Information contained in the Urban Development Draft Plan and the Environmental Assessment Report of a ski center

The Environmental Association For the Earth vs. The Mayor of the Municipality of Sapareva Bania

First Instance Court–administrative case No. 201/2006, Regional Court of Kyustendil
Second Instance Court–administrative case No. 2591/2007, Supreme Administrative Court, Third Division

Request:
On May 23, 2006, the Environmental Association For the Earth submitted a request for access to information to the mayor of the Municipality of Sapareva Bania. They demanded access to information contained in the Urban Development Draft Plan and the Environmental Assessment Report on the Panichishte-the Lakes-Kabul Peak Tourism and Ski Center. The indicated form of access preferred by the requestor was paper copies or on a technical carrier.

Refusal:
With a written decision as of May 30, 2006, the mayor of the Municipality of Sapareva Bania refused to provide copies of the Urban Development Draft Plan and the Environmental Assessment Report on the Panichishte-the Lakes-Kabul Peak Tourism and Ski Center. The grounds stated in the refusal were that under the Instructions for the Procedure for Conducting Environmental Assessment of Plans and Programs, the municipality, in its capacity as a contractor, had already provided public access to the requested information during the public discussion that had been organized. The decision went on to state that at the present moment there was not any legal requirement for the provision of copies of the two documents to other persons different from the competent body that had issued a statement on the environmental assessment.

Complaint:
The mayor’s refusal was challenged before the Regional Court of Kyustendil. The main argument in the complaint was that the requested information – the Urban Development Draft Plan and the Environmental Assessment Report on this Plan – were environmental information pursuant to Art. 19 of the Environmental Protection Act (EPA). Access to that type of information was granted under the procedure stipulated by Section II “Environmental Information” of the EPA and the Access to Public Information Act (pursuant to Art. 26, Para. 1 of the EPA).
It was also argued that the fact that the information had already been made public could not be in any way grounds for the restriction of the right of access to information, since the exemptions to that right were exhaustively listed in Art. 20, Para. 1 of the EPA. On the contrary, such circumstances indicated that the requested information was public and access to it should not be restricted.

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

Court Decision:
With a decision as of December 21, 2006, a panel of the Regional Court of Kyustendil repealed the refusal of the mayor and returned the request back to him for reconsideration. In their judgment, the justices assumed that the mayor’s refusal was unfounded since it had not stated any grounds for refusal stipulated by the APIA. Furthermore, the mayor had not differentiated between the procedure for public discussion under the Instructions for the Procedure for Conducting Environmental Assessment of Plans and Programs and the procedure for the provision of public access to information under the APIA.

Court Appeal:
The decision of the Regional Court of Kyustendil was appealed by the mayor of the Municipality of Sapareva Bania before the Supreme Administrative Court.

Developments in the Court of Second Instance:
The case was heard at an open court session in September 2007 and scheduled for judgement.

Court Decision:
With a decision No. 10010 as of October 22, 2007, a panel of the SAC, Third Division repealed the decision of the RCK and delievered another decision by which the appeal of the environmental association was rejected as groundless. The court panel held that the refusal of the mayor to provide information on a material carrier was lawful and the complaint to appeal the decision was groundless. On the first place, access to the requested information had not been refused as information had been provided under the special procedure set forth by the Instructions for the Procedure for Conducting Environmental Assessment of Plans and Programs, as stipulated by Art. 4, Para. 1 of the APIA. The justices grounded their conclusion in the circumstance that the Municipality of Sapareva Bania had published an announcement as of May 12, 2006, informing that all interested natural and legal persons would have access to the Draft of the Urban Development Plan and to the Environmental Assessment Report on the Panichishte-the Lakes – Kabul Peak Tourism and Ski Center. The announcement also had signified the deadline and the e-mail for submission of opinion statements. Secondly, according to the justices, 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. Documents are 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.