Right Of Public Access Research Articles

Public right of access to private land: examples and considerations

ABSTRACT Public right of access, everyman’s or everyone's right, freedom to roam, right of public access to the wilderness and the right to roam are terms used for concepts that give people an independent right of access to forest land and rural areas for recreational or passage purposes. Access is not a self-evident right nor are the practices in different countries resolved alike. In this paper, we review how the public right of access is resolved in different countries, with a focus on cases in Sweden and Finland. We highlight problems that arise when the right of access enables extensive use of the land by the public and may make everyone’s right prone to features related to the tragedy of the commons. We find that the code regarding public access depends largely on cultural, historical, and political differences and thus has no international or unambiguous definition as to what it includes or should include. The concept has worked considerably well throughout time but, as the original reasons for the right have waned and recreational use and demand have increased, the question has been raised whether everyone’s right should be redefined to prevent complications between users and landowners.

Understanding the experience of assistance dog providers supporting people with disability: an exploratory study

Purpose Assistance dogs can provide many health and wellbeing benefits to people with disability, however challenges remain. Assistance dog providers provide crucial support to assistance dog handlers, however limited literature exists exploring their experience working with people with disability. This study aimed to understand the experiences of assistance dog providers working in Australia. Materials and Methods Twelve assistance dog providers participated in semi-structured interviews. Inductive thematic analysis was used to analyse the transcripts. Results Five themes emerged describing the participant experience. Theme one discussed instances of discrimination experienced by assistance dog handlers, stemming from the lack of public awareness. Theme two captured the inconsistencies regarding the training of assistance dog providers with a specific focus on the gaps in the disability specific knowledge. Theme three emphasised the lack of clarity regarding legislation outlining the training requirements of assistance dog providers and the public access rights of the handlers. Theme four emphasised funding barriers, and theme five discussed barriers to interprofessional collaboration between assistance dog providers and allied health professionals. Conclusion These findings contribute to understanding the current barriers experienced by assistance dog providers and assistance dog handlers, as well as the legislative changes required to better support people with disability.

Subsidiary and the structure of property law

This article provides an account of the structure of property law based on the principle of subsidiarity. This principle holds that more centralized organizations, including governments, should fulfil a subsidiary role in relation to the individuals and groups of which they are comprised. While subsidiarity has been highly influential in the areas of public law, constitutional law, and international law, its relevance to property law has been underappreciated. Property rights distribute decision-making authority over resources to non-state parties. This promotes a number of interrelated benefits associated with subsidiarity, including the qualitatively distinct contributions made by individuals and groups to the common good, the instrumental benefits of decentralized decision-making, the intrinsic benefits of involvement in actions and decisions affecting oneself, and the development of virtues. However, the principle of subsidiarity also suggests important roles for public authorities, including assuring an appropriate distribution of resources in society and intervening where the private authority of owners fails to uphold the common good. In this respect, subsidiarity offers a distinctive understanding of the divide between private and public law. Private law doctrine appropriately provides owners with a significant sphere of presumptive authority, yet this is subject to broad powers of public authorities to alter the baseline where, in their judgment, the common good requires it. This article argues that the concept of subsidiarity can help to bridge the divide between progressive property theory and theoretical approaches that emphasize the authority of owners. It can also contribute to an understanding of the concept of property, public access rights to private property, property-based community governance, and legal protections for property rights.

Maritime spatial plans as an object of the right of access to information

This paper examines maritime spatial planning (MSP) from the perspective of transboundary interaction in the context of the public right of access to environmental information while considering digitisation possibilities. In addition to a theoretical approach, the paper contains an empirical part. The paper presents the background characterising the genesis of MSP in the European Union and its transboundary nature. Following a literature review, the paper offers a characterisation of the right of access to environmental information in the context of MSP transboundary interaction. The empirical part clarifies the availability of basic MSP documentation, namely maritime spatial plans, their cartographic format, and strategic environmental assessments in practice, based partly on communication with the national MSP authorities of the European Union’s coastal Member States. The main finding relates to the need to look for approaches offered in the framework of the paper to ensure the digital distribution of basic official MSP information in the context of transboundary interaction in line with the right of access to environmental information in the pertinent legislation and soft law instruments at the international, regional and national levels.

