AVENUE DE TERVUEREN 282-284 B-1150 Brussels Belgium www.polrepeu.be

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STAŁE PRZEDSTAWICIELSTWO RZECZYPOSPOLITEJ POLSKIEJ

PRZY UNII EUROPEJSKIEJ

PERMANENT REPRESENTATION OF THE REPUBLIC OF POLAND

TO THE EUROPEAN UNION

Brussels, 16 February 2009 WS-B W/4023/22-18/09

Mr Karl FALKENBERG Director General DG Environment European Commission

Dear Mr Falkenberg, Please find enclosed the report of the Republic of Poland on the implementation of the Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information.

With kind regards,

<illegible signature>

Karolina Ostrzyniewska Deputy Permanent Representative

of the Republic of Poland to the European Union

Enclosures: 1. PL report

Ministry of Environment

Report of the Republic of Poland on the implementation of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003

on public access to environmental information Warsaw, February 2009

CONTENTS 1. Reporting obligation ............................................................................................................... 4 2. Reporting Guidance ................................................................................................................ 4 3. General description of the implementation of the Directive in the Polish legal system (point 1 of the Guidance) ...................................................................................................................... 4 4. Experience gained (Point 2 of the Guidance) ........................................................................ 6 5. Definitions (Point 3 of the Guidance) .................................................................................... 7 6. Access to environmental information (Point 4 of the Guidance) ........................................... 9 7. Exceptions from the information availability principle (Point 5 of the Guidance) ............. 14 8. Charges (Point 6 of the Guidance) ....................................................................................... 15 9. Access to justice (Point 7 of the Guidance) ......................................................................... 16 10. Dissemination of environmental information (Point 8 of the Guidance) ........................... 18 11. Quality of environmental information (Point 9 of the Guidance) ...................................... 20 Appendix – Guidance document on reporting about the experience gained in the application of Directive 2003/4/EC on public access to environmental information 22

1. Reporting obligation

In accordance with Article 9 of Directive 2003/4/EC on public access to environmental

information (OJ EU L 41, 14.2.2003, p. 26: OJ EU special edition in Polish: Chapter 15 Volume 07 p. 375), hereinafter: the Directive, Member States shall report on the experience gained in the application of that Directive.

They shall develop the report not later than 14 February 2009, i.e. four years after the deadline for the transposition of that Directive. They shall communicate the report to the Commission not later than 14 August 2009.

The reports on the application of the Directive are intended to collect information on the effectiveness and correctness of the implementation, and to identify challenges faced by Member States in its interpretation and application, which, in turn, may lead to the consideration of potential amendments to the Directive.

In the light of the experience acquired and presented by the Member States, and taking into account developments in computer telecommunications and/or electronic technology, the Commission shall make a report to the European Parliament and to the Council together with any proposal for revision which it may consider appropriate.

In order to facilitate the development of the reports on the application of the Directive, the Commission was obliged to develop and forward to the Member States – by 14 February 2004 – a guidance document setting out the manner in which it wishes the Member States to report.

2. Reporting Guidance The Guidance Document on reporting about the experience gained in the application of

directive 2003/4/EC on public access to environmental information1 (hereinafter: the Guidance), is intended to help the Member States in the development of the reports and to ensure that the reports received by the Commission are consistent, developed using the same approach and comparable. This consistency is essential to the Commission in order to identify the actual problems occurring and recurring in Member States in connection with the application of the Directive, and to develop the report for the European Parliament and the Council.

The Guidance demonstrates, item by item, which issues should be covered by the report by the Member States.

3. General description of the implementation of the Directive in the Polish legal system (point 1 of the Guidance)

The system providing access to environmental information was established by public

authorities along with the entry into force of the Environmental Protection Law (hereinafter: EPL), i.e. in 2001. Public administration offices developed appropriate procedures and systems to make environmental information available. This applies both to governmental administration (central and provincial offices), and to local administration.

1http://ec.europa.eu/envkonment/aarhus/pdf7guidance_pl.pdf (Polish version) http://ec.europa.eu/environment/aarhus/pdf/guidance_en.pdf (English version)

The Directive has been transposed into the Polish law by the following legal acts: • The Act of 3 October 2008 on the access to information on the environment and

environmental protection, public participation in environmental protection and environmental impact assessment (OJ 199 item 1227) – hereinafter: the Act of 3 October 2008. This act sets out the basic rules on the availability of environmental information. The provisions of Chapter II of that Act amended, as of 15 November 2008, Title I, Chapter IV of the EPL, which had regulated the issue of access to environmental information before. The fundamental features and objectives of the previous EPL were essentially left unchanged; however, the new act introduced certain provisions which transposed some provisions of the Directive that had been transposed inaccurately, and certain solutions to promote a better understanding and application of those provisions. The experience gained throughout the application period of the provisions on access to environmental information laid down in the Environmental Protection Law, however, is still of relevance to the new act.

- Regulation of the Minister of Environment of 18 June 2007 on the model for the

publicly accessible listdata on documents containing information on the environment and environmental protection (Journal of Laws 120, item 827) – adopted on the basis of the EPL, is going to be replaced by a similar regulation adopted on the basis of the new act, and will be in force until the adoption of the new regulation, however not longer than until 15 November 2010.

- Regulation of the Minister of Environment of 5 June 2007 on specific rates for access

to information on the environment and environmental protection, as well as the payment method (Journal of Laws 114 item 788) – adopted on the basis of the EPL, is going to be replaced by a similar regulation adopted on the basis of the new act, and will be in force until the adoption of the new regulation, however not longer than until 15 November 2010.

- Regulation of the Minister of Environment of 18 June 2007 on the provision of access

to environmental information (Journal of Laws 120, item 828) – adopted on the basis of the EPL, is going to be replaced by a similar regulation adopted on the basis of the new act, and will be in force until the adoption of the new regulation, however not longer than until 15 November 2010.

