Access to Environmental Information from Private Entities: A Rights‐Based Approach

• DOI: http://doi.org/10.1111/reel.12196
• Author: Juliana Zuluaga Madrid
• Published date: 01 April 2017
• Date: 01 April 2017

Access to Environmental Information from Private

Entities: A Rights-Based Approach

Juliana Zuluaga Madrid*

Access to information laws are increasingly being

adopted, usually based on democratic ideals of govern-

ment transparency and accountability. Some of these

laws include private entities as obligated parties inso-

far as they exercise public authority or perform public

functions. A human rights approach is taken when the

law provides for public access to information held by

private entities or individuals when it is required for

the protection of the applicant’s fundamental (or

other) rights. This is the case in South Africa and

Colombia, where access to information laws provide

the possibility of any member of the public to seek and

receive information from private persons for the pro-

tection of his individual rights. The present study

explores this trend from the perspective of participa-

tory rights found in the Aarhus Convention and other

international instruments, with a view to analysing its

potential contribution to increasing environmental

transparency and effective public participation in

environmental matters.

INTRODUCTION

The right of access to public information is increas-

ingly being recognized and regulated as a fundamen-

tal component of democratic societies. The scope and

power of the right, however, varies significantly

among different jurisdictions. Although in many

countries freedom of information (FOI) laws apply to

private entities when they perform public functions

or operate with public funds, very few allow public

access to privately held information when the private

entity in question is not involved in public activities

whatsoever.

1

Colombia and South Africa have both

enacted legislation granting access to the general

public to information held by private bodies when it

is necessary for the exercise or protection of their

individual rights, in what could be described as a

rights-based approach to transparency of the private

sector. While they are not the only countries in the

world to allow access to information held by private

entities, they provide the best examples of a rights-

based approach to access to information, due to the

availability of jurisprudential sources on the applica-

tion of such provisions and the solid legal back-

ground each has put in place to support them.

2

These mechanisms have the potential to increase direct

public access to environmental information from the

private sector, considering that access to environmental

information, public participation in environmental

matters and a healthy environment are also increas-

ingly being recognized as human rights on their own, at

the international and national level.

3

The present study aims to examine the potential appli-

cation of a rights-based approach to access to environ-

mental information from the private sector by

analysing: (i) the connection between the general right

of access to public information and the right to environ-

mental information, in light of international human

rights law; (ii) the inclusion of private entities in

national FOI laws and international instruments; and

(iii) examples in national jurisdictions of the

*Corresponding author.

Email: juliana.zuluagamadrid@kuleuven.be

1

S. Coliver, ‘The Right to Information and the Expanding Scope of

Bodies Covered by National Laws since 1989’, in: P. Molnar (ed.),

Free Speech and Censorship Around the Globe (Central European

University Press, 2015), 187, at 192.

2

Similar provisions can be found in Kenya’s Constitution (2010), Sec-

tion 35.1, which guarantees a right of access to any information that is

held by any ‘person’ and that is ‘required’ for the exercise or protection

of any right; and Rwanda’s Law No. 04/2013 of 08/02/2013 Relating to

Access to Information, Article 2.4, applies to a private body that holds

information relevant to ‘rights and freedoms of people’, found at:

<http://humanrightsini tiative.org/old/post oftheday/2013/18/Rwand a_

ATI_Law_March2013_NewDelhi_SatbirS.pdf>. See S. Coliver, n. 1

above, at 193.

3

See, e.g., S.M. Roesler, ‘The Nature of the Environmental Right to

Know’, 39:4 Ecology Law Quarterly (2012), 989; O.W. Pedersen,

‘European Environmental Human Rights and Environmental Rights: A

Long Time Coming?’, 21:1 Georgetown International Environmental

Law Review (2009), 73; M. Fitzmaurice, ‘Some Reflections on Public

Participation in Environmental Matters as a Human Right in Interna-

tional Law’, 2:1 Non-State Actors and International Law (2002), 1, at

10. Although the right to a healthy environment as a precondition for

the exercise of human rights is more broadly accepted, the existence

of a ‘pure and simple’ human right to a healthy environment is not

clear. See B. Lewis, ‘Environmental Rights or a Right to the

Environment? Exploring the Nexus between Human Rights and Envir-

onmental Protection’, 8:1 Macquarie Journal of International and Com-

parative Environmental Law (2012), 36; S. Turner, ‘The Human Right

to a Good Environment: The Sword in the Stone’, 4:3 Non-State

Actors and International Law (2004), 277; D. Shelton, ‘Human Rights

and the Environment: What Specific Environmental Rights Have Been

Recognised?’, 35:1 Denver Journal of International Law and Policy

(2006), 129.

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

38

RECIEL 26 (1) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12196

bs_bs_banner

Review of European Community & International Environmental Law

application of a rights-based approach to support access

to environmental information from the private sector.

The article will close with conclusions on the advan-

tages of such an approach for public participation in

environmental matters, and the issues that may arise in

practice and should be subject to further research.

ACCESS TO INFORMATION AS A

HUMAN RIGHT

Access to public information in general is increas-

ingly being recognized as an independent, full-

fledged human right. This is visible, for instance, in

several ‘soft law’instruments such as the Principles

on the Right of Access to Information adopted in

2008 by the Organization of American States (OAS)

Inter-American Judicial Committee, which starts by

acknowledging ‘the right to information as a funda-

mental right which ensures access to the information

controlled by public organs ...’;

4

and the Declaration

of Principles on Freedom of Expression in Africa,

which explicitly states that ‘[p]ublic bodies hold

information not for themselves but as custodians of

the public good and everyone has a right to access

this information, subject only to clearly defined rules

established by law’.

