Annexes to a report regarding a Nuclear Power Plant Kozlodui accident

National Movement Ecoglasnost vs. the Nuclear Regulatory Agency

First Instance – administrative case No. 6942/2006, SAC, Fifth Division
Second Instance – administrative case No. 30538/2007, SAC, Five-memberl Panel– First Panel

Request:
In May 2006, the deputy chairman of the Naitonal Movement Ecoglasnost, Peter Penchev, submitted a request to the Nuclear Regulatory Agency (NRA) asking for information regarding the first and the second reports prepared by the Nuclear Power Plant “Kozlodui,” as well as all the annexes, regarding the March 1, 2006 incident on the fifth block of nuclear plant, and the third report with the annexes if it had been compiled. Besides that, he also requested copies of the first and second notification (third only if applicable) sent to the International Atomic Energy Agency (IAEA), together with all the annexes.

Refusal:
Several days after the submission of the request, NM Ecoglasnost was informed that on the ground of Art. 31, Para. 1 of the APIA and due to the circumstances that the requested information dealt with a third party, namely, the Nuclear Power Plant “Kozlodui,” whose written consent should be obtained for the disclosure, the term for responding to the request was extended with 14 days. Simultaneously, a request was sent to the NPP “Kozlodui” to provide its consent for granting access to the requested reports. On May 17, 2006, the executive director of the nuclear plant responded that access should be granted to the reports compiled in regard to the accident, though he dissented disclosure of the annexes. On May 31, 2006, the chairman of the NRA sent the requestor a letter stating the refusal of the NPP “Kozlodui” and providing partial access to the requested reports (without the annexes), as well as to the notifications sent to IAEA.

Complaint:
The refusal was challenged before the Supreme Administrative Court (SAC). The complaint stated that for requesting the consent of the third party, a potential harm to its rights or legal interests stemming from the disclosure of certain data should be ascertained. No evidence for such assessment undertaken by the administrative body was found in the grounds stated in the challenged refusal. It did not become clear why the request for access had been considered as harmful for the rights or the legal interests of the third party, and which were the specific data that would have harmed those rights and legal interests. In the current case, the requested information did not relate to the third party, but it was created by the third party. The information did not relate to the third party but to the investigation and the analysis of the nuclear nuclear plant incident, as it was obvious. Consequently, the application of the provision of Art. 31 of the APIA to the case was wrong from the beginning. Furthermore, the provision of Art. 20, Para. 4 of the Environmental Protection Act (EPA), according to which the public interest served by the disclosure of the information should be taken into consideration. There was no evidence, however, that the provision had been applied in the current case. Public interest in the case was undoubtful, as it regarded an accident in a nuclear power plant, which was classified as level two after the International Nuclear Event Scale. That conditioned the need for informing the society.

Developments in the Court of First Instance:
Тhe first hearing of the case in November 2006 was, however, postponed as the court panel considered that the NPP “Kozloduy” should be constituted as an interested party. Subsequently, on January 23, 2007, the case was heard at an open court session and scheduled for judgement.

Court Decision:
With a decision No. 1178 as of February 2, 2007, a panel of the SAC, Fifth Division, repealed the partial refusal issued by the NRA and returned the request back for reconsideration. Magistrates found that it was not clear why the NRA decided that the rights and interests of the NPP “Kozlodui” would have been affected and asked for its consent. It was logical to assume that the reports, as well as the annexes, contained information related to the investigation and thus it was impossible to presume that the documents containe a secret protected by law.

Court Appeal:
The decision was appealed by the chairman of the NRA before a five-member panel of the SAC. The appeal stated that the assessment whether the information would harm the interests of the third party was made by the third party itself and thus the NRA was not supposed to justify the refusal by qualifying the requested information.

Developments in the Court of Second Instance:
The case was heard during one open court session in June 2007 and scheduled for judgement. The nuclear power plant presented parts from the contract with a Russian companying for design, development and putting into exploitation of a control rods system, a considerable part of which stopped functioning on March 1, 2006. According to the contract, everything related to its implementation, was confidential.

Court Decision:
With a decision No. 6858 as of July 2, 2007, a five-member panel of the SAC upheld the decision of the preceeding instance. The justices rejected the arguments set forth by the NRA and the NPP and confirmed that the dissent of the third party was not by itself a ground for refusal to provide information which was of public character.