The location details of ten agricultural businesses that submitted a so-called PAS notification in the period from 2015 to 2019 must be made public. This follows from a decision of the Administrative Jurisdiction Division of the Council of State (hereinafter: "Division") on 27 January 2021. The ruling is a prelude to the District Court decision on the publication of location data of the remaining 3,490 PAS (*1) notifications.
Until 29 May 2019 (see PAS rulings), activities with limited nitrogen depositions (0.05-1.0 mol/ha/year) did not require a permit. Businesses could then suffice with a PAS notification. Since the aforementioned rulings, the notification regime has lapsed and an inventory is being made of how much nitrogen deposition is caused by the so-called 'PAS notifiers'. In 2019, the Coöperatie Mobilisation for the Environment (hereinafter: "MOB") submitted two Wob (*2) requests to the Minister of Agriculture, Nature and Food Quality (LNV) (hereinafter: the "Minister"). MOB requested the disclosure of data on all agricultural and non-agricultural businesses that had submitted a notification in the context of the Nitrogen Action Programme (Programma Aanpak Stikstof, hereinafter: "PAS"). More specifically, MOB requested the disclosure of at least the business addresses, the Natura 2000 areas and nature types involved, as well as the magnitude of the (current and intended) nitrogen deposition of the 'PAS notifiers'.
The Minister proceeded to disclose about 3,500 PAS notifications, but in doing so, he omitted the personal data, including the location data of the companies involved. The Minister gave more weight to the 'privacy' of the businesses than to the importance of publicity. Reference was also made to a possible threat of animal rights extremism in the event of publication of the data. On 3 July 2020, the District Court of Noord Nederland ruled on appeal that the data for ten businesses had to be disclosed - with regard to the remaining 3,490 business, the decision was suspended until its ruling had become irrevocable or until the Division had ruled on any appeal against the ruling. The Minister and the Agricultural and Horticultural Organisation (Land- en Tuinbouworganisatie Nederland, hereafter: "LTO") appealed against this District Court decision to the Division.
Environmental information: location data is emission data
The key question is whether the requested location data can be regarded as (i) environmental information and (ii) emission data. An affirmative answer has consequences for the grounds for exemption that the Minister may invoke. In the case of emissions data, the Wob excludes respect for privacy as an exception (Section 10, subsection 2, opening words and under (e), Wob). The Division answers the questions under (i) and (ii) as follows.
(i) According to the Division, location data are indeed environmental information. The address of the natural or legal person for whom the notification has been made is only environmental information if that address is also the same as the location of the activities for which the notification has been made.
(ii) The question whether location data are also emission data is further substantiated by the Division with reference to case law of the Court of Justice of the European Union (hereinafter "ECJ"). In the Bayer CropScience judgment, the ECJ considered that "information on emissions into the environment" must be understood to mean:
- Information on emissions as such (e.g. information on the nature, composition, quantity, date and location of these emissions).
- Data on the shorter or longer-term effects of these emissions on the environment.
Based on this interpretation, the Division concludes that the location of emissions (read: the location data requested by the MOB) can also be regarded as information on emissions into the environment, i.e. emissions data. Consequently, the Minister could not reject the MOB's request on the grounds of privacy.
Business security and prevention of sabotage
Nevertheless, the disclosure of environmental information and emission data can be omitted if the safety of businesses is endangered or if sabotage can be prevented (Section 10, subsection 7, opening words and under b of the Wob). This exception was included in the Wob after 9/11 and is mainly intended for disasters or major accidents. Therefore, a cautious application of this exception is required, according to the Division. For a successful reliance on the exception ground, concrete indications must exist that disclosure would actually harm the interest served by secrecy. The argument that animal rights extremism constitutes a current threat to agricultural businesses is not convincing, according to the Division. This also applies to the substantiation: the NCTV (*3) report 'Dreigingsbeeld Terrorisme Nederland' (Threat assessment of terrorism in the Netherlands) that was submitted even mentions that this movement has been small for a long time and is mainly expressed in peaceful demonstrations. After all, the social debate that arose after the PAS judgements does not provide a concrete starting point either. The Minister by far does not exceed the threshold of proof and motivation. This threshold is high because great value is attached to the disclosure of data on emissions and this information is among the most important environmental information from the point of view of achieving the objectives of the Aarhus Convention. The plea for an exception fails.
Implications of the judgement
The judgment emphasises the special position of emission data under the Wob. In combination with the increased burden of proof and the duty of administrative bodies to provide substantive motivation, a Wob request regarding data on emissions into the environment can only be refused in exceptional cases on the grounds for refusal stated in the Wob. As a result, the Minister must disclose the location data of the ten businesses concerned by this ruling as soon as possible. The District Court of Noord Nederland will soon rule on the other 3,490 PAS notifications as well. The outcome of that judgment is easy to predict after this clear ruling of the Division.
- Decision by the Council of State on the framework for revoking (irrevocable) nature permits and the permit obligation for internal netting
Keri van Ettekoven and Arjen Praat thank working students Dominique Vleeskens and Pieter van Naamen for their input on this blog.
- * 'Programma Aanpak Stikstof' (PAS) – Nitrogen Action Programme. Over the past years, a nation-wide program for fighting nitrogen depositions (commonly referred to as the "PAS") was in place. This program was ruled unlawful by the Dutch Council of State on 29 May 2019. As a result of the annulment of the PAS, projects formerly covered by the PAS, now require an individual assessment of the nitrogen depositions caused, and potentially require a nature permit from the Provincial Executive.
- * Wet openbaarheid van bestuur (Wob) - Government Information (Public Access) Act
- * Nationaal Coördinator Terrorismebestrijding en Veiligheid (NCTV) - National Coordinator for Security and Counterterrorism