5

Locating a right to access public

information within the more generally accepted right

to freedom of expression automatically grants it

human rights status, contributing to its recognition

at the international level in light of the general

inclusion of the right to freedom of expression in

international and regional human rights instru-

ments.

6

International human rights courts have also recog-

nized the existence of a human right of access to

public information within the right of freedom of

expression included in their respective human rights

conventions. The European Court of Human Rights

(ECtHR) ascertained as much in the 1979 judgment

of Sunday Times v. UK, involving the alleged breach

of Article 10 of the European Convention on Human

Rights (ECHR) about freedom of expression. In its

ruling, the Court held that:

Whilst the mass media must not overstep the bounds

imposed in the interests of the proper administration of jus-

tice, it is incumbent on them to impart information and

ideas concerning matters that come before the courts just as

in other areas of public interest. Not only do the media have

the task of imparting such information and ideas: the public

also has a right to receive them.

7

The right of access to public information was more

recently acknowledged in the cases of T

arsas

ag a

Szabads

agjogok

ert v. Hungary and Youth Initiative

for Human Rights v. Serbia, in which the Court con-

ceded that access to public information is not only

about States abstaining from restricting the flow of

information among private actors,

8

but also involves an

obligation upon the State to impart information to the

public.

9

The Inter-American Court on Human Rights

(IACHR), in turn, explicitly recognized that the right of

access to public information was comprised in the right

of expression, as stated in the Inter-American Conven-

tion on Human Rights, in the case of Claude Reyes v.

Chile.

10

Access to information in environmental matters has

had its own significant evolution in the ECtHR

jurisprudence. In the 1996 Guerra v. Italy case, the

4

Organization of American States (OAS) –Inter-American Juridical

Committee, ‘Principles on the Right of Access to Information’ (Rio de

Janeiro, CJI/RES.147 LXXIII-O/08, 4–14 August 2008), found at: <http://

www.oas.org/en/sla/dil/docs/CJI-RES_147_LXXIII-O-08_eng.pdf>.

5

African Commission on Human and Peoples’ Rights, ‘Declaration of

Principles on Freedom of Expression in Africa’ (Banjul, 22 October

2002), found at: <http://hrlibrary.umn.edu/achpr/expressionfreedom

dec.html>. See also the Report of the UN Special Rapporteur, Promo-

tion and Protection of the Right to Freedom of Opinion and Expression

(UN Doc. E/CN.4/1998/40, 28 January 1998), at paragraph 14; and

Human Rights Committee, General Comment No. 34, Article 19 of the

International Covenant on Civil and Political Rights (UN Doc. CCPR/

C/GC/34, 12 September 2011), stating that the right to freedom of

expression embraces a general right of access to information held by

public bodies. Cited in: United Nations Economic Commission for Eur-

ope (UNECE), The Aarhus Convention: An Implementation Guide,

2nd edn (UNECE, 2014), at 76.

6

See, e.g., Universal Declaration of Human Rights (UNGA Resolution

217 A (III), 10 December 1948); and the International Covenant on

Civil and Political Rights (New York, 16 December 1966; in force 23

March 1976) (‘ICCPR’), Article 19.

7

J. Ackerman and I. Sandoval-Ballesteros, ‘The Global Explosion of

Freedom of Information Laws’, 58:1 Administrative Law Review

(2006), 85, at 95; ECtHR 26 April 1979, The Sunday Times v. The Uni-

ted Kingdom, [1979] Application no. 6538/74, at paragraphs 65–66.

8

This line of argument had been defended by the Court in the previ-

ous cases: ECtHR 19 February 1998, Guerra et al. v. Italy, [1998]

Application no. 14967/89; ECtHR 26 March 1987, Leander v. Sweden,

[1987] Application no. 9248/81; ECtHR 7 July 1989, Gaskin v. UK,

[1989] Application no. 10454/83; ECtHR 19 October 2005, Roche v.

UK, [2005] Application no. 32555/96.

9

The transition may have started with the case of Matky v. Czech

Republic, in which the ECtHR conceded for the first time that denying

access to administrative documents constituted an interference with

the right to receive information included in Article 10 of the ECHR. The

interference was justified in this case, however, because it was found

that the information requested (mostly technical information about a

nuclear plant) was not in the public interest and its withholding by the

State on grounds of national security, public health and the protection

of third parties’ interests was justified. See ECtHR 10 July 2006,

Sdru

zeni Jihoesk

e Matky v. Czech Republic, [2006] Application no.

19101/03; ECtHR 14 April 2009, T

arsas

ag a Szabads

agjogok

ert v.

Hungary, [2009] Application no. 37374/05; ECtHR 26 May 2009, Ken-

nedi v. Hungary, [2009] Application no. 31475/05; ECtHR 2 November

2010, Gillberg v. Sweden, [2010] Application no. 41723/06; ECtHR 31

July 2012, Shapovalov v. Ukraine, [2012] Application no. 45835/05;

ECtHR 25 June 2013, Youth Initiative for Human Rights v. Serbia,

[2013] Application no. 48135/06; ECtHR 28 November 2013,

€

Osterre-

ichische Vereinigung zur Erhaltung, St€

arkung und Schaffung eines

wirtschaftlich gesunden Land- und Forst-Wirtschaftlichen Grundbe-

sitzes v. Austria, [2013] Application no. 39534/07.

10

IACHR 19 September 2006, Claude Reyes v. Chile, [2006] (ser. C)

No. 151 (Reyes v. Chile). See also IACHR 24 November 2010, G

omez

Lund et al. v. Brasil, [2010] (ser. C) No. 219.

ª2017 John Wiley & Sons Ltd

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