Information about the drafting of a Regulation by the Ministry of Culture

Yurii Valkovski vs. the Ministry of Culture

First Instance–administrative case No. 5161/2007, SAC, Third Division

Request:
On April 16, 2007, Yurii Valkovski, a member of the informal organization Expert Group for Transparent and Efficient Cultural Policy, submitted a request to the Ministry of Culture (MC) asking for access to the following information:

• A copy of the Order assigning the working group for the preparation of a Draft Regulation pursuant to Art. 5, Para. 4 of the Protection and Development of Culture Act (PDCA), by which the minister should define the selection procedure for directors of state cultural institutions (in the form of a paper copy);

• Information about the deadlines within which the working group should present results from its work on the draft of the respective Regulation (in paper form).

Refusal:
On April 23, 2007, the requestor received a letter with the decision of the minister who had refused to provide a copy of the order for the assignmеnt of a working group to draft the Regulation. The refusal was grounded in the provision of Art. 13, Para. 2, Item 1 of the APIA since the information had been related to the operational preparation of the acts of the MC and had no significance of its own. With the same letter, the minister informed the requestor that pursuant to § 20, Para. 2 of the Final Provisions of the PDCA (promulgated in State Gazette, issue 106, as of December 27, 2007), the time frame prescribed for the adoption of the Regulation was six months after the enactment of the law.

Complaint:
The refusal was challenged before the Supreme Administrative Court (SAC). The complaint stated that quoting Art. 13, Para. 2, Item 1 of the APIA was completely groundless sunce the order of the minister constituted an act of a state body issued within the fulfillment of duties, i.e. the order constituted official public information pursuant to Art. 10 of the APIA. The exemption provided by Art. 13, Para. 2 of the APIA was applicable if and only the information had been administrative public information, which pursuant to Art. 11 of the APIA was all other information which was not official. With regard to the information about the time frames, the complaint stated that the minister had not provided the requested information since the requester had not asked for prescribed period within which the respective regulation should be adopted – there was no need doing it since the time frame was set forth by the law itself. Information about the deadlines assigned to the working group to present results from the drafting of the respective Regulation. As a matter of fact the response with regard to that part of the request constituted a silent refusal and should be repealed as unlawful.

Developments in the Court of First Instance:
The case was heard in an open court session in December 2007 and scheduled for judjment.

Court Decision:
With a decision No. 439 as of January 14, 2008, a panel of the SAC, Third Division repealed the refusal of the minister in its part stating that the time frame for the adoption of the Regulation was six months as prescribed by the law, and obligated the minister to provide information about the deadlines set for the work group to present the draft of the Regulation. In their judgment, justices stated that with the challenged part of the decision, the administrative body had informed the complainant about the legally prescribed period of six months within which the Regulation should be adopted. The request, however, which triggered the administrative procedure, was for access to public information regarding the period within which the working groups should present finalized draft of the Regulation. The court panel rejected the rest of the complaint as groundless. With regard to the requested copy of the order appointing the working group, the justices assumed that the way the request had been formulated did not stand for a request for access to public information. Everry request for access to information under the APIA should contain description of the public information sought, as stipulated by Art. 25, Para. 1, Item 2 of the APIA. The APIA provided for the procedure to request access to information but not access to documents as a material carrier of the information, as it was in the given case regarding the first point in the request. Documents were a material carrier of information, but if information was requested just as a provision of a document and not as a description of a piece of information or information about someone or something, such information was not subject to provision.