Refusal to make information about environment available on account of entrepreneur’s trade secret must be adequately justified

In the case a decision was given about refusal to make information available about environment and protection thereof in the form of an aquatic legal survey made for the purposes of the entrepreneur engaged in fish farming obtaining a permit required under the Water Management Act for particular use of waters and a geodetic map of a facility owned by that entrepreneur enclosed to the aquatic legal survey. The refusal was based on article 16 section 1 subsection 7 of the act on the provision of information on the environment and its protection which provides that a public administration body does not make information on environment and its protection available if such information involves information of commercial value, including technological data, provided by third parties and representing a trade secret, if making such information accessible could diminish competitive standing of such parties and they have submitted a justified request for non-disclosure of such information.

Both the body of first instance and the appellate agency only generally cited the elements which the aquatic legal survey should contain under article 132 of the water resources act while the Provincial Administrative Court [PAC] in Kielce pointed out the need for analysis of a specific document. The PAC found it to be incorrect that the body had referred to abstract criteria and had not analyzed a particular document. The PAC also noted that a trade secret would not be the information contained in the descriptive section of the survey (article 132 section 2), namely relating to the character of waters covered by the permit, legal status of property, existing forms of nature and conduct in case of starting or stopping activities. For it is possible to get acquainted with a portion of such information in the public records. The body should give some thought to whether a trade secret includes other data referred to in article 132 sections 3 and 4 of the water resources law concerning e.g. longitudinal and cross sections of water structures or functional or technological diagrams thereof, if these have been really presented in the survey.

The decision about refusal to make information available should explain how providing access to information contained in the survey and being a trade could diminish competitive standing of an entrepreneur. What is more, the obligation to prove the existence of such circumstances lies already with the entrepreneur who submits a request for non-disclosure of information. The entrepreneur should also state which information specifically contained in a given document is not to be disclosed (for usually there will be no grounds for keeping the whole document secret). As insufficient, the PAC recognized the assertion that it provide the opportunity to estimate the volume of production and amount of income, and as a consequence to disclose the material status of the entrepreneur.

• judgement of the Provincial Administrative Court in Kielce of 7th October 2015, file ref No. II SA/Ke 639/15