• Act of 6 September 2001 on access to public information (Journal of Laws 112, item 1198, as

amended) – (hereinafter: the API Act). The Act includes regulations concerning the availability of all public information. This Act is auxiliary to the transposition of Directive 2003/4, as the Act of 3 October 2008, to a certain extent, refers to the API Act (as regards the legal remedies applicable to certain cases of refusal to provide information – see below), and in addition, the API Act is partly applicable in respect of the provision of access to environmental information which is also considered to be public information.

• Act of 14 June 1960 – Code of Administrative Procedure (consolidated text: Journal of Laws 98/2000 item 1071, as amended) – (hereinafter: the CAP). What is particularly relevant to the issue of access to environmental information are the CAP provisions regulating appealing against administrative decisions (because refusal of access to public information is communicated in an administrative decision) and the legal remedies applicable in the event when the competent authority fails to take action. In addition, certain general rules of administrative procedure apply to the provision of information by authorities.

• Act of 30 August 2002 – Law on proceedings before administrative courts (Journal of Laws 153/2002, item 1270, as amended). In accordance with the Act of 3 October 2008, most refusals can be appealed against to administrative courts; the Law on proceedings before administrative courts sets out the rules for bringing proceedings to administrative courts and handling such proceedings.

• Act of 7 November 1964 – Code of Civil Procedure (Journal of Laws 43, item 296, as amended). Certain refusals shall be appealed against to civil courts. The Code of Civil Procedure sets out the rules for bringing proceedings to civil courts and handling such proceedings.

Poland is a unitary state, therefore the provisions transposing the Directive have been adopted

at the national level. Regional authorities in Poland are not competent to adopt legal acts transposing directives, although they are subject to the obligation, as confirmed by case law, to apply not just the transposing provisions, but Community ones as well.

In order to apply the Directive effectively, certain local authorities adopted internal rules specifying how the obligation to provide information should be met.

4. Experience gained (Point 2 of the Guidance) In spite of initial concerns, the entry into force of the provisions on the access to the

information on the environment and on environmental protection (provided initially in the EPL, and now in the Act of 3 October 2008), did not impose an excessive burden on the authorities. The heaviest burden in this respect was due to – according to the opinion of randomly selected authorities at the end of 2008 – the obligation to keep public lists of data on documents containing environmental information and the need to enter large amounts of data on those lists. However, the situation has been improving since the Environmental Information Centre (hereinafter: the EIC) provided a tool to keep the lists in an electronic format. The tool is special software available on the Ekoportal website,2 and managed by the EIC. Along with the launch of the website, a tool was developed to enable the operation of the environmental information system. As expected, Ekoportal contributes to the increased internet usage by public administration and makes work easier for the officials.

To improve the supervision of the performance of the environmental information system, a provision is envisaged in the EPL which sets out the obligation to publish refusals to provide information on the public list of data. Owing to that, the Minister of Environment will be able to monitor the compliance with the obligation to disclose information by governmental and local authorities more effectively.

2 http://ekoportal.gov.pl

5. Definitions (Point 3 of the Guidance) Definition of environmental information

The Polish law does not provide a separate definition for environmental information – this

term is explained in a descriptive manner. Article 9.1 of the Act of 3 October 2008 provides that the following information is subject to disclosure:

1. the condition of environmental compartments, such as: air, water, Earth’s surface, minerals, climate, landscape and nature areas, including wetlands, coastal and marine areas, plants, animals, fungi and other biodiversity elements, including genetically modified organisms, and the interrelations between those compartments;

2. emissions, including radioactive waste, and pollution that affects or may affect the environmental compartments referred to in (1);

3. measures such as: administrative measures, policies, environmental and water management provisions, plans, environmental protection plans, programmes and agreements, as well as any activity that affects or may affect the environmental compartments referred to in (1) and the emissions and pollution referred to in (2), along with the measures and activities aimed to protect those compartments;

4. compliance reports on environmental protection provisions; 5. cost and benefit analyses and other economic analyses and guidance used for the purposes of

the measures and activities referred to in (3); 6. human health, safety and living conditions, and the condition of cultural sites and buildings –

insofar as they are affected by or may affect:

a) the state of the environmental compartments referred to in (1), or b) through the environmental compartments referred to in (1) – the emissions

and pollution referred to in (2) and the measures referred to in (3). The term environmental information referred to in the Directive and Polish transposing

provisions does not seem to entail any interpretation difficulties (the transposing provisions seem to be clear), although in practice, sometimes authorities refuse to provide information when they are not fully aware that the definition of environmental information is very broad. This problem, however, is mostly due to the mentality and unawareness of officials, although the Ministry of Environment is making efforts to educate the officials, such as training, publishing manuals and e-learning.

However, the term information held for public authorities included in the Directive might cause some interpretation problems. In Article 3.1 (2) of the Act of 3 October 2008, this term is defined as information held by third parties on behalf of the public authority, including the information that the public authority is entitled to request from third parties. The formerly applicable provisions of the EPL did not include such a definition and it is still hard to tell how it is going to be interpreted in practice.

Definition of public authorities The Act of 3 October 2008 provides that administration bodies are obliged to disclose

information. In accordance with the definition of Article 3.1 (9) of that Act, they are: 1. ministers, central governmental administration bodies, voivodes, other regional governmental

administration bodies acting on their behalf or in their own name, local government authorities, and

2. other authorities, when established by operation of law or under agreements to perform public functions relating to the environment and to environmental protection. The same definition is provided by the now obsolete provisions of the EPL. Point (b) of the aforementioned definition transposes Article 2.2 (b) and (c) of the Directive. It is impossible to list all bodies that meet the criteria specified at this point of the transposing

provisions. This is always determined by the legal provisions, which specify the specific bodies obliged to perform specific public functions, or identify the public functions relating to the environment and environmental protection that can be delegated to bodies other than public administration. Those bodies include the environmental protection institutions listed in Article 386 of the EPL, i.e.:

• The National Environmental Protection Council, • The Environmental Impact Assessment Committee, • The Funds for Environmental Protection and Water Management (Voivodeship Funds

and the National Fund), • The National Eco-Management Council (in charge of EMAS-related matters).

