Time will tell whether an inclusion of environmental impact in the scope of the Transparency Act will lead to a need for changes in the rules to harmonise with the requirements of the Environmental Information Act.

The Transparency Act will result in extensive obligations for all larger enterprises to disclose information.

| Insight

In our previous article we introduced the Norwegian Transparency Act, that from July 1, 2022 will impose new and extensive due diligence obligations on larger enterprises. In this article, we take a deep dive look at the extensive information duty that further follows from the Act. An interesting question is also whether the Transparency Act may lead to requirements regarding disclosure of information on environmental impact and how this stands in relation to the Environmental Information Act.

Any person will be given the right to demand information from enterprises affected by the Transparency Act

It follows from the Transparency Act, Section 6, first paragraph, that any person has the right to information from an enterprise regarding how the enterprise addresses actual and potential adverse impacts according to the Section 4 of the Act. The requirement must be seen as part of a larger trend where private enterprises are required to provide information to a greater extent than previously. In contrast to other recent similar rules on the right of access to information, such as the GDPR where individuals can request the disclosure of «information about themselves», there is no restriction on who can request information under the Transparency Act. «Any person» means anyone seeking information. Enterprises subject to the Act has a corresponding duty to provide the requested information. The Transparency Act, Section 6, first paragraph, does not require that the person seeking for information has special reasons for requesting it. The person in question is therefore not obligated to provide a reason for the request for information. This means that in principle everyone, including journalists or people representing various interest organisations etc., may request information to be disclosed. The request for information must be submitted in writing, for instance via email, online form or physical letter which, as an example is then sent to the head office or delivered directly to the store.

The preparatory works to the law (Prop 150 L 2020-2021) furthermore specifies that a request may require an enterprise to obtain information that the enterprise does not itself possess in order to answer the request for information. The enterprise thus cannot dismiss such a request for information pursuant to Section 6 solely by pointing out that the enterprise, after fulfilling the law’s requirements for due diligence assessments in Section 4, does not have the requested information available. At the same time, the legislator emphasises in the preparatory works, pages 112-113, that the scope of the duty to disclose information will vary depending on the request for information and, among other things, the size of the enterprise to which the requirement is directed. The disclosure requirement must therefore be «proportionate», and the larger the enterprise, the more can be expected of the enterprise in terms of responding to requests for information. Some enterprises will be able to fulfil their obligations by referring to importers, wholesalers or suppliers for various questions, where it can be expected that they have an overview of the supply chain. The duty to disclose information does not obligate the enterprises to initiate measures but may nevertheless identify conditions that are of such a severity that they should be prioritised in future due diligence assessments. The risk of loss of reputation may likely further lead to additional incentives to actively follow up on conditions that emerge from information that is released.

The preparatory works to the law further specifies that the right to information under the Transparency Act, Section 6, does not extend beyond the parent company’s actual possibilities under national legislation to gain access to information from foreign-registered subsidiaries that do not offer goods and services in Norway. This should be seen in connection with the scope of the law for certain foreign companies, which we also discussed in our previous article on the Transparency Act.

Exemptions from the duty to provide information

The Transparency Act’s Section 6, second paragraph, gives the enterprise authority to deny a request for information if

      1. the request does not provide a sufficient basis for identifying what the request concerns 
      2. the request is clearly unreasonable
      3. the requested information concerns data relating to an individual’s personal affairs
      4. the requested information concerns data regarding technical devices and procedures or other operational and business matters which for competitive reasons it is important to keep secret in the interest of the person whom the information concerns.

The preparatory works specifies that the exemptions from the right to information for reasons as mentioned in letters a and b are narrow. In practice, in order to reject a request for access, enterprises will therefore, in most cases, rely on the exemptions in letters c and d. These two exemptions shall be interpreted in the same manner as the corresponding provisions on duty of confidentiality in the Public Administration Act, Section 13. The preparatory works, page 114, further states that enterprises must adapt the information provided, so that personal matters and trade secrets are not disclosed. In practice, this entails that such information must be censored while the rest of the information must be released. If this is not possible, the request for information may be rejected in its entirety.

