Access to a Protocol from a session of the National Council on Biodiversity at the Ministry of Environment and Waters
National Movement Ekoglasnost vs. the Ministry of Environment and Waters
First Instance Court– administrative case No. 3681/2008, Administrative Court-Sofia City, First Division, 6th Panel
Second Instance Court – administrative case No. 15062/2008, Supreme Administrative Court, Third Division
Request:
With a written request for access to information as of November 2007, submitted to the Ministry of Environment (MOEW) and Waters, Petar Penchev, a deputy chairperson of the National Movement Ekoglasnost, demanded access to the Protocol from the session of the National Council on Biodiversity (NCBD) to the MOEW held on November 25, 2007, when the buffer zone of Rila mountain was not included in the network for protected environmental areas NATURA 2000 because of two votes short.
Refusal:
With a decision No. 218 as of November 15, 2007, the Chief Secretary of the Ministry of Environment and Waters, Mr. Tamer Beysimov, refused to provide access to the requested information on the ground of Art. 13, Para. 2, Item 1 of the APIA (information relates to the preparatory work of an act and has no significance in itself). The grounds for the refusal also stated that the requested Protocol from the session of the consultation body to the Minister was related to the operational preparation of the decisions, did not have a significance of its own, and contained opinions, recommendations, and expert positions about the second review of the 26 protected areas for the wild birds and the 16 protected areas for the protection of the habitats of the wild flora and fauna.
Complaint:
The refusal was challenged before the Supreme Administrative Court (SAC). Court case No. 12966/2007 was initiated in the Third Division of the SAC. With a ruling the case was sent to the jurisdiction of the Administrative Court – Sofia City since the refusal had been signed by the Chief Secretary of the ministry, and not by the minister himself. At the same time, AIP started to legally assist the case.
Developments in the Court of First Instance:
The case was heard in an open court session on September 1, 2008 and scheduled for judgment. AIP prepared written notes for the complainant. They stated that the requested information related to the Protocol from the session of the NCBD undoubtedly resembled environmental information under the meaning of Art. 19 of the Environmental Protection Act (EPA). The information about the session of the NCBD regarded territories and areas which should be included in the NATURA 2000 network. That was why the information was related to the components and factors and consequently constituted environmental information as stipulated by Art. 19 of the EPA. Consequently, the hypotheses for the restrictions of access to information stipulated by Art. 13, Para. 2 of the APIA were generally inapplicable since there was neither reference to them, nor were they provided as relevant texts by Art. 20 of the EPA. The provision of Art. 20 of the EPA listed the acceptable restrictions to the access to environmental information. Undoubtedly, the regulation of access to information by the EPA set a special regime with regard to the provisions of the APIA.
Court Decision:
With a Decision as of September 11, 2008, a panel of the Administrative Court-Sofia City (ACSC) repealed the refusal of the Chief Secretary of the MOEW. In their judgment, justices assumed that the requested protocol was undoubtedly “information related to the environment” and did not fall within the exemptions from the right of access to environmental information as stipulated by the Environmental Protection Act. Consequently, environmental information may not be denied on the ground of the provision of Art. 13, Para. 2 of the APIA since the grounds for refusal stipulated by the APIA may not be applied in cases when requests for access to environmental information were to be decided. According to the court, such a conclusion was drawn also from the sense of the law, as the environmental issues were subject to public discussion which excludes the restriction of access to preparatory documents. Even more, the court obligated the MOEW to provide the requested document within 14-days period after the decision came into effect.
Court Appeal:
The decision of the ACSC was appealed by the MOEW before the Supreme Administrative Court with the main argument that there had been no valid request for access to environmental information but only a request for the provision of a copy of a document which had no significance of its won.
Developments in the Court of Second Instance:
A hearing of the case in an open court session in the SAC was scheduled for June 2009.
|