The bodies established by operation of law to perform public functions relating to the environment and to environmental protection include Regional Water Management Boards. In accordance with the Water Law of 18 July 2001 (Journal of Laws 115, item 1229), they provide a supporting framework for new governmental administration bodies in charge of water management: Directors of Regional Water Management Boards. The situation of the State Forests National Forest Holding is similar. It performs public functions connected with the protection of forests, pursuant to the Act on forests. Public road authorities, too, have certain environmental protection responsibilities, pursuant to the Act on the maintenance of cleanliness and order in communes.

In addition, there are many state-level organizational units that are obliged to perform public functions in the field of environmental protection on the basis of their bylaws. This applies, for example, to the Institute of Environmental Protection. The same applies to public universities, i.e. science and research institutions.

Many other bodies, with various names and legal structures, established by communes and involved in water and sewage management, waste management or urban green are in a similar situation. They all perform certain public functions relating to the environment and to environmental protection, and thus are obliged to make relevant information available. All those bodies – aside from being subject to the obligation of disclosing information pursuant to the EPL, and now pursuant to the Act of 3 October 2008 – meet the requirements specified in Article 4 of the API Act and are subject to its provisions in respect of the public information held by those bodies.

6. Access to environmental information (Point 4 of the Guidance) Practical arrangements applied

Article 4 (1) (c) of the Directive requires Member States to use practical arrangements for

ensuring that the right of access to environmental information can be effectively exercised, such as: • the designation of information officers; • the establishment and maintenance of facilities for the examination of the information

required; • registers or lists of the environmental information held by public authorities or information

points, with clear indications of where such information can be found. Article 10 of the Act of 3 October 2010 requires the offices of administration bodies to

designate officers for the purposes of disclosing information on the environment and environmental protection. The now obsolete provisions of the EPL did not expressly provide for such a requirement, however, many authorities actually designated such individuals.

Pursuant to Articles 21 to 23 of the Act of 3 October 2008, administration bodies are obliged to keep public lists of data on the documents containing the information on the environment and environmental protection.

The purpose of those lists is to give the public the possibility to quickly identify (find the place and date of publication, name and subject of the document) and localize (find the place where it is kept) a document containing environmental information.

Therefore, the list itself is not a source of environmental information; instead, it primarily shows how to find such sources. To a limited extent, the list is also a primary source of information, as the data provided therein may supply certain environmentally relevant information, such as whether proceedings are pending concerning an investment site, or whether a specific operator has obtained a permit to discharge sewage etc.

In addition, the lists are supposed to be used by the public administration bodies themselves, to help them quickly retrieve the information held by those bodies.

In accordance with the Regulation of the Minister of Environment of 18 June 2007 on the model public list of data on documents containing information on the environment and environmental protection, the list shall consist of:

• information sheets containing the necessary data to retrieve documents and make them available in an efficient manner,

• an index of information sheets. The lists must contain the data on the documents referred to in Article 21 (2) of the Act of 3

October 2008, and may also contain the information on other documents. Lists are kept in an electronic database format and made available via the internet. The basic method used to provide access to information, according to the API Act, is to

publish it in the Public Information Bulletin (hereinafter: BIP), which is, pursuant to Article 8 (1) of the aforesaid act, a harmonized system of sites in an ICT network (i.e. a system of websites including a home page and so-called links to the websites of each disclosing authority).

Central administration At the central administration level, a unit was established within the Ministry of Environment

which handles, inter alia, the access to environmental and public information: the Department of Environmental Education. This unit is responsible, for example, for the development of legal acts to adapt Polish provisions to the Community and international law in respect of access to information, and for the coordination of their implementation.

At the same time, each unit is responsible to provide information and opinion to interested parties on the issues handled by those units (Article 3 (8) of the Rules of Procedure of the Ministry of Environment). Officers have been designated in all departments within the Ministry, who are in charge of updating and entering new information to BIP and to the public list of data on documents containing information on the environment and environmental protection. In addition, the Ministry of Environment ensured the harmonization of the operations of its organizational units, introducing a provision to the Rules of Procedure of the Ministry of Environment (Article 3 (21)) which sets out the obligation to submit to the Environmental Information Centre completed information sheets on the documents and other media containing information on the environment and environmental protection and subject to disclosure.

In addition, the integration with information resources of other units subordinate to and supervised by the Minister of Environment is ensured in BIP through the publication of links to those units – Subordinate and supervised units, and Registers, records and archives.

As part of the National Programme of Preparations for EU Accession, in order to effectively meet the obligation to provide environmental information to the public, the Environmental Information Centre was established in 2001, a unit subordinate to and supervised by the Minister of Environment. The Centre is a central level institution which provides access to the information held by the Minister and disseminating the information proactively by electronic means.

The primary responsibilities of that institution are to collect, store and make available the information on the environment and environmental protection held by the Minister and to keep and make available a public list of data on the documents containing information on the environment and environmental protection. In addition, the responsibilities of the EIC include the collection and disclosure (including proactively) of such materials as: texts of international agreements, information on ecotourism, the most important events organized by the ministry. In addition, EIC runs the Ekoportal, a website which enables voivodeship offices, marshal’s offices, district offices and commune offices to keep their own public lists of data with no costs involved. More than 830 offices have already used that option.

In addition, Ekoportal makes a number of electronic communication tools available, such as: chat, workspace, notice board, forum – in working groups relating to various subjects. With those tools, it is possible to provide feedback on Ekoportal and its online content.

In addition, there is a section containing provisons on access to environmental information and the legal interpretation thereof.

Moreover, certain information disclosure obligations are met through Ekoportal, as required by the procedures for public participation in environmental decision-making. Requests for decisions and accompanying documents are reviewed through the public lists. The Ministry of Environment communicates the outcome of public participation proceedings concerning the adoption of a decision to the general public. This is done via the public list of environmental information, where an information sheet is provided for the decision. The sheet is actively linked to the application, which is entered on the list at an earlier stage, and other documents. In each case, the outcome of public participation proceedings is recorded in the decision which is made public by means of the list of environmental information.

