Bulgian Legislation

Home

 

 

 

Official Secret
Excerpts from acts and regulations making reference to the institute of the office secret

CRIMINAL CODE

Article 284. (1) An official who in detriment of the state, of an enterprise, organisation or private person discloses to another or promulgates information imparted to or made accessible to such official by force of his/her office, and about which information the incumbent knows that it constitutes an office secret, shall be sentenced to imprisonment for up to two years or to rectifying labour.

(2) The penalty for an act under (1) shall also be enforced on any non-official working in a government agency, enterprise or public organisation, who in the course of his/her work became knowledgeable of information, constituting an office secret.

* * *
Administrative Procedures Act

Article 15. (1) The administrative authority shall issue the administrative act or refuse issuance thereof by producing a grounded decision. Where the act satisfies the requests completely and does not affect the rights or legitimate interests of other citizens or organisations, and where the matter involves the protection of the state or office secret, only the legal grounds shall be stated.

* * *
Refugees Act

Additional Provisions

§ 5. Documents, information, facts and data that relate to the person of the refugee, that have been disclosed at the awarding-of-status proceedings or during his/her stay within the territory of the Republic of Bulgaria, the imparting whereof could endanger his/her security, shall be an office secret except for the needs of international co-operation among the member-states under the Convention on the Refugees Status of 1951 in the course of its implementation.

* * *
Replacement of the Statutory Soldier Duty with an Alternative Service Act

Article 33. (1) Upon default on the duties entailed in the performance of the peacetime alternative service the citizen shall bear disciplinary liability. (2) Disciplinary violations shall be: Item 6. Mishandling the trust and blemishing of the reputation of the employer, or disclosure of information that constitutes an office secret;

* * *
Information on Unserviced Credits Act

Article 5. (1) The Supreme Judiciary Council shall hear the information of the Chief Prosecutor at an individual meeting, inviting to participation the Bulgarian National Bank’s governor and under-governor, head of the bank supervision,

(2) The information of the Chief Prosecutor shall not constitute an office secret.

* * *
Constitutional Court Act

Article 20. (1) The Constitutional Court may demand additional written evidence or commission the presentation of expert opinions.

(2) Nobody shall be entitled to refuse to submit requested information or written evidence even though either may constitute a state or an office secret.

* * *
Local Self-Government and Local Administration Act

Article 33. (2) (New - SG, Issue 65/1995) State authorities, as well as economic and public organisations, shall render assistance to any municipal councillor, and submit thereto any information and documents as the incumbent needs in relation to his/her activities as a councillor, unless they constitute a state or an office secret by law.

* * *
Customs Act

Article 17. (1) In discharging their official duties customs officers shall: Item 5. Not publicise any circumstances or facts that passed in their knowledge at or in connection with the performance of their official duties, except upon the written request of a state authority where prescribed by law, or of another customs authority in connection with the enforcement of its powers under this Act. The Minister of Finance shall issue an instruction to specify the facts and information that constitute an office secret, and set forth the procedure for disclosure thereof.

* * *
Notaries-Public and Notarial Activity Act

Article 21. (2) Any person, who has gained access to the archives of the Notary-Public kept for his/her office, shall keep the an office secret under the terms set forth for the Notary-Public him/herself, and keep the latter informed on any actions performed in respect of the register.

Article 49. The staff of the Notary-Public shall keep the office secret under the terms applicable to the Notary-Public.

* * *
Defense and Armed Forces of the Republic of Bulgaria Act

Article 5. Activities in the realm of defence shall be conducted in equal abidance of the principle of publicity and the requirements to protect the state and office secret.

Article 78. (1) The Commander of the General Staff: 16. Shall organise the protection of the state and the an office secret in the Bulgarian army;

Article 200. Military personnel may not make public statements on defence-related matters, where such matters constitute a state or an office secret.

Article 273. Military personnel and workers may not make public statements on defence-related matters that constitute a state or an office secret.

Article 281. The following shall represent an offence of the military discipline:

1. Infringement of the rules for protection of the state and office secret;

§ 1. Within the meaning of this Act:

Item 12. An ‘office secret’ shall be any facts, information and articles of a military, economic, scientific and other nature, the publicising of which infringes the interests of the relevant government agency. The list of the facts, information and articles constituting an office secret shall be determined by an act of the Minister of Defence or the head of another agency.

