access to environmental information held by the private sector

Juliana Zuluaga Madrid
Why is it important?
• The quality of the environmental information is
key for effective public participation
• Effective public participation feeds into better
decisions and legitimize state action
• Environmental information and participation
make possible the right to a healthy environment
for people
• Private companies are likely to engage in
activities with high environmental impact and
affect third parties’ interests.
Access to Environmental Information
(Aarhus Convention)
Passive Access: Disclosure upon request. No need
to state an interest. Exceptions apply.
Active Access: Recollection and dissemination of
information by authorities. i.e. Pollutant Release
and Transfer Registers (Kiev Protocol)
What Environmental Information?
(a) The state of elements of the environment (…) and
the interaction among these elements;
(b) Factors, such as substances, energy, noise and radiation, and
activities or measures, including administrative measures,
environmental agreements, policies, legislation, plans and
programmes, affecting or likely to affect the elements of the
environment (…) and cost-benefit and other economic analyses and
assumptions used in environmental decision-making;
(c) The state of human health and safety, conditions of human life,
cultural sites and built structures, inasmuch as they are or may be
affected by the state of the elements of the environment or, through
these elements, by the factors, activities or measures referred to in
subparagraph (b) above;
‘Public Authorities’
(a) Government at national, regional and other level;
(b) Natural or legal persons performing public
administrative functions under national law, including
specific duties, activities or services in relation to the
(c) Any other natural or legal persons having public
responsibilities or functions, or providing public
services, in relation to the environment, under the
control of a body or person falling within
subparagraphs (a) or (b) above;
How is private environmental
information being accessed?
• Active Access Mechanisms: Information submitted
by private industries on pollution and emissions
becomes “public” by the active disseminating actions
of public authorities.
• Passive Access Mechanisms:
▫ Under Aarhus provisions, when the private entity
performs public functions or provides public services
(utilities), directly from the private entity holding the
▫ Under general transparency regulations, when the
information is held by public authorities (indirectly)
▫ Voluntary-based initiatives
• Commercially sensitive information
• Intellectual Property Rights
• Property of the information
i.e. Data and information from companies and
bodies that are involved in biotechnology,
nanotechnology and the chemicals industry for
example will many a times be deemed confidential or
protected by intellectual property and without this it
can become difficult to ascertain the full impact of a
Why shift the approach towards wider
• Effective Public Participation
• Transparency and publicity of the public
• Protection of the environment – to balance
sustainable development aims
• Protection of the human right to a healthy
• The role of private corporations in
environmental governance
Raising Questions
• Are the exceptions for disclosure of privately
held environmental information hindering the
exercise of environmental rights?
• Where is the threshold to determine when
information must be disclosed despite the
private interests that may be affected?
• How should we approach the issue from a
regulatory perspective?
• Is there a need for new legislation?