'Having the dog as part of our family gives us hope': Experiences of the impact of assistance dogs on the occupational engagement of children with autism and their families.

Autism is a developmental disorder characterised by changes in social, communication, and behavioural performance. Assistance dogs can support children with autism to engage in everyday occupations. Despite more children being partnered with assistance dogs, there is limited research regarding the impact of assistance dogs on the occupational engagement of children with autism and their families, and further research is needed to fully understand the impact of this type of support within the Australian context. To explore caregiver-reported experiences of an assistance dog on the occupational engagement of children with autism and their families. Using a qualitative approach, semi-structured interviews were undertaken with six caregivers of seven children with autism, who each had an assistance dog. Interviews ranged from 45 to 60 minutes in duration. Data were transcribed verbatim and thematically analysed. Trustworthiness was maximised through independent recruitment, research team discussions, member checking, and a researcher reflective journal. Three themes were identified: participation in everyday occupations prior to and after partnering with an assistance dog, increased engagement in everyday occupations, and impact of the assistance dog on the family unit. Assistance dogs were reported to progress children from community 'isolation' to 'freedom'. Participants reported the dog increased children's capacities through positively influencing completion of routines, increasing independence, and improving therapy engagement. Assistance dogs were viewed as supporting the whole family's occupational engagement. Some challenges were identified with the introduction of the assistance dog to thefamily unit, and with animal maintenance costs and time demands, public access rights, and limited government funding. This research identifies benefits and challenges for children who partner with autism assistance dogs. It provides insights to inform assistance animal referral, assessment, and support of assistance dogs in Australia for children with autism and occupational therapists working with them.

Outdoor recreation and the private forest owner: Place attachment, social values, and public access

IntroductionThe Swedish National Forest Program emphasizes that the forest can be more multifunctional where the values created by human experiences of the forest, i.e., social values, can be used for tourism and outdoor recreation, leading to rural development and sustainable growth. To develop multifunctional forests in this respect, private forest owners' perspectives on development are critically important. For example, the place attachment of the private forest owners affects how they manage their forests. Therefore, it is crucial to consider private forest owners' perspectives when planning land use.MethodThe study area is a region in southwest Sweden (Hallandsås) designated as a national interest area for outdoor recreation. There is interest in expanding and developing nature-based tourism, including trail systems, based on the perception of the areas as having great outdoor recreation value. This article aims to present findings from a study that investigated the potential for outdoor recreation development in the forests of Hallandsås. A questionnaire was sent out to private forest owners, which contained questions about social values, perspectives on the Swedish right of public access, development of outdoor recreation, and place attachment.ResultsThe results showed that private forest owners considered health, well-being, and a good living environment the most important social values of their forested lands. The identity and cultural heritage value of private forest lands and the value of working on the land were the second and third most highly identified forest social values. Outdoor recreation was not identified as a top forest social value.DiscussionThe analysis identified seven key factors that must be considered with outdoor recreation development, given concerns and the importance of other forest social values. Careful consideration of these factors and their interactions can provide a path for outdoor recreation development that is respectful to people and places. This consideration is at the core of landscape protection and management as interpreted by the European Landscape Convention. Forest owners' social values are a critical part of landscape quality objectives, along with planning that links public aspirations with landscape character.

The European Ombudsman’s role in access to documents

The right of public access to EU documents was formally established 30 years ago, and given widespread effect through legislation in 2001. The European Ombudsman is a redress mechanism for those seeking access to EU documents. Together with the Court of Justice, the Ombudsman has helped to define how this right can be exercised and set best practice for the EU administration in dealing with access to documents. In doing so, the Ombudsman has helped to develop how this crucial right is used to make EU decision making more transparent. The Ombudsman encourages the EU institutions to take a more proactive approach to transparency.