* * *
Transformation and Privatisation of State and Municipal Enterprises Act

§ 11. (Amended - SG, Issue 51/1994) (1) The Council of Ministers shall designate the documents and information, and the phases of privatisation deals that constitute an office secret. The Council of Ministers shall set forth the terms and procedures to be followed by persons interested in gaining access to the documents on the effected deals.

* * *
Act on the Judiciary

Article 108. Every prosecutor and investigator shall, upon being installed into office, take the following oath: “I pledge in the name of the people to conform accurately with the Constitution and the laws of the Republic of Bulgaria, to perform my duties guided by my conscience and inner conviction, be impartial, objective and fair, enhance the image of the profession, keep the office secret, and always remember that for everything I am liable before the law. I made my pledge!’

Article 136. (1) Judges and jurymen shall keep the secret of the deliberation conducted in resolution of the cases.

(2) Judges, prosecutors and investigators shall keep as an office secret any information they became aware of in the scope of their office that concerns the interests of citizens, legal persons and the state.

* * *
Resolution of the National Assembly on the Adoption of the Military Doctrine of the republic of Bulgaria

28. In the interest of its integrative policy the Republic of Bulgaria shall exchange information, including such as constitutes a state and office secret, with countries and organisations it has signed agreements on the mutual protection of secret information, upon a resolution of the Council of Ministers.

* * *
Regulations on the Regular Military Service

Article 120. The following shall constitute a violation of the military discipline:
1. Breaking of the rules on the protection of the state and the office secret;

Article 181. (1) Dismissal from the regular military service shall be made by a non-secret order. The order shall be drawn in two copies.
(8) When the grounds of the order for dismissal from the regular military service contain facts and information, constituting a state or an office secret, the military officer in charge of the conscripts shall be handed a transcript excerpt from the order, not featuring any of the above information.

* * *
Regulations on the Organisation of the Operation of the Constitutional Court

Article 7. (4) Judges shall discharge their duties in good faith, keep the secret of deliberation conducted in the resolution of the cases, and the state and an office secret that passed into their knowledge in discharge of their functions.

Article 9. (1) The personnel of the Constitutional Court shall discharge their duties in good faith and keep the state and office secret, which they declare in writing upon entering into office.

Article 29. (1) Where proceedings are held before the Constitutional Court there shall produced written evidence only, with the exception of the cases under Article 23 of the Constitutional Court Act.
(2) Nobody may refuse to release any requested information or written or material proof even though it may constitute a state or an office secret.

* * *
Regulations on the Implementation of the Ministry of Internal Affairs Act

Article 131. Upon entering into a labour contract civil administration servants shall sign a declaration to protect the state and office secret.

Article 133. (1) Officers, sergeants, civil administration servants and the employees of the Ministry of Internal Affairs not on the payroll shall have a personal cadre dossier opened and kept. The procedure to draw, store and use the latter shall be specified by the Minister of Internal Affairs.
(2) The materials in the personal cadre dossier of the active and former employees constitute an office secret and their user-access shall be determined by the Minister of Internal Affairs.

Article 204. (2) Other grave violations of the work discipline that are incompatible with the remaining of the perpetrator in office and entail the disciplinary penalty of ‘dismissal’, shall be: 1. Violations under Article 213 (1) and under Article 214 (1) of the Ministry of Internal Affairs Act; 2. Violation of the state or office secret;

* * *
Regulations on the Structure and Organisation of Work of the Council of Ministers and its Administration

Article 5. The Council of Ministers shall work in a climate of publicity when making and implementing its decisions, unless the national security, the protection of the state, an office secret or any other important reasons require a limitation on this principle.

Article 9. (4) The Chief Secretary (of the Council of Ministers): 7. Shall direct the organisation and control the work on the protection of the state and office secret; shall determine and alter the degree of secrecy of the documents generated within the Council of Ministers, and for materials brought in from other agencies, the incumbent shall alter it subject to a written consent of their head;

* * *
Regulations on the Structure and Operation of the Foreign Investments Agency

Article 3. (1) The agency officials shall keep and not disclose information that passed into their knowledge at or in connection to the discharge of their duties of office.
(2) Upon entering into office the agency officials shall sign a declaration on keeping and non-disclosure of information that constitutes an office secret pursuant to (1).

