Right to public information – limits and its misuse (also in case of environmental matters)

It has been, since the SEVESO directive that principle of public participation and information was enacted. Information needs to be given to the public with respect to environmental projects and also safety measures. Especially big industrial accidents taught us that access to public information is an effective tool, among others, for the industrial operator to take into account not only safety measures, but also day to day management and care to the environment.

Before the access to public information was given to the public, in both – in national and European legislation, people were not aware what is going on behind the fence of certain factory, also, people were not aware of the future projects, even in cases where investor was the public one – the state, not only the private investor. The access to environmental information is also a foundation for public participation in environmental planning, in procedures of adopting environmental legislation, not only ex post, but what is more important, ex ante. It is not only the public that is that way informed about future projects and possible influences to the environment, nature, their health and safety, but this is also an opportunity for state authorities to get back information from the public, their opinions, and that way, to be aware of things that they usually would not know; the decision makers are usually siting in their office, not being part of the area, the society of inhabitants who are living in certain area where future project plans to be constructed.

The principle of public access to information regarding the environment is crucial and nowadays we can hardly imagine how would be life without it; without this kind of rules.

A right to access to environmental information is given also in Slovenian legal order. As said it above, this kind of right was not known to us before we started to adopt EU legislation. During the first years of this possibility to acquire environmental information, we were not really aware of the essence of that right and there was only a small number of request for environmental information. However, during the years we slowly realised how important it is. Especially journalists and NGO’s were in the foreground and main applicant that have demanded, more and more often, the right to access to environmental information.

Since the cost of environmental information are limited and since only the normal production cost of such information can be charged, the payment for such an information was usually not an issue. However, during the years, the demands for public information were bigger and bigger and it happened quite often, that information was required where public authorities needed quite some time to get the documents, or even to produce new documents, statistics, etc.  In certain cases, a demand for public information would be such a burden, that it takes week or even months of work to get it. Now, a right to public information and the access to it, is not about new documents, but it is about existing documents. This (Art. 4 of the Public Information Access Act) is usually forgotten. It defines: “Public information shall be deemed to be information originating from the field of work of the bodies and occurring in the form of a document, a case, a dossier, a register, a record or other documentary material (hereinafter referred to as “the document”) drawn up by the body, by the body in cooperation with other body, or acquired from other persons.”

It is not up to the authority to draw new documents because of request to public information. And such a request can be simply rejected. However, the practice in Slovenia is different. Usually, the journalists will be the one who will be pressing to the authorities certain information that they would like to have and not only the document that is existing. And since, usually, if they do not receive such an information, the authority will be presented in the media as unwilling to help with the information. The authorities therefore usually produce additional documents and statistics for them. But this, as said it above, request some additional time, working power, costs. These costs can be charged. I think that this is the main reason why Slovenian Access to Public Information Act was changed and article was added which empowers authorities to charge for all costs associated with the access to public information. Article 34a reads:

Article 34a

(Price and other requirements for re-use of information)

(1) The body may charge for the re-use of information for commercial purposes, except in case of re-use for the purpose of providing information, ensuring the freedom of expression, culture and art and media’s re-use of information.

(2) The price may not exceed the costs of collecting, producing, reproducing, and disseminating, together with a reasonable return on investment. The price must be adjusted for cost-effectiveness, set within a common accounting period and consistent with applicable accounting principles of the body concerned. The cost calculation method for the price is itself public information, and the body must in accordance with this Act, transmit it to every applicant which so requests.

(3) The body does not charge for the re-use of information if it transmits the same information to the internet free of charge.

Is this good or bad? Although, I am great supporter of free access to public information, especially information regarding to the environmental measures or environmental plans, I still believe that it was the increased demand on the information that do not exist in the document but that needs to be newly performed and gathered, the main reason to regulate additional charging. Based on that, I am not really sure, that critics, which are headed towards such a provision, are always justified. One have to have in mind that information that is already there, in a document, can still be free of charge, or accessible for minimum payment. But information that still needs to be gathered, additionally prepared, this is not information, that would be, at first place, subject of a free accession. Once we understand a difference, it will be easier to cope with such provision. There is however, another danger; namely, that even information already contained in the documents, will be charged for any single costs associated with it. That is the catch 22 one shall fight against.

Categorised in: Blog

This post was written by Rajko Knez