Case: Access to reporting on water use according to the form 2-tp (water management).
Region: Ukraine, Mykolayiv region.
Case objective: To ensure access to state reporting on water use according to the form 2- tp (water management).
Parties to a case: Plaintiff – ICO «Environment-People-Law», Defendant – Mykolayiv Regional Department of Water Resources.
Core of the problem:
The Department unlawfully refused to provide information included into the report on water use according to 2-tp (water management) on the grounds of the information being confidential, with reference to Article 21 of the Law of Ukraine «On State Statistics»
Key facts:
On October 29, 2015 ЕPL addressed Mykolayiv Regional Department of Water Resources
(hereinafter – Regional Department) with information request # 683:
– to provide in electronic format the information given in Table 2 of the form № 2-tp (water management) (water discharge), submitted to the Department for the year 2014 by the City Public Utility Company (CPUC) “Mykolayivvodokanal” (Mykolayiv).
On December 9, 2015 EPL received an answer № 01-4/1033/01-2 in which Mykolayiv Regional Department of Water Resources informed that the reporting form 2-tp (water management) of the CPUC «Mykolayivvodokanal» for the year 2014 is state statistical reporting on water use. According to Article 21 of the Law of Ukraine «On State Statistics»
distribution of statistical information, which may serve as the basis for confidential statistical information with respect to a specific respondent, is forbidden. Taking into account the aforementioned facts, in order to obtain the requested information the Department recommends us to directly address CPUC «Mykolayivvodokanal».
Considering that the information in question is open and by its refusal to provide it Mykolayiv Regional Department of Water Resources violated the requirements of Part 3 Article 13, Paragraph 1 Part 2 Article 21 of the Law of Ukraine “On Information”, Part 3 Article 22 of the Law of Ukraine “On State Statistics”, of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), and a result, wrongfully refused EPL access to environmental information, EPL went to the court with a request to find refusal of Mykolayiv Regional Department of Water Resources № 01-4/1033/01-2 from December 9, 2015 unlawful and to oblige Mykolayiv Regional Department of Water Resources to provide EPL with information in electronic format, given in Table 2 of the form № 2-tp (water management) (water discharge), submitted to the Department for the year 2014 by the CPUC “Mykolayvvodokanal” (Mykolayiv).
Claims of the lawsuit were grounded as follows:
According to Part 1 of Article 5 of the Law of Ukraine «On Information», everyone has a right to information which stipulates a possibility to freely receive, use, disseminate, store and protect the information necessary to exercise one’s rights, freedoms and legitimate interests.
Access to information is ensured by means of providing information at information requests.
According to Part 1, 2 of Article 19 of the Law of Ukraine «On Access to Public Information», information request is a request to information owner to provide public information owned by it.
The requester has a right to address an information provider with an information request, regardless of whether the document in question is related to that person, without specifying the reason for request.
According to Article 19 of the Constitution of Ukraine, public authorities and bodies of local self-government and their officials shall be obliged to act only on the grounds, within the powers, and in the way determined by the Constitution and the laws of Ukraine.
Thus, according to Part 1 of the Article 22 of the Law of Ukraine «On Access to Public Information», information provider has a right to decline an information request, in particular, if the requested information is qualified as restricted information according to Part 2 of Article 6 of this Law.
To promote protection of the right of every person of present and future generation to environment adequate to his/her health and well-being on June 25, 1998 Ukraine has signed the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), according to which each Party guarantees the rights to access to information, public participation in the decision-making process and access to justice in environmental matters that follows from the Convention regulations.
Each Party promotes environmental education and enhancement of public awareness of environmental issues, especially public participation in the decision-making process and access to justice in environmental matters.
Part 3 Article 13, Paragraph 1 Part 2 Article 21 of the Law of Ukraine «On Information» provides that environmental information cannot be considered information of limited access, therefore, information provider cannot refuse to provide environmental information to the requester on the grounds of confidentiality.
According to the law (Article 25 of the Law of Ukraine «On Environment Protection», Article 2 of the Aarhus Convention) information on the condition of the environment (environmental information) is any information on the condition of the environment or its objects, namely, information on water and the level of water pollution.
Information included in the report according to form 2-tp (water management) is environmental information, as it includes data about impact of the facility on the condition of the environment, including water bodies and level of their pollution, namely: what is the water body where the respondent discharges return water and what is the amount of return water, what is the amount of the return water discharged without any treatment or with insufficient treatment, what is the content of pollutants in this return water.
That is why the information requested by the Plaintiff, included in the report according to the form 2-tp (water management), in accordance with Part 3 Article 13, Paragraph 1 Part 2 Article 21 of the Law of Ukraine «On Information», cannot be limited in terms of access. That means that Mykolayiv Regional Department of Water Resources unlawfully considered this information to be confidential information and refused to provide it to the EPL.
Moreover, the defendant made a mistake in applying the norm of Article 21 of the Law of Ukraine «On State Statistics», as the aforementioned regulations do not refer to the primary data obtained by the state statistical bodies from respondents in the course of the state statistical observations regarding the condition of the environment, water in particular, which is clearly provided for in Part 3 Article 22 of the Law of Ukraine “On State Statistics”.
Thus, neither the Law on Ukraine «On State Statistics», nor the Law of Ukraine «On Information» considers the information on the condition of the environment (environmental information) to be confidential information. Therefore, requested information, indicated in the form N 2-tp (water management), is open and should be provided at the information requests, and it is not necessary to get permission from the respondent which has submitted the information.
On the basis of the aforementioned the plaintiff claims the actions of Mykolayiv Regional Department of Water Resources to be unlawful and such that violate the right of EPL to information.
However, prior to court consideration of the case Mykolayiv Regional Department of Water Resources changed its position regarding limitation of access to such information and on January 19, 2016 the Defendant sent to the electronic address of the Plaintiff the copy of the Table 2 of the form № 2-tp (water management) (water discharge), submitted to the Department for the year 2014 by the CPUC “Mykolayivvodokanal” (Mykolayiv), and fully admitted the claims of the EPL. Due to this fact the Plaintiff reduced the claims and asked the court only:
To find the refusal of Mykolayiv Regional Department of Water Resources № 01-4/1033/01-2 from December 09, 2015 unlawful.
Moreover, Derzhvodagentstvo of Ukraine (State Water Agency), which was involved in the case as the third party at the side of the Defendant, fully agreed with substantiation of the claims of the suit.
Taking into account the position of the Parties Lviv Circuit Administrative Court by its judgement from February 24, 2016 fully satisfied the claims of the EPL.
This is actually the first time in EPL practice when the state bodies acknowledge their mistakes. However, the price of such a mistake with respect to new rates of court fee cost Mykolayiv Regional Department 2 436 (two thousand four hundred thirty six) UAH.
The judgement of the first instance court is available at the link.
Judgement of the first instance court http://www.reyestr.court.gov.ua/Review/56185905
