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Discussion Group 2

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Theme 5: Denial of information upon request [#3289]
Dear Forum Participant,

Welcome to Theme Theme 5 on "Denial of information upon request".

We welcome you to answer the guiding questions listed below.

1. Are there established criteria for denying access to biosafety information and, if yes, are the criteria publicly known?

2. In your experience, under what circumstances should access to information be denied?

3. On what ground is/should access to biosafety information be denied?

Best regards,

Ulrika Nilsson
(edited on 2012-05-24 22:05 UTC by Ulrika Nilsson)
posted on 2012-05-24 17:32 UTC by Ms. Ulrika Nilsson, UNEP/SCBD/Biosafety
RE: Theme 5: Denial of information upon request [#3530]
5. Denial of information upon request
Information can be denied only in special cases, such as:
- secret information
- protected commecial information
- data on private property (generally as to environmental information)
- intellectual property right protection.
In special cases the information, the misuse of which can negativelly impact the environment, can be denied.

Milena Roudna
posted on 2012-06-11 15:30 UTC by Ph.D. Milena Roudna, Ministry of the Environment of the Czech Republic
RE: Theme 5: Denial of information upon request [#3541]
Pursuant to paragraph 18 of the Specification of the procedure for the provision of information on the environment in the Republic of Lithuania to the public approved by Government Resolution No 1175 of
22 October 1999 (Official Gazette Valstybes Žinios, 1999, No 90-2660; 2005, No 26-831, 2010, No 19-864), institutions must not provide information if the submission thereof:
- would disclose information which, under the law, is a state or official secret;
- would violate the interests of state security and defence protected by law;
- would have a negative effect on international relations;
- would violate the right to a fair trial protected by law or would be deemed, under the law, an obstacle for judicial or public authorities to conduct an investigation or hearing of a criminal, civil or administrative case (procedure);
- would disclose information which, under national or European Union law, is a commercial (industrial) secret or would violate the confidentiality of statistical data and data on taxpayers protected by law;
- would violate unintellectual property rights protected by law;
- would undermine the legal protection of personal data, except for the cases provided for in the Law of the Republic of Lithuania on Legal Protection of Personal Data (Official Gazette Valstybes Žinios, 1996, No 63-1479; 2003, No 15-597; 2008, No 22-804), the Law of the Republic of Lithuania on Provision of Information to the Public (Official Gazette Valstybes Žinios, 1996, No 71-1706; 2006, No 82-3254) and the Law of the Republic of Lithuania on Documents and Archives (Official Gazette Valstybes Žinios, 1995, No 107-2389; 2004, No 57-198);
- would have a negative effect on the protection of the environment to which such information relates, e.g. would harm rare species and communities protected by law, their habitats, finding sites and growth sites;
- is related to internal administration and institutional cooperation, provided that this does not violate public interest;
- would have a negative effect on the interests of persons who have voluntarily presented information without being obliged by laws or other legal acts to present such information or would pose a threat to their security.
According to paragraph 20 of the Specification of the procedure for the provision of information on the environment in the Republic of Lithuania to the public approved by Government Resolution No 1175 of 22 October 1999 (Official Gazette Valstybes Žinios, 1999, No 90-2660; 2005, No 26-831, 2010, No 19-864), if a part of information can be segregated from the information not to be provided that is specified in paragraph 18 of the Specification, the institution shall present the part of the requested information that can be provided without prejudice to confidentiality requirements for the information not to be provided upon notifying the applicant thereof.

Respectfully,
Gintare Blazauskiene (NFP)
GMO Division
Nature Protection Department
The Ministry of Environment of Lithuania
posted on 2012-06-12 06:43 UTC by Mrs. Gintarė Blažauskienė, Ministry of Environment
RE: Theme 5: Denial of information upon request [#3559]
1. In my country there are not criteria to refuse a request for information on the biosafety.

2. The request for information on the biosafety, can be refused when it is about confidential information in accordance with article 21 of the protocol in its subparagraphs 1, 3, 4, 5. 

3. Once that information is considered to be no accessible, it is only with respect to general public, because even confidential information, is known members of the National Committee of biosafety. 

