Essence of the case: restoration of the right to information about conditions of the Product sharing agreement with Shell.
Parties: plaintiff – International charitable organization Environment-People-Law, defendant – the State Agency of Geology and Mineral Resources of Ukraine.
Essence of the case:
On 20 March 2013, the State Agency of Geology and Mineral Resources of Ukraine adopted the Order #140 “On organizing the work with insider information” that approved a new edition of the List of data of the State Agency of Geology and Mineral Resources of Ukraine that contain insider information possessed by the state and that is conferred the stamp “For insider use only” (hereinafter – the List). The List contains data on conditions of the Agreement on hydrocarbons sharing to be extracted within the Yuzivska field between the state of Ukraine and the company Shell Exploration and Production Ukraine Investments (IV) and Nadra Yuzivska Ltd with the exception of provisions that contain socially important information and information on the environment.
Classification as insider information of the data on conditions of the Agreement is in breach of the Law of Ukraine “On Access to Public Information” because the data on conditions of the Agreement do not belong to information that according to part 1 art. 9 of the Law of Ukraine “On Access to Public Information” can belong to insider information.
Access to information can be limited according to the law. Insider information is one of types of information with limited access envisaged by the Law of Ukraine “On Access to Public Information”.
The holder of the information can classify as insider information only the information belonging to one of the information categories that according to the law can be classified as insider information.
According to p. 1 art. 9 of the Law of Ukraine “On Access to Public Information” the following types of information can belong to insider information:
- Information contained in documents of subjects of authorities that are in-house insider correspondence, memorandums, recommendations if they are related to deciding on direction of functioning of the institution or performing controlling and supervisory functions by public authorities, the process of decision-making and precede public discussion and/or decision-making;
- Information collected in the process of investigation or counter-intelligence activities, in the sphere of state defense that is not classified as state secret.
No other information categories besides those enlisted in part 1 art 9 of the Law of Ukraine “On Access to Public Information” are allowed by law to be classified as insider information.
In view of the fact that conditions of the agreement do not belong to any of these categories, the defendant unlawfully included the data on conditions of the Agreement to the List of insider information and in this way violated the right of information requestors including EPL to information.
In order to defend its violated right EPL addressed the Circuit Administrative Court of Kyiv with a suit requesting to find unlawful and abolish p. 5.4. of the List of data of the State Service of Geology and Mineral Resources of Ukraine that contains insider information owned by the state that was conferred the stamp “For insider use only”, in the edition approved by the Order of the State Service of geology and Natural Resources of Ukraine #140 of 20 March 2013 “On organization of the work with insider information”.
On 22 January 2014, the court of the first instance declined the suit. In its stipulation of the decision the court of the first instance stated that the plaintiff failed to prove that p. 5.4. of the List violates rights, freedoms and interests of International charitable organization Environment-People-Law because the case files do not contain proof of refusal to satisfy EPL’s information request on the basis of the challenged paragraph of the order. The plaintiff did not provide the court with proof of addressing the State Service of Geology and Mineral Resources of Ukraine with a request for information on the Product sharing agreement and refusal to satisfy this request. Alongside with this, the panel of judges stated that the right that can be violated in future is not subject to judicial protection.
Thus, in view of the plaintiff’s failure to prove violation of the right the court made a decision that lawsuit demands of Environment-People-Law are supported neither by legislation nor by documents.
Disagreeing with the conclusions of the court of the first instance and the decision made on the basis of these conclusions, EPL filed an appellate complaint to Kyiv Appellate Administrative Court. In its appellate complaint EPL emphasized that considering the case the court of the first instance wrongfully identified the subject of the suit, which lead to wrong interpretation of the right of the plaintiff to appeal to court and as a result to wrong refusal to satisfy the lawsuit.
Indeed, the plaintiff did not submit to the court proofs of addressing the defendant with an information request and of refusal to satisfy it on the basis of the challenged paragraph of the List because the refusal to provide information to a request was not the subject of the lawsuit.
The subject of the lawsuit was finding unlawful and abolishing p. 5.4.4 of the List of data classified as insider information that unlawfully limited access to conditions of the Agreement, that is challenging the legal act (the List), in particular p. 5.4.
According to provisions of part 2 art. 171 of the Code of Administrative Proceedings of Ukraine, the right to challenge a legal act have persons towards whom the act is applied, and persons that are subjects of legal relations in which the act will be applied (future tense is used in the law).
According to p. 21 of the Resolution of the Plenum of the Higher Administrative Court of Ukraine #2 of 6.03.2008 and according to rules of part 2 art. 171 of the Code of Administrative Proceedings of Ukraine, the right to challenge a legal act have persons towards whom the act is applied, and persons that are subjects of legal relations in which the act will be applied. It means that a person (plaintiff) has to prove the fact of the act being applied to her/him or the fact of being a subject of legal relations covered by the act. Provisions of this part can be the basis for refusal to satisfy lawsuit demands if the court finds that the challenged act was not applied to the person and he/she is not involved into relations covered by this act. In such a case the court does not review the legal act for wrongfulness (lawfulness and compliance with acts of higher legal effect).
In view of the above presented, a person has the right to challenge a legal act not only in cases when the act was applied to her/him but also for future in order to prevent such application, under condition that such a person is a subject of relevant legal relations.
According to part 1 art 4 of the Law of Ukraine “On Information”, all physical and legal entities are considered subjects of information relations.
As for legal proofs, the plaintiff stipulated in the lawsuit the demands on the basis of provisions of part 1 art 9 of the Law of Ukraine “On Access to Public Information”. This is the main norm of the Ukrainian legislation that establishes an exhaustible list of information categories that can be classified as insider information. However, neither in the court of the first instance nor in the appellate court did the defendant provide any documented or legal proof that conditions of the Agreement belong to one of these categories.
The panel of judges of the appellate court agreed with EPL’s stipulation, canceled the decision of the Circuit Administrative Court of Kyiv and satisfied EPL’s appellate complaint.
As a result, Kyiv Appellate Administrative Court found unlawful classification as insider information of conditions of the Agreement with Shell company and abolished p. 5.4. of the List that unlawfully included these conditions to the List of insider data of the State Service of Geology and Mineral Resources of Ukraine.