The Transparency Act, Section 6, third paragraph, further specifies circumstances where the information shall nevertheless be disclosed. This concerns information regarding actual adverse impacts on fundamental human rights of which the enterprise is aware. Such information shall be disclosed even if it contains information about personal matters or trade secrets as specified in Section 6, second paragraph. This is a fairly far-reaching requirement and will likely be perceived as challenging for some enterprises. The preparatory works (pages 79-80) state that the provision is inspired by a similar provision in Section 12 of the Environmental Information Act and provides indications of the existence of a core area for the right to information that must always be respected. The purpose of the Transparency Act, Section 6, third paragraph, is to prevent the grounds for exemption in the Act from being interpreted too broadly, thereby exempting information that must be considered particularly important to the general public. According to the Ministry’s assessment in the preparatory work, the provision in Section 6, third paragraph, is formulated in a general manner that will rarely conflict with the duty of confidentiality. In other words, it will in principle be possible to communicate information in a good way without disclosing trade secrets or other matters subject to a duty of confidentiality. The Ministry states that when it comes to overriding the duty of confidentiality, the provision in the Transparency Act, Section 6, third paragraph, in the same way as the corresponding provision in the Environmental Information Act, must therefore be interpreted restrictively so that this opening in the provision is intended to be reserved for special circumstances.

The duty to provide information pursuant to Section 6, third paragraph, does not, however, apply to information that is classified pursuant to the Norwegian Security Act or protected pursuant to the Norwegian Intellectual Property Rights Act, cf. the Transparency Act, Section 6, fourth paragraph.

Enterprises’ processing of requests for information under the Transparency Act

It follows from the Act, Section 7, that information pursuant to Section 6 shall be provided by the enterprise in writing and shall be adequate and comprehensible. The enterprise shall provide information within a reasonable time and no later than three weeks after the request for information has been received, which must be considered a fairly tight time limit. If the amount or type of information requested makes it disproportionately burdensome to respond to the request for information within three weeks, the information shall then be provided within two months of receipt of the request. The enterprise shall then, no later than three weeks after the request for information is received, inform the information seeker in writing about the extension of the time limit, the reasons for the extension, and when the information can be expected. However, the preparatory works, page 115, emphasises that the extended time limit of two months is intended to be a narrow exemption rule. This is due to the fact that the enterprise is expected to have made its due diligence assessments in advance, so that the information requested is already expected to be available.

If the enterprise rejects a request for information, it shall inform of the legal basis for the rejection, the right and the time limit for demanding a more detailed justification for the denial and further inform that the Norwegian Consumer Authority is the supervisory and guidance body. Any person whose request for information is rejected may, within three weeks from the rejection is received, demand a more detailed justification for the rejection. The justification shall be provided in writing, as soon as possible and no later than three weeks after the demand for a more detailed justification was received.

It is the Norwegian Consumer Authority that enforces regulations regarding the general public’s requests for information pursuant to the Transparency Act

The Ethics Information Committee had proposed a separate provision in Section 12 of the draft law that anyone who makes a request for information pursuant to the Transparency Act should be able to appeal dismissals and denials to the Norwegian Consumer Authority. The Ethics Information Committee thus proposed a remediation mechanism pursuant to the Transparency Act that is reminiscent of what follows from the Norwegian Environmental Information Act, Section 19, but without proposing the establishment of a separate and independent appeal body as we have at the Norwegian Appeals Board for Environmental Information. The Ethics Information Committee’s proposal for a special appeal provision was not followed up by the Ministry and hence not included in the final Transparency Act when the law was passed by the parliament (Stortinget).

In accordance with the general rules of the Transparency Act, the Norwegian Consumer Authority, pursuant to the Act’s Section 12, has authority to issue decisions ordering the enterprise to release the requested information under threat of an enforcement penalty, pursuant to Section 13. Furthermore, Section 14 of the Transparency Act authorises the Consumer Authority to impose an infringement penalty for breach of the duty to provide information in Sections 5 and 6 and breach of the time limits for providing information in Section 7. With these powerful enforcement mechanisms in the Transparency Act provided for use by the Consumer Authority, the legislator considered it unnecessary with private enforcement of requests for information and a remediation mechanism corresponding to the content of Section 19 of the Norwegian Environmental Information Act. It follows from the wording of the text of the law and the preparatory works that a resident who has been refused disclosure from an enterprise under the Transparency Act does not have a legal claim to have a complaint dealt with by the Consumer Authority. But we will assume – as a clear starting point – that all complaints will be followed up closely by the Authority.

