Why the Environmental Information Act (UIG) is important for operators and project managers

The Higher Administrative Court of Kassel had to decide on a case in which a plaintiff wanted to obtain access to documents and files relating to applications, permits and other information on and about the release experiments in genetic engineering supported by the funding program from a project sponsor who was responsible for funding programs for biological safety research on a nationwide basis on behalf of the Federal Republic of Germany.
The Higher Administrative Court (VGH) has confirmed the first-instance judgment, in which the Administrative Court had already granted the plaintiff full access to the files relating to the release experiments.
The Higher Administrative Court (VGH) stated that the term "environmental information" in the Environmental Protection Act (UGI) is broadly defined and explicitly includes research with genetically modified organisms and all data obtained in connection with research, development, release, monitoring, and evaluation. The project sponsor, as an authorized representative of the Federal Republic of Germany, is also required to release this information.
The court rejected the arguments against the disclosure of the information, arguing that it involved personal data. The names, professions, and positions of the reviewers, experts, and employees of the research institutions must be disclosed. Only further personal data such as salary statements, bank account details, travel expenses, and information about personal circumstances are blocked. The court acknowledged that the research institution may also have a need to maintain confidentiality regarding the names, professions, and positions of the aforementioned individuals, but only if disclosure could expose them to the risk of significant disadvantages, or if other significant impairment has already occurred or is seriously feared. However, the body required to provide information must explain and prove these requirements. The body required to provide information cannot claim that it is contractually obligated to maintain confidentiality towards the third party—in this case, the Federal Republic of Germany. Even if access to files would require the disclosure of research results that have not yet been scientifically published, the body required to provide information cannot invoke intellectual property rights or copyright. Here, too, it is the responsibility of the body required to demonstrate and prove that, in the specific case, the intellectual property rights or copyright of those affected may be violated. The body required to provide information cannot simply claim that the available information contains data and findings that constitute intellectual property rights or copyright of those affected.
What does this mean in practice:
Operators and project managers occasionally seek assistance from third parties (project sponsors) in preparing their applications. The environmental information (details on the research projects and objectives) is then made available to them. This information is also passed on to the licensing authorities as part of a notification, report, and approval process, and – usually in copy – to the supervisory authorities and occupational health and safety offices. As part of the approval process, documents must also be passed on to building authorities, lower water authorities, and similar bodies. All of the aforementioned bodies are bodies subject to an information obligation within the meaning of the UIG (University Act on the Protection of Human Rights). To prevent third parties from gaining unrestricted access to expert opinions and personal information through file inspection, care must be taken when submitting applications to ensure that information regarding personal data, intellectual property rights, or copyrights is appropriately identified. If there is a concern that personal data may also be used to attack relevant experts or employees, sufficient material must be collected and, if necessary, forwarded to the body responsible for providing information so that it can explain and prove, in accordance with the case law of the Higher Administrative Court of Kassel, why personal data is worthy of protection in the specific case and why intellectual property rights or copyrights are being violated. In this respect, the UIG is also of considerable importance for the operator and its project managers.

This publication can also be found on the website of the law firm Dr. Kauch .