National Movement Ekoglasnost vs the Nuclear Regulatory Agency
First Instance Court – administrative case No. 3857/2009, ACSC, Second division, 36th panel
Second Instance Court – administrative case No. 8872/2010, SAC, Fifth division
On October 30, 2008, The National Movement Ekoglasnost sought information about the technical decision of the Nuclear Regulatory Agency (NRA) and its attachments on the substitution of nuclear fuel in the Nuclear Power Plant “Kozloduy.” The reason for such a request came from the statement of a former employee in the Nuclear Power Plant “Kozloduy,” Georgi Kotev – published in the Internet. Kotev claimed that there is a corruption mechanism which might threaten the safety of the nuclear reactors, as the fuel used was not fresh but recycled.
With a decision as of November 2008 the chairperson of the NRA refused access on the ground of lack of consent for the disclosure of the information by the third party, namely the NPP “Kozloduy.” According to the decision of refusal, the information sought was protected by the trade secret exemption as there was a confidentiality clause stipulated in the agreement between “Kozloduy” and the Russian supplier of fuel.
The refusal was challenged before the ACSC. The complainant stressed on the fact that there is an overriding public interest in disclosing the information because it relates to a question which hides potential risks for the environment.
Developments in the First Instance:
The case was heard in an open court session on December 3, 2009 and was scheduled for judgment. NPP “Kozloduy” was constituted as interested party.
With a decision No. 670 as of March 29, 2010, a panel of the ACSC repealed the refusal and returned the case to NRA for reconsideration. The Court held that the information sought is environmental within the meaning of the Environment Protection Act (EPA) and the conditions for its disclosure shall be assessed under its provisions. The EPA provides for a narrow interpretation of the restrictions to the access to information and requires the public authority to take into consideration the public interest in disclosing the information. The Court refuted the argument of the NRA that the information constitutes a production secret because of the confidentiality clause. Further, the Court found that the chairperson of the NRA has not shown that the information requested falls under the confidentiality clause, therefore, it cannot be concluded that disclosure of the information would harm any legal interests.
The decision of the ACSC was appealed by the NRA and by the NPP “Kozloduy” before the SAC. The appellants argued that the information was not related to the environment and there is no public interest in its disclosure.
Developments in the Court of Second Instance:
The case was heard in an open court session on March 23, 2011 and was scheduled for judgment.