Community Awareness of Assistance Dog Public Access Rights among Australian Adults

Assistance dogs fill a wide variety of disability assistance roles. In many jurisdictions, assistance dogs have the legal right to enter public places with their handlers, including those that are typically off-limits to pet animals. Unfortunately, unlawful denial of access to these places is common, which may be due to lack of understanding about these access rights. The aim of this exploratory study was to determine awareness of assistance dog public access rights among the general population of Australian adults. An online survey was completed by 328 Australian residents, only six of whom had ever lived with an assistance dog. Analyses were primarily descriptive. About half (51%) worked in an environment in which occasional encounters with an assistance dog and handler team would be possible, but most participants reported rarely or never encountering an assistance dog in their community or workplace. Nonetheless, awareness of assistance dog public access rights was generally high, with nearly all participants aware that ‘pet dog’ is not a synonym for assistance dog, and that assistance dogs have the legal right to access shopping centres and public transport. Awareness was lower for limitations on these access rights, such as gatekeepers’ (i.e., people who determine whether a person enters their premises) right to ask for evidence that the dog is an assistance dog, and the right to deny access to a dog that is not well-controlled. Women had significantly higher knowledge about this topic than men, and age was positively correlated with knowledge, but both had weak effect sizes. Future educational campaigns should aim to increase awareness of assistance dogs’ legal rights and obligations, to reduce the likelihood of unlawful access denials in the future.

The Escazú Agreement: public access to environmental information and the goal of a sustainable future

The adoption in 2018, and entry into force in 2021, of the Escazú Agreement creates significant room for the further entrenchment of Principle 10 of the Rio Declaration in countries in the Latin America and Caribbean region. The severe environmental and related human rights challenges in the region have attracted global attention. And the Agreement is most timely in its aim to secure a healthy environment for the present and future generations and ensure sustainable development in the region. Within the context of good practice in the field – as exemplified by the earlier Aarhus Convention and the United Nations Environmental Programme (UNEP) Bali Guidelines – and the peculiar requirements of the region, this article assesses the quality of the Escazú Agreement, and the extent to which the public right of access to environmental information in the Agreement can contribute to achieving the goal of the regime. It also reflects how best this right might be strengthened where necessary. The study finds that while aspects of the information right are sound, are sensitive to regional needs and peculiarities, and align with and even go beyond established good practice, some key provisions require strengthening as they are significantly weak and potentially compromising of the overall value of the access right granted.

Tourism, Recreation and Wilderness: Public Perceptions of Conservation and Access in the Central Highland of Iceland

Protected area establishment can be a source of land-use conflicts. National parks are particularly prone to such conflicts as they tend to cover large, sometimes remote, areas, involve many stakeholders, and often constitute an important venue for both tourism and outdoor recreation. Identifying potential conflict issues at an early stage is crucial to prevent further escalation and preserve public support for conservation. This article presents the findings of a nation-wide survey focusing on the establishment of the Central Highland National Park (CHNP) in Iceland, with the aim of identifying such points of contention. The results show that while the establishment of the CHNP enjoys broad public support, concerns over access restrictions are the most common reason for opposition. The majority of respondents support limiting the number of visitors to the area, which can hardly be implemented without conflicting with public access rights, deeply embedded in local culture and uses. In this remote area, access facilitation through road and accommodation development, however, appears very divisive, either seen as providing increased opportunities for the general public to enjoy the area or as threatening the authenticity of travel experiences in a wilderness destination, and paving the way for further developments. It is argued that refraining from building up roads is the most diplomatic way to limit visitor numbers without seriously impairing travel freedom, therefore preserving the wilderness qualities of the area while meeting users’ expectations. Ultimately, this study highlights the importance of public opinion research and stakeholder consultation when planning and managing tourism and outdoor recreation in wilderness settings.

