26 | Annual Report 2019
Factors ‘affecting or likely to affect
the elements of the environment’
In order to make use of the Environmental Information Act, one must obviously be dealing with
environmental information. As such, this sounds
simple but sometimes it can – like the case about
the technical journalist indicates – be a rather
complicated exercise to ascertain what is environmental information within the meaning of the
Act.
Environmental information is defined in section 3
of the Environmental Information Act. Environmental information is not only information directly
relating to the environment but also information
about, for example, the state of the elements of
the environment in soil, water or air. It also covers
information about for example radiation, noise
and discharges affecting or likely to affect the
elements of the environment.
More indirect information about the elements of
the environment is also included. It follows from
the definition of the law that information about
measures or activities that affect or are likely to
affect the environment is included. This can, for
example, be legislation or plans.
In a number of cases regarding access to documents, the Ombudsman has considered how the
Environmental Information Act must be used.
The most important cases are published on the
Ombudsman’s website. Three specific cases are
mentioned below:
Access to MRSA information
For some time, a number of pig farms had been
tested to find out whether they were contaminated with the multiresistant Staphylococcus
bacteria MRSA. Some journalists wanted to
know which pig farms had been tested positive.
The food safety authorities denied the request,
among other things on the grounds that it would
lead to stigmatisation of the pig farm owners and
their families. The authorities had processed the
case without considering whether it was environmental information.
The Ombudsman found that it was of utmost
importance for the assessment of the case
whether the information was environmental information. The Ombudsman was of the opinion
that if the pig herd was contaminated, the air in
the pigsties would contain MRSA bacteria for
which reason the Environmental Information
Act should be used pursuant to section 3(1)
(see factbox).
The Ombudsman also stated that the Environmental Information Act is based on the
fundamental view that the public should have a
particularly extensive right of access to environmental information. And, in order for access
to be denied, it had to be the granting of access itself that would result in stigmatisation.
If the problem of stigmatisation would remain
irrespective of whether access was granted,
the request for access could not be denied. In
consequence of this, the Danish Veterinary and
Food Administration decided to give access to
the information. (Case No. 2014-8).
Consequently, information in regard to which
pig herds had been contaminated with MRSA
was to be considered environmental information – which in this case made a difference as to
whether access could be granted.
On the other hand, two other cases reflect that
there are limits to what ‘environmental information’ covers. Even if the practice laid down by the
Court of Justice of the European Union (CJEU)
indicates that the term is broadly interpreted.
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