Belgium: The Real Price of Nuclear Power No Longer Secret

A freedom-of-information request on environmental information forced disclosure of part of the cost of nuclear-waste management in Belgium, after a case brought by Tinne van der Straeten, a politician of the ecologist party Green (GROEN!), was upheld by the country's highest administrative authority.

A request built on European environmental law

Although the Belgian access-to-information rules are a national decision, they rest on an international treaty and a European directive on access to environmental information, which gave the outcome relevance well beyond Belgium. It was already known that the Belgian nuclear-waste management programme carried extra costs, but the detailed figures had not been available. Van der Straeten therefore asked the Belgian Agency for Radioactive Waste and Enriched Fissile Materials (NIRAS) for access to the regular report the agency issues every fifth year. She described the outcome on her blog as a win for access to information over secrecy about the costs of nuclear waste. The mechanics of filing such requests are set out in the guidance on how to use European freedom of information.

The refusal and the appeal

NIRAS rejected the request, citing national security and the confidential character of the economic and industrial information, and argued that partial access was impractical because blacking out the confidential data would leave the report incomprehensible. Under Belgian law the Federal Commission on access to environmental information intervened on van der Straeten's behalf, and the case then went to the Administrative Court (Raad van State / Conseil d'État). In a judgment delivered on 14 April 2009, the court confirmed the Federal Commission's decision to grant access to the report, with the exception of information detailing the exact place and forms in which nuclear material was present.

Why the court rejected the agency's arguments

The Administrative Court rejected the agency's request to suspend the Federal Commission's decision, relying essentially on the following reasoning:

• Exceptions to the basic right of access to information have to be interpreted restrictively.
• The confidentiality of commercial or industrial information was not a sufficient ground, because economic and financial information of that kind has to be made public under other legislation in any case, and the Commission was not obliged to spell out exactly which laws required disclosure.
• Even where economic information is confidential, that interest has to be weighed against the public interest in disclosure under the European directive on access to environmental information (EC 2003/4), and the Commission could reasonably consider the requested information to have no confidential character.
• The agency's claim that publication would harm the fulfilment of its task could not be accepted as a ground for refusal, since a mere assumption of negative impact does not amount to an exemption under the law.

The court accordingly confirmed the arguments developed by the Federal Commission and ordered NIRAS to make the requested information public. As a result, the agency had to grant access, and van der Straeten confirmed that she received the full report apart from a few passages blacked out with details of the places and forms in which nuclear waste was stored. Comparable disputes over how such exceptions are weighed are traced in the account of sharpened conflicts over new access rules.

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