Austria: Freedom of environmental information versus business secrets

Introduction

The exchange of information between the authorities and the public has traditionally been rather lazy in Austria. It is no different when it comes to environmental information.

Despite the existence of numerous legal frameworks for freedom of environmental information, such as the Environmental Information Act (UIG)¹ and the EU Environmental Information Directive,² Austrian authorities continue to be creative in finding reasons to refuse to provide information.

In a recent decision, the Higher Administrative Court provided further clarification on and explained the extent to which a company's business secrets can stand in the way of a request for information.

Facts

An industrial company from Lower Austria that produce citric acid discharge the waste water from the production into a waste water treatment plant. The operator of the treatment plant then discharges the waste water into the Thaya river after prior cleaning. The operator holds an official permit for this purpose.

The district authority of Mistelbach last increased the permissible waste water volume in 2016 and set limits for certain substances, such as copper, chloride and sulphate. At the same time, it obliged the industrial company to measure the waste water annually and to forward the results to the authority.

A farmer from the surrounding area was also interested in this data as he used the Thaya river to irrigate his organic farm. He applied, based on the UIG, to have the measurement results sent to him.

Both the industrial company and the operator of the waste water treatment plant opposed the full disclosure of this information, citing business secrets. From the quantities of the substances to be measured, it would have been possible to draw conclusions about the secret production process.

Subsequently, the district authority of Mistelbach and the Lower Austrian Administrative Court refused to provide the farmer with the information for the following reasons:

• according to the UIG, only information on emissions into the environment "in a temporally aggregated or statistically presented form" is subject to free access;³
• the measurement reports were not such information "in a temporally aggregated or statistically presented form" and thus not environmental information that was freely accessible; and
• because this specific environmental information – information on emissions into the Thaya river – was subject to access restrictions under the UIG,⁴ a balancing of interests had to be carried out, and this would be in favour of the industrial company and its business secrets.

Decision

However, the Higher Administrative Court disagreed.

In its ruling dated 6 July 2021⁵ it stated:

• the UIG does not comply with the wording and the objective of the EU Environmental Information Directive;
• the last sentence of article 4(2)(2) in the EU Environmental Information Directive, according to which business secrets may not be held against an application for access to information on emissions into the environment, does not stipulate that such information must be accessible "in a temporally aggregated or statistically presented form";
• thus, an additional barrier to obtaining this environmental information that is incompatible with the EU Directive had been introduced in the UIG; and
• national authorities and courts are therefore obliged to not apply the restriction "in a temporally aggregated or statistically presented form" in this case.

The outcome, in conformity with the EU Environmental Information Directive, is that the information on emissions into the Thaya river is now freely accessible.

As a result, the industrial company's business secrets could in this case not be held against the farmer's application.

Comment

The Court's decision has caused a great stir in Austria and has once again shown that the national UIG does not comply with the requirements of the EU Environmental Information Directive.

The Austrian legislature is now urged to repair the UIG, because otherwise it will remain difficult for the authorities to act properly.

Austria's other laws on obtaining information and transparency are also unsatisfactory. The promised transparency offensive, which is supposed to be achieved through a so-called "Freedom of Information Act", has not yet been implemented. Austria continues to lag behind the international standard in this area.

The specific case concerning emissions into the Thaya river remains interesting because the Lower Austrian Administrative Court must now review it again. The measurement reports are not available there, so the Court cannot provide the information itself to the farmer. The Court must therefore decide whether the data is to be provided or not. If it affirms a right to the information, the authority must subsequently disclose the information to the farmer because it is bound by the legal opinion of the Administrative Court. However, that may still take some time.

Endnotes

¹ Federal Act on Access to Information on the Environment (Environmental Information Act – UIG), BGBl 1993/495.
² Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC.
³ Section 4(2)(3) of the UIG.
⁴ Section 6(2) of the UIG.
⁵ Austrian Higher Administrative Court 6 July 2021, Ra 2020/07/0065.

This article was first published in Lexology on 18.10.2021.
author: Christoph Jirak