Aside from the Ministry of Environment and EIC, the Chief Inspectorate for Environmental Protection with its Voivodeship Inspectorates for Environmental Protection, plays an important role in informing the public about the state of the environment. Article 28 of the Act on Environmental Inspection of 20 July 1991 (Journal of Laws 199/2008, item 1227) addresses a general instruction to the Inspection authorities, to ensure that the public is informed of the state of the environment, and to publish the results of studies, observations and environmental assessment for administration bodies. Those authorities comply with this obligation using the data and information collected as part of the state environmental monitoring responsibilities carried out by the Inspection.

It should be expected that the General Directorate for Environmental Protection and its regional counterparts, which have been established under the Act of 3 October 2008, will provide an additional powerful tool for the Minister of Environment in the policy for providing access to environmental information. The competences of the Director-General for Environmental Protection include the involvement in the implementation of the environmental protection policy in respect of nature protection and control over investment processes, collecting data and preparing information on the Natura 2000 network and on environmental impact assessments. In general, the basic responsibility of the GDEP will be to improve the environmental management process.

Local administration A random survey carried out by the Ministry of Environment in commune offices and district

offices late last year shows that authorities obliged to disclose environmental information adopt their own internal rules. Most often, relevant provisions are introduced to their rules of procedure, or relevant ordinances are issued. Most offices have organized information points for citizens. Independent environmental protection posts have been established within those bodies, or relevant posts in the departments involved not just in environmental protection, but also in water management, urban infrastructure, spatial planning and architecture, forest management, waste, agriculture, etc. In all offices, there are officers on duty to receive complaints and observations, including those pertaining to the availability of environmental information. The websites of most voivodeship offices and local offices provide separate information on the right of the citizens to obtain environmental information and public information.

The survey showed that most bodies ensured training to their staff, included the responsibilities connected with the disclosure of environmental information in their rules of procedure, and established information points. Ensuring that the public has adequate information of the rights relating to the access to information

The Constitution of the Republic of Poland of 2 April 1997 gives everyone the right to obtain

information (Article 54 (1)), including the information on the activity of public authorities and public officials, business and professional authorities, as well as other individuals and organizations insofar as they perform the functions of public authorities and manage municipal assets or the property of the State Treasury (Article 61), and the information on the state and protection of the environment (Article 74 (3)). Public authorities, on the other hand, are obliged to pursue a policy that ensures environmental security to current and future generations.

The obligations of authorities concerning the support and informing on the rights are of a general character in Poland. In accordance with Article 9 of the CAP, public authorities are obliged to properly and exhaustively inform the parties of the factual and legal circumstances which may affect their rights and obligations being subject to public administration proceedings. Authorities are obliged to ensure that the parties and other participants of the proceedings do not suffer any harm due to ignorance of the law, and to that end, they shall provide them with the necessary guidance.

Central administration The Environmental Information Centre, an institution established to make available the

information held by the Minister of Environment in order to raise public awareness of the right of access to information, published all available knowledge in this respect on its website.

The issues of environmental education are regulated by Articles 77 to 79 of the EPL, which impose relevant obligations on various entities, e.g. all types of schools are obliged to include the issues of environmental protection and sustainable development in the core curriculum of general education. The Ministry of Environment, in cooperation with the Ministry of National Education, developed the National Strategy of Environmental Education3, along with an implementation programme, which specify the education responsibilities and the implementation methods.

In 2007, the EIC and the Ministry of Environment carried out an environmental information training project (60 training events across Poland, addressed to officials at all levels). As part of the project, a manual was developed concerning the access to environmental information, titled: Access to information on the environment and environmental protection (the latest revision of this manual is available free of charge on the Ekoportal website4) and an e-learning programme which is also available to all interested parties in an electronic format on the Ekoportal website.

The issues of access to information were also promoted in a series of publications developed as part of a Danish programme of assistance to Poland, concerning the implementation of the Aarhus Convention and related Community directives. With public officials in mind, the following publications were available already in 2002: Access to environmental information, Environmental impact assessment proceedings for planned investments, and Public participation in environmental impact assessment proceedings. The publications were widely disseminated among environmental journalists. In 2004, a publication was issued, which is a manual in its nature, titled Access to environmental information vs. Access to public information, addressed to the staff of the authorities subject to the information disclosure obligation.

The Ministry organized numerous meetings, seminars and press conferences concerning the new legal solutions, especially in respect of the adjustment of the Polish law to EU legislation.

Local administration

3 http://www.mos.gov.pl/edu/index.php?idkat=252 4 http://www.ekoportal.pl/jetspeed/portal/portal/Szkolenia/index7.psml

The websites of surveyed authorities supply information on the rules of providing access to environmental information, i.e. who has the right to obtain the information, what information can be obtained, how to apply, what restrictions apply to the access to information, and where the public list of data on the environment and environmental protection can be found. In addition, the authorities usually publish application forms to request information on the environment and environmental protection, containing the legal basis for the request, a request to provide information on the applicant, the way in which the information is to be made available, the type of media, the form of communication, and the statement that as appropriate, the authority reserves the right to charge a fee for the information, in accordance with the applicable legal basis.

A majority of communes and districts replied that in order to make environmental information more easily available to the public, aside from maintaining a public list of data on the environment and environmental protection, they have public websites, BIPs, and they publish notices on notice boards.

In order to promote the awareness of the right of access to environmental information at the local level, the following good practices are used: staff training, newsletters and other publications, supporting the initiatives of regional environmental education centres and NGO campaigns. Some communes provide information to their inhabitants at village council meetings, some declare that environmental information is posted on notice boards, communicated to village leaders (so-called sołtys) during meetings or sent by post. Municipal offices formed the habit of submitting press releases or publishing the information on the environment and on planned investments with environmental impact in local press. One of the communes publishes an annual newsletter for its inhabitants. In another commune, inhabitants are informed about their rights of access to environmental information during village meetings. Other observations relating to the practical application of Article 3 of the Directive

Central administration The findings of the audit carried out at the Ministry of Environment in 2008 show that the

authority handles requests for environmental information on an ongoing basis, and the requests are received by various means (email, post, telephone). However, due to the varied means of submission, not all requests are registered. Having received the request, an employee of the Department of Environmental Education discloses the necessary information or passes the request on according to the area of competence. The timing of the response is monitored. In accordance Article 3.1 (8) of the Rules of Procedure of the Ministry of Environment, each department and office is responsible to disclose information and provide its opinion to the interested parties within its area of competence.

