information relating to the intellectual property rights of the operators which had sought the inclusion of glyphosate in Annex I to Directive 91/414, namely the detailed chemical composition of the active substance produced by each of them, detailed information concerning the process by which each of them produced the substance, information on the impurities, the composition of the finished products and the contractual relations between the various operators which had sought the inclusion of glyphosate.

The ECJ noted the important impact of 1367/2006 on the working of the basic Regulation, Regulation 1049/2001: the first sentence of Article 6(1) of Regulation No 1367/2006 lays down a legal presumption that an overriding public interest in disclosure (relevant for the application of exceptions written into Regulation 1049/2001) exists where the information requested relates to emissions into the environment, except where that information concerns an investigation, in particular one concerning possible infringements of EU law. The Court held that accordingly,  the first sentence of Article 6(1) of Regulation No 1367/2006 requires that if the institution concerned receives an application for access to a document, it must disclose it where the information requested relates to emissions into the environment, even if such disclosure is liable to undermine the protection of the commercial interests of a particular natural or legal person, including that person’s intellectual property, within the meaning of Article 4(2), first indent, of Regulation No 1049/2001. (at 38) The Court rejected any attempt by the EC to soften the impact of Article 6(1) of Regulation 1367/2006: ‘in claris non fit interpretatio’, the provision has to be read on its prima facie meaning. Any other application ‘would amount to disapplying a clear and unconditional provision of a European Union regulation, which is not even claimed to be contrary to a superior rule of law.‘ (at 44 in fine)

The Court subsequently at length considered the meaning of ‘environmental information’ and gave this a wide interpretation.

The case is a good illustration of the complex web of transparency requirements and the consistent approach of the ECJ in favour of disclosure.

Geert.

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