THE RIGHT TO KNOW

The right to information is recognised in most international human rights agreements. Shortly after the United Nations was formed, the General Assembly resolved: 'Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated' (quoted in CHRI 2005).

What is more, other human rights cannot be realised without infor­mation. People need to have information to know when their rights are being threatened and by whom. The right to know is based not only on human rights but also in the requirement of open and transparent gov­ernment for a well-functioning democracy: 'Right-to-know is grounded on the premise that a healthy democracy depends on a well-informed, active public that participates in important decisions affecting society' (Clean Water Fund et al. 2001).

The right to know is fundamental to ensuring that governments and the private sector are accountable. Accountability implies that an organ­isation's policies and actions are open to public scrutiny and regulatory investigation, and can therefore be compromised by secrecy. Accountability can be reinforced by regulatory agencies which are sup­posed to monitor the activities of the organisation, be it public or private, and to ensure that it abides by existing legislation and standards in its operations. However, the closeness of regulatory agencies to those they regulate, the interchange of personnel, and the power of the regulated to influence government, all suggest that full accountability cannot neces­sarily be guaranteed by regulatory agencies and that these agencies themselves need to be accountable.

Freedom of information

The Commonwealth Human Rights Initiative (CHRI 2005) has argued that because public officials create and collect information on behalf of the public, using taxpayer money, the public has a right to access that information, which essentially belongs to the public. The onus is then on the public authority to make a case for why any of their information is not available, rather than on the person requesting the information to make a case for why it should be available.

More than 40 countries have some form of freedom of information (FOI) laws. These generally apply only to information held by govern­ment departments and authorities, although they often include informa­tion about private companies held by these government bodies. FOI has various objectives:

In the first place, it helps to make the government more accountable to the people being governed. Secondly, by facilitating the acquisition of knowledge, it encourages self-fulfilment. Thirdly, it acts as a weapon in the fight against corruption and abuse of power by state func­tionaries. Fourthly, it contributes to improving the quality of official decision-making. Fifthly, it enhances the participatory nature of democracy. Sixthly, it goes some way in redressing the inherent balance in power between the citizen and the state, and strengthens the hand of the individual in his dealings with government. (Iyer 2000)

The right to information is recognised by Commonwealth countries. In 2002, Commonwealth law ministers officially recognised that 'the right to access information was an important aspect of democratic accounta­bility and promoted transparency and encouraged full participation of citizens in the democratic process' (quoted in CHRI 2005). In the USA, the 1966 FOI Act was amended in 1974 following the Watergate scandal:

It allows ordinary citizens to hold the government accountable by requesting and scrutinizing public documents and records.

The US FOIA applies to federal government agencies; each state has its own FOI legislation.

Principles

The US-based group OMB Watch (2001: 9) has formulated the key prin­ciples of a government information access programme. These include:

• In our democracy, all members of the public have an enforceable right to anonymous, timely, and unfiltered access to government information at low or no cost.

• Government has a duty to identify and collect data and informa­tion to protect and benefit the public, spur efficiency, ensure accountability, and strengthen democratic processes.

• Government has an affirmative responsibility to make informa­tion broadly available to the public in an equal and equitable manner and in formats that are timely, easily located, under­standable, and useful. Those who seek to withhold information carry the burden of proof to justify their position.

• Government should strive to ensure that the information it releases is complete and accurate; however, questions about completeness or accuracy should not be permitted to restrict the free flow of information...

How proactive should governments be?

Does the right to information mean that individuals have a right to get information if they seek it, or does it imply that governments should dis­seminate relevant information about proposed projects? Authoritative interpretations suggest that governments have an obligation to dissemi­nate information and some agreements specify this.

In 1999 a group called Article 19 (after Article 19 in the Universal Declaration of Human Rights) put together The Public's Right to Know: Principles on Freedom of Information Legislation, which was subsequently formally endorsed by both the UN Special Rapporteur on Freedom of Opinion and Expression and the Organization of American States Special Rapporteur on Freedom of Expression.

1. Maximum disclosure - a presumption that all information should be subject to disclosure with minimal exceptions or limitations.

2. Obligation to publish - information that is of public interest should not only be accessible but published and disseminated by government authorities where feasible.

3. Promotion of open government - encouraging a culture of open gov­ernment and informing citizens of their rights to information.

