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Committee finds in favor of Professor: Norway is not good enough in treating requests for access to information

After almost six and half years of waiting, Professor Ole Kristian Fauchald has finally received an answer to his compliant on the lack of access to information from the government. The complaint, which has made its way through national and international bodies, points to great weaknesses in the right to information in public processes.

Background

The case originates from 2011. Professor Ole Kristian Fauchald was preparing an article on why large parts of the Nature Diversity Act was limited in application outside Norway’s territorial waters. Fauchald had previously been part of the committee, led by Professor Emeriti Inge Lorange Backer, responsible for preparing the Act. The Act was eventually passed by the Norwegian Parliament after five years of deliberations among ministries in 2009.

In the discussion of the committee’s proposal a debate arose on whether or not the law should be limited to Norway’s territorial waters - defined as 12 nautical miles from the Norwegian coast. The government suggested that most of the law would be confined by this boundary. The reasoning they presented was that Norway’s international obligations under the law of the sea could prevent legislation with a reach beyond the territorial waters.

I wanted to take a closer look at how they had reached the conclusion that the law could be in violation of international law. To me this was not obvious, Fauchald explains.

Portrait of Ole Kristian Fauchald
Professor Ole Kristian Fauchald. Foto: UiO

Fauchald requested access to the legal reasoning referred to in the legislative proposal. The Ministry of Climate and the Environment rejected his application, claiming that the reasoning was exempted from disclosure.

Following the rejection, Fauchald submitted a complaint to the Norwegian Parliamentary Ombudsman (PO) on the grounds that the Ministry had failed to take into consideration the Enviromental Information Act of 2003. This Act gives a specific right of access to information in cases concerning the environment. After ten months, the PO requested the Ministry to reconsider the rejection. After another 11 months, the Ministry upheld their original conclusion. After eight more months, the PO decided to discontinue the case.

- My article turned into a contribution on whether there is an effective access to environmental information in Norway, says Fauchald.

Complaint to the Aarhus Convention Compliance Committee

Having waited for more than two and a half years for a response to the complaint, Fauchald decided to make use of the Aarhus Convention complaint mechanism. The Aarhus Convention protects the right to environmental information, participation in decision making, and access justice.

Fauchald v. Norway was registered in 2013. The main points of the complaints were that Norway had not followed the provisions of the Aarhus Convention on access to information and access to justice; specifically that 1) both the PO and the ministry had spent too much time in processing the complaint, 2) that the Ministry had not complied with the commitments of the the Aarhus Convention, and 3) that the reasoning presented in the decision of the Ministry was not satisfactory.

The Compliance Committee’s Assessment

The Compliance Committee made its final decision on June 19, 2017. It came to the conclusion that Norway had spent too much time on their review procedure of the complaint. However, it also said that they did not have enough evidence to decide on other issues.

Timely

The Committee established that both the PO and the Ministry’s review procedures were too long. In the decision it concludes:

The Committee finds that the review procedure before the Parliamentary Ombudsman failed to comply…to be «expeditious» and «timely».

In its consideration, it emphasized that PO did not - at any time - appear to have given the Ministry a deadline. Nor did it ask for a swift procedure. Further, the Committee argued that it is strange that the Ministry operated with deadlines on responses to requests for access to information, but not in the context of complaints to the PO.

Compliance: Partial Access?

An important part of the consideration of access is the right of public employees to be able to exchange opinions and thoughts internally. This makes it more difficult to provide access while at the same time protecting the free flow of information and opinions among public officials. Fauchald argued that he should have been provided partial access; that the authorities should have gone through the documents and deleted everything not related to the legal reasoning. In its defense, Norway argued that this review had already been done, and that it was not possible to separate out the legal assessments. Neither Fauchald, nor the committee had the possibility to consider whether or not this was correct. Consequently, the committee decided that there was no proof that Norway had not violated the Convention. 

Enough reasoning?

On the question of whether or not the Ministry provided sufficient reasons for its decision, the Committee makes a statement of considerable interest.

- The duty to state reasons is of great importance, not least to enable the applicant to be in a position to challenge the refusal for information … It is, therefore, inadequate if these reasons are only provided at a very late stage, as the applicant will potentially only then be able to fully formulate the grounds for challenging the decision.

However, the Committee found that the answer the Ministry had sent to the PO after Fauchald submitted his complaint to contain sufficient reasons. Consequently, Norway was not violating the Convention. 

- In its decision, the Committee sets the bar very low for compliance with the duty to give sufficient reasons. It appears as though the government can comply by including a standard quote that it has taken into account the relevant considerations in favor of granting access. This appears inconsistent with the Committee’s statement that the reasons are the basis for formulating complaints, according to Fauchald.

What does this mean for increased access?

Even though Fauchald only was partly successful in his complaint, the process seems to have influenced the Ministry’s procedures regarding access to environmental information. 

For public institutions, the Environmental Information Act has to a large degree been dormant since its adoption in 2003. During this case, the Ministry of Climate and the Environment has initiated a process to secure better implementation of the Act, Fauchald explains. 

The Environmental Information Act includes provisions that provide more extensive access to information than the Freedom of Information Act. If such provisions are not given due consideration, people are not secured the right to access that they are entitled to. It is therefore very important that these provisions are used actively in cases regarding access to information in all Ministries, not only in the Ministry on Climate and the Environment.

The report of the Committee is a clear signal to Norway on how to handle question of access to environmental information.

Additionally, Fauchald asks whether researchers should be granted a particular right to access. 

- As a researcher, you should be given access to information that would otherwise be exempted. The reason is that public authorities can place restrictions on the information that the researcher can use in publications.

New and improved complaints mechanism?

The PO and the Ministry used two and a half years to treat the complaint. The Aarhus Convention Compliance Committee spent another four years. To Fauchald, the alternative would have been to bring the case before the domestic courts. A domestic court would have the possibility of demanding access to the documents, and thus, could have decided some of the questions that the Compliance Committee could not consider because neither they nor Fauchald had the information. 

- The state argued in front of the Committee that it would have been very inexpensive for me to bring the case before a court. Experience has shown that court cases can be very expensive in Norway, according to Fauchald . One example is the Sørdalen case, where land owners brought a suit against the state because they claimed it was illegal to establish a power line through a conservation area. By my calculations, the plaintiffs had cost risks exceeding 3 million NOK. It should be evident that a researcher cannot take the risk of such costs when one is refused access to information. It is a paradox that one has established a much more efficient complaint mechanism to get access to information from corporations than from public authorities under the Environmental Information Act, says Fauchald. 

By Tori Loven Kirkebø
Published June 22, 2017 8:55 AM - Last modified June 23, 2017 10:01 AM