* * *
Regulations on the structure and operation of the Portection of Competition Committee

Article 32. (1) Upon conclusion of the investigation or study the reporter shall determine by a resolution the facts and circumstances that represent the protected trade or office secret of the parties under the procedure of Article 51 (3) of LPC and shall order their keeping in a separate folder.

(2) Where the reporter should decide that the investigation or study has been carried out fully and comprehensively and the evidence collected is sufficient for the committee to pass a ruling, the said person shall invite the parties to study the collected evidence, with the exception of such as constitute a protected trade or an office secret of the parties.

Article 40. (1) Where the ruling has been appealed under the procedure of Article 43 LPC the chair shall, within three days of receipt of the appeal, send to the Supreme Administrative Court the entire file, including the appealed decision, and shall duly inform the appelant on it.

(2) Where the file also contains materials, constitute a protected commercial or an office secret of the parties, such materials shall be sent in a separate folder accompanied by an explicit indication.

* * *
Regulations on the Structure of the Privatization Agency

Article 4. (Amended - SG, Issue 93/1994) The agency officials shall keep and not disclose information, rated as an office secret under an act of the Council of Ministers.

Article 12. (Amended - SG, Issue 93/1994) (1) The members of the Supervisory Council may at any time obtain the information of their interest from the executive director and documents from the agency.
(2) Upon their entry into office the Supervisory Council members shall sign a declaration to keep and not disclose information, rated as an office secret under an act of the Council of Ministers.

Article 18. The executive director: 8. (Former item 6 – SG, Issue 27/1993, amended, Issue 93/1994) shall set the scope of the information, constituting an office secret pursuant to the provision of the Ordinance on the Terms and Procedures for Disclosure of Information at the Sales under the Transformation and Privatisation of State and Municipal Enterprises, adopted by Decree No. 10 of the Council of Ministers of 1993 (promulgated, SG, Issue 9/1993; amended, Issue/74/1994)

* * *
Ordinance on Competitions. Final Provisions

§ 1. All persons having access to the tender documentation and the bids and specifications of the bidders, shall sign a declaration to protect the trade and office secret.

* * *
Ordinance on the monitoring and control of the prices of goods and services of exclusive importance to the living standard of the population and the country’s economy

Article 9. (3) The controlling authorities shall:
Item 3. Protect the state and office secret and not disclose the data obtained from the examinations in advance.

* * *
Ordinance No. 3/29.01.1999 on the creation and maintenance of a register of agricultural producers

Article 17. The entire information about the individual agricultural producers shall be an office secret and may only be used for the purposes of Article 18.

* * *
Ordinance No. 9/19.05.1987 on the operation of the social and legal advisory offices, opened at the health establishments

Article .5. (3) The legal advisor, heading the social and legal advisory office, shall control the entries made in the logbooks of the work performed by the office and the appropriate storage of any submitted information or documentation to ensure the protection of the secret of extra-maritally pregnant women, mentally disabled, alcoholics and drug addicts, child adoption and other circumstances as constitute a medical or other office secret.

* * *
Ordinance No. 12/30.05.1987 on the artificial insemination of women

§ 2. All data relating to the artificial insemination shall constitute an office secret pursuant to Article 91 of the Public Health Act.

* * *
Ordinance on the Terms and Procedure for Printing and Control of Securities

Article 37. The officials shall not release information and facts that constitute a commercial or an office secret, where such information and facts passed into their knowledge during the printing, storage and movement of securities.

* * *
Ordinance on the terms and procedures for disclosure of information at the sales under the transformation and privatisation of state and municipal enterprises

Article 3a. (New - SG, Issue 74/1994) (1) Any facts, information and documents that carry the compulsory information under Article 2, with the exception of such as are subject to publication or are held in public registers by law, shall be an office and trade secret of the enterprise undergoing privatisation.

(2) An office secret shall also be the following facts, information or documents:
1. (Amended – SG Issue 61/1998) the report of the licensed valuators in evaluation of the sites subject to privatisation, and the addenda thereto;
2. The offers of the bidders in a tender for evaluators and the offers of the potential buyers;
3. (Amended - SG, Issue 61/1998) the declared interest and all of the individualising data on the potential buyers, the outcomes of the meetings held and the correspondence exchanged with them;
4. The grounds for the choice of buyers and the term for drawing and effecting the deal;
5. The draft-contracts, agreements made, privatisation contracts entered into and the addenda thereto.