4. Limited scope of exceptions.

5. Processes to facilitate access.

6. Costs - individuals should not be deterred from making information requests by excessive costs.

7. Open meetings - meetings of government departments, public authorities and agencies should be open to the public.

8. Disclosure takes precedence over other laws.

9. Protection for whistleblowers.

Environmental right to know

With respect to the environment, the right to know would include 'the right to be informed about the environmental compatibility of products, manufacturing processes, industrial installations and their effect on the environment' (Douglas-Scott 1996: 115). The preparation and publication of environmental impact assessments and statements would also be included.

The right to know can apply to consumers, workers and the commu­nity. With regard to chemicals, for example, consumers have a right to know about the hazards associated with consumer products and the safe handling of those products. Workers have a right to know about the chemical hazards in their workplace and the safety procedures associ­ated with them. And the community has a right to know about chemicals that might threaten their health and safety or the environment (PIAC 1994: 3). The right to know with respect to chemicals might include:

• Information about chemicals

- Quantities and properties of chemicals at a particular site

- Chemical inputs and outputs at a chemical plant

- Chemical components of products

- Chemicals to be used, manufactured, mixed, packaged, disposed etc.

• Information about processes involving chemicals

- Are they to be sprayed, heated, pressured etc?

• Information about the management of chemicals

- How chemicals are to be disposed of, including accidental releases

- Data on accidents and incidents

- Information on injuries that might arise from an accident

- Data that is collected and provided to government

- Details of enforcement activities carried out by government

- Licences, approvals, hazard and risk assessments (PIAC 1994: 12-3).

Armed with this sort of information people can make informed deci­sions, take action to protect themselves, and monitor industrial activity and government measures, so that private companies and governments are more accountable.

Methods of providing this sort of information include national regis­ters and inventories, state of the environment reports, local community monitoring panels, and labels.

The right to know is a well-established principle in the USA and Europe. It is recognised that such a right needs to be legislated and cannot be voluntary, as many governments and private companies are reluctant to divulge this sort of information if they have a choice. 'Only mandatory obligations to prepare annual emissions and chemical use reports would ensure uniform disclosure, bring into existence informa­tion which most companies would not prepare otherwise, and provide national and regional perspectives'(Gunningham amp; Cornwall 1994: 1-5).

According to Agenda 21: 'The broadest possible awareness of chem­ical risks is a prerequisite for achieving chemical safety. The principle of the right of the community and of workers to know those risks should be recognized' (Chapter 19.8). Various international treaties also require nations to provide environmental information, including: the UN Framework Convention on Climate Change, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, and the Montreal Protocol on Substances that Deplete the Ozone Layer.

European Union

In 2003 the European Commission (EC 2003b) passed a directive on public access to environmental information which replaced an earlier (1990) directive on the same topic. It aimed 'to guarantee the right of access to environmental information held by or for public authorities' to anyone without their having to demonstrate or state their interest and 'to ensure that, as a matter of course, environmental information is progres­sively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information'.

The Directive defines environmental information in broad terms including the state of the environment; the state of human health and safety; administrative measures including policies, plans and pro­grammes; economic analyses and assumptions; and reports on imple­mentation of environmental measures.

The Directive applies to public authorities, including non-government organisations (NGOs) undertaking public administrative functions, having public responsibilities or providing public services relating to the environment. This is important, because otherwise the privatisation of public services would result in the removal of public information from the public domain. Whether public services are provided by private or public bodies, those bodies need to be accountable and open to public scrutiny.

In compliance with the EU Directive, the United Kingdom intro­duced Environmental Information Regulations (EIR) in 2005 that replaced earlier regulations. As does the EU Directive, the UK EIR applies not only to public authorities and advisory groups but also to private companies carrying out public services impacting on the envi­ronment such as energy, water, waste and transport (Information Commissioner 2005).

Limitations

FOI laws are not really adequate to fulfil environmental right to know requirements, because the environmental information collected by agen­cies is restricted to what is reported to government as part of administra­tive and regulatory responsibilities, and can be both fragmentary and spread around different government departments or authorities. The type of information available through FOI is limited. For example, infor­mation on emissions may be limited to the information that companies have to provide as part of their licence conditions yet not include total emissions for the year. Information about private firms sometimes requires permission from those firms for it to be released (CEPA 1994: 3; Gunningham amp; Cornwall 1994: 4). What is more, people can only make one-off requests for particular existing information rather than gaining access to databases of integrated information. FOI requests can also be expensive.

Even the EC Directive (2003) includes a number of exceptions. It does not cover internal communications (although it may if public interest can be shown). Nor does it include information bearing on international rela­tions, public security, national defence, intellectual property rights, per­sonal privacy, confidential proceedings where confidentiality is provided for by law, and confidential commercial or industrial information where confidentiality is provided for by law. Information may also be withheld to protect the interests of those who supply information voluntarily.

