Access to the TOR for the preparation of a Detailed Development Plan for the construction of a ski-tourist area
WWF – World Wide Fund, Bulgaria vs. Regional Inspectorate for Environment and Waters – Sofia
First Instance Court – administrative case No. 6846/08, Administrative Court – Sofia City, First Division, 9th Panel
Request:
On October 7, 2008, the Association WWF-World Wild Fund, Conservation in the Danube-Carpathian, Bulgaria submitted a request for access to information to the Director of the Regional Inspectorate for Environment and Waters (RIEW) – Sofia. The association demanded access to a copy of the Terms of Reference (TOR) for the preparation of a Detailed Development Plan (DDP) for the construction of a ski-tourist area “Aleko,” developed by the “Vitosha Ski” JSC under the procedures of the Territory Planning Act.
Refusal:
With a Decision as of October 20, 2008, the Director of the RIEW refused to provide access to the requested information since it did not fall within the scope of the provision of Art. 19, Item 1-6 of the Environmental Protection Act. Besides, it was stated that the requested information did not constitute public information as meant under the provision of Art. 2, Para. 1 of the Access to Public Information Act. Also, the TOR for the preparation of the DDP was part of an administrative procedure but not a final act of the administrative body in charge of that procedure.
Complaint:
With the legal help of AIP, the refusal was appealed before the Administrative Court – Sofia City. The complaint stated that access to information related to the environment as meant under the provision of Art. 19 of the EPA was requested in the particular case since the TOR for the preparation of the DDP for the construction of a ski-tourist area was a plan that would impact or would be likely to impact the components of the environment as stipulated by Art. 19, Item 2 of the EPA. Thus, the substantive provisions of Chapter II of the EPA Environmental Information should be applied. Furthermore, the procedure provided by Chapter III of the APIA Procedure for the provision of access to public information should be applied for the provision of access to environmental information as stipulated by Art. 26, Para. 1 of the EPA. That was why in cases when access to environmental information was requested, the grounds for refusal stipulated by Art. 20, Para. 1 of the EPA should be applied, rather than those stipulated by Art. 37 of the APIA. It was also noted that the statement made by the Director of the RIEW referred to the exemption from the right of access to information stipulated under Art. 13, Para. 2 of the APIA which was related to the so called preparatory documents. A refusal grounded as such was unlawful since in the cases of environmental information requests, the grounds for refusal stipulated by Art. 20, Para. 1 of the EPA should be applied. No ground for refusal similar to that provided by Art. 13, Para. 2, Item 1 of the APIA was found among the listed by Art. 20, Para. 1 of the EPA which made the former inapplicable when the requested information was related to the environment.
Developments in the Court of First Instance:
The case was heard in an open court session and scheduled for judgment.
Court Decision:
With a Decision as of March 2009, a panel of the ACSC repealed the refusal of the Director of the RIEW and turned the request back for reconsideration in line with the court instructions for the interpretation and application of the law. The court found that the right to favorable and healthy environment (Art. 55 of the Constitution) was directly connected with the right of the citizens to be informed. The judgment stated that the information about the TOR was undoubtedly environmental information and the decision for its provision should have been made on the base of the EPA which was a special law with regard to the APIA. The refusal was not only unlawful but also contradicted the purpose of the law and mostly the main informational functions of the RIEW to provide environmental information to the public, to organize the process of citizens' access to environmental information and sustainable usage of natural resources.
The decision has not yet come into force.
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