On Access to Information Relating to the Environment 1 )

ACT NO. 292 OF APRIL 27, 1994, ON ACCESS TO INFORMATION RELATING TO THE ENVIRONMENT1) “ENVIRONMENTAL INFORMATION ACT”

Section 1.-(1) This Act shall apply to all public authorities, etc., comprised by Section 1 of Section 4.(1) A request for access to Act on Public Access to Documents in information relating to the environment shall be Administrative Files. dealt with in accordance with the rules of Section (2) The Act shall furthermore apply to 16(1) and (2) of Act on Public Access to bodies with public responsibilities for the Documents in Administrative Files and with regard environment and under the control of public to requests made by the parties of the matter, in authorities. accordance with the rules of Section 16(2) of the Public Administration Act. However, a decision in the matter shall be made at the latest within two (2) Section 2.-(1) Any person shall subject to months on receipt of the request. The reasons for a the conditions and the exemptions following from refusal to provide the information requested must Act on Public Access to Documents in be given. Administrative Files and the Public Administration (2) Decisions on access to information Act be entitled to become acquainted with relating to the environment may be appealed information relating to the environment, cf., separately to the authority being the appeals body however, subsection (2) and Section 3(2) hereof. in relation to the decision or the treatment (2) A right to access to documents according otherwise with regard to the matter which the to this Act shall not be restricted by special request for access to information relating to provisions relating to access to documents in other environmental information concerns. legislation. However, this shall not apply to provisions laid down to implement obligations (5) Payments for transcripts or copies of under Community law. information relating to environmental information in written documents are charged in accordance with the rules laid down by the Minister of Justice Section 3.-(1) Information relating to the in accordance with the Act on Public Access to environment shall mean any available information Documents in Administrative Files, with regard to relating to the parties of the matter, however in accordance (i) the environment i.e. the state of water, air, with the rules laid down in pursuance of the Public soil, fauna, flora, land and natural sites; Administration Act. (ii) activities (including those which give rise to (2) The Minister concerned may lay down nuisances such as noise) or measures rules on payment for access to information relating adversely affecting, or likely so to affect the to the environment available in other than written environment; form. (iii) activities or measures designed to protect the environment, including administrative (6) This Act shall come into force on 1st measures and environmental management July 1994. programmes; (2) The Act comprises all information (7) This Act shall not extend to the Faeroe relating to the environment available in written, Islands and Greenland. visual, aural or data-base form, irrespective of when the information is obtained.

1The Act contains provisions which together with Act on Public Access to Documents in Administrative Files and the Public Administration Act, implement Council Directive No. 90/313 on the freedom of access to information on the environment, OJ 1990 L 256/56 No. 123 30 June 1994

Guidance Concerning Access to Information Relating to the Environment

1. Introduction Administration Act is that parties’ access to By Act No. 292 of 27th April 1994 Concerning information relating to the environment shall Access to Information Relating to the Environment, continue to be regulated in pursuance of the Public “Environmental Information Act”, Council Administration Act, which shall appear clearly in Directive No. 90/313/EEC on the freedom of order to prevent undue process of law as regards access to information on the environment has been which set of rules shall be applied in connection implemented. with the parties’ access to information relating to the environment. When a Directive is the basis of an enactment, this shall always be interpreted on the basis of the provisions of the Directive. The Act and the 2. Purpose Directive are reprinted as Appendix 1 and The purpose of these Rules of Guidance is to Appendix 2. draw the attention to the rules of the public in The most important provisions of the Directive general, and the public authorities and such have been in force in Denmark for a long time in enterprises, who have not formerly been obliged to pursuance of the Act on Public Access to give access to documents. Documents in Administrative Files and the Public Below, various questions are addressed in Administration Act. However, there are three connection with the application of the rules: points on which there are disparities. What is information relating to the environment? Firstly, the Directive gives a right to access to Which public authorities and enterprises shall give information relating to the environment to a wider access to information relating to the environment? group than in Danish legislation. Who has a right to access to documents? Secondly, the Directive lays down an absolute Procedure relating to requests for access to deadline of two months within which a decision information relating to the environment shall be made in a matter concerning access to Procedure relating to granting of access to information relating to the environment. information relating to the environment. Thirdly, the right to access to information When may a request for information be refused? relating to the environment shall not be restricted When do the rules concerning access to documents by the time when such information was obtained or in the Act on Public Access to Documents in by other special rules which is the case in relation Administrative Files and the Public Administration to the Act on Public Access to Documents in Act not apply? Administrative Files and the Public Administration What are the requirements of a decision in a matter Act. of access to documents? The Environmental Information Act lays down Appeal of a decision concerning access to only the amendments necessary to implement the documents. Directive and in all respect refers to the rules in Payment for access to information relating to the force under the Act on Public Access to environment. Documents in Administrative Files and the Public Queries. Administration Act. As the Act refers to the rules of the Act on Public This means that the general provisions of the Access to Documents in Administrative Files and above enactments, which besides apply to access to the Public Administration Act to a great extent, information relating to the environment, including reference is made under the individual points to the the limitations in and the exceptions from the more exhaustive rules of guidance from the general access to documents in pursuance of the Ministry of Justice concerning these enactments, Act on Public Access to Documents in which must be the recommended to use. (Rules of Administrative Files and, in relation to parties, in Guidance on Act on Public Access to Documents pursuance of the Public Administration Act. in Administrative Files, Ministry of Justice 1986 The reason that the Act refers to the Public and Rules of Guidance on the Public Administration Act, Ministry of Justice 1986). enterprises at home or abroad, and where the public has a controlling influence through ownership. 3. What is information relating to the Enterprises like DONG, The Great Belt Link environment? A/S, and A/S Øresundsforbindelsen are comprised with certainty, whereas Copenhagen Airport and 3.1 General Tele Danmark are not comprised because they are In Section 3 information relating to the in competition with similar enterprises abroad. environment is defined in accordance with the Which other enterprises are comprised must be Directive. The enumeration of the forms in which decided concretely on the basis of the criteria the information is available is not exhaustive. This described. means that any new future ways of storing data will also be comprised by the Act. The wording shall be interpreted in accordance 5. Who has a right to access to documents? with the documentary concept of the Public Anyone has a right to access to information Administration Act, so that information relating to relating to the environment. As under the Act on the environment shall be available on a media and Public Access to Documents in Administrative not comprised by e.g. physical tests. Files, anyone shall have access to documents. Cf. According to the Directive “available” must be Section 4 of the Act on Public Access to understood so that the obligation is to provide Documents in Administrative Files. information only and not to make any processing of the information. 6. Procedure in relation to a request for access to information 3.2Is it important when the information relating to the environment was obtained? No formal requirements are made in relation to a request for access to information relating to the Opposite the Act on Public Access to environment. The request may be made orally or in Documents in Administrative Files and the Public writing to the public authority or enterprise Administration Act, a right to access to information concerned. However, it shall be possible to identify relating to the environment exists irrespective of the matter. Cf. Section 4(3) of Act on Public when the information was obtained. Access to Documents in Administrative Files and the Ministry of Justice’s Rules of Guidance..

