Environmental activists say they are pleased with the preliminary document of the regional agreement for Latin America and the Caribbean on the rights of access to information, participation and justice in environmental matters.
Negotiations in May will continue work on the agreement which would be the first regional convention on such rights in the developing world.
One commentator described the first draft document (English and Spanish) as “pretty good,” calling it “in some ways better” than the overarching European accord on the topic, the Aarhus Convention. Another called the draft “a possible game changer!!”
The document is the result of an extensive process including consultations, with inputs available here.
The first meeting of the negotiating committee will take place from May 5-7 at ECLAC headquarters in Santiago, Chile.
Partial Text
This is the text of one section, minus footnotes. Article 7 deals with generation and dissemination of information and other articles deal with participation, access to justice, and other topics.
Article 6
Access to environmental information
1. The Parties shall guarantee that all environmental information in possession of, under the control of, or in the custody of competent authorities is public and presumed to be relevant, regardless of format, medium, support, date of creation, origin, classification or processing, except as established in the present Agreement.
2. For effective exercise of the right of access to environmental information, the Parties shall guarantee the following for any person requesting environmental information from competent authorities:
(a) to freely request information without demonstrating or even mentioning a special interest or explaining why the information is being requested;
(b) to be informed promptly whether the documents that contain the requested information or from which such information can be derived are in the possession or not of the entity, authority or organization receiving the request; and
(c) to be informed of the right to appeal if information and requirements are not delivered.
The requests for environmental information should be understood in the broadest possible terms, such that the response includes all other information that can be presumed to be part of the request even if not expressly requested, such as background information, supplemental annexes, clarifications or contextual statements that contribute to a full understanding of the requested information.
- Each Party shall create an environmental information system and keep it up to date, to include, inter alia:
(a) the texts of international treaties and agreements, as well as laws, regulations and administrative acts on or relating to the environment;
(b) reports on the state of the environment, referred to in article 7.5;
(c) the list of public authorities that have information with environmental content and that should be publicly accessible;
(d) reports on environmental liabilities;
(e) information on the use, conservation and exploitation of natural resources;
(f) systematized and updated information on administrative environmental impact assessment files; and
(g) information on hazardous materials, substances and activities.
The Parties shall guarantee that environmental information systems are duly organized, updated, accessible to all persons and available electronically.
The Conference of the Parties/secretariat may promote the creation and development of standards in relation to environmental information systems. The Conference of the Parties/ secretariat may also suggest measures to facilitate the best use of resources.
- The Parties shall endeavour to facilitate access to information for disadvantaged individuals and/or groups, making alterations — as their specific challenges require— for the presentation of requests, processing and delivery of information, for the purpose of promoting access and participation under equal conditions. Each Party shall guarantee that members of indigenous peoples have the right to receive assistance for preparing their requests in the official language and to receive a prompt response.
Exceptions regime
5. In the event that the requested information or part thereof is not delivered to the petitioner because it falls under the exceptions regime, the competent authority shall duly justify its refusal and give the petitioner:
(a) a reasonable estimate of the volume of material that is considered confidential;
(b) a specific description of the provisions invoked to withhold it; and
(c) information on the petitioner’s right to file an appeal and proceedings.
6. The only circumstances which can be invoked to refuse total or partial access to environmental information are the following:
(a) when its disclosure, communication or knowledge would affect the rights of individuals, especially as related to their safety, health or private life;
(b) when its disclosure, communication or knowledge would affect national security or interests, particularly with respect to national defence, public order, public health or international relations;
(c) when its disclosure, communication or knowledge would affect protection of the environment; and
(d) when the requested information is classified as secret or confidential by laws in force and their respective regulations.
- The aforementioned reasons for refusal shall be legally established in advance, clearly defined and regulated taking into account the public interest and thus interpreted restrictively. The burden of proof will lie with the competent authority.
- For the purposes of the present Agreement, information on human and environmental health and safety shall not be considered confidential.
- Severability/partial disclosure: When not all information contained in a document is exempt from disclosure under the exceptions set out in article 6.6, a public version may be created that redacts only the indispensable part. The non-exempt information shall be provided to the petitioner and made public. To the extent practicable, the Parties shall ensure that the public knows the nature of the information excluded, including through non-confidential indexes or summaries.
- The Parties shall encourage the establishment of tests of public interest, instances for mediation or other mechanisms in order to weigh the interest of withholding information against the interest of disclosing it.
Conditions applicable to the delivery of environmental information
- The Parties shall guarantee that requested information is provided in the format specified by the petitioner at any time in the event that it is available, whether by physical or electronic means.
- All competent authorities shall respond to requests for environmental information as quickly as possible and avoid any type of delaying formalities. The maximum period for responding to an information request shall be thirty business days from the date of receipt of the request.
- Inasmuch as a request requires a search or review of a large number of documents, a search in offices that are physically separate from the office receiving the request or consultations with other obligated entities prior to taking a decision on disclosure, the competent authority handling the request may extend the deadline for responding to the request by up to twenty additional business days.
- In the event that the competent authority cannot complete the response process in thirty business days, or within fifty business days if under the conditions set out in paragraph 13 of this article, the lack of response from the competent authority shall be understood as a refusal of the request.
- The competent authority to which the request is made shall respond by either granting access to the information or issuing a reasoned refusal.
- In the event that the entity to which the request for information is made is not competent to handle the request or does not possess the requested documents, it shall immediately forward the request to the competent authority or the authority that possesses the documents, to the extent that the latter can be identified, and so notify the petitioner. If the competent authority cannot be identified or if the requested information is in the possession of multiple entities, the entity to which the request is made shall notify said circumstances to the petitioner.
- When the information does not exist, the petitioner shall be so notified.
- The Parties shall guarantee that access to environmental information is free and that no fees are charged other than the cost of reproducing the information and, as applicable, the cost of delivery, if required. No fee may be may be charged for information delivered electronically.
Independent review mechanisms
- The Parties shall have an autonomous, independent and impartial entity or institution topromote transparency in access to environmental information, oversee compliance with rules and guarantee the right of access to information. This entity may have sanctioning powers.
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