KAKPO Comlan Marcel
Benin NFP of PCB and BCH
posted on 2012-06-13 09:04 UTC by Mr. Comlan Marcel KAKPO, Ministère de l'Environnement, de l'Habitat et de l'Urbanisme
RE: Theme 5: Denial of information upon request [#3582]
Rules Implementing the Code of Conduct and Ethical Standards for Public Officials and Employees
Rule IV

Transparency of Transactions and Access to Information

Section 1. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

Section 2. it is the responsibility of heads of departments, offices and agencies to establish measures and standards that will ensure transparency of and openness in public transactions in their respective offices, such as biddings, purchases, other internal transactions, including contracts, status of projects, and all other matters involving public interest.

They shall establish information systems that will inform the public of the following: (a) policies, rules, and procedures; (b) work programs, projects, and performance targets; (c) performance reports; and (d) all other documents as may hereafter be classified as public information.

Such information shall be utilized solely for the purpose of informing the public of such policies, programs and accomplishment, and not to build the public image of any official or employee or to advance his own personal interest.

Section 3. Every department, office or agency shall provide official information, records or documents to any requesting public, except if:

(a) such information, record or document must be kept secret in the interest of national defense or security or the conduct of foreign affairs.

(b) such disclosure would put the life and safety of an individual in imminent danger;

(c) the information, record or document sought falls within the concepts of established privilege or recognized exceptions as may be provided by law or settled policy or jurisprudence;

(d) such information, record or document compromises drafts or decisions, orders, rulings, policy, decisions, memoranda, etc;

(e) it would disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;

(f) it would disclose investigatory records complied for law enforcement purposes, or information which if written would be contained in such records or information would (I) interfere with enforcement proceedings, (ii) deprive a person of a right to a fair trial or an impartial adjudication, (iii) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, or (iv) unjustifiably disclose investigative techniques and procedures; or

(g) it would disclose information the premature disclosure of which would (I) in the case of a department, office or agency which agency regulates currencies, securities, commodities, of financial institutions, be likely to lead to significant financial speculation in currencies, securities, or commodities or significantly endanger the stability of any financial institution, or (ii) in the case of any department, office or agency be likely or significantly to frustrate implementation of a proposed official action, except that subparagraph (f) (ii) shall not apply in any instance where the department, office or agency has already disclosed to the public the content or nature of its proposed action, or where the department, office or agency is required by law to make such disclosure on its own initiative prior to taking final official action on such proposal.

Reference: http://excell.csc.gov.ph/cscweb/RA6713b.html
posted on 2012-06-15 09:21 UTC by Ms. Julieta Fe L. Estacio, Philippines
RE: Theme 5: Denial of information upon request [#3584]
Bethia Daniel, Ministry of Sustainable Development, Energy, Science and Technology, Saint Lucia

1. Are there established criteria for denying access to biosafety information and, if yes, are the criteria publicly known?

In Saint Lucia, there are presently no established criteria for denying access to biosafety information as these have not been considered as yet.

2. In your experience, under what circumstances should access to information be denied?

Based on the experience of the Biodiversity Unit of Saint Lucia, I would suggest that access to information can be denied if it can be a national security risk or a threat to national security. By definition, national security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. Any information that would upset this balance, including biosafety information should be denied.

3. On what ground is/should access to biosafety information be denied?

My answer for part 3 of this question is the same as the answer for part 2.
posted on 2012-06-15 15:01 UTC by Ms. Bethia Daniel, Ministry of Sustainable Development, Energy and Science and Technology
RE: Theme 5: Denial of information upon request [#3589]
Normally access is denied in case of confidential information. In the case of LMOs, confidential information is likely to be related to modern biotechnology techniques used in the production of the LMO and other relevant information of a commercially sensitive nature. While such information will need to be made available to the Party of import through the notification procedure, the Protocol forbids the commercial use of that information by the Party of import, unless written consent from the notifier has been obtained. It should be noted here that the notifier may not itself be the entity which has the legal right to permit commercial use of the information provided. As noted under Article 9, according to the Protocol’s AIA procedure the notifier may be either the Party of export or the exporter. It may be that none of these is the entity which holds proprietary rights over the commercial use of information in question.