Environmental information is also often made available through the Ekoportal website maintained by EIC. EIC makes environmental information available on the basis of the data collected from administrative bodies through lists of information on documents. In accordance with the Rules of Procedure of the Ministry of Environment, the Department of Environmental Education supervises the EIC, by means of receiving quarterly activity reports etc.

According to the report on the implementation of the National Environmental Policy in 2003-2006 and as shown by the analysis of the studies carried out for the purposes of the report on the implementation of the provisions of the Aarhus Convention,5 not every local authority (in communes and districts) had a computer system in place to disclose environmental information. This situation changed with the entry into force of the provisions of the amended EPL in 2006, which followed the through public lists in an electronic format.

According to information access experts, in the light of the experience acquired in the course of application of the EPL, the API Act, regulations and case law, the improvement of public information systems, in order to provide easier access to registers and databases and to ensure direct access to documents or information, seems to be necessary.

7. Exceptions from the information availability principle (Point 5 of the Guidance) Catalogue of exceptions approved by the Member State

A list of approved exceptions from the information availability principle is provided in Article

16.1 and Article 17 of the Act of 3 October 2008. In accordance with those provisions, the authority shall refuse the request if the information concerns:

• individual data obtained in statistical studies for the purposes of public statistics, subject to statistical confidentiality, as referred to in the Act of 29 June 1995 on public statistics;

• cases pending court, disciplinary or criminal proceedings, if the disclosure could disrupt the proceedings;

• matters subject to copyright, as referred to in the Act of 4 February 1994 on copyright and related rights, or patent rights, as referred to in the Industrial property law of 30 June 2000, if the provision of the information could prejudice those rights;

• personal data, as referred to in the Act on personal data protection of 29 August 1997, relating to third parties, if the provision of the information could infringe the provisions on personal data protection;

• documents or data provided by third parties, where such third parties were not obliged to provide such information nor could such an obligation be imposed on those third parties, however they voluntarily provided the data with a reservation that the data could not be made available;

• documents or data which, if made available, could pose a threat to the environment or to the environmental security of the state;

• business information, including technical data provided by third parties and subject to company secrets, which, if made available, could undermine the competitive power of those parties, and the parties submitted a substantiated application to prevent access to that information;

• projects likely to have significant effects on the environment, implemented on restricted sites excluded from public participation proceedings;

• security and defence of the state. Authorities may refuse a request for information on the environment and environmental protection if:

5 http://www.mos.gov.pl/edu/index.php?idkat=17

• it would require the provision of documents or data that are in the course of completion;

• it would require the provision of documents or data intended for internal communication;

• the request is manifestly unreasonable; • the request is formulated in too general a manner.

In addition, Article 2.1 of the Act of 3 October 2008 envisages that the provisions of that act do not prejudice the provisions of the Act on the protection of classified information, which means that information identified as classified in accordance with the latter is also excluded from disclosure (it applies to so-called state secrets, such as information involving the security of the state, and to professional secrecy).

Therefore, in accordance with the Polish law, all exceptions required by the Directive are acceptable. A manual concerning the application of exceptions and the availability of the list of exception criteria

Such a manual (a circular or guidance) has not been published yet, but the Ministry of

Environment has published the aforementioned manuals for officials concerning application of the provisons on the availability of environmental information, which covered, inter alia, the issue of exceptions from information availability6.

Local administration Most of the surveyed district offices have never refused to provide information on the

environment and on environmental protection. Only in one commune, information was refused due to the fact that the applicant formulated his request for access to information in too general a manner.

One of the communes replied that environmental information had never been refused, as no one had requested such information, perhaps because a list of environmental information was available in an electronic format in the Public Information Bulletin.

The surveyed authorities have never been in a situation where part of the information was made available, and the remaining part was excluded from disclosure. In addition, interested parties were never refused the access to the information due to the fact that the information requested was not environmental information.

8. Charges (Point 6 of the Guidance) Setting rates for supplying environmental information

In accordance with the Polish law, the charges are precisely specified in generally applicable

provisions. In accordance with Article 26 (2) of the Act of 3 October 2008, environmental authorities make charges for the following operations, so as to reflect the following reasonable costs involved:

• the retrieval of information, • the conversion of the information into the requested format, • copying of documents or data,

6 http://www.ekoportal.pl/jetspeed/portal/portal/Szkolenia/index7.psml

• sending the copies. The rates are specified in the Regulation of the Minister of Environment of 5 June 2007 on

specific rates for access to information on the environment and environmental protection, as well as the payment method.

In accordance with Article 26 (1) of the Act of 3 October 2008, the searching and browsing of documents specified on a publicly available list at the premises of administration authorities is free of charge.

Neither are the charges for supplying environmental information collected when the request is submitted by an administration body (Article 26.4 of the aforementioned act).

As indicated above, the rates and the situations where charges are not collected are addressed by generally applicable provisions as published in the Journals of Law. In addition, provisions on the access to environmental information are available on the BIP website of the Minister of Environment and on the EIC website.

Representatives of municipal offices, commune offices and district offices usually claim that the charges for supplying information calculated on the basis of the current rates cover the costs of information retrieval and copying. Most of the surveyed authorities believe this is the case. The surveyed officials usually believe that the rates should remain at the same level, and the calculation method is not troublesome or time-consuming. A few communes indicated that the data should be made available free of charge, irrespective of the number of copies requested. In one case, it was indicated that an authority found it difficult to valuate certain documentation which required much effort to prepare.

