| AKI - 2.1-3/19/4628 | |
|---|---|
 | |
| Authority: | AKI (Estonia) |
| Jurisdiction: | Estonia |
| Relevant Law: | Section 35(2)(2) of the Public Information Act (PIA) Section 3(1) PIA Section 3(2) PIA |
| Type: | Complaint |
| Outcome: | Rejected |
| Started: | |
| Decided: | 31.01.2020 |
| Published: | |
| Fine: | None |
| Parties: | Ministry of Environment |
| National Case Number/Name: | 2.1-3/19/4628 |
| European Case Law Identifier: | n/a |
| Appeal: | Unknown |
| Original Language(s): | Estonian |
| Original Source: | AKI (in ET) |
| Initial Contributor: | n/a |
The Estonian Data Protection Authority (AKI) ruled that the access to public information may be lawfully restricted when the documents requested are not finalised. A non signed environmental impact assessment drafted by the Ministry of Environment falls under this restriction.
English Summary
Facts
The complainant submitted a request for information to the Ministry of the Environment requesting access to the impact assessment of the Forestry Development Plan and to documents where the Ministry of the Environment has assessed this impact assessment. In addition, the complainant requested information on the members of the Impact Assessment Working Group.
The Ministry of the Environment refused to grant the information requested on the grounds that access to the requested documents is restricted on the basis of Section 35(2)(2) of the PIA.
The complainant considered that, on the basis of Section 35(2)(2) of the PIA, access to the impact assessment could not be restricted as this is not a document that should be accepted/validated or signed by the administrative authority and governed by administrative law.
Thus, he lodged a complaint against the refusal to comply with the request for information. He also claimed that the refusal was unlawful because the grounds for it were not explained.
Dispute
Holding
The AKI found that the information requested is public information within the meaning of Section 3(1) of the Public Information Act. However, Section 3(2) states that this access can be restricted according to Section 35(2)(2). The latter foresees that draft, not finalised, documents can be recognised as internal information and, thus, the access to these may be restricted.
The impact assessment at stake was not signed nor adopted and as such the restriction applies.
Further, the AKI found that the grounds for the refusal to provide information must be communicated according to Section 35(2)(2) of the PIA. The Ministry of Environment could have provided more details, but this does not render the refusal unlawful. Besides, the complainant could have asked for clarifications.
As for the members of the Working Group, their names were forwarded to the complainant. Therefore, there was no violation found and the complaint was dismissed.
Comment
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English Machine Translation of the Decision
The decision below is a machine translation of the Estonian original. Please refer to the Estonian original for more details.
FOR THE PROTECTION OF PRIVATE LIFE AND FOR TRANSPARENCY IN GOVERNMENT SES*, UG* Data Protection Inspectorate SES* DECISION ON THE REQUEST FOR INTERNAL REVIEW public information case No 2.1-3/19/4628 Elve Adamson, Inspector-General of the Data Protection Inspectorate Decision-maker Date and place of the decision 31.01.2020 in Tallinn Date of submission of the request for internal review Holder of information Contestant RESOLUTSION: Pursuant to Section 45(1)(1) of the Public Information Act (PIA) and Section 85(4) of the Administrative Procedure Act (HMS) I decide: 1) dismiss the objection; 2) communicate the decision on the challenge to the applicant and the holder of the information. FLARE-WINDOWS: If the Data Protection Inspectorate rejects the objection, the applicant has the right to appeal against the holder of the information to the administrative court (Section 46(2) PIA).The complainant can bring an action before the administrative court within 30 days if the Data Protection Inspectorate has otherwise infringed the complainant’s rights in the proceedings. FACTS: 1. On 15.12.2019 the complainant submitted a request for information to the Ministry of the Environment requesting access to the impact assessment of the Forestry Development Plan and to documents where the Ministry of the Environment has assessed the impact assessment carried out.In addition, the complainant requested information on who was members of the Impact Assessment Working Group. 2. On 19.12.2019 the Ministry of the Environment refused the request for information on the grounds that access to the requested documents had been restricted on the basis of Section 35(2)(2) of the PIA. 3. The complainant considered that, on the basis of Section 35(2)(2) of the PIA, access to the impact assessment he wanted could not be restricted as the impact assessment/study is not, by its nature, a document that should be accepted/validated or signed by the administrative authority in administrative law and lodged an objection against the refusal to comply with the request for information. Tatari tn 39/10134 Tallinn/627 4135/ info@aki.ee / Registration code 70004235 FORM OF ORDER SOUGHT BY THE APPLICANT AND THE GROUNDS ON WHICH IT IS BASED: In my request for information of 15.12.2019 (Annex 1), I requested access to the Impact Assessment of the Forest Development Plan Scenarios, which was rejected by the Ministry of the Environment, and information on who were members of the Impact Assessment Working Group.In the same request for information, I requested access to the document(s) where the Ministry of the Environment has assessed the impact assessment. The Ministry of the Environment (KeM) refused to comply with the request for information (Annex 2) on the basis of Section 35(2)(2) of the PIA, according to which the head of a State or local authority or a legal person governed by public law may recognise as information intended for internal use:the documents accompanying the draft document before their adoption or signature. The holder of the information has not confirmed that the requested information has been recognised for internal use, as is the premiss of Section 35(2)(2) of the PIA.On the basis of the following, I consider that there is no basis for a declaration of internal use either. 