4. Which public authorities and enterprises shall provide access to information relating 7. Procedure in relation to granting access to to the environment? information All public authorities and enterprises, etc., As Section 4(1) of the Act refers to the existing comprised by the Act on Public Access to rules on access to documents, it is the public Documents in Administrative Files are also authority or the body comprised by Section 1(2) of comprised by the Environmental Information Act. the Act who decides whether access to documents Cf. Section 1 of Act on Public Access to shall be granted and, if so, in which form the access Documents in Administrative Files for further to documents shall be granted, e.g. by inspection on details. the spot or in the form of a copy. The Directive, furthermore, provides a right to Cf. Section 16(1) of Act on Public Access to access to documents held by bodies with public Documents in Administrative Files and with regard responsibilities for the environment and under the to parties Section 16(2) of Public Administration control of public authorities (Art. 6). The extent of Act and the Ministry of Justice’s Rules of this concept in the Directive, which is not Guidance. previously known in Danish law or in EU-law, may not be established unambiguously. 8. When may a request for access to It is assumed that all enterprises have an information relating to the environment be influence on the environment and accordingly a refused? responsibility for the environment, which means The right to access to documents may only be that this condition does not get any separate restricted in pursuance of Section 2(1) of the Act, if meaning. According to the legislative history of the the information is comprised by a reason for Act, this now comprises enterprises which are not, exception in the Act on Public Access to in whole or in part, in competition with other Documents in Administrative Files or the Public Administration Act, which does not fall under Files to the effect that access to documents is Section 2(2) of the Act, cf. point 9. restricted by special provisions on secrecy must be For further details about the exceptions, see the assumed to be in accordance with Art. 3(2), indent Ministry of Justice’s Guidelines. 5 of the Directive concerning the confidentiality of As information relating to the environment, as a personal data and/files. main rule, is in the nature of actual information, it must be assumed that access to information may in 9.2Restrictions in relation to when the information the main be refused only pursuant to Section 12(1) relating to the environment was obtained (ii) of Act on Public Access to Documents in Administrative Files and Section 13(1), (i-vi), Opposite the Act on Public Access to Section 15(1) of the Public Administration Act. Documents in Administrative Files and the Public This means, among other things, that trade Administration Act a right exists to access to secrets and information about size, location and documents irrespective of when the information nature of various military plants, installations and was obtained. equipment, preparedness plans of the defence and The Directive does not authorise a possibility defence related cooperation with other countries for restrictions with regard to time in relation to with regard to the country’s security and related access to documents, which it the reason that the international agreements , are not comprised by the Environmental Information Act does not contain right to access to information relating to the such a restriction. However, there will hardly be environment. much information relation to the environment from If the provisions of exceptions in Section 13(1) the time before access was given to documents (i-vi) of the Act on Public Access to Documents in according to Danish law. Administrative Files or Section 15 of the Public Administration Act only apply to part of the document, the concerned party shall be informed of 10.Decisions in matters concerning access to the other contents of the document, cf. Section information relating to the environment 13(2) of Act on Public Access to Documents in Administrative Files and Section 15(2) of Public 10.1 How quickly should a request for access to Administration Act. For further details, see the documents be allowed or refused? Ministry of Justice’s Rules of Guidance. However, broad discretionary provisions of According to both the Act on Public Access to exception shall be interpreted in accordance with Documents in Administrative Files and the Public the Directive. Application of e.g. Section 13(1)(vi) Administration Act a response is required within of the Act on Public Access to Documents in ten days, if the request may not immediately be Administrative Files shall be limited to situations refused or allowed. In his report for 1990 (p. 50f) comprised by Article 3(2), indents 6 and 7, the Ombudsman has stated that a pre-condition for concerning material submitted by a third party and the deadline of the days, although it is not absolute, material the disclosure of which would make it is that decisions on access to documents are usually more likely that the environment to which such made within ten days. materia related would be damaged. The latter may This rule is maintained and supplemented in e.g. be information on rare strains and species of Section 4(1) with an absolute deadline of two flora and fauna in specific areas. months to make a decision in a matter concerning access to documents. The deadline is reckoned from receipt of the request for access to documents. 