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Information regarding a project financed through the ISPA programme of the EU

The Environmental Association For the Earth vs. The Ministry of Environment and Waters

First Instance–administrative case No. 3138/2004, Sofia City Court, Administrative Division, Panel III-B
Second Instance–administrative case No. 10628/2005, Supreme Administrative Court, Fifth Division

Request:
In July 2004, the Environmental Association For the Earth submitted a written request for access to information to the Ministry of Environment and Waters (MOEW). The organization demanded access to three categories of information regarding a project financed through the ISPA programme of the EU, through the European Investment Bank, and through the European Bank for Reconstruction and Development. The requested categories of information were as follows:
copies of all Environmental Impact Assessment decisions issued by the MOEW;
copes of all records of public discussions, including lists of the participants;
copies of the opinion statements presented by the participants at the public discussions.

Refusal:
A written decision issued by the Head of the MOEW Administration granted partial access to the requested information. Copies of all Environmental Impact Assessment decisions issued by the MOEW were provided. Access to copies of all records of public discussions was refused on the grounds of Art. 13, Para. 2 of the APIA (preparatory documents with no significance of their own). Copies of the opinion statements presented by the participants at the public discussions were also refused on the grounds of Art. 27, Para. 1, Item 2 of the APIA (information that affected a third party's interests; thus their consent was required for the provision of the information).

Complaint:
The part of the MOEW's decision that had denied access to the requested information was challenged. The arguments given were that the requested information had been explicitly defined as publicly accessible under the provision of Art. 102 of the Environmental Protection Act (EPA). The argument went on to say that Art. 13, Para. 2 of the APIA was not applicable in cases in which access to environmental information, defined under Art. 19 of the EPA, was being requested. The APIA provision was not applicable since it was Art. 20 of the EPA that provided for restrictions on the right of access to environmental information. Article 20 of the EPA did not allow for referral to Art. 13, Para. 2 of the APIA. Furthermore, the letter of complaint went on to state that the opinion statements of the participants in the public discussions were public and thus did not constitute information that may harm a third party's interests under the provisions of the APIA.

Developments in the Court of First Instance:
The case was heard in a single session and scheduled for judgment.

Court Decision:
With a decision as of July 18, 2005, the Sofia City Court repealed that part of the Head of the MOEW Administration's decision that refused information and referred the file back to the Ministry, obligating it to provide access to the requested information. In their judgment, the justices accepted the complainant’s arguments about the inapplicability of the provision of Art. 13, Para. 2 of the APIA to this particular case. With regard to the refusal to grant access to copies of opinion statements presented at public discussions, the justices remarked that the consent of these individuals was not required since the statements they had made, which were submitted in written form as well, did not constitute information that might harm their rights or legitimate interests.

Court Appeal:
The MOEW appealed the court decision with the argument that not only the records from the public discussions, but also the opinion statements presented during those discussions constituted information related to the operational preparation of the EIA decisions and consequently had no significance of their own. That was why access to the information was restricted under the provisions in Art. 13, Para. 2 of the APIA.

Developments in the Court of Second Instance:
The case was heard at a single court session and scheduled for judgment.

Court Decision:
With decision No. 4239 of April 20, 2006 (PDF 80Kb), a panel of the Supreme Administrative Court upheld the decision of the SCC. In their judgment, the justices pointed out that the SCC had correctly assumed that the refusal had been unlawful since the requested information was not related to preparatory work on the documents (i.e. the EIA decisions), pursuant to Art. 13, Para. 2, Item 1 of the APIA. In order to have no significance of its own, the requested information should contain opinions, recommendations, and statements prepared by or for the body, which are meant to be used for the preparation of a final decision. Public discussions, held under the provision of the Environmental Protection Act (EPA), were an independent phase in the procedure for the adoption of EIA decisions by the competent body. That was why the records from these discussions did not possess the characteristics of preparatory documents prepared by a subordinate body and as part of the procedure for the adoption of the final act. It was also emphasized that the records from the public discussions included statements and positions that had been publicly expressed by the participants. Considering that the requested information was public with regard to the purpose of its creation and the manner of its dissemination, the grounds stated by the obliged body that its disclosure would harm the interests of third parties who had not given their consent were unjustified and had no basis in the legal regulations.

The court panel also remarked that the provisions in Art. 102 of the EPA defined the principle of publicity of information about EIA procedures, including public discussions. The right of access to the information related to decisions on environmental issues should not be restricted beyond the cases provided by Art. 20 of the EPA.


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English Version • Last Update: 22.03.2007 • © 1999 Copyright by Interia & AIP