Numerous suggestions to improve the interim access to information policy at the United Nations Environment Programme UNEP) were proposed during a public hearing held May 26 in Nairobi, Kenya.
Most of the commentators urged that the interim policy, now in effect on a trial basis, be made less restrictive.
Among other things, UNEP was urged to shorten its time frame for responding to requests, narrow the exceptions to disclosure and create an independent appeals process.
The European Union delegate was particularly critical of the interim policy, as were representatives from the World Resources Institute (WRI) and Article 19.
“As currently drafted,” the EU Aarhus Convention Secretariat said in written comments, “the Policy in many instances reads more like a policy on ?confidentiality than a policy on disclosure.” In its detailed comments, the Secretariat also observed that “the exceptions are not narrowly worded.”
The May 26 discussion held at UNEP headquarters in Kenya was held in two segments, both taped (the first here, which seemed to lack sound May 27, and second here.)
The original goal was to formalize the policy by June, but that is not expected to happen.
A UNEP official said the agency will summarize the comments and respond to them. The public comment will be reopened briefly. The UNEP, however, has yet to commit to suggestions from the EU, US and the nongovernmental institutions that it issue a revised policy for further public comment.
The UNEP was advised to make a variety of changes to the policy. The written comments submitted follow the interim policy on the UNEP website.
Speakers said that the period for acknowledging requests, now 10 working days, and responding to requests, now 60 working days, should be cut in half, several critics of the policy said. Also, fewer cost should be imposed on requesters, they said.
The agency was urged to create a panel of outside experts to decide on appeals, instead of the current internal panel, with the ultimate authority being the UNEP Secretary General.
Exceptions Called Too Broad
The exceptions section was particularly criticized.
The Canadian government wrote, “We suggest the list of exceptions be spelled out more clearly and be presented in a more simplified manner. The way the text is currently written, it appears that the Policy focuses primarily on exceptions.” Norway stated, “As it stands, the policy gives the impression that there are more exceptions than access to information, which does not truly reflect ?the spirit of openness of such a Policy.”
The European Union wrote similarly, “In particular regarding environmental information, as a? general rule, the UNEP policy should provide for broad access and then set out clearly ?defined and restricted exceptions…. The current policy unfortunately does not? follow this approach…. ?It ?focusses almost exclusively on exceptions which are not always clearly defined.”
The WRI written comment states:
Exceptions
Virtually all access to information policies include exemptions, recognizing that some ?information may cause serious harm if released—such as information that could? prejudice or jeopardize national security. But these “grounds of refusal” are?typically narrowly defined, only applying to very specific types of?information. A serious problem with UNEP’s Policy is it’s vastly overbroad regime of? exceptions. UNEP’s new policy includes very broad provisions that allow it to deny information requests, ?essentially defeating the purpose of the policy. At the moment, most exceptions are vague and ?general. One important example is clause 15:
“UNEP does not provide access to any documents,? memoranda, or other communications which are exchanged with Member States, with?other organizations and agencies, where these relate to the exchange of ideas between these groups, or to the deliberative or decision-making process of?UNEP, its Member States, or other organizations, agencies or entities.”
This language is so broad basic communications which would cause no harm to UNEP’s internal? deliberations—such as the planning of a conference—could be exempted for they? all contain an “exchange of ideas” (for example a proposed agenda is an? exchange of ideas!).
The Policy grants third parties a veto over the disclosure not only of information?provided by them but also provided to them with an expectation of? confidentiality, so that any document UNEP shares which is marked confidential ?could be covered by the exceptions. Terms like “other non-public information”?are also utilised which broadens significantly the type of information that can ?be classified under an exemption with no reference to what information this?includes.
The standard for utilising an exemption is also very low. The policy states the “UNEP does not provide access to information whose disclosure could cause harm to specific parties or? interests. Accordingly, UNEP does not provide access to documents that contain ?or refer to the information listed in paragraphs 9-15.” Indeed in many model? laws on Access to information harm tests include a reference to “serious harm”.? Including one standard harm test for all exemptions does not align with best ?practice.
Filed under: IFTI Watch