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

AuthorJuliana Zuluaga Madrid
Published date01 April 2017
Date01 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 applicants 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.
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
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.
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.
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.
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.
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 oftheday/2013/18/Rwand a_
ATI_Law_March2013_NewDelhi_SatbirS.pdf>. See S. Coliver, n. 1
above, at 193.
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.
RECIEL 26 (1) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12196
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 public information in general is increas-
ingly being recognized as an independent, full-
fledged human right. This is visible, for instance, in
several soft lawinstruments 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 ...;
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.
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-
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.
The right of access to public information was more
recently acknowledged in the cases of T
ag a
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,
but also involves an
obligation upon the State to impart information to the
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.
Access to information in environmental matters has
had its own significant evolution in the ECtHR
jurisprudence. In the 1996 Guerra v. Italy case, the
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, 414 August 2008), found at: <http://>.
African Commission on Human and Peoples’ Rights, ‘Declaration of
Principles on Freedom of Expression in Africa’ (Banjul, 22 October
2002), found at: <
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.
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.
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 6566.
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.
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,
zeni Jihoesk
e Matky v. Czech Republic, [2006] Application no.
19101/03; ECtHR 14 April 2009, T
ag a Szabads
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,
ichische Vereinigung zur Erhaltung, St
arkung und Schaffung eines
wirtschaftlich gesunden Land- und Forst-Wirtschaftlichen Grundbe-
sitzes v. Austria, [2013] Application no. 39534/07.
IACHR 19 September 2006, Claude Reyes v. Chile, [2006] (ser. C)
No. 151 (Reyes v. Chile). See also IACHR 24 November 2010, G
Lund et al. v. Brasil, [2010] (ser. C) No. 219.
ª2017 John Wiley & Sons Ltd

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