1. IMPACT ASSESSMENT The impact assessment commissioned by Kem cannot be considered as a draft document.A draft document in the sense of PIA means a semi-finished document, not a completed document.It seems to me that the study commissioned did not meet the objective in KeM’s view.However, the evaluation of the document does not lead to a draft.The concept of ‘adoption’ in this provision should mean the acceptance (i.e. confirmation, completion) of a document for the purposes of administrative law (e.g. adoption of a development plan, adoption of a regulation, approval of guidelines) and not the acceptance of work under an agency agreement within the meaning of the Law of Obligations Act.An impact assessment/study is not, by its nature, a document that should be adopted/validated or signed by an administrative authority in terms of administrative law. In the light of the remaining subparagraphs and points of that paragraph, in particular point 1 thereof, it appears that the rationale of Section 35(2)(2) is that the holder of information may refuse to disclose incomplete documents which the holder of the information has not yet been able to obtain, rather than conceal or silence studies which are inappropriate for the holder of the information.It follows from a literal interpretation of that provision that it is intended to cover documents which are accepted or signed upon their completion within the meaning of the PIA, as in the case of draft regulatory acts referred to in paragraph 2(1).That provision refers, in other words, to documents to which citizens may have access once they have been drawn up.There is no such possibility in my request for information, that is to say, the refusal to comply with a specific request for information consists of the impossibility, for an indefinite period, of accessing the documents requested.Thus, a refusal to provide information under Section 35(2)(2) of the PIA is unlawful. 2. NAMES OF THE MEMBERS OF THE GROUP The names of the members of the working group do not constitute a draft document and, in the case of names, do not refer to acceptance or signature within the meaning of Section 35(2)(2), so Section 35(2)(2) PIA does not apply. 3. THE INFORMATION HOLDER’S ASSESSMENT OF THE IMPACT ASSESSMENT To the best of my knowledge, the impact assessment commissioned to KeM did not fit for purpose.Kem has not published what objective it set.An assessment of the impact assessment commissioned cannot be regarded as a draft document within the meaning of Section 35(2)(2) (the holder of the information did not claim that it was still an incomplete document or did not indicate when it would be produced), so the refusal to disclose that document was also unlawful. The provision of information was unlawfully refused.The impact assessment commissioned for the FDP scenarios did not meet the objective retained by the Ministry of the Environment for an unpublished reason (the objective was also not published) and I could not know directly from the Ministry that the study did not meet the objective in KeM’s view.Speaking in rural languages, the holder ordered a survey, the result of which they seemed to be unwilling, and now conceals the survey I would like to ask the Data Protection Inspectorate to issue the required amount of public information in the manner I wish. REASONS GIVEN BY THE HOLDER OF THE INFORMATION: On 16 December, the Ministry of the Environment registered a citizen’s request for information (2-10/19/69) requesting access under the Public Information Act to the Impact Assessment of Forest Development Plan Scenarios, which was rejected by the Ministry of the Environment, and information on who were members of the Impact Assessment Group.On the same basis, access was requested to the document(s) where the Ministry of the Environment has assessed the impact assessment. On 19 December, the Ministry of the Environment replied to the request for information that the works produced by SEI Tallinn under the terms of the Order No 4-1/19/192 had not yet been accepted and that, therefore, the documents requested in the request for information pursuant to Section 35(2)(2) of the Public Information Act could not be issued. We will also give an explanatory overview of the communication with SEI Tallinn on the submission of the work carried out under the contract of entrustment:SEI Tallinn submitted an interim report to the Ministry of the Environment agreed before the deadline of 15 November 2019.It appeared that the work did not correspond to the task set out in the contract and we referred to it immediately by providing feedback.Subsequently, SEI Tallinn submitted a final report within the deadline of 22 November 2019, which was still not in line with the mandate set out in the contract, and negotiations on the contract started as the Ministry of the Environment did not agree to accept the work.By convention, SEI Tallinn resubmitted its final report at the end of the year, 31/12/2019.On 9 January 2020, the Ministry of the Environment sent SEI Tallinn its final comments on the work and the agreement to pay 50 % of the amount stipulated in the contract of entrustment.As the work was so serious, as part of the agreement, the task and purpose of the work for which it is to be used will also be changed.As a result of the negotiations, an agreement was concluded between SEI Tallinn and the Ministry of the Environment on 17 January 2020. We will answer the questions below: 1. Is the Ministry of the Environment in possession of an impact assessment of the forestry development plan scenario proposed by the complainant? On 22 November 2019, SEI Tallinn provided an impact analysis of the development scenarios of the 2030 Forestry Plan, which had not been adopted by the Ministry of the Environment at the time of the request for information. 