The UK EIR includes the same exceptions. The exceptions are, however, subject to a public interest test whereby disclosure is to be allowed if it is in the public interest. Moreover, commercial confiden­tiality cannot be given in the United Kingdom as a reason for not dis­closing emissions data (Information Commissioner 2005).

Pollution inventories

The right to know includes 'routine, systematic, mandatory, public reporting of toxic chemicals or other environmental health hazards' (Orum amp; Heminway 2005: 2). Pollution inventories or registries are one way of contributing to such reporting through disseminating information on the pollution emitted by private companies and thus bypassing the need for individuals to request it. Agenda 21 states that governments should:

• Direct information campaigns such as programmes providing information about chemical stockpiles, environmentally safer alternatives and emission inventories that could also be a tool for risk reduction to the general public to increase the awareness of problems of chemical safety;

• Establish... national registers and databases, including safety information, for chemicals; (19.60)

• Consider adoption of community right-to-know or other public information-dissemination programmes, when appropriate, as possible risk reduction tools. (19.61)

Inventories of pollutants have been established in a number of countries, including the USA, Canada, the United Kingdom, the Netherlands, Norway and Australia, as a contribution to fulfilling the public's right to know. Collectively these inventories are referred to as Pollutant Release and Transfer Registers (PRTRs). The design of PRTRs varies from country to country, particularly with respect to which chemicals have to be reported.

Such inventories or registers generally provide information about the emission of a number of specified chemicals and by identifying trends and hot spots provide a useful database for government environmental regulation. That the extent of their pollution is made public can encourage individual companies to voluntarily reduce their chemical waste discharges. Emission levels are not necessarily directly measured; often they are estimated. The ensuing inventories do not measure the total load of pollutants in the environment but are meant to provide some indication of load (CEPA 1994: 1).

USA

The earliest right to know legislation was introduced in the USA in the Emergency Planning and Community Right-to-Know Act 1986 (EPCRA). It was the result of public pressure following a disaster in Bhopal, India, where thousands of people were killed by the release of methyl iso­cyanate from a Union Carbide factory. Americans began demanding the right to know what was being released, or might accidentally be released, by factories near them (USEPA 2004).

The law requires facilities in particular industries - including manu­facturing, metal and coal mining, electric utilities, and commercial haz­ardous-waste treatment plants — and federal facilities (not state government facilities) to submit to the relevant authorities emergency planning information; an inventory of hazardous chemicals kept on their premises and their location; and annual estimates of the amounts of par­ticular chemicals (from a list of 650 out of potentially thousands) they discharge to the environment (USEPA 2004). As part of their emergency planning information, companies have to report 'worst case scenarios for the release of regulated substances and risk management plans to prevent or deal with them' (Douglas-Scott 1996: 118).

The information about chemical discharges is compiled annually as the Toxic Release Inventory (TRI), which is kept electronically as a geo­graphically-based information system (GIS). The public is able to access data for individual firms as well as for particular regions, industries, chemicals or environmental media - air, water, land. In 1990 this data­base was expanded by the Pollution Prevention Act to include informa­tion on waste disposal and source reduction activities being conducted by each company:

Armed with TRI data, communities have more power to hold com­panies accountable and make informed decisions about how toxic chemicals are to be managed. The data often spurs companies to focus on their chemical management practices since they are being measured and made public. In addition, the data serves as a rough indicator of environmental progress over time. (USEPA 2004)

In the first few years of its operation the TRI highlighted the vast amount of chemicals being discharged into the environment, much of it unregu­lated, and brought action by government and industry to reduce it. 'From 1988 to 2000, for example, releases of chemicals subject to TRI reporting dropped by a remarkable 48 per cent' (CPR 2005c). NGOs pro­duced 'league tables' of polluters, which shamed some companies into going beyond their legal obligations to reduce emissions. Other compa­nies which hadn't previously estimated their total annual discharges realised they were losing money by allowing so many chemicals to go down the drain, so to speak (Gunningham amp; Cornwall 1994: 8-9).

The TRI is limited by the number of chemicals it covers, which are but a small subset of the total chemicals produced, used and emitted; by the fact that small firms and some non-manufacturing sources of pollu­tion - including oil wells, medical waste incinerators and agricultural producers - are not included; and the fact that the information provided is not linked to specific products (Orum amp; Heminway 2005: 3).

