Chapter 8: Portugal

LEGAL AND INSTITUTIONAL FRAMEWORK AND PRACTICES FOR PUBLIC PARTICIPATION

General

Constitutional Rights

Implementation of International Legal Instruments

• Universal Declaration of Human Rights, adopted by the UN General Assembly at New York, U.S.A. on December 10, 1948.

• Directive 90/313/EEC was transposed into Portuguese law as part of a general law regulating access to administrative documents, Law 65/93 of August 26, 1993. We can conclude that this law is in general terms more protective of the right to access environmental information than the Directive.

• Access to information relating to the environment should be timely and rapid, which is not in accord with the current long process which often renders the information useless and ineffective.

• The new restriction adopted in Law 8/1995 permits the blocking of access to essential information. On these grounds, information concerning the public financing of the new bridge over the Tagus river was refused.

• The law does not apply to private parties holding relevant environmental information.

Access to Environmental Information

Legislation on Access to Information/ Environmental Information

Access to environmental information is ruled in constitutional law, administrative law, and environmental law.

The fundamental right of access to administrative documents — including environmental information — is regulated in the following statutes:

1. Law No. 65/93, August 31, 1993 — which transposed the Directive into Portuguese law — regulates the right of any person to access administrative information.

2. Code of Administrative Procedure — regulates the right of access to administrative information based on a specific interest relative to the document.

It was published in August 1993, well after the expiry of the deadline imposed for transposition of the directive. It should nevertheless be stressed that the Portuguese law is the result of a profound comparative investigation that contributed decisively to guaranteeing access to information.

Passive Provision of Information

There is no definition of what is considered information related to the environment, but in its final chapter Article 22 states: "Access to documents in environmental matters is provided within the terms of the present law, with the specific limits and scope derived from Directive 90/313/EEC of June 7."

Even if no community directive on access to environmental information existed, the Portuguese government would nevertheless be required by constitutional imperatives to regulate and ensure access to information on the environment.

In addition to the right to a healthy and ecologically balanced environment, the Portuguese Constitution establishes the fundamental right of access to administrative documents (V. Article 268/2).

As a consequence, the constitutional principles concerning access to information and the right to information, as well as the right to participate or have access to law and the courts, are applicable in matters concerning the environment. The right of access to information concerning the environment is therefore established constitutionally in the Portuguese judicial system.

Administrative documents are considered to be those that have been prepared, or are held by: state bodies or autonomous regions exercising administrative functions; public institutions and public associations; authorities responsible for local administration, its associations and federations; other bodies that exercise the powers of administration (Article 3).

The definition of an administrative document is broad and includes information in graphic, audio or visual form, computerized information or information registered in any other way, prepared or held by the public administration, including reports, studies, opinions, records, actions, circulars, service rules, internal dispatches, instruction and guidance of legal interpretation or other informative elements (Article 4).

Conditions for Obtaining the Information

The fundamental principle is that the right of access to information is assured to every citizen regardless of a personal or direct interest, with the exception of documents containing personal information (Article 7).

With respect to specific access to information, the Code of Administrative Procedure establishes, in Article 61:

1. Members of the public have the right to be informed by the administration when they so desire about the course of proceedings in which they are directly interested as well as the right to know the decisions that have been taken.

2. The information must indicate the public service that deals with the procedure, the performance of acts and proceedings, deficiencies in the supply of information by the interested parties, the decisions adopted and any other required elements.

3. The information requested pursuant to this article shall be provided within a term of 10 days.

The right of access can be recognized by an administrative resolution (Article 62), or as stated in Article 63 without an administrative resolution.

In Article 62:

1. Interested persons have the right to consult the records of a proceeding that does not contain classified documents and to obtain certificates or authenticated reproduction of the documents that are part of the record, through the payment of the amounts required.

2. The right referred to in the preceding paragraph limits access to documents containing personal data to neutral third-party mediators, since the personal data that is not public is excluded in legal terms.

• the date of presentation of applications, petitions, complaints, appeals or similar documents;
• the contents of these documents or their claims;
• its course or present situation;
• its resolution or absence of a resolution.

The right of access includes the right to obtain a reproduction of the document and the right to be informed of its existence (Article 7, No. 3).

Access to documents can be made through:

• free consultation in the services that hold the documents;
• reproduction by photocopy or any other technical means, mainly visual or audio, under certification by the service (Article 12).

A request for information must be presented in writing, and include the name, address and signature (Article 13) of the person requesting it.

Refusal to Provide Information

In its original version the law only restricted access to information concerning:

• matters related to internal and external state security;
• matters of judicial secrecy;
• documents related to an ongoing proceeding or a draft document of a decision, whose access can be deferred until the ruling on the decision, or one year after its preparation.

The right of access to personal data and documents that include personal data is limited to the person who this data concerns, and to mediators that show a direct or personal interest (Article 8).

Notarial and recordable documents, civilian and criminal identification, documents referring to personal data with computerized treatment and documents in historical files which are separately regulated (Article 7, No. 7).

An appeal to an administrative decision can be made to the courts using a special process called "Injunction to grant access to documents" regulated in administrative law.

This injunction permits the court to order the administration to permit access to the document very quickly (within 20 to 40 days).

Specific Institutions/Officials to Provide Information

Citizen access to administrative documents is ensured by the public administration according to the principles of openness and transparency, equality, justice and impartiality (Article 1). Each ministerial department, regional secretary, autarchy, institute and public association is responsible for designating an entity responsible for the carrying out of the provisions of the law.

