Information about the drafting of a Regulation by the Ministry of Culture
Yurii Valkovski vs. the Ministry of Culture
First Instance Court–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:
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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);
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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 assignmånt 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.
Court Appeal:
In the part which the complaint was denied, the court decision was appealed by AIP before a Five-member panel of the SAC. In the appeal, it was specified that the interpretation assumed in the appealed decision with regard to the issue “access to information-access to documents” restricted the scope of citizens’ right to access to information in an inadmissible way.
Developments in the Second Instance Court:
The case was heard in an open court session and was scheduled for judgment. The representative of the appellant, Alexander Kashumov, a lawyer from AIP, emphasized the point at issue – did the law prohibit the requestor to describe the requested information by specifying the concrete document? The provisions of the APIA are clear with regard to that question. Under § 1, point 1 of the APIA, everyone has the right to examine the original document. He/she can request a paper copy of the same document (Art. 26, (1), 3). The provision of Art. 10 of the APIA defines as official public information the information, which is contained in the acts of the state or local self-government bodies. The acts in principle are documents. The accumulated practice of the SAC concerning the issue was cited.
Court Decision:
With a Decision No. 8969 as of July 24, 2008, a five-member panel of the SAC repealed the decision of the lower instance court, as well as the refusal of the Minister of Culture to provide access to public information to Yurii Valkovski with regard to a copy of an order for the assignment of a working group to draft a Regulation as required by Art. 5, Para. 4 of the Protection and Development of Culture Act. The court assumed a broad interpretation of the expression “description of requested information” and thus stopped the wrong court practice according to which if an initial request for access to information was formulated as a request for access to a document, it would not be considered as a request for access to public information under the meaning of Art. 25, Para. 1, Item 2 of the APIA. In their judgment, the justices pointed out that the lower instance court had wrongly assumed that the formulation of the initial request - for access to a copy of an order – did not constitute a request for access to public information in compliance with the Art. 25, Para. 1, Item 2 of the APIA. Such a conclusion contradicted the provision of Art. 26, Para. 1, Item 3 of the APIA, according to which one of the forms of provision of access to public information was a paper copy. Literally, the latter gave sufficient grounds to assume that a request for the provision of a copy of an order was a valid request under the provision of Art. 24 of the APIA for access to public information – namely, a copy of the specified order. Furthermore, the title of the order – for appointing a working group to draft a Regulation, stipulated by Art. 5, Para. 4 of the Protection and Development of Culture Act – contained the description of the requested information which should be contained in the specified form – a copy of the order.
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