9. When do the rules on access to documents in the Act on Public Access to Documents in 10.2 Reasons for a refusal Administrative Files and the Public Administration Act not apply? The reasons for a refusal to provide the information requested must be given, Section 4(1), 9.1Special rules on access to documents last sentence of the Act. As some of the enterprises comprised will not According to Section 2(2) of the Act, the right otherwise be comprised by the Public to access to documents may be restricted only by Administration Act and its obligation to give special rules relating to access to documents, if reasons in Part 6, and this is required according to these special rules are an implementation of the Art. 3(4) of the Directive, it has been necessary to obligations of Community law. incorporate the obligation to provide reasons in the The provisions of Section 14 of the Act on Act. Public Access to Documents in Administrative in other than written form. 11.Appeal of a decision on access to documents The individual Ministers shall therefore issue With regard to a review of a decision rules in the area, if required. concerning access to documents, it is required in The person requesting access to documents accordance with Art. 4 of the Directive that a should as far as possible in advance be informed of person who has received a refusal of access to the charge when a request is made for access to documents is allowed to seek a judicial or documents by way of copies of sound tapes and administrative review of the decision in accordance films. with the relevant national legal system. Section 4(2) f the Act entails a continuation of 12.1 Information relating to the environment in the rule that applies in accordance with the Act on connection with legislation of the Ministry Public Access to Documents in Administrative of the Environment Filet and the Public Administration Act. The wording applied is identical with the one found in With regard to payment for information relating Section 15(2) of the Act on Public Access to to the environment which has been provided as part Documents in Administrative Files. See the of the administration of a set of rules under the area Ministry of Justice’s Rules of Guidance for further of the Ministry of the Environment, the Minister details. for the Environment has issued Statutory Order No. Also decisions made by an enterprise comprised 577 of 24 June 1994. According to this Order by Section 1(2) of the Act, may in principle be payment is charged for transcripts or copies, fixed appealed in accordance with the above. But as it is by the Ministry of Justice, if information stored on required that access of appeal exists with regard to computer, is handed out on paper. As mentioned the enterprise’s decision or processing of the under point 7, it is the party granting access to matter, there will probably rarely be access to an documents who decides how the access is to be administrative appeal of a refusal to access to granted. If it concerns information on film or sound documents in enterprises comprised by Section tapes, payment may charged for access to such 1(2) of the Act. information corresponding to the actual expenses Refusals of access to documents held by incurred in connection with making the copy. The enterprises comprised by Section 1(2) will, actual costs may cover the expenses to make the similarly to other refusals of access to information copy and dispatch expenses. If the public authority relating to the environment, be brought before the or enterprise concerned itself makes the copying, courts of law in accordance with the general rules expenses for e.g. tapes, film, rental of machines, to this effect. and carriage may be included. If access to information kept on computer is 12.Payment for access to information relating to requested in the form of a copy of tapes or the environment diskettes, the authority or enterprise may charge payment where in addition to expenses for It is laid down in the Act that payment for materials and rental of machines is included also a transcripts or copies of information in paper will be reasonable share of the operating expenses of the charged in accordance with the rules fixed by the base. Ministry of Justice in Statutory Order No. 647 of 18 September 1986 concerning payment for 13.Queries transcripts and photocopies handed out in Queries concerning the understanding of the accordance with Act on Public Access to rules on access to information relating to the Documents in Administrative Files and in Statutory environment, including these Rules of Guidance Order No. 646 of 18 September 1986 concerning may be submitted to the Danish Environmental payment for transcripts and copies handed out in Protection Agency. accordance with the Public Administration Act. Expenses incurred in connection with granting access to information from other media than paper may vary much. In Article 5 of the Directive, a possibility is given to fix a payment that may not exceed a reasonable cost. This must be interpreted as an access to obtain cover for the expenses. Section 5(2) of the Act authorises the concerned Minister to fix rules concerning payment for access to information relating to the environment available