The Commission on Access to Administrative Documents (CADA) was created by law to administer its application.

This commission is an independent public body which functions in cooperation with the Assembly of the Republic and which is presided over by an advisory judge of the Supreme Administrative Tribunal. It is composed of: one judge designated by professional peers, two members of parliament, one law professor designated by parliament, two appointees designated by the government, one lawyer designated by the Bar Association, and several representatives of the autonomous regions.

CADA has the competence to give an opinion when it is requested by the individual or by the administration. It cannot review complaints or give binding judgements (Articles 15 and 16). Therefore — after receiving the opinion of CADA — the administration is free to decide.

If an Authority Does Not Possess the Information

After receiving the request, the administration must respond in ten days. This response includes notification the place and time of the consultation. It must also inform as to where the document is held, transmit the request to the Commission on Access to Administrative Documents (CADA), or deny access on the grounds permitted by Law 65/93.

Costs of Obtaining Information

Payment may be required, but is strictly limited to the cost of the material or services used, as set by complementary legislation (Article 12, No. 2).

The Portuguese NGOs have been requesting environmental information efficiently using the legal tools described above. When the administration has not responded, the NGOs have appealed successfully to the courts using the "injunction to grant access to documents."

After a significant number of injunctions during 1994, 1995 and 1996, a very positive change of attitude in the Portuguese administration can be observed.

Despite these positive signs, however, the Portuguese public administration has not yet been able to escape from its habit of being a traditionally closed administration.

Active Provision of Information

Concerning active information, the public administration is required to publish at least once every six months, in ways that make regular access possible: all documents containing the framing of administrative activity; the enunciation of all documents that contain positive law interpretations or descriptions of administrative procedure. It lists the title, matter, date, origin and places where the documents can be consulted (Article 11).

The Framework Law on the Environment also requires the preparation of an annual report on the state of the environment and land-use, as well as the presentation, every three years, of a White Paper on the Environment to the Parliament.

The Framework Law on the Environment (Law 11/1987 of April 7) sets forth the establishment of continuing exchanges of information among the competent agents of the administration and the citizens to whom it is directed. It proclaims that such measures are needed for the existence of an environment favorable to the health and welfare of the people, and the social and cultural development of the community.

This law created the Instituto Nacional para a Proteccao do Ambiente (National Institute for the Environment, presently known as the Institute of Environmental Promotion — IPAMB), an entity with legal personality, integrated into the Ministry of Environment and Natural Resources. It has responsibility for the promotion of actions in the area of environmental quality, with a special emphasis on the development and transmittal of information, environmental education and support of environmental NGOs.

IPAMB's competencies exist mainly in terms of its organic law (Law Decree No. 194/1993 of May 24):

• to develop information actions, inform and educate citizens concerning the environment;
• to organize, promote and support publications or other means of directing attention to environmental problems;
• to promote the participation of citizens in decisionmaking procedures.

Mechanisms to Ensure Flow of Information from the Private Sector to the Public Authorities or the Public

Public Participation

Legislation on Public Participation

This right is enumerated in the Code of Administrative Procedure, approved by Law Decree No. 442/1991 of November 15, which establishes rules for conduct of public administration in its relationship with citizens and other private persons.

The code applies to the administrative activities of all agents of the public administration. Administrative activities are defined as the sequence of acts and formalities leading to the formation and manifestation of a decision of the public administration, or its accomplishment.

In general terms, the principle of the administration's cooperation with the public is stated in Article 7 as follows: "1. Public administration officials must act in strict cooperation with the public in order to ensure adequate public participation in the performance of the administrative function. To this end, public authorities are:

1. to provide the public with all information and explanations they lack; and
2. to support and stimulate the initiatives of the public and receive their suggestions and information."

Public Control of Decisionmaking (Direct Democracy)

At the present time there is no right to a referendum on environmental and other related issues. However a law concerning the referendum organized by citizens is being prepared.

Public Shares Power to Decide

Generally, the law provides a right to participate when the project is already defined and structured. Therefore the process is normally ineffective and functions as a form of social legitimation of the political decision, rather than ensuring real participation by the public.

Account of Public Comments

This right applies primarily to: regional land-use plans, municipal plans of general urbanization and other urban studies and projects; integrated plans of regional development; plans and projects for hunting, forest or agricultural development or protection; environmental impact studies; creation and management of protected areas; studies and projects for landscape restoration, revitalization of historical centers and urban rehabilitation and renewal; results of laboratory tests of environmental quality.

Mechanisms to Influence Decisionmaking — Lobby Mechanisms

Even though environmental NGOs do not have a constitutional right to be heard on national lawmaking, the government consults them often.

Access to Justice

General Rights and Sources of Law

During the last few years NGOs have tried to use their right of access to justice to prevent or to repair environmental damages.

Administrative Standing

• the holders of subjective rights or legally protected interests in decisions that have been or can be taken;
• non-political or non-trade union associations that have as their purpose the defense of these interests;
• citizens for whom the administrative actions has caused or may cause relevant harm in fundamental interests such as public health, housing, education, cultural patrimony, environment, land disposition and quality of life;
• the residents of any area whose fundamental interest may be affected by the administrative action.

Standing in Actions Against Government Agencies

Legal Assistance

Public Interest Environmental Lawyers

Presently the National NGOs have a project to create a NGO specialized in juridical matters.

Ombudsman