Related EEC Directives implemented by the Netherlands:
To our knowledge there has been no initiative by the government or environmental organizations to implement or evaluate implementation of the Sofia Guidelines.
There is a general law on access to information, the Open Government Act (Wet openbaarheid van bestuur). This general law (lex generalis) yields to the provisions of a particular law (lex specialis). Several important categories of environmental information fall within the scope of a number of specific environmental laws.
The Open Government Act contains no definition of "information." Until recently, it also contained no definition of "environmental information." However, the act is currently being amended to complete the transposition into the Dutch legislation of Directive 90/313/EEC, on the freedom of access to environmental information. As part of this amendment, the directive's definition of environmental information will be introduced into the Open Government Act. This is a technical amendment; the scope of information accessible under Dutch legislation is broad. Nevertheless, financial and economic analysis and information related to environmental agreements can be difficult to obtain in practice.
Conditions for Obtaining the Information
The Open Government Act applies to public bodies at all levels of government. Legislative bodies can under some circumstances fall within the scope of the Act, although the Act's definition of public bodies does not list legislative or judicial bodies.
Private bodies which have a public function can also be required to provide access to information. In addition, special regulations designate a large number of authorities which also fall with the scope of the law. These regulations are regularly updated to add new bodies to the list.
The Open Government Act requires that an answer to a request for access to information be made as soon as possible, and within two weeks. This deadline may be extended once for an additional two weeks provided notice is given to the applicant. No express time limit exists for supply of the information.
The Environmental Management Act (Wet milieubeheer), the principal environmental law governing licensing among other things, requires that a decision on a request for confidentiality must be made within one month. Note that under this act, it is the supplier of the information who must take affirmative steps to cause the information to be kept secret. Unless confidential treatment has been requested, the information forms part of the publicly accessible portion of the file.
Under the Open Government Act, any person may request information held by a public authority without having to prove an interest.
Both oral and written requests may be made. A person receiving an oral refusal of their request must be informed as to how they can obtain the refusal in writing. The Open Government Act also explicitly provides that whenever possible, the requested information will be provided in the form preferred by the person making the request.
Refusal to Provide Information
The Open Government Act contains three absolute and seven relative exceptions to the general rule in favor of freedom of access to information. In addition, there are further exceptions, called "limitations," concerning internal documents.
A request for information which falls under one of the absolute exceptions must be denied. If the requested information falls under a relative exception, an assessment must take place whereby the interest protected by the exception is weighed against the interests of open government. Note that it is the public interest in open government which is in the balance, not the interest of the individual making the request.
The absolute exceptions under the Open Government Act prohibit the release of information which could endanger the unity of the crown; harm the security of the state; or concerns company or manufacturing data that have been provided to public authorities on a confidential basis.
The relative exceptions cover international relations; the investigation and prosecution of criminal acts; inspection, monitoring and oversight by or on behalf of public authorities; personal privacy; the interest of the person concerned to be the first to obtain the information; the economic and financial interests of the state; and the prevention of disproportionate advantage or harm to persons concerned or to third parties. These last two exceptions do not appear in the EU Directive on freedom of access to environmental information. Accordingly, the Open Government Act has been amended to make clear that these exceptions do not apply to requests for environmental information.
Further, there is a "limitation" on disclosure of information in internal communications, in particular where the views of individual officials may be concerned.
The Environmental Management Act specifies only three exceptions: for confidential business information; the security of the state; and compliance with international agreements. Where confidential business information is treated as such, a so-called "second text" must be disclosed. The second text must provide the public with a good basis for arriving at an informed view of the underlying questions (e.g. regarding a licensing procedure). The second text rule also applies to the other two exceptions under this act.
Informal Guidelines for Agencies and the Public
The Open Government Act includes a general provision on the duty of the authorities to provide information on their policy, in understandable form. More important are a number of specific provisions in the environmental laws under which information in connection with licensing applications or environmental impact assessments are made public. In addition, there is the requirement that a state of the environment report be issued every four years.
Specific Institutions/Officials to Provide Information
A system of information points and information officials exists within the national ministries to handle requests under the Open Government Act. Each ministry has a specified intake point for information requests and an official designated to oversee information requests, and in particular to advise on requests which may be refused. In addition, the Ministry of Environment maintains an extensive public information service program.
If an Authority Does Not Possess the Information
The Open Government Act expressly provides that if a public authority receives a request for information it does not have, it must pass the request on to the appropriate authority or authorities for reply.
Costs of Obtaining Information
Costs of obtaining information seldom form a barrier to access.
A published schedule of charges exists for the ministries of the national government. Local authorities are free to establish their own charging provisions.
Emergency information is provided by responsible authorities at all levels of government.
Since information on parliamentary proceedings is publicly accessible, it is assumed that groups interested in a particular issue can obtain the necessary information concerning the parliamentary handling of a particular draft law or policy themselves.
Methods of Dissemination
The policy is a two-track one, combining active information supply to the public in general (reports on the state of the environment, etc.), and targeted members of the public (notice of draft environmental licenses, etc.) with passive information supply in response to individual requests for access to information. There is a general climate of openness and consultation. This attitude is, of course, strained in controversial or significant cases.
