ACCESS TO INFORMATION Exhibits:

Box 1: September 11th and Access to Information in the United States

Box 2: TRI Websites

Box 3: Monitoring Corporate Performance: The Clean Computer Campaign's Computer Report Card

      Access to information in the United States is rooted in its broad Freedom of Information Act (FOIA). This 1966 act, amended in 1974, requires government authorities to promptly furnish any reasonably described record requested by any person or organization, for minimal expense. This fee can be waived when the request is in the public interest, for example by a research or non-profit organization that will distribute the information broadly.
      FOIA was further amended in 1996 with the Electronic Freedom of Information Act (EFOIA), which requires agencies to provide records in the form that they are requested, including computer files. EFOIA also requires agencies to use current technology to establish electronic reading rooms and to index and describe major information systems.
      NGOs, citizens, businesses, and others frequently use FOIA: In 2000, the Environmental Protection Agency (EPA) received approximately 15,000 formal FOIA requests. This number represents only a fraction of all requests made to the U.S. government. Moreover, there are many more informal requests for information that are granted, including 30,000 inquiries to the EPA reference library in 2000, as well as more inquiries made over the Internet and telephone.
      The limitations to FOIA requests are narrowly defined, for example, to protect national security and personal privacy. However, Attorney General John Ashcroft reversed the prior policy that had favored disclosure under FOIA. The new policy, issued on October 12, 2001, encourages agencies to carefully consider the various institutional, commercial, and personal privacy reasons for not disclosing information, and provides that the Department of Justice will defend an agency’s refusal to disclose information unless they lack a legal basis. This new policy changes the default: under the prior interpretation an agency had to disclose the information if it was at all possible without causing harm; now agencies are effectively told to disclose the information only if refusing to do so would be illegal. Industry officials, municipal water groups, and other regulated entities have also advanced proposals to amend FOIA and the Emergency Preparedness and Community Right-to-Know Act to exempt energy, chemical, and water facilities.
      Federal and many state environmental laws provide for public information on proposed projects through the environmental assessment/environmental impact statement (EA/EIS) process. The National Environmental Policy Act (NEPA), which was signed January 1, 1970 to usher in an "Environmental Decade" in the United States, established the EA/EIS process for the United States and served as the model for environmental impact assessment (EIA) around the world. Under NEPA, the relevant agency must publish notice of the draft EIS, make the draft EIS available to the public, allow public to submit written and oral comments on the draft EIS and the underlying documents, and respond to the submitted comments.
      While NEPA mandated the regular development of a report on the state of Environmental Quality, Congress effectively revoked this mandate. NEPA required the President to prepare and transmit to Congress an annual Environmental Quality Report on the status of the environment; trends; the availability of natural resources; the effectiveness of federal, state, and local government activities; and a plan for remedying deficiencies in current programs. In 1995, the Federal Reports Sunset and Elimination Act provided that hundreds of reports that federal agencies were previously required to prepare for Congress -- including the annual Environmental Quality Report -- no longer needed to be produced unless explicitly requested by Congress. The 1997 Environmental Quality Report was the last one prepared. The Federal Reports Sunset and Elimination Act underlined the vulnerability of the U.S. access to information laws to the political whims of the day.
      At the state level, progress has been made on developing state-of-the-environment reports. For example, Environmental Protection Indicators for California (EPIC) has developed 84 indicators measuring air and water quality, water supply and use, waste management, human health, ecosystem health, pesticide, and transboundary issues. Publication of the first EPIC report is expected in 2002 ( http://www.oehha.ca.gov/multimedia/epic/epiclinks.html).
      The US EPA has also committed to developing environmental indicators to report on the status of environmental conditions, their impacts on human health and natural resources, and trends in these areas. Using existing national-level data, the EPA is planning to develop a national State of the Environment Report in late 2002. That will describe conditions and trends and identify gaps in existing information in five thematic areas: human health, ecological conditions, air, water, and protected areas. This initiative is purely voluntary (there is no legislative mandate), although it does seem to perform the same function that the CEQ’s Environmental Quality Report had performed for the preceding three decades.
      Information on actual and potential chemical releases to the environment in normal daily operations is publicly available, as governed by Emergency Planning and Community Right-to-Know Act (EPCRA), the Clean Air and Clean Water Acts, and other statutes and regulations. EPCRA is aimed at informing local governments, emergency response authorities, and the general public about environmental emergencies and potential threats from ongoing pollution into the environment. EPCRA requires EPA to prepare an annual Toxic Release Inventory (TRI) of more than 650 listed toxic chemicals released into the environment by industrial and commercial facilities in particular sectors. The TRI includes substance- and facility-specific information on releases to air, water, and land, as well as transfers to treatment facilities. All of this is publicly available on-line and in hard copy. Taking the raw data from EPA, NGOs such as Environmental Defense and Right-to-Know Network (RTK Net) have developed user-friendly formats to help the public learn about toxic releases in their neighborhood. NGOs at the national and state levels also are developing other sets of indicators to promote public awareness of environmental impacts of particular actions. For example, Box 3 describes such an attempt in the context of computer waste.
      The Clean Air Act, Clean Water Act, and some other federal environmental statutes require permitted facilities to monitor their actions and submit regular reports to federal and state authorities. These reports are publicly available and are designed so that it is easy for government authorities and the public to determine if a facility is in compliance with the terms of its permit.
      Under the 1990 Clean Air Act Amendments, regulated facilities must also develop risk management plans (RMPs) that address worst-case scenarios for accidental releases from the facility, to be publicly available and posted on the Internet. Due to terrorist concerns, only a limited amount of RMP data was posted on the Internet; and following September 11, EPA removed all of it.
      The U.S. government, businesses, and NGOs have taken a number of steps to incorporate technological advances into information systems. The Internet and tools such as GIS are now consistently used by federal and state agencies to make data more widely available. In the United States, Internet access is relatively inexpensive and often available for very low cost or free at local libraries. According to information from the Neilsen/Net ratings, approximately 115 million Americans (40%) regularly use the Internet. This increase in Internet availability and use is particularly evident in requests for information received by EPA: EPA allows and encourages informal requests for information made via email. Through its website, EPA now receives and responds to approximately 3,000 e-mails a month requesting information, which is up from approximately 300 requests a month in the late 1990s.
      Finally, when data is made publicly available, often it is not produced in clear formats or integrated with related data on environment, economics, and health. Many citizen groups have found that data on environment, public health, and economics has yet to be well integrated, with data sets difficult to find and understand in context of each other. For example, there is a lack of data on contaminants of emerging concern such as estrodiols, as well as a lack of adequate monitoring of small rural water systems.
      In some states, obstacles still remain for citizens seeking to obtain information, including ambiguities regarding who has what information, when the information can be obtained, and costs that are not easily borne by individual citizens. It can also be difficult to find proper documentation on how to access the information, who has it, and the specific names of documents.
      Ultimately, access to information in the United States remains a matter of statutory empowerment, not of constitutional right. This means that there are few constraints on political attempts to curtail access, for example following September 11^th.

Recommendations on Access to Information In order to broaden access to information, the United States should consider: developing and clarifying statutory modes of access to information that ensure that people can continue to exercise this basic right, particularly in light of concerns over terrorism; elaborating a more transparent process for decisions on withholding information based on security concerns; requiring that the President resume producing timely annual Environmental Quality Reports for Congress; and improving the integration of data on environment, public health, and economics.