Ograniczenia prawa dostępu do dokumentów instytucji Unii Europejskiej na podstawie rozporządzenia 1049/2001 w sprawie publicznego dostępu do dokumentów

The article undertakes the issue of lawful exceptions to the right of public access to EU documents under Article 4 of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents. The author analyses the jurisprudence of the General Court and the Court of Justice as regards the interpretation of these exceptions. The article covers obligatory as well as facultative exceptions in public or private interest, exception connected with the protection of the decision-making processes in the EU institutions and the issue of Member States’ documents, which are in possession of EU institutions. The author argues that there have been so far important differences in jurisprudence of the General Court and the Court of Justice in a number of important issues, such as the balance between the public access to documents and respect of privacy. The approach of the EU courts in also highlighted in respect of Member States’ documents – the author draws a conclusion that when the documents drawn by the Member States are transmitted to the UE institutions, the public access to these documents does no longer belong to the national law but to the EU law. In particular, eventual denial to access such documents must be based on exceptions from Article 4 of the Regulation 1049/2001, and not on national law. This results in extending the scope of application of the EU rules on public access to documents.

Semantic tagging and the Nordic tradition of everyman’s rights

Abstract This article uses semantic tagging to analyse the Nordic concept of everyman’s rights (a right of public access to nature) in protocols of the Finnish parliament. In the analysis, we use a novel tool, a lexical semantic tagger for Finnish (Finnish-language Semantic Tagger), which is used to tag key discussions about everyman’s rights in the Finnish parliament. The article has two contributions as follows: first, it presents a method that combines semantic tagging and similarity analysis of corpora (keyness) for studying the formation of political concepts in large textual data. Secondly, it sheds light on the Nordic access rights and the underlying customary everyman’s rights. Despite its central role in public debate, the history of the concept has not been well researched. Our analysis shows that the legislative context could be clearly detected with our approach, and that the method allowed us to describe shifts in the meaning of everyman’s rights in the legislative discussion.

‘Community members aren’t aware that assistance animals come in all shapes and sizes, and help people with all kinds of disabilities’ – Experiences of using assistance animals within community living in Australia

Purpose This study aimed to investigate: (1) the characteristics of people using, or had previously used, assistance animals within community living in Australia; (2) positive and/or negative experiences of these users; and (3) educational resources that may aid public awareness. Materials and methods An online survey was distributed through Australian assistance animal organisations and social media channels. Past/current assistance animal users (n = 112) responded to questions on demographic and types of animal supports used, experience of assistance animal use, community attitudes experienced, and perspectives about the need for public education. Data were analysed with descriptive and inferential statistics. Content analysis provided additional insights of the positive and/or negative experiences assistance animal users had faced. Results Nearly all participants used an assistance dog (n = 111), and 37 (33%) used the animal for more than one type of support. Seventy percent reported experiencing both positive and negative community attitudes/reactions. Length of time of having an assistance animal was associated with significantly higher prevalence of positive attitudes/reactions, whilst users who received medical support from the animal tended to experience more negative community attitudes/reactions than other users. The majority (90%) agreed that more public education is needed regarding assistance animal public access rights. Conclusions This study is the first in Australia to undertake a large-scale survey of assistance animal users with a range of disability types. It highlights the benefits and challenges of assistance animals, which could be useful to consider when determining the most appropriate support for an individual. Implications for Rehabilitation There are a range of possible benefits, but also challenges, in the use of assistance animals that should be considered when a person with disability or health conditions, or people advising them, are determining if an animal is the most appropriate support. Assistance animals can provide multiple types of support to one user, so could offer a potential cost-benefit beyond traditional assistive devices or other types of support. To ensure better inclusion of assistance animal users, public education is needed to promote community awareness of the types of animals that meet the definition of an ‘assistance animal’, and thus have public access rights. In Australia, a nationally consistent government approach to the regulation, accreditation and funding of assistance animals should be established with the aim to address the current fragmented or unfair investment approach and/or discrimination experienced by some individuals.