* * *
Instruction No. 1/1.09.1995 about the ENSIGNS worn in discharge of the duties at the National Body-Guard Service with the president of the republic of Bulgaria

Article 13. (1) The system for reporting and control of the ensigns shall be set up by the Personnel Office and by the heads of the relevant structural units within the National Body-Guard Service. It shall conform to the principles of secrecy and the special regime involving the making, storage, accountability for, replacement and control and shall constitute an office secret of the National Body-Guard Service.

* * *
II. Comments

II.1. The analysis of the existing legislation regulating the institute of the office secret revealed the following: on the whole, the regulations are scattered and the individual pieces of legislation assign the institute of the office secret a different meaning. Three principal approaches have been applied to define the subject and scope of this institute throughout the studied legislation:
II.1.1). ‘Office secret’ features simply as a term, unclear in respect of its scope and content.
Example: Administrative Procedures Act – Article 15 (3) Replacement of the Statutory Soldier Duties with an Alternative Service – Article 33 (2) 6.
II.1. 2). The given piece of legislation enumerates the facts and information that constitute an office secret within the meaning of the relevant act/ordinance.
Example: The Refugees Act – Additional Provisions - § 5. Ordinance on the Terms and Procedures for Disclosure of Information at the Sales under the Transformation and Privatisation of State and Municipal Enterprises Act – Article 3à (2)
II.1. 3). The given piece of legislation confers full discretion on a relevant agency to determine the scope and content of the office secret.
Example: Customs Act - Article 17 (1) 5. Defence and Armed Forces of the Republic of Bulgaria Act - § 1, 12 of the Additional Provisions Transformation and Privatisation of State and Municipal Enterprises Act - § 11. – of the Transitional and Final Provisions

II.2. A feature common to all of the described cases is that the office secret is applied as an instrument in protection of particular interests that the legislator deemed necessary to regulate. For example: In the Refugees Act the office secret is used to protect the interests of privacy of the refugees. In the Notaries-Public and Notarial Activities Act this institute protects the personal data and interests of persons that have imparted the latter to the Notaries-Public; In the Regulations on the Implementation of the Ministry of Internal Affairs Act this institute serves to protect the interests of the effective operation of that Ministry.

II.3. As also pointed out in the grounds given by the President of the Republic of Bulgaria for his referral of the Civil Servants Act to the National Assembly for reconsideration, ‘secrets’ are: ‘an exception to the principle of publicity of information, upheld by Article 41 of the Bulgarian Constitution’. In other words, ‘secrets’ constitute the limitations to the civil right of access to information. The right to information is a fundamental yet not an absolute civil right. It is subject to limitations where its enjoyment could affect any interests that supersede it. The Constitution empowers only the legislator (and not the administration) to decide what such interests are. The limitations to the right of information are subject to a number of international standards, contained in the so-called Johannesburg principles, laid out at the 1996 meeting of the UN Commission on Human Rights.

Every limitation to the right of information (i.e. including also the office secret) should meet the following requirements:

• Every limitation should be prescribed by an act of law.

1. Every limitation placed on expression or information should be prescribed by an act of law. The latter should be accessible, unequivocal, formulated in specific and unambiguous terms, so as to enable the individuals to decide about the legitimacy of a given action in advance.

2. The act should provide adequate control against misuse, including an immediate, full and effective legal review of the validity of the limitations by an independent court of law.

• Every limitation should protect a legitimate interest, specified in the act of law.

• Every limitation should be based on a need of the democratic society.

Based on the above analysis the team of lawyers with the Access to Information Program would recommend that in determining the subject and scope of the institute of the office secret relevant to the activities of the state authorities and their administrations, the legislator makes a clear indication of the scope of interests to be protected thereby, and of the spectrum of data that would constitute an office secret, as a way to reduce the discretionary powers of the administration to the extent possible.



HOME | ABOUT US | APIA | LEGISLATIVE BASE | LEGAL HELP | TRAININGS | PUBLICATIONS | FAQ | FOIA net | SEARCH | MAP
English Version • Last Update: 05.01.2002 • © 1999 Copyright by Interia & AIP