9. Access to justice (Point 7 of the Guidance) A request for environmental information is always refused by means of an administrative

decision (Article 20.1 of the Act of 3 October 2008). In accordance with the general rules of administrative proceedings provided in the CAP,

administrative decisions can be appealed against to an authority superior to the decision-making authority (refusing authority) – in the case of governmental-level administration. If the decision is made by a local authority, the competent authority to reconsider the case is the local government appeal court (Samorządowe Kolegium Odwoławcze, SKO) – a special body appointed to review appeals from decisions of local authorities.

In the event when there is no superior authority over the decision-making authority, nor is it possible to appeal to the SKO (e.g. when the decision is made by a minister), instead of the appeal, a request to reconsider the case needs to be submitted to that authority.

There is an exception to the right of appeal against a decision refusing access to environmental information, in the situation where the refusal is due to the protection of: (1) personal data; (2) documents supplied by third parties without being under a legal obligation to do so; (3) commercial information.

In those situations, there is the right to file a lawsuit to a common (civil) court, instead of appealing to an administrative court, like in the other cases, and such a lawsuit – in accordance with the SKO case law – is not preceded by an appeal from the decision refusing information to a superior authority (see below).

In addition, the CAP envisages an administrative legal recourse in the event when the authority fails to respond to a request from the interested party at all. In this event, the requesting party has the right to file a complaint against the inactivity of the authority concerned, which shall be submitted to a superior authority, or a request to reconsider the case (where there is no competent superior authority).

Appeal procedure before a court In accordance with the general rules of the Polish law, administrative decisions made by an

appeal authority (2nd instance authority) can be appealed against to the Voivodeship Administrative Court (VAC). Judgments of the VAC can be appealed against on a point of law to the Supreme Administrative Court (thus the administrative court proceedings can be carried out in two stages).

The Law on proceedings before administrative courts sets out the rules for filing complaints with the VAC and SAC and for handling those complaints. The Act of 3 October 2008, however, introduces a certain variation to the general rules provided in the Law on proceedings before administrative courts, by envisaging, in its Article 20.2, certain (and quite short) time limits for the review of complaints by the VAS (such a complaint shall be reviewed within 30 days of the receipt of the case file, including the response to the complaint), while according to the general rules, there are no time limits set for the court.

There is an exception from the rule of appealing against decisions to administrative courts, which has already been mentioned, i.e. in accordance with Article 20.3 of the Act of 3 October 2008, in the event when the refusal was due to the protection of: (1) personal data; (2) documents supplied by third parties without being under a legal obligation to do so; (3) commercial information, the complaint shall be filed with a common (civil) court, instead of an administrative court. The rules of proceedings before common courts are set out in the Code of Civil Procedure.

In accordance with those rules, proceedings before civil courts are carried out in two stages (judgments of first instance courts can be appealed against to second instance courts). Finality of judgments in information disclosure proceedings

As mentioned in the previous section, proceedings before courts are carried out in two stages.

In both cases, i.e. in the administrative court and common court, the judgment of the 1st instance court becomes final after the expiry of the time limit for appeal in the event when the appeal is not lodged (the legal recourse is not used).

In the event of an appeal against the 1st instance judgment, the case is decided by a court of second instance, whose judgment is final. Other observations relating to the practical application of Article 6 of the Directive

There is a challenge relating to the application of the provisions on access to justice in

accordance with the Directive, i.e. the aforementioned exception from the rule that appeals from certain refusals to provide information are reviewed by administrative courts, where instead they are reviewed by common courts. Local Government Appeal Courts interpret the provisions in such a way that before bringing legal proceedings to a common court, there is no right of appeal to the appeal authority under the administrative procedure (and therefore applicants have the right to use the legal recourse referred to in Article 6.2 of the Directive, but not the legal recourse referred to in Article 6.1).

In the surveyed commune offices, the applicants have not lodged any complaints to administrative courts against the refusals to supply information. No such decisions have been made. None of the surveyed district offices has experienced a situation where an applicant lodged a complaint to a civil court or administrative court against a refusal to supply information.

Just a few years ago, the authorities used to point out that the most common challenge faced by the officials was the right interpretation of the provisons and the relations between the Environmental Protection Law and the Act on access to public information. At present, the surveys shows that there are less and less problems, and that officials tend to interpret the provisions correctly.

10. Dissemination of environmental information (Point 8 of the Guidance) Active dissemination of information to the public

Article 24 of the Act of 3 October 2008 envisages the establishment of electronic databases on

the environment, made available via the Internet. This Article specifies the information to be disseminated and the authorities to disseminate that information. The list of information types to be recorded in those databases corresponds to the information referred to in Article 7.2 of the Directive. The method for releasing the information, the extent, format and frequency of the information are detailed in the Regulation of the Minister of Environment on the provision of access to environmental information.

Article 25 of the Act of 3 October 2008 clearly indicates where the information is to be published, i.e. in the Public Information Bulletin, without specifying the format in which the information is to be made available (e.g. in a database format, as above).

In addition, the aforementioned public lists of data on documents containing information on the environment and environmental protection have to be made available via the internet.

The National Pollutant Release and Transfer Register, which is in compliance with the PRTR Protocol to the Aarhus Convention and Regulation (EC) No 166/2006, is a very important tool to disseminate environmental information in Poland. The register is kept by the Inspector-General of Environmental Protection (Articles 236a to 236d of the EPL) as a public electronic database.7 Other databases are available on the website of the Ministry of Environment.8

Updating the information and reporting on the state of the environment at the national, regional and local levels

The information published in the aforementioned public databases, referred to in Article 24 of

the Act of 3 October 2008, is updated in accordance with the Regulation of the Minister of Environment of 18 June 2007 on the provision of access to environmental information. This Regulation specifies the time limits for entering new data into the databases (e.g. immediately after data collection). The collection of up-to-date information (e.g. the performance of certain measurements) is regulated by special provisions.

In accordance with Article 25b of the Act on Environmental Inspection of 20 July 1991 (Journal of Laws 44, item 287, as amended), the Inspector-General of Environmental Protection shall develop, once every four years as a minimum, a report on the state of the environment in Poland, taking into account, in particular, the data from state environmental monitoring.

