Opinion
On the Bill on the Protection of the Environment, Chapter Two
Drafted by the Ministry of Environment and Water
October 2001

This opinion is based on the comparison of the existing national legislation:

Protection of the Environment Act - Promulgated in The State Gazette, No. 86 of 18 October 1991; Latest amendments, The State Gazette, No. 26 of 20 March 2001;
Access to Public Information Act of 7 July 2000;
Other laws regulating restrictions on the right of access to information, as well as draft legislation in the same sphere;
to the new bill on the protection of the environment, which has been drafted by the Ministry of Environment and Water, as well as the relevant acquis communautaire, more specifically:
Directive 90/313;
Proposal for Directive of the European Parliament and the Council for Public Access to Environmental Information ÑÎÌ(2000) 402,
and the international multilateral agreements setting standards in this sphere:
Aarhus Convention on the Access to Information, Public Participation and Access to Justice on Environmental Matters (non-ratified).

Relationship between APIA and the Bill on the Protection of the Environment

The separate regulation of the right of access to information on environmental matters in the Protection of the Environment Act is meaningful only if this regulation is better than the one in APIA. Notwithstanding the positive aspects of the bill in comparison to the bill presented to Parliament, the regulation of the right of access to environmental information is still more restrictive than the one in the existing APIA and PEA.

Where both a general law and a special law regulate the same subject-matter, the applicable law is the special one (Art. 11, para 2 of the Legal Instruments Act). Thus the applicable law to the environmental information will be PEA after the bill is adopted by the National Assembly, preventing the application of the more favourable arrangements under APIA.

Relationship between European Regulations and the Bill on the Protection of the Environment

No amendments to PEA are required in connection with the right of access to information from the perspective of the harmonisation of the national legislation in the context of the EU accession negotiations. The legislation of the Republic of Bulgaria in the field of the access to environmental information has largely been harmonised with the relevant acquis communautaire. Further harmonisation can be achieved without necessarily adopting a new Protection of the Environment Act.

Directive 90/313 may be transposed into the national legislation in two ways:

Through a general law on the access to information, ensuring the compliance of this general law with the standards laid down in the Directive;
Through a special law (on the protection of the environment), where no general law exists or where higher standards are set out for the access to environmental information.

The Protection of the Environment Act, providing for the right of access to environmental information, was adopted in Bulgaria in 1991. Insofar as its enactment followed the adoption of Directive 90/313 and resulted from high public pressure, PEA largely meets and even surpasses the minimum standards set out in the Directive. The gaps in PEA, as far as they existed at all, were filled in with the adoption of the Access to Public Information Act of 2000.

The access to information was given a rather efficient solution with the adoption of APIA in 2000. The adoption of a new special law would be justified only if it provided for easier arrangements concerning the access to information.

The proposed bill on the protection of the environment aggravates the existing arrangements by means of:
Introducing additional restrictions on the right of access to information;

Reducing the number of persons responsible for ensuring access to public information in comparison to the existing PEA (Art. 12, para 1). The proposal for Directive of the European Parliament and the Council for Public Access to Environmental Information ÑÎÌ(2000) 402 requires a broader range of such persons;

Insufficient regulation of the active obligation of government authorities, individuals and legal entities, to ensure access to information in comparison to the existing PEA (Art. 23, para 1 of the bill covers only pollution and not any damage caused to the environment, as Art. 13 of the existing PEA reads; the imperative provisions of Art. 13a of the existing PEA have not been reproduced in the bill);

Lack of any provisions of the subsidiary application of APIA.

The provisions relating to restrictions should be substantially revised in conformity with Art. 41 of the Constitution and the provisions of APIA.

Although Directive 90/313 allows the introduction of the restrictions envisaged in the bill, it does not require their mandatory transposition into the national legislation. Items 5 and 6 of the Common Provisions of the Aarhus Convention, too, prohibit the aggravation of the arrangements concerning the access to environmental information where easier arrangements already exist.