2. If so, why does the Ministry of the Environment consider it to be a draft document? The Ministry of the Environment and SEI Tallinn entered into an agreement to terminate the contract for the drafting of that document No 4-1/19/192 on 17 January 2020.Until then, this was a draft work that SEI Tallinn has been able to complete. 3. Does the above impact assessment require approval/signature by the Ministry of the Environment, etc., at the time of the transfer? Yes. 4. Why did the Ministry of the Environment reject the impact assessment (not adopted)? The work submitted by SEI Tallinn within the deadline of 22/11/2019 did not correspond to the baseline task.The contractor was given the opportunity to improve the work but continued to submit work which did not take into account all the comments of the Ministry of the Environment and thus did not meet the baseline task and the work could not be used for its intended purpose. 5. What is the reason for not providing the complainant with information on the members of the Impact Assessment Working Group?Unfortunately, this issue was overlooked and we sent information back to the requester on 16 January 2020. 6. If there was no such document, why was the request not refused? See previous answer. 7. Does the Ministry of the Environment have a document/documents, including correspondence, where the Ministry of the Environment has assessed the impact assessment requested in the request for information? Yes. 8. If so, why was it not issued to the person requesting the information? These documents were not issued because the negotiations on the agreement were still ongoing at that time and disclosure of the material could have adversely affected the interests of the contracting parties and the outcome of the negotiations. 9. If not, why was the request not refused? In our reply to the request for information, we refused to provide all the requested documents on the basis of Section 35(2)(2) of the Public Information Act. 10. Has the requested impact assessment been adopted to date in the request for information? Yes.Following negotiations which took place between SEI Tallinn and the Ministry of the Environment on 2019 November 2020, an agreement was concluded between SEI Tallinn and the Ministry of the Environment on 17 January 2020 with a view to terminating the agreement No 4-1/19/192.The parties agreed that the work carried out by SA’s Stockholm Institute of the Environment Tallinn Centre between 25.10.2019 and 31.12.2019 and submitted on 31.12.2019 did not meet all the requirements of the initial task set out in the annex to the contract of entrustment or fully meet the offer submitted by the agent and that the work could not be used for its intended purpose. GROUNDS OF THE DATA PROTECTION INSPECTORATE: Public information Section 3(1) of the PIA states that public information is information recorded and documented in any way and on any medium, created or received in the exercise of public functions.In the present case, it is common ground that the information requested in the request for information is public information within the meaning of the Public Information Act.Section 3(2) of the PIA provides that access to public information may be restricted in accordance with the procedure laid down by law.The grounds for access restrictions are set out in Section 35 of the PIA and in specific sectoral laws. Imposition of access restrictions on the basis of Section 35(2)(2) of the PIA Section 35(2)(2) of the PIA provides for the possibility to recognise as internal information a draft document and the accompanying document before they are adopted or signed.It does not follow from that provision that it applies only to the validation or acceptance of a document for the purposes of administrative law.According to the explanatory memorandum to the Act, the purpose of that provision is to allow for the internal use of ‘work documents’ prior to their adoption or signature. The purpose of the above provision is therefore to limit access to incomplete documents, where necessary, to so-called ‘working documents’ which are not finalised and may still change in order to avoid premature and often incorrect conclusions.Nor can the EDPS agree unequivocally with the complainant’s view that an impact assessment/study is not, by its nature, a document that should be adopted/validated or signed by an administrative authority in terms of administrative law. I agree with the applicant that the impact assessment in question is not validated or adopted in accordance with the procedure laid down in the Administrative Procedure Act, but that, according to Article 2.11 of the contract of entrustment for the preparation of that impact assessment, the order is deemed to have been executed if the parties have signed a transfer-acceptance act.According to Article 2.6 of the same contract, the transfer of a principal does not constitute a receipt by the principal.In other words, the fact that the impact assessment was handed over by its author for review/introduction by the Ministry of the Environment (KeM) does not mean that a finalised document was handed over, which is no longer entitled to change and had to be received by KeM.According to Article 2.11 of the Agreement, an impact