The Ambivalence of Freedom of Information in Environmental Law — Public Participation, Transparency and the Administrative Process —

Since the creation of rights to free access to environmental information 25 years ago, European and German freedom of information law hasdeveloped into a sophisticated field of differentiated legislation and filigree jurisprudence. Nonetheless, the conceptual objectives of statutory entitlements remain colourful. In principle, there are two different paths to justify freedom of information in constitutional theory and legal doctrine. One concept stresses the democratic function, another the function to promote the rule of law. The democratic justification grounds in the idea that free information furthers deliberation of the citizens in a free society and enables political choice of the members of a body politic. This theoretical concept is coherently substantiated and in conformity with basic requirements of a democratic process, as long as information rights are equally vested in all citizens. Nevertheless, the democratic justification remains highly abstract and does not correspond to the social and administrative practice. A more practical approach refers to the function of freedom of information to put the administrative branch under public control and insofar support the rule of law. Despite positive effects on the administrative process, freedom of information can also adverselyinfluence the democratic and administrative process. First, freedom of information can unhinge the informational limitations, under which public authorities are intentionally placed. The fine balance of public informational interests and individual freedom rights behind the statutory framework can be underrun if information spreads uncontrolled. Second, freedom of information can disturb the formalized formation of will within the institutions of representative democracy and the de-politicized administrative procedure, which are both constitutional values of crucial importance in a liberal democracy. Ruling as the result of collective freedom needs power to rule, and there is no free society with weak political institutions. Thus, it would be counterproductive to lopsidedly optimize the freedom of information without sufficient protection of the administrative and democratic-politic process.