Environmental impact may become part of the scope of the Transparency Act

The scope of the Transparency Act, as it has now been passed, is limited to basic human rights and decent working conditions. Thus, the enterprises’ impact on climate and the environment is covered by the Transparency Act if the environmental impact results in an adverse impact on human rights, but not otherwise. In the preparatory works to the law (pages 42-43), the Ministry concludes that the Ministry will not propose the inclusion of environmental impact in general in the Transparency Act for the time being.

The Ministry stated that an evaluation of the Transparency Act is planned after it has been in force for some time. The Ministry furthermore emphasised in the preparatory works, that there is ongoing work within the EU on proposals for rules on due diligence assessments for both people and the environment. In the preparatory work, the Ministry mentions, among other things, the Commission’s bill on sustainable corporate governance, the revision of the Non-Financial Reporting Directive (ESG) and the EU Parliament’s report on Corporate Due Diligence and Corporate Accountability. When the preparatory works was written, these EU legislative proposals were expected to be submitted by the end of 2021. The Ministry states, on page 43, that the proposals, if adopted, will entail changes in Norwegian law. There has been quite some development since the proposition. Among other work on the EU’s Taxonomy and new rules for sustainable finance has made significantly progress. It is expected that adjustments to the Transparency Act will be looked at as even more pieces fall into place.

With regard to the relation between rules on environmental impact and environmental damage in general, the majority in the parliamentary committee (Stortingskomité) expressed understanding that «legislative work in the area of environmental damage must be investigated in more detail in order to achieve a best possible basis for the law. The majority therefore envisages that the government, as soon as this has been investigated, will reply to the parliament (Stortinget) in an appropriate manner». (Recommendation to Stortinget, 603 L (2020-2021) page 5).

Thus, it appears probable that environmental impact will be included in the Transparency Act in the future. Nevertheless, there are no specific proposals to change the Norwegian Transparency Act yet. The preparatory works, page 101, states that the Consumer Council in its consultation statement to the Ethics Information Committee’s draft law has stated that «a joint appeals board for both the Environmental Information Act and the Ethics Information Act, with a joint secretariat and systems, could be both efficient and economical».

Time will tell whether the inclusion of environmental impact in the scope of the Transparency Act will lead to changes in the rules regarding the right to appeal and the enforcement of requests for information under the Transparency Act, and whether these changes will result in a common set of rules regarding enforcement and appeal for both the Transparency Act and the Environmental Information Act. Should this be the case, we are of the opinion that there may be a need to harmonise the laws on several points as the Environmental Information Act already requires all enterprises (there is no size limit in the Environmental Information Act on which enterprises are covered) to publish environmental information, including information on environmental impact. Corresponding needs will arise in relation to the Norwegian Product Control Act.

The Environmental Information Act sets out both a duty of knowledge and duty of information related to the environmental impact of one’s own enterprise. The Environmental Information Act furthermore has a moderate provision related to the duty to provide information on environmental impact outside of Norwegian borders «to the extent that such information is available», cf. Section 16, second paragraph. According to the Environmental Information Act, Section 16, second paragraph, second sentence, the enterprise shall direct the request to the previous sales link if this is necessary in order to respond to the request for information. However, the Environmental Information Act does not impose an obligation to carry out due diligence assessments and, in this context, map and assess actual and potential adverse impacts on the environment in the supply chain, compare the Transparency Act Section 4, first paragraph, letter (b). Thus, it will have practical consequences for affected enterprises if environmental generally is included in the Transparency Act in the future.

We recommend that larger enterprises do the following as soon as possible

It is important that all enterprises covered by the Transparency Act are prepared to comply with all obligations that arise when the Transparency Act enters into force on 1 July 2022, including the obligations to provide information upon request in accordance with Sections 6 and 7 of the Act.

Enterprises should address this as part og their compliance strategy and related work to mitigate risks. In order to be at the forefront of the rules on the duty to provide information, one should already now establish internal routines for due diligence assessments of suppliers etc. (if not already in place) and should implement appropriate measures to ensure compliance. For many enterprises, it may further be an advantage to prepare an information letters that can be shared with customers and others, describing how the enterprise works with this matter. Access to qualified legal expertise is also fundamental to ensure that requests for information under the Transparency Act are handled correctly by the enterprise.

 

The article is written by Arne Oftedal, partner/lawyer, head of the Norwegian Appeals Board for Environmental Information and Chair of the Norwegian Bar Association’s Legislative Committee on Climate and Environmental Law, Kristian Ask Hammervik, senior lawyer, and Malin Tønseth, partner/lawyer and head of the Compliance Team in Simonsen Vogt Wiig.