assessment is deemed to have been completed and adopted once it has been signed by the parties and handed over by a surrender-acceptance act. In addition, Article 2.8 of the contract provides that, where the principal has a claim concerning the performance of the task and the defects can be remedied, he is to set a reasonable period within which to remedy the defects, which means that the impact assessment initially handed over must also be supplemented in the event of defects.It is therefore a working document until the deficiencies have been remedied and the final document, which is no longer amended and accepted by the contracting authority, has been completed.It would be premature to issue incomplete analyses/impact assessments which may ultimately still change and be presented as a final document and which may provide incorrect or incomplete information.That is all the more so since, in the present case, an objection has been made that it wishes to be reused. I also agree with the KeM that the comments submitted by the Ministry and the feedback on the analysis carried out can be regarded as documents forming part of that analysis which do not have to be disclosed before the document is finalised.The EDPS therefore takes the view that, in the present case, the restriction on the analysis/impact assessment requested by the applicant and on the comments/deficiencies communicated by KeM were validly imposed at the time when the request for information was made. Reply to a request for information Section 23 of the PIA sets out the grounds for refusal of a request for information.Under subparagraph 3 of that provision, reasons must also be given for refusal. 15.12.2019 the appellant submitted the following request for information to KeM:‘I request by means of a request for information statutory Access to Public Information on Forestry Development Plan Scenarios the impact assessment, which was rejected by the Ministry of the Environment, and the identity of the members of the Impact Assessment Working Group.On the same basis, I request access to the document(s) on which the Ministry of the Environment has assessed the impact assessment.‘ 19.12.2019 KeM refused to comply with the request for information on the following grounds: “The Ministry of the Environment has not accepted the work prepared by SEI Tallinn on the basis of Order No 4-1/19/192 and therefore according to Section 35(2)(2) of the Public Information Act, the documents requested in your request for information cannot be issued”.It is clear from the foregoing that the documents requested in the request for information have been refused on the ground that they are working documents. In the complaint, the applicant criticised the KeM for not having claimed, in the request for information, that it was still a incomplete document and for not having given it when it would be produced.In that regard, I agree with the applicant that the grounds for refusal could have been more detailed, showing why the work had not yet been accepted.However, a failure to state reasons does not render the refusal unlawful.In addition, the challengeee has criticised the KeM for failing to confirm that the information requested in the request for information has been declared for internal use on the basis of Section 35(2)(2) of the PIA.This complaint is not clear to the Supervision Authority, since KeM has referred to the ground for refusal when refusing to comply with the request for information.If nothing was unclear to the applicant, the applicant had the opportunity to ask KeM for further clarification.However, as regards the applicant’s complaint that KeM did not disclose the objective which it set for the author of the impact assessment/analysis, it is not apparent from the request for information that the applicant had asked for it. It follows from the foregoing that, since, at the time when the request for information was made, the restriction on access to the requested documents was lawfully imposed, the refusal to comply with the request for information was lawful. Since, in addition to the abovementioned documents, the complainant also requested information from the members of the Impact Assessment Group, KeM failed to reply to the request for information in that regard.If the ministry did not have the requested information in a documented form (a document from which an extract or a copy could have been issued), the request for information should have been refused in this respect and the complainant’s request for clarification should have been considered as a request for clarification.In its reply to the Inspector’s enquiry, the Ministry has acknowledged its error and informed the Inspector that on 16.01.2020 it forwarded the requested information on the members of the Working Group to the complainant. In the light of the foregoing, since KeM has lawfully refused to issue the documents requested by the applicant and, in the course of the procedure, has also communicated the names of the members of the working group responsible for drawing up the impact assessment requested by the applicant, there is no reason to issue an order and the objection is dismissed. Outside the internal review procedure, I consider it necessary to explain to the applicant that both the contract of entrustment for the preparation of the impact assessment and the annex thereto, which contains the initial function of the impact assessment and the adopted impact assessment and the agreement to terminate the contract of entrustment, can be found in the public register of documents published on the KeM website https://www.envir.ee/et/ministeerium-kontakt/dokumendiregister-ia-teabenoude-esitamine from registration number 4-1/19/192. /signed digitally/ Ms Elve Adamson Inspector General under the authority of the Director-General