Balancing Disclosure and Access to Documents in EU Trade Defence Investigations

The European Union’s founding treaties recognize the need for a balancing exercise between protective interests and the principles of openness, transparency, and the right of access to documents. Nowhere is that balancing exercise as evident as in the field of trade defence investigations. There, primary EU law principles meet the restrictions arising from the Union’s international law obligations under the WTO Agreements as well the sectoral EU law system of protection of confidential information. What is more, to-date, the Court of Justice of the European Union is yet to provide guidance on how that system should be untangled. This article assesses the interplay between those (at first sight competing) frameworks. In so doing, it will look at the intricacies of the law surrounding EU trade defence investigations and the public right of access to information under Regulation (EC) 1049/2001. Guided by the case-law in those areas and other fields of EU law, the article will discuss how that interplay of rights and restrictions should be resolved if and when the issue is put before the General Court or the European Court of Justice. Trade defence, disclosure, rights of defence, access to documents, Regulation (EC) 1049/2001

Adding Confusion to the Muddy Waters of the Oswego Lake Decision: A Response to Dean Huffman

Dean Jim Huffman’s recent article in Environmental Law on the Oswego Lake decision claims that the Oregon Supreme Court’s opinion is a “confused treatise on the public trust doctrine.” Objecting to the court’s decision on a number of grounds, Dean Huffman took issue with the court’s recognition of public access rights, its creation of a so-called “public use” doctrine, its use of the law of private trusts, and its recognition of the state’s claim of ownership of water within its jurisdiction. Moreover, and somewhat astonishingly, Huffman claims that the rights of the people cannot be violated by the representatives of the people, seemingly at odds with over a century of case law. Although we agree with a few of Huffman’s criticisms, he overlooks some critical public trust interpretations of the Oswego Lake court, such as its recognition of the trustee status of municipalities. He also confuses other issues, like the state’s distinction between what it calls “navigable-in-fact” waters (those which support recreational watercraft today) and those waterways that are navigable under the federal title test (commercially navigable around the time of statehood). We explain our criticisms in this essay.

Digging Deeper into the Finnish Parliamentary Protocols

This paper analyses the protocols of the Parliament of Finland 1907–2000. They have been digitised and published as open data by the Finnish Parliament in 20181. In the analysis we use a novel tool, a semantic tagger for Finnish – FiST [1]. We describe the tagger generally and show results of seman-tic analysis both on the whole of the parliamentary corpus and on a small subset of data where everyman’s rights (a widely used right of public access to nature) have been the main topic of parliamentary discussions. Our analysis contributes to the understanding of the development of this “tradition” of public access rights, and is also the first study utilizing the Finnish semantic tagger as a tool for content analysis in digital humanities research. Keyword search shows first that that the discussion of everyman’s rights has had three different peak peri-ods in the Finnish Parliament: 1946, 1973, and 1992. Secondly, the contents of the discussions have different nature for all the periods, which could be clearly detected with FiST and keyness analysis.