Australia

In Australia, the National Pollutant Inventory (NPI) includes only 90 chemicals, compared with a list of 1000 possibilities (CEPA1994: 20), and compared with 150 considered in determining acceptable water quality under Australian Water Quality Guidelines for Fresh and Marine Waters. The NPI does not include data on hazardous chemical storage, use or disposal - only emissions. These emissions are estimated by the polluters themselves on the basis of their own self-monitoring with occasional random assessments of reported data by regulating authorities.

The NPI, like the US TRI, focuses on manufacturing. Again, the agri­cultural industry, which uses a great deal of chemicals, is not included (CEPA 1994: 6; Gunningham amp; Cornwall 1994: 17). Companies in the sectors covered can gain a reporting exemption on the basis of national security or commercial sensitivity but they have to prove that such issues are at stake; in the case of commercial confidentiality, the public interest must be taken into account in deciding whether to grant an exemption.

OECD and Europe

In 1996 the OECD, referring to Agenda 21 requirements with respect to public information and participation, passed a recommendation on implementing pollutant release and transfer registers, which stated:

That Member countries take steps to establish, as appropriate, imple­ment and make publicly available a pollutant release and transfer register (PRTR) system... PRTR systems should provide data to support the identification and assessment of possible risks to humans and the environment by identifying sources and amounts of potentially harmful releases and transfers to all environmental media. (OECD 1996)

A PRTR, as defined in the OECD Guidance Manual for Governments (OECD 2000), 'is an inventory of pollutants released to air, water and soil, and waste transferred off-site for treatment and/or disposal'.

The EU's 1998 Integrated Pollution Prevention and Control (IPPC) directive requires member nations to report the emissions of 50 sub­stances to air or water to the European Pollutant Emission Register (EPER). The EPER (2005) first published a set of pollutant details from across Europe for 2004. The thresholds for reporting these 50 substances have been set so as to capture 90 per cent of emissions from industrial plants. It currently covers around 10 000 plants in 15 EU countries plus Norway and Hungary (EA 2005a).

The UK Environment Agency (EA 2005b) is responsible for the national Pollution Inventory, which 'collects information on releases and transfers of waste off-site' from the businesses it regulates in England and Wales. The information from this inventory feeds into the EPER and a National Atmospheric Emissions Inventory (NAEI). The NAEI (2005) collects information from several government departments and 'com­piles estimates of emissions to the atmosphere from UK sources such as cars, trucks, power stations and industrial plant'.

In 2003 the Protocol on Pollutant Release and Transfer Registers was attached to the Aarhus Convention (Aarhus Convention 1998; see page 119) and signed by 36 European states and the European Community. It requires nations to establish a PRTR which is free, online, user-friendly; covers at least 86 of the pollutants listed in the Protocol; covers releases from specific types of facilities - 'e.g. thermal power stations, mining and metallurgical industries, chemical plants, waste and waste-water treat­ment plants, paper and timber industries' - as well as some spread-out non-point sources; and releases to air, land and water. PRTRs have to be designed with public participation and are mandatory for the industries covered. People should be able to look up specific firms, locations, mediums and pollutants.

Gaps

Ironically, communities in many developing countries like India, site of the Bhopal disaster that prompted the right to know legislation in the USA, still do not have the right to know about risks and emissions from US-owned and other foreign companies operating in their neighbour­hoods (IRTK 2003). There is now an International Right to Know cam­paign supported by Amnesty International and various environmental, labour and development groups, which aims to redress this inequity.

Inventories provide some key information but there is much environ­mental information that is still not readily available to the public in most countries, including:

• Untested ingredients in specific pesticides and other products (labeling), and the flow of chemicals into the environment through product streams from industrial facilities (chemical use data, also known as 'materials accounting');

• Compliance records of producers and emitters of pollution; also, information on enforcement actions against violators, and the filing and status of citizen suits;

• Facility ownership, such as the identity of parent companies;

• Geographic and climatic information related to pollution out­falls and point sources (e.g., the height of smokestacks, the direc­tion of prevailing winds, groundwater plume modeling);

• Total volume flows, release durations, and the size of peak releases of toxic emi-ssions; and the total environmental loading of pollutants within geographic areas;

• Health of ecosystems;

• Workplace illness and injury records; and

• National environmental trends, such as landuse trends, drinking water safety, and human health indicators (e.g., asthma, birth defects and chronic diseases). (OMB Watch 2001: 25)

State of the environment reporting addresses the last of these points and, to some extent the health of ecosystems, but most are not covered by either inventories, right to know or FOI legislation.