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Procedure of preparation and the draft of the National Long-term Program for Encouraging Usage of Renewable Energy Sources 2004 – 2015

Bulgarian Society for the Protection of Birds vs. Ministry of Economy and Energy

First Instance – administrative case No. 6044/2006 in SAC, Fifth Division
First Instance – administrative case No. 4871/2006 in SCC, Panel III-J

Request:
On February 1, 2006, Ivailo Ivanov, regional coordinator of the Bulgarian Society for the Protection of Birds in the town of Varna, submitted a request to the Minister of Economy and Energy in which he asked for all information available in the ministry regarding the procedure of preparation and approval of the National Long-term Program for Encouraging Usage of Renewable Energy Sources 2004 – 2015, including the draft of the Program itself.

Refusal:
With an order as of March , 2006, the head of the ministry’s administration refused to provide the information on the ground that the information regarding the procedure of drafting and approval of the Program related to the preparatory work on the act and had no significance of its own (Art. 13, Para. 2, Item 1 of the APIA). It was also pointed out that at the present moment the draft of the Program was not finalized and was not adopted by the Council of Ministers (CoM).

Complaint:
The refusal was challenged before the SAC. The complaint stated that the administrative body used solely the provision of Art. 13, Para 2, Item 1 of the APIA without, however, specifying exactly which documents were considered to be related to the operational preparation of the act, nor explaining the circumstances according to which the whole requested information fell under the exemption of Art. 13, Para. 2, Item 1 of the APIA.

Developments in the Court of First Instance (SAC):
At an open session held on October 24, 2006, a panel of the SAC, Fifth Division, found out that the court body was not competent to hear the case, since the challenged order had been issued by the head of ministry’s administration, and not by the minister. Subsequently, the case was sent to the Sofia City Court (SCC).

Developments in the Court of First Instance (SCC):
The case was heard at an open court session in March 2007 and scheduled for judgment. The complainant provided written notes which stated that for the application of Art. 13, Para. 2, Item 1 of the APIA, it should be ascertained that the issue was about opinions, recommendations, statements or consultations with regard to the preparation of the given act which did not have significance of its own. It was also set forth that the provision of Art. 13, Para. 2, Item 1 of the APIA was not applicable to the case according to another reason. The requested information, and especially the draft Program, was “information relating to the environment” as stipulated by Art. 19, Item 2 of the Environmental Protection Act (EPA) – as it undoubtedly feel under the category of “ programmes impacting or capable of impacting the environmental media”. It had not been specified in the request for access to information, but identification of the applicable legal norms was not the responsibility of the requestor, rather the obligation of the administrative body. Since the requested information corresponded to the description under Art. 19 of the EPA, the appropriate norm for the exemption to the right of information was that of Art. 20 of the EPA. It appeared as a special norm. Article 20 of the EPA did not set forth a provision analogous to the one stipulated by Art. 13, Para. 2, Item 1 of the APIA. Such an absence conformed to the essence of the environmental information which should be subject to a broad public discussion.

Court Decision:
With a decision as of April 13, 2007 (PDF 88Kb), the SCC repealed the order of the head of the ministry’s administration as unlawful. In their judgment, the magistrates signified that the head of the ministry’s administration had unlawfully used the provision set by Art. 13, Para. 2, Item 1 of the APIA as a ground for refusal, as the exemptions set forth by the APIA were not applicable to information regarding environment. Grounds for restrictions to the access to environmental information were stipulated by the Environmental Protection Act (EPA). The court panel also held that the requested information did not fall under any of the hypotheses set forth by Art. 20, Para. 1 of the EPA and the right of acess to information should not be limited. On the other hand, public discusion was an independent stage in the process of adoption of common administrative acts (the National Program being such an act). It was a form of participation for interested persons. However, putting the national programme to a discussion, meant provision of information about the drafting process, as well as information regarding its content, to interested persons and organizations.