Participatory Accountability at the Dawn of Artificial Intelligence

In making a myriad things more efficient and convenient, advanced data analytics are also opening our lives to unjustifiable biases and unseen manipulations. It is, however, less often considered that algorithmic decision making is also progressively changing the nature of liberal democratic forms of governance. In particular, they are rendering direct public participation in transparency and accountability mechanisms unsustainable. In this paper, I address that question in three steps. First, using the idea of participatory accountability, the paper explains the importance of information access rights to public engagement in governance. Outwardly, these rights are dispersed across distinctively different fields of law, including freedom of information, data protection and litigation laws and procedures. Yet, in practice, they not only share similarities in design and application, but also benefit from a contemporary political ethos that celebrates public knowledge and scrutiny of authority and power. Their impact on liberal democratic governance, moreover, often lies in their mass and random power to force the disclosure of information. Participatory accountability in the United Kingdom, however, is largely focused on these transparency tools, leaving citizens to pursue accountability as they see fit through diverse processes of litigation, judicial review, regulatory complaint or media publicity. Second, the paper turns to the complexity and opacity of data analytics and the challenge this poses for direct public participation in algorithmic governance. This challenge goes well beyond a lack of technical expertise in the general public. Deliberately restricted by design and doctrine to limit compliance burdens and disclosure risks, public information access rights cannot be used to compel controllers of algorithmic decision making to provide systemic explanations of their data sources, purposes and outputs. In short, participatory accountability is under-equipped for the future and is, consequently, losing its force and direction. Solutions will, furthermore, need to be as transformational as the societal consequences of data analytics. The answer does not, however, lie in enhanced access rights enabling the public to demand systemic explanations at will. The compliance and disclosure harms of that mass empowerment would undoubtedly outweigh its public transparency benefits. Third, the paper proposes workable solutions that avoid both the harms of mass empowerment and the alternative of remote and paternalist forms of algorithmic governance. Taking inspiration from the European Court of Human Rights judgement in Magyar Helsinki Bizottsag v. Hungary recognising an ECHR Article 10 derivative information access right, I argue that enhanced public access rights, including a power to compel systemic explanations of algorithmic decision making, should be recognised for qualifying media and societal watchdog organisations and individuals. In addition, where full public transparency is not possible, regulatory and self-regulatory mechanisms should be opened up to greater public participation, in particular for such watchdog organisations. As trusted intermediaries representing the public interest, statutory regulators should, in particular, resist the current rationales of paternalism in algorithmic governance. Relaxation of legal barriers to direct public agency in accountability processes, as exemplified by the Court of Appeal’s recent judgement in Lloyd v Google regarding representative actions, should also be pursued. While a cautious approach to enhanced litigation rights is understandable, more flexibility in representative actions will be necessary as data analytics move beyond the knowledge and resources of the average citizen or consumer and the assistance of better equipped watchdog organisations becomes essential.

An Argument for Greater Public Access to Rivers in Colorado: A Fisherman’s Perspective

This comment begins by explaining the law pertaining to river access rights and recounting the history of Colorado’s river access law as well as the different approaches taken by Utah and Montana. As Utah and Montana’s river access law illustrates (discussed below), current Colorado law is not immutable – it is but one possible variation of how a state can choose to address river access rights. The comment then culminates with an analysis of Colorado Fishermen’s3 possible, albeit challenging, path toward achieving greater public access rights to Colorado’s rivers and streams.

Martin's Beach Litigation and Eroding Public Access Rights to the California Coast

Martin's Beach Litigation and Eroding Public Access Rights to the California Coast

Greenspace Governance: Statutory Solutions from Scotland?

The environmental, social and economic benefits provided by greenspace are well-documented, and the closure of other types of Third Place has popularised them further. Yet, public sector funding cuts have necessitated local authorities prioritising other facilities that they are statutorily obliged to provide, resulting in a facilities-hierarchy which leaves financially-neglected greenspaces facing a vicious circle of decline. The Big Society agenda has seen local authorities increasingly rely on the voluntary sector to help plug the funding gap, yet there are concerns that such groups are not immune from the effects of austerity themselves which limit their panacean abilities. In exploring whether statute could provide any answers to these greenspace governance challenges, this article considers the lessons to be learned from the approach adopted in Scotland, underpinned by the Land Reform (Scotland) Act 2003 ('the 2003 Act'). In particular, the 2003 Act establishes public rights of access over most greenspace, a local authority duty to uphold these rights and local authority powers to take remedial action. Whilst there have been some issues in implementation, this article explores the potential for adopting a similar model in England & Wales to help secure the future of its greenspace infrastructure.