Access to reuse of environmental information and open data

The favorable regime of access to environmental information

Environmental legislation has traditionally been characterized by establishing a more beneficial legal regime than that which has inspired the general rules on access to information held by the public sector. Indeed, the Aarhus Convention, adopted in 1998, was an important milestone in recognizing the right of access to environmental information under very advanced legal conditions, imposing relevant obligations on public authorities. Specifically, the Convention starts from an inescapable premise: in order for society to enjoy the right to a healthy environment and fulfill its duty to respect and protect it, it must have relevant access to environmental information. To this end, on the one hand, the right to obtain information held by public authorities was recognized and, on the other, an obligation was established for the latter to make certain information public without prior request.

In execution of said international treaty and, specifically, of the obligations assumed by the European Union through Directive 2003/4/EC of the European Parliament and of the Council, of January 28, 2003, on public access to environmental information, Law 27/2006, of July 18,  regulating the rights of access to information, public participation and access to justice in environmental matters, was approved. Unlike the general regime contemplated in Law 19/2013, of December 9, on transparency, access to public information and good governance, Law 27/2006 does not contain any reference to open and reusable formats. However, it does include the following developments:

• establishes the obligation to provide the information even when, without having generated it directly in the exercise of its functions, it is in the possession of the entity from which it is requested;
• requires that the grounds for refusal of the request for access be interpreted in a restrictive manner, so that in case of doubt when interpreting the exceptions provided by law, access to information must be favored;
• for those cases in which the request is not resolved and notified within the established period, the rule of positive silence is applied and, therefore, access will be understood to be granted.

The impact of regulations on open data and reuse of public sector information

As in the previous regulation, Directive (EU) 1024/2019 excludes its application in those cases in which the corresponding regulation of the Member States limits access. This would not be, therefore, the case of the environment sector, since, apart from the cases in which access is not applicable, in general the availability of the information is especially assured. Consequently, except for the legal exceptions to the obligation to provide environmental information, there are no specific restrictions that would be an obstacle to facilitating its reuse.

On the other hand, one of the main novelties of European legislation is a measure that ultimately obliges the Member States to adapt their regulations regarding access to environmental information. Indeed, Chapter V of the Directive establishes a unique regime for the so-called high-value datasets, which, in general, will be available free of charge, machine-readable, provided through APIs and, where appropriate, provided in the form of bulk download. Precisely, this very favorable legal regime is envisaged, among others, for the field of Earth Observation and Environment, although the specific datasets to which it will apply are still pending a decision by the European Commission after the elaboration of an extensive impact analysis whose final result is yet to be finalized.

On the other hand, following the European regulatory model, among the novelties that Royal Decree-Law 24/2021, of November 2, has incorporated into Spanish legislation on the reuse of public sector information, one that stands out is one referring to high-value data. Specifically, Article 3.ter of Law 37/2007 contemplates the possibility that, in addition to the datasets established by the European Commission, others may be added at the national level by the Ministry of Economic Affairs and Digital Transformation, taking into account the selection made by the Data Office Division, so that those specifically referring to the environment could be extended, where appropriate.

The potential for high-value environmental data

As the European regulation itself points out, the reuse of high-value datasets is seen as a tool to facilitate, among other objectives, the creation and dynamization of value-added digital applications and services that have the potential to generate considerable benefits for society, the environment and the economy. Thus, in this area, open data can play an important role in tackling technological innovation to address challenges of enormous relevance such as climate change, deforestation and, in general, the challenges posed by environmental conservation.

On the other hand, the development of digital applications and services can serve to revitalize rural areas and promote tourism models that value the knowledge and protection of natural resources, especially taking into account the rich and varied natural heritage existing in Spain, for which it is essential to have specific datasets, particularly with regard to natural areas.

Ultimately, from the perspective and demands of Open Government, the accessibility of environmental information, according to the standards of high-value data in accordance with the provisions of the regulations on the reuse of public sector information, could have a significant reinforcement by facilitating social control regarding the decisions of public entities and citizen participation. However, for this it is essential to overcome the model on which the regulatory framework on access to environmental information has traditionally been based, since, although at the time it represented a significant advance, the fact is that the 2006 regulation does not include any reference to the possibilities of technological innovation based on open data.

In short, it seems that the time has come to raise a debate about an eventual update of the sectorial regulation on access to environmental information in order to comply with the requirements of the legal regime contemplated in Directive (EU) 1024/2019.

Content prepared by Julián Valero, Professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

The contents and points of view reflected in this publication are the sole responsibility of its author.