For the Earth Association vs. Ministry of Environment and Water

Facts:
Polina Kireva, representative of For the Earth Environmentalist Association, wanted to obtain a copy of the minutes from a meeting of the Supreme Environmental Expert Board (SEEB) at the Ministry of Environment and Water (MEW).On 13 July 2000, after consultations with the AIP team, Ms Polina Kireva served an application for obtaining a copy of the minutes from the SEEB meeting (held on 19 June 2000) to the Minister of Environment and Water.

On 18 July 2000, Ms Kireva received a refusal in writing to grant access to information (signed by Deputy Minister N. Dimov) on grounds of Art. 37, para 1, subpara 1 of APIA, i.e. the information was a state or another secret protected by law and no meaning on its own. The explanation read that "the additional membership of SEEB is formed by representatives of non-governmental environmentalist organisations selected on your part (environmentalist organisations and movements)". The Deputy Minister interpreted it as "an opportunity for obtaining detailed information about the discussions held".

Ms Kireva approached the AIP lawyers for legal assistance in that case. Having analysed the facts and assessed the existing opportunities, they prepared the documentation and the refusal was appealed before SAC within the prescribed time limits.
The case was heard at SAC on 21 June 2001. The Public Prosecutor expressed the opinion that the requested information was within the scope of Art. 13 of APIA. The case was taken for decision. The current status of the case was checked with SAC on 10 September 2001.

On 12 November 2001, attorney-at-law Kashamov as the representative of Polina Kireva served a private appeal against the Ruling of SAC of 17 September 2001 (on grounds of Art. 20, para 3 in conjunction with para 1, subpara 5 of the SAC Act and Art. 213bis of the Civil Procedure Code) to a five-member panel of SAC.

Curious:
The case is interesting because of its relationship with the Upper Arda Project that became quite notorious in October 2000 and the affair with the construction of large-scale power generation facilities (three dams with volume of 320 mn cubic metres designed to generate 440 mn KWH of electric power annually). The access to information about that important transaction is undoubtedly of particular interest to the public.

Arguments of the Parties:
The arguments in the appeal (SAC, 4th Division) were that the minutes contained a decision that constituted public information within the meaning of Art. 2, para 1 of APIA as it affected the rights of many people and the activities of the Ministry on those matters and there existed no grounds for refusal as the meeting was open to the public. Apparently there exist no reasons for restricting the access under APIA. On the other hand, the imperative provisions of Art. 15, para 2 of APA and Arts. 38 and 39 of APIA require that the act or the refusal respectively be given in writing. Those requirements was not observed. Hence it is a case of material breach of procedural and substantive law.

The Prosecutor expressed the opinion that the information was within the scope of Art. 13 of APIA.

The Ruling of SAC of 17 September 2001 stated that the implied refusal to grant access to public information was not subject to appeal.

As far as implied refusals are concerned, there is already a ruling of a five-member panel of SAC on a case, in which the defence was represented by Alexander Kashamov, AIP lawyer (Case 7, CILA v.s MLSP), i.e. Ruling No. 8645 of 16 November 2001. The ruling gives a positive answer as to the issue whether an implied refusal to grant access to public information can exist.

Conclusions:
The decisions to grant access or to refuse to grant access to information under APIA are, in their legal essence, individual administrative acts (they recognise the right of individuals and legal entities to obtain access to public information they have requested pursuant to Art. 41 of the Constitution and Art. 4, para 1 of APIA). Hence they are included in the scope of Art. 2, para 1 of APIA, insofar as they affect the said rights, and they are subject to appeal in accordance with the terms and procedures laid down in APIA.

The interpretation given in the attacked Ruling that implied refusals under APIA are not subject to appeal (contravening Art. 46, para 1 of the Legal Instruments Act, Art. 6, para 1, subpara 4 and Art. 7, para 1 of APIA, and Art. 120, para 2 of the Constitution) renders senseless the whole APIA and the rights provided for therein. If that interpretation is accepted, no person responsible for granting access to information will ever fulfil his or her obligations and will prevent the access to public information or possible legal remedies by simple inaction. Thus an absurd situation is created, i.e. explicit refusals are subject to judicial review, whereas refusals that totally ignore the obligations prescribed by law remain beyond any judicial review.