Article 21(6) of the protocol lists four categories of information which are not to be treated as confidential (1.The name and address of the notifier; 2. A general description of the living modified organism or organisms; 3.  A summary of the risk assessment of the effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health; and 4. Any methods and plans for emergency response.).  Debate on this provision during the negotiation focused on the categories of information that should be included here, and also on whether such information should never be treated as confidential or whether a weaker formulation should be used. The provision adopted suggests that the four categories of information cannot be identified by the notifier as confidential, and shall not in any circumstances be treated as confidential.
O.A.El-kawy
posted on 2012-06-15 18:34 UTC by Mr. Ossama Abdelkawy, Syrian Arab Republic
RE: Theme 5: Denial of information upon request [#3595]
'Confidentiality' is frequently used as an excuse to deny providing the requested information. This  has often been overused. Of cource, certain information related to the key technology could be kept from public access, but at least the release sites of the LMOs should be available upon request.
(edited on 2012-06-16 16:28 UTC by Ulrika Nilsson)
posted on 2012-06-16 07:44 UTC by Mr. Wei Wei, China
RE: Theme 5: Denial of information upon request [#3600]
1. Are there established criteria for denying access to biosafety information and, if yes, are the criteria publicly known?
       Yes, they are: denial of biosafety information that is classified as relating to commercial, official or state secrets. These criteria are publicly known.

2. In your experience, under what circumstances should access to information be denied?
        The information that is classified as relating to commercial, official or state secrets can not be given.

3. On what ground is/should access to biosafety information be denied?
             Access to biosafety information can be denied if the scientific investigation is not finished yet or an application for patent is in processing.
         In Belarus, environmental information should be provided to the stakeholders (citizens or legal persons) in accordance with paragraphs 3a and 3b of Article 2 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), Article 74 of the Law of the Republic of Belarus "On Environmental Protection" and the Resolution of the Ministry of Natural Resources and Environmental Protection of the Republic of Belarus of May 29, 2003 № 22 "On the List of Information Relating to Environmental Information."
        The ecological information, as it is prescribed in the law "On Environmental Protection», is divided on ecological information of general purpose and special-purpose ecological information.
        The ecological information of general purpose – the environmental information for general use which is distributed free of charge and provided in accordance with the law "On Environmental Protection». 
        Special-purpose ecological information – the environmental information which can be provided upon the special request and it is a result of information collection and analysis because the information on the environment and effects on it is not included in the governmental database.

BCH NFP Elena Makeyeva, Belarus
(edited on 2012-06-18 13:58 UTC by Elena Makeyeva)
posted on 2012-06-16 13:30 UTC by Assoc. Prof. Elena Makeyeva, Belarus
RE: Theme 5: Denial of information upon request [#3612]
I think the first thing for us to do could be to define the term of 'biosafety information'. Biosafety is related to all of us including you and me, I did not see any reason that the biosafety information can not be released. Biosasfety information should not be kept confidential any way. In addition, biosafety information should be released in a correct format of science sound.
posted on 2012-06-17 13:42 UTC by Mr. Wei Wei, China
RE: Theme 5: Denial of information upon request [#3608]
Access to information can be denied when the request is not in line with Article 23 of the Protocol, "Confidential information".  However paragraphs 2 & 5 can be subject to interpretation and can be used to deny information upon request.

"2.
The Party of import shall consult the notifier if it decides that information identified by the notifier as confidential does not qualify for such treatment and shall, prior to any disclosure, inform the notifier of its decision, providing reasons on request, as well as an opportunity for consultation and for an internal review of the decision prior to disclosure.

5.
If a notifier withdraws or has withdrawn a notification, the Party of import shall respect the confidentiality of commercial and industrial information, including research and development information as well as information on which the Party and the notifier disagree as to its confidentiality."
posted on 2012-06-16 22:48 UTC by Ms. Marie-Claire Angwa, The United Nations Development Programme (UNDP)
RE: Theme 5: Denial of information upon request [#3620]
In accordance with national legislation, the access to the information is denied in case of confidential information. The Regulation on Public Information regarding Genetically Modified Organisms, Decision nr. 36 of 2009, stipulates which information should not be considered as confidential. The confidential information, related to the business secret, intellectual property rights, as well as state security information should not be offered to the public.
posted on 2012-06-18 09:53 UTC by Angela Lozan