Specific Recommendations on Provisions of Chapter Two

1. The provision of Art. 21, para 1 of the bill is unacceptable in its current wording because it envisions too big freedom (operational independence) of executive bodies to define the scope of the right of access to environmental information. For example, nobody should be allowed to judge in a totally arbitrary manner that a specific piece of information would affect the national defence or public security. Conversely, these interests are protected through clear and precise legislative provisions (list of the facts, data and items representing state secret; the laws introducing the administrative secret protecting these interests). The National Assembly has been submitted a bill on the protection of classified information, which gives clear and precise definition of the criteria applicable to any information classified as state or administrative secret. No information may be classified in accordance with any other criteria . In this connection we hereby make the following

Proposals:

A/ Art. 21, para 1 of the bill to be worded as follows: "The access to information shall be restricted where it represents secret provided by law in any of the following cases:"
B/ In Art. 21, para 1, subpara 1, insert the words "… pending the issuance of the final instrument" after the words "exchange of information";
C/ Art. 21, para 1, subpara 2 to be worded as follows: "information classified under the Classified Information Protection Act and affecting unfavourably international relations, the national defence or public security";
D/ Art. 21, para 1, subpara 3 to be worded as follows: "information constituting secret protected by law in connection with pending pre-trial proceedings". Generally, judicial proceedings are public in Bulgaria and, furthermore, the right to publish (ad argumentum a fortiori - also the right of access to) information related to judicial proceedings has been confirmed by the European Court of Human Rights in its case under Art. 10 of the European Convention on Human rights The Sunday Times vs. the United Kingdom. As to disciplinary proceedings, there exist no valid grounds for granting information protection.
E/ In Art. 21, para 1, subpara 4, insert the words "… where the interest in the non-disclosure of the information is more significant than the public interest in its disclosure" after the words "industrial secret";
F/ Art. 21, para 1, subpara 5 to be amended as follows: "the information concerning intellectual property rights and defined as secret by law". This is necessary because in all laws concerning intellectual property rights, i.e. the Copyright and Neighbouring Rights Protection Act, the Patents Act and the Marks and Geographic Appellations Act, secret is defined only in the Patents Act concerning the patent application together with the attached materials. PEA cannot protect intellectual property rights more than the relevant special laws;
G/ Art. 21, para 2 should be re-worded for the sake of greater clarity. We propose the following wording: "Information under subparas 3, 4, 5, 6 and 7 of the foregoing paragraph shall be refused only where the interests of a third party are affected within the meaning of Art. 37, para 1, subpara 2 of the Access to Public Information Act and no consent has been given for granting access to it."

2. The reports on the condition of the environment should be drawn up by the Ministry of Environment and Water and presented by the Minister rather than the Council of Ministers as suggested in the bill. Reports should be published not later than six months after the end of the calendar year. Any delay in the preparation of these reports will infringe upon citizens' right to information since being up-to-date is of special importance.

3. The provisions on the active granting of access to information by government authorities should be extended. It is necessary to cover the cases of damage to the environment, "including natural calamities, industrial accidents or fires" (as Art. 13 of the existing PEA reads) and imminent threat of pollution (Art. 13a of the existing PEA). It is recommendable that active obligation to grant access to information through the Internet be included in the spirit of the Proposal for Directive of the European Parliament and the Council for Public Access to Environmental Information ÑÎÌ(2000) 402.

4. We find the wording of Art. 27, para 1 to be lacking in precision. As is seen in a number of provisions of the bill, the idea is to have APIA applied on the basis of subsidiarity, which complies with the legal logic and the efficient safeguarding of the citizens' right of access to environmental information. We propose the following wording of Art. 27, para 1: "The provisions of the Access to Public Information Act shall apply to all matters that have not been settled in this Chapter."
In connection with the subsidiary application of APIA, we do not find it appropriate to grant special powers to the Minister of Environment and Water to determine the form of description of information arrays (Art. 25, para 1 of the bill). The competence (powers and obligations) to publish a description of the circumstances under Art. 15, para 1 of APIA exists anyway by force of APIA. However, it is impermissible for the information on the separate items to be published separately from the other information. The whole information under Art. 15 should be published at the same place (publication) and easily accessible to ordinary citizens, i.e. it should be on paper carrier.

Chapter Two of the bill on the protection of the environment, although providing better regulation of the access to information than the bill submitted to the National Assembly, in its current wording is not consistent with the achievements of the Bulgarian legislation and it is a step back. The existing Protection of the Environment Act has been harmonised with the acquis communautaire in its part concerning the access to information. It is possible to improve the existing legal framework by eliminating the provision of the existing PEA, which authorises the Council of Ministers to determine the terms and conditions for providing access to information, and instead making reference to the provisions of APIA.

Sofia
17 October 2001