In addition, reports on the state of the environment are developed at the voivodeship levels (by Voivodeship Inspectors of Environmental Protection). However, this obligation is not directly derived from the provisions of that act. In practice, the reports are developed once a year or once every two years.

7 http://www.gios.gov.pl/index7.php?temat=218 8 http://www.mos.gov.pl/2materialy_informacyjne/bazy_danych/index.shtml

In addition, pursuant to Article 8a of the Act on Environmental Inspection, Voivodeship Inspectors of Environmental Protection shall prepare information on the state of the environment in the voivodeship for review by commune councils, district councils and the regional parliament of the voivodeship. In accordance with the Act on Environmental Inspection, the information on the environment and environmental protection within the voivodeship covered by state environmental monitoring is collected by the Voivodeship Inspectors of Environmental Protection and submitted to the Inspector-General of Environmental Protection.

In accordance with Article 25.1 (3) (b) of the Act of 3 October 2008, the Inspector-General of Environmental Protection shall publish the reports on the state of the environment in Poland on his BIP website9. The most recent report on the state of the environment developed by the Inspector-General of Environmental Protection is: The state of the environment in Poland vs. European Union objectives and priorities. Indicative report 200410. The next report will be published in 2010.

The reports are also printed and disseminated to administration bodies and the public. In addition, Voivodeship Inspectorates of Environmental Protection publish reports on the state of the environment within their respective voivodeships on their websites and have them printed. Aside from the above, the environmental inspection authorities develop (on the basis of the information from the state environmental monitoring) and publish reports on certain problems and subjects, as well as bulletins and communications which are available on the websites of the General Inspectorate of Environmental Protection and Voivodeship Inspectorates of Environmental Protection. The reports on the state of the environment and selected theme reports are published as a series “Biblioteka Monitoringu Środowiska” (Environmental Monitoring Library). Current websites contain basic legal and programme documents, and information such as reports, materials on the state of the environment in Poland, control of regulatory compliance, studies on the state of the environment, control of major-accident hazards. Inspection bodies provide various training events and workshops relating to control and monitoring activity, as well as major accidents.

The Ministry of Environment implemented a pilot programme for 20 districts. The ultimate

goal of the project is to create INFOS,10 an IT system to collect environmental impact assessment data from all over Poland. In accordance with the EPL, public participation proceedings are a mandatory component of environmental impact assessment proceedings for investments, as well as plans and programmes. The system is going to be consistently implemented across Poland. The public participation guidance published by the Ministry of Environment contains certain guidelines encouraging applicants to actively supply information in order to prevent conflicts, as well as the rules of cooperation in this respect between the authorities and the applicant.

Ekoportal makes it possible to inform the public of the requests received by authorities at all administrative levels and on the issued decisions relating to the environment and to the use of natural resources. A fully functional database was developed for the purposes of maintaining the lists by all authorities obliged to do so – starting from the minister, to voivodes and marshals, heads of districts and communes, town and city mayors, and other administrative authorities holding information which has to be specified in public environmental databases.

9 http://www.gios.gov.pl 10 http://www.mos.gov.pl/2materialy_informacyjne/bazy_danych/baza_m

Other observations relating to the practical application of Article 7 of the Directive Legislative efforts have been initiated at the governmental level on a bill on spatial

management infrastructure, which is a transposition of Directive 2007/2/EC establishing an Infrastructure for Spatial Information in the European Community. The main objective of the act will be to establish a legal framework for public authorities to efficiently develop a spatial information system and organize the collected spatial data. Already today, many public authorities perform their duties on the basis of spatial information, and meet their reporting obligations to EU bodies. The act will be beneficial to the environment in ensuring quick and free-of-charge access to the data necessary for all activities with direct or indirect environmental impact for all interested parties. The infrastructure will ensure quick access to the data, will eliminate the overlapping of the data collected by various authorities, will reduce the environmental protection expenditure, and will add to the transparency of environmental decision-making processes. In addition, the integrated organization will facilitate the information flow between various administrative authorities.

11. Quality of environmental information (Point 9 of the Guidance) Central administration

The EIC runs a call centre for the individuals in charge of the lists. Those individuals are

obliged to update the information that they have entered, as well as the information on their respective institutions.

Every week, links to data contained/published on other portals and websites are checked on the Ekoportal website in terms of being up to date. The data obtained from external individuals and institutions and published on the Ekoportal website is verified by a technical team at Ekoportal and by those individuals and institutions. The information to be verified and the feedback to the Centre are exchanged by email, over telephone and during meetings.

The EIC acquires information from private individuals and institutions through ICT means (email, telephone, websites). Some information is found on the internet with the use of search engines, and then verified by the persons who publish the information online.

In 2006-2008, the EIC received 205 queries relating to the environment and environmental protection, including 18 formal requests to make documents available. This number excludes the queries made by telephone, and those where it was not necessary to retrieve any information to provide the answer. Most queries related to the funding of environmental protection, nature protection and waste management initiatives.

Formal requests involved mostly the access to copies of geological permits, integrated permits and applications for such permits.

Within that period, the Minister of Environment refused requests for access to applications for geological permits in two cases. In one of those situations, the Environmental Information Centre received a request to reconsider the case, and then a complaint was filed with the Voivodeship Administrative Court through the Minister of Environment. During the session concerning the refusal to provide environmental information, the Voivodeship Administrative Court revoked the decision of the Minister of Environment and closed the proceedings.

Environmental Inspection Authorities (Voivodeship Inspectorates of Environmental Protection and the General Inspectorate of Environmental Protection) review 4500 to 5000 requests for information on the state of the environment each year. A vast majority of the requests are granted. However, there are certain situations where the time limit for supplying the information is extended due to the complexity of the information and the resulting need to browse large data sets.

Local administration

District and commune offices which responded to the survey declare that they keep lists of

data on documents containing environmental information, and some of them use the application provided by the General Inspectorate of Environmental Protection. They keep those lists in electronic formats on their BIP websites. Only a few communes keep them on paper. The data on the list is usually updated on an ongoing basis, and at some offices on a monthly or weekly basis, or as needed.