Electronic Means of Dissemination
There is no obligation to spread the information and/or environmental information electronically
Nongovernmental Centers
Environmental information centers run by NGOs do not exist as such, although the various environmental organizations at all levels function informally as information centers on the matters in which they have special knowledge and expertise.
In general, businesses provide information to public bodies and are not required to provide access to information directly to the public. There is legislation on environmental reporting which applies only to a modest number of the largest companies. Expansion of the coverage of this legislation to a larger number of companies in the future is possible.
There is no provision for a national referendum. However, legislation to provide for a referendum to allow popular nullification of legislation is now in preparation. It is doubtful whether such legislation will be adopted. If it were, then it would in principle apply to laws adopted by parliament and the national government. National projects, such as airports and highways, would not be covered since legislation is not required for such projects. According to the current proposal, the signatures of 600,000 eligible voters would be necessary in order to demand a nullifying referendum. Thirty percent of the eligible voters would then be required to vote against a law in order to nullify it. The threshold is thus quite high, reflecting the political compromises being worked out between proponents and opponents of referendum legislation within the government.
The provinces and municipalities already have the power to organize referenda concerning their own ordinances. Some municipalities have their own referendum ordinance, of which the best known is the City of Amsterdam. A referendum there once resulted in the blocking of a plan to build 150 housing units on open space at the edge of the city. Thereafter the threshold requirements in the referendum ordinance were raised, with the result that in a subsequent referendum, the opponents of the city's plans to build a new large-scale housing development on Ijssel Lake bordering the city to the north (Ijsselmeer) failed to block the project.
One may say that not a day goes by without there being use made of these possibilities for public participation, recently in particular. In previous years, the courts blocked a significant number of poorly justified projects. The environment was then also seen more as a problem for society in general. These days projects are better prepared (including EIAs) and the courts are giving more weight to other interests (e.g. the need for expanded road capacity to deal with increases in traffic volumes). This tendency is illustrated also by the example of a special law enacted several years ago to ensure that all livestock farms then operating illegally (i.e. without the necessary permit) received an environmental permit after all. This law was enacted once it became clear that the highest administrative court would no longer go along with the legalization of these farming operations (at issue was the question of air pollution due to acidification from ammonia emissions). An additional recent development to note is the intensive negotiation which now occurs between government and industry (collectively and individually) concerning the terms of the environmental licenses. These terms are frequently not brought up-to-date. Instead, environmental agreements (convenanten) are made.
There is a lobbyist in the Hague (the government center) who represents environmental organizations. This is a full-time position and is fulfilled on behalf of the most important national environmental organizations. In addition, various national environmental organizations see it as part of their task to undertake lobbying activities themselves. There is no law specifically regulating environmental lobbying.
Openness of Parliamentary Committees
The sessions of parliament and its committees are public with the exception of meetings of the presidium and meetings concerned with internal organizational affairs. The agendas are also made public in advance of the sessions. Written submissions may be made at all times. In certain cases, parliament will expressly request written submissions from interested citizens or organizations. Parliamentary committees also hold hearings and other meetings to which environmental organizations are regularly invited. The decisionmaking is, of course, exclusively a matter for the members of parliament.
The Council of State advises parliament on all proposed legislation. The members of this venerable institution, which is nominally chaired by the Queen, is composed principally of former officeholders who are appointed by the government. The composition of the council is, in keeping with the Dutch tradition of consensus and proportional representation, a reflection of the Dutch political spectrum; in other words, it is to be expected that, should a socialist member of the council need to be replaced, a Liberal or Christian Democratic minister would nevertheless nominate a Socialist to fill the vacancy.
All levels of government regard the making available of opportunities for public participation (public sessions, hearings, etc.) as part of the ordinary functioning of public authorities. The costs of public participation are regarded as part of the normal costs of administration.
It is important to realize that:
The duration of an appeal to the courts is approximately two years. The period within which an appeal must be filed is generally six weeks.
Corruption of the judiciary is not considered to have any significant impact on citizens or organizations pursuing environmental claims. Suspicion of corruption among public officials arises most frequently in connection with waste disposal matters. Lax enforcement of environmental standards is a general problem.
Securing the necessary specialized or technical knowledge or expertise (e.g. concerning manufacturing processes or the effects of air pollution) in order to pursue an appeal is a barrier for many individuals.
Costs start at several hundred guilders for court fees and travel costs for an uncomplicated proceeding (concerning access to information) without the aid of a lawyer. They may range up to NLG 100,000 for the proceedings case in connection with the expansion of the Amsterdam airport (Schiphol). The latter case involved several legal actions in both administrative and civil courts with representation by attorneys, as well as several studies carried out by independent experts.
Cost recovery in court cases is limited to several thousand guilders for court fees and attorneys' costs. The advantage of this limitation is that it also represents the maximum a losing party would have to pay the other side. The financial risk of a court case is thus — in contrast to the UK for instance — within reason.
Legal assistance in particular cases may be obtained from legal aid offices (Bureaus voor Rechthulp). The legal aid offices have no organizational links with the environmental organizations. The legal aid offices are an independent structure supported by the national government in order to provide legal assistance to those who do not have the means to pay for an attorney. For some years now, the Legal Aid offices have employed roughly 15 environmental lawyers who have primarily assisted environmental organizations.