Ecoglasnost NM, Montana vs. Prevention and State Sanitary Control Department

Facts:
On 7 May 2001, Ecoglasnost National Movement, Montana Chapter (regional informal subdivision of Ecoglasnost National Association) served an application through its representative Petar Penchev for obtaining access to the statements on the measurements of noise penetration in a building located in Montana.

On 22 August 2001, the Director of the Prevention and State Sanitary Control Department refused to grant access with a decision, stating that the requested information was within the scope of Art. 13, para 2, subpara 1 of APIA.
An appeal was served on 3 September 2001. Further developments are expected.

Arguments of the Parties:
The requested information about the measurements of noise penetration is a case of data concerning the condition of components of the environment. Hence that information is within the scope of Art. 8, para 1 of EPA. Since APIA provides for the right of every citizen of access to any public information, while EPA (Art. 9) provides for the right of every citizen of access to a specific type of information, the latter relates to the former as a special law to a general law. Next, the relevant document obviously has significance of its own if it is the only source of information about the condition of components of the environment.

In the opinion of the Director of the Prevention and State Sanitary Control Department, pursuant to Art. 13, para 1, subpara 1 the leadership of the Hygiene and Epidemics Inspectorate was not obliged to grant access to the requested information.

Issue of Interest:
Interpretation of Art. 13, para 2, subpara 1 of APIA

Conclusions:
The reasons of the refusal tend to suggest that it at least diverged from the purpose of the law if not violated it.

The interpretation of Art. 13, para 2, subpara 1 of APIA in the sense that this provision does not create an obligation of the relevant body to grant access to information is wrongful and it would render the whole law senseless. Conversely, this provision creates an obligation of the relevant body, when establishing substantial grounds and while striking proper balance between the possibly contradictory interests of the applicant on the one hand and the person in need of protection of data, to exercise its discretionary rights and obligations (operational independence). One cannot share the view that cases exist, in which goverbnment institutions have only rights without perceiving these rights as obligations as well. Any interpretation to the contrary would render senseless the principles laid down in Art. 6 of APIA and the obligation of the body under Art. 38 of APIA to give reasons for its decision.

Secondly, the applicable arrangements (pursuant to Art. 11, para 2 of NAA) will be the ones set out in EPA. The latter does not provide for the restrictions laid down in Art. 13, para 2, subpara 1 of APIA and it does not include any reference to APIA in this respect. Moreover, the exercise of discreationary powers of the relevant body whether to grant access to information about the condition of components of the environment would place its subjective will above the human health or life.
Obvisouly, the statement is not an opinion, assessment, recommendation or consultation, and the list of cases under Art. 13, para 2, subpara 1 of APIA is exhaustive.

All this is indicative of poor knowledge of the law and hence non-performance on part of the Director of the Prevention and State Sanitary Control Department.