In most cases, no difficulties were reported in respect of the collection and dissemination of information. However, some offices responded that they did not have adequately qualified officials to meet those responsibilities or they experienced equipment-related technical issues.

The practical compliance with the statutory requirements relating to the access to information on the environment and on environmental protection as well as public participation is not covered by public statistics in Poland. Random surveys conducted by the Ministry of Environment for reporting purposes, e.g. for the report on the implementation of the provisions of the Aarhus Convention, concerning the application of environmental impact assessment procedures, allow to estimate the number of such procedures in Poland at approx. 2000 to 3000.

According to the information obtained from local authorities, applicants usually requested access to specific documents, mostly administrative decisions and environmental impact reports. In many communes, interested parties asked for environmental reviews.

In large cities, applicants tend to request access to databases much more often than in small communes, and in some communes information was requested that had to be developed.

From among all surveyed municipal and commune offices, those in large cities received more requests for information. However, the differences between voivodeships are not particularly significant, as the number of requests is related with the size of the commune rather than with the region of Poland where the commune is located.

In bigger towns, applicants are more likely to invoke the EPL and the API Act. As regards requests for information from companies and institutions, there is a noticeable

relation between the size of the commune and the frequency of requests for information. For communes and districts, 10 to 50 queries relating to environmental information are

received each year. Authorities usually keep a record of requests for information and of the information supplied, as well as the decisions refusing access to information.

Every two years, on average, the Supreme Chamber of Control carries out a study in Poland concerning the collection and disclosure of environmental information, and disclosure of public information. In addition, every year an audit is carried out at the Ministry of Environment in respect of compliance with the provisions on the availability of environmental information and public information, and the activity of EIC is inspected. As a result of audit recommendations containing feedback, observations and findings, heads of the audited units have to reply to the recommendations and inform how they will make use of the recommendations and what follow-up actions have been taken after the audit.

Appendix 1 GUIDANCE DOCUMENT ON REPORTING ABOUT THE EXPERIENCE GAINED IN

THE APPLICATION OF DIRECTIVE 2003/4/EC ON PUBLIC ACCESS TO ENVIRONMENTAL INFORMATION

1. General description

Summarize the implementation of the Directive, in particular at national and regional level.

2. Experience gained

Describe which have been, according to your experience, positive and negative impacts of the application of the Directive so far (for instance, increased involvement of civil society/stakeholders in specific environmental matters, facilitating the decision-making process and implementation of the consequent decisions, administrative burden …).

3. Definitions (Article 2)

3.1 Have you encountered any particular difficulties relating to the interpretation and management of the definition of 'environmental information'?

3.2 According to your national/regional situation, give examples of the types of bodies that have been found to be covered by the provisions of Article 2, paragraph 2, letter b, “any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment..” and letter c, “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b)”?

Where appropriate, formulate suggestions on how the meaning of 'public authority' may be further clarified.

3.3 Do you have any other observations relating to the practical application of Article 2?

4. Access to environmental information (Article 3)

4.1 What are the practical arrangements as referred to in Article 3(5) c), set up by, in particular, national and regional authorities? Please provide examples of these practical arrangements.

4.2 In which way has it been ensured that the public has adequate information of the rights they enjoy, as referred to in Article 3 (5) last paragraph?

4.3 Do you have any other observations relating to the practical application of Article 3?

5. Exceptions (Article 4)

5.1 Amongst the possible exceptions listed in Article 4, which ones have been retained in the implementation of Directive, to refuse access to environmental information?

5.2 Have the Member States or regions issued any guidance (such as circulars or guidelines) governing the granting of exceptions?

5.3 Have any steps been taken to ensure the accessibility of a list of criteria, as mentioned under Article 4(3), on the basis of which the authority concerned may decide how to handle requests?

5.4 Do you have any other observations relating to the practical application of Article 4?

6. Charges (Article 5)

6.1 According to Article 5 (2) public authorities may make a charge for supplying environmental information. Have public authorities fixed charges? Please give examples of what measures public authorities have implemented on charging.

6.2 Please explain how it has been ensured that the applicants are aware of a schedule of charges and circumstances in which a charge may be levied or waived.

6.3 Do you have any other observations relating to the practical application of Article 5?

7. Access to justice (Article 6)

7.1 What kind of review procedure is provided for an applicant in cases mentioned in Article 6(1) ?, Please specify the appointed authority or independent body?

7.2. What kind of procedure is provided for an applicant in cases mentioned in Article 6(2)? Please specify the institutions entitled to review.

7.3 Is the decision issued by the institution referred to in question 7.2 final? If not, please specify what kind of procedures could follow this one to get a final decision?

7.4 Do you have any other observations relating to the practical application of Article 6?

8. Dissemination of environmental information (Article 7)

8.1 Which measures have been taken to ensure that public authorities organise the environmental information with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunications and/or electronic technology?

8.2 What are the measures taken to ensure that information is updated, as appropriate?

8.3 Is there an obligation to report on the state of the environment, next to the national, also at regional and local levels and if so, according to which timetable?

8.4 What mechanisms are used to publicize these reports?

8.5 Do you have any other observations relating to the practical application of Article 7?

9. Quality of environmental information (Article 8)

9.1. What are the measures taken to ensure that any information that is compiled by public authorities or on their behalf is up to date, accurate and comparable?

9.2 To ensure that information is comprehensible, accurate and comparable, the method used in compiling the information is important. Have you received any request about the method used? Please give any other information you consider useful.

9.3 Do you have any other observations relating to the practical application of Article 8?

10. Statistics

Where statistical data has been collected on the items below, it would be useful to forward this data to the Commission.

• Number of requests made.

• Areas to which the requests for information relate.

• Percentage of requests handled within the one-month period and those within the extended term.

• Percentage of requests accepted/refused; in the case of refusal, please give a breakdown by exemption cited in support of the refusal.

• Number of procedures introduced according to Article 6.1 and 6.2 of the Directive; average duration and average cost of the procedures; percentage failures and successes at the end of the procedures.