Common use of Access to environmental information Clause in Contracts

Access to environmental information. The Escazú Agreement sets a regional standard for access to environmental information for Latin American and Caribbean countries with procedural measures for the implementation of this right. Access to environmental information, the first “pillar” of access rights, requires competent authorities to disclose information in their possession, control and custody on request and to proactively publish certain types of environmental information. The substantive provisions related to access to information are found in articles 5 and 6. The terms “environmental information” and “competent authority” are defined in article 2, indicating the scope and types of information that may be requested in article 5, certain types of information that should be proactively disclosed in article 6 and the entities that have a duty to disclose information requested by the public. Access to environmental information is interconnected with the other access rights as it enables public participation in environmental decision-making and access to justice. People who are well-informed are able to engage meaningfully in environmental processes and to become knowledgeable about their rights and how to claim them. The disclosure of environmental information may also help people to enforce and protect other rights, including the right to a healthy environment, by creating a greater understanding of their rights and measures to obtain redress. The right of access to information stems from the principle that the public has a right to know how the governments they elect exercise power and spend public funds. Through access to information, the public is able to scrutinize the actions of the State and challenge mismanagement and corruption by increasing transparency and holding public authorities to account. As with all the provisions in the Escazú Agreement, the standard for access to information outlined in these provisions is a floor and not a ceiling and States may choose to include higher standards. A. Article 5 – Access to environmental information This section provides an explanation of article 5, which sets out the provisions concerning the aspect of access to information referred to as “passive transparency”, whereby information is provided at the request of a member of the public. This obligation is explained and guidance is provided for how parties should implement this article. Table III.1 provides an overview of the main obligations contained in article 5 and practical guidance for its implementation. Paragraph 1 Ensure the public’s right - Applies to environmental information in the of access to environmental possession, control or custody of a party information - Must comply with the principle of maximum disclosure Paragraph 2 Uphold content of the right - Right to request and receive information from of access to environmental the competent authorities information - No interest or reason for the request need be stated - Inform promptly whether the information is in possession of the competent authority - Inform of the right to appeal and the requirement for appeal if the information is not delivered Paragraph 3 Facilitate access to environmental - States are required to establish procedures for information for persons or groups assistance to persons and groups in vulnerable in vulnerable situations situations - Assistance must be based on the conditions and specificities of the vulnerable persons or groups - Assistance should range from the formulation of requests to the delivery of information Paragraph 4 Guarantee that persons or groups - Assistance in preparing requests and obtaining in vulnerable situations receive a response assistance Paragraph 5 Communicate refusal in cases of - Written refusal to be given with reasons and the non-delivery under the domestic legal provisions on which the decision is based legal regime of exceptions - Applicant to be informed of the right to appeal Paragraph 6 May establish exceptions where - Exceptions may be set out in national legislation information may be refused - Where there is no national law, four specific exceptions may be applied at the discretion of the authority Paragraph 7 Take into account human rights - Limited exceptions obligations and encourage - Exceptions limited by law exception regimes that favour - Exceptions must conform to tests of necessity disclosure and proportionality - Exceptions must apply for a reasonable period. New exceptions or amendments to exception regimes should conform to the principle of maximum disclosure Paragraph 8 Legally establish in advance - Reasons for refusal must be in the legal framework reasons for refusal and take into - The public interest in disclosure versus non- account the public interest disclosure should be taken into account, and reasons for refusal should be interpreted restrictively - The obligation to justify the refusal lies with the competent authority Paragraph 9 Apply the public interest test - Weigh the interest of withholding the information against the public benefit of disclosing it, based on suitability, need and proportionality Paragraph 10 Disclose non-exempt material - Disclosure of requested information must not include that is part of the requested exempt material (severability) information Paragraph 11 Provide information - Applicant to decide preferred format of information in requested format - The format is subject to availability Paragraph 12 Respond to requests - The response to the request must be provided in a limited period as quickly as possible - The maximum period for response is 30 business days or less if stipulated by national law Paragraph 13 May extend period for - Reasons for extension must be “exceptional” responding to requests in and set out in national law exceptional circumstances - Extension of period for response must be no longer than 10 business days - Applicant must be given written notice of extension Paragraph 14 Safeguard the applicant’s right to - The applicant may challenge and appeal the failure challenge the failure of authority of the competent authority to respond to the request to respond within the time frames specified in articles 5.12 and 5.13 Paragraph 15 Notify if the requested - Notification must occur as quickly as possible information is not in possession - Duty to identify the relevant authority in possession of the authority and transfer the of the information and to transfer the request request to the relevant authority Paragraph 16 Inform and explain why the - The notification and explanation must be provided information does not exist or has within 30 business days or less if stipulated not been generated by national law - If the period for response has been extended, the period for notification and explanation must be within 10 business days Paragraph 17 Ensure that the applicant is not - The cost of reproduction and delivery, if charged, required to pay for the cost of must be reasonable and the applicant should access, with the exception of be aware of the costs in advance reproduction and delivery costs - Costs may be waived for persons and groups in vulnerable situations or in special circumstances Paragraph 18 Establish or designate one or - Mechanisms must be impartial, with autonomy more independent oversight and independence mechanisms - Roles include promoting transparency, overseeing compliance, monitoring, reporting and guaranteeing the right of access to information - Sanctioning powers may be included or strengthened