Dear Sirs,

Our recommendations to reword parts of the Access to Public Information Bill drafted by the Council of Ministers rest on an exhaustive comparative study of the relevant legislation and practices of eight countries, featuring the U.S.A., the U.K., Hungary, the Czech Republic, Sweden and others. This study served as the basis for the Concept Paper on the Legislative Regime Governing the Right of Access to Information, prepared by the Access to Information Program's team of lawyers and presented before a broad international conference attended also by members of the Council of Europe.
The Access to Information Program (AIP) is an organisation with a three-year track record in access to information-related issues in Bulgaria. Therefore as its members we believe that our input may be helpful in finalizing the wording of the Access to Public Information Bill. Below is a list of our concrete recommendations:

1. The definition proposed in Article 2 (1) of the Bill includes notions such as 'of public significance', 'public life', etc., rendering its meaning completely unclear. We propose that accessible information under this Bill be defined as:

(1) : 'Everybody has a right of access to the records held by the state or local government authorities and their administrations, or by duly empowered budget-sector legal persons except as otherwise provided in this Act.'

(2) : 'A 'record' within the meaning of this Act shall be any paper, magnetic, film or electronic carrier, containing a saved text, chart, photograph, plan, map, sketch, drawing, image, or others.'

Accordingly, we propose that 'public information' be replaced by 'record' throughout the remainder of the Bill and the title of the latter be changed to 'Access to Information Act.'

2. Our opinions and grounds in respect of the persons to be obligated under this Bill were laid out in the AIP's preliminary recommendations and comments. Accordingly, we recommend that (2), (3) and (4) be removed from Article 1, and that (1) be reworded as follows:

'Persons obligated under this Act shall be all of the state or local government authorities and their administrations, or state budget-funded legal persons."

3. Article 5 of the Bill is a superfluous reiteration of the Constitution's provisions and should therefore be removed.

4. Article 7 (1) of the Bill refers to 'state' and 'office' secret, notions, the content of which the Bill does not clarify. We propose the deletion of this text and the creation of an entirely new chapter, titled 'Limitations to the Right of Access', as explained further down.

5. Section II of Chapter One of the Bill draws an unnecessary distinction among 'official' and 'office' information.

6. The wording of Article 13 is utterly inadequate, as not only does it grant unlimited discretion to the administration, but it also opens the possibility for acts of law of equal binding force to be conformed with by some authorities and rejected by others. We firmly believe that the scope of 'office secret' should be delimited by the law and the administration should not be permitted to decide on that scope on a case-by-case basis. That is why we insist on deletion of this wording.

7. Article 14 (2) 2 of the Bill obligates state authorities to refute false publicised information. Following from this, in the event that the press publishes false information about data constituting a state secret, the state authority would be obligated to publish the true data. We propose deletion of this text based on the evident impossibility to apply this norm equally to all cases.

8. We propose deletion of the entire Section 22 of Chapter Two of the Bill, in consistence with our foregoing recommendation that the Act should only obligate the state and local government authorities, and the budget-sector persons. Media transparency should be ensured through a separate Act.

9. It is absolutely essential that a new chapter be included in the Bill, titled 'Limitations to the Right of Access to Information', allowing for a clear-cut distinction to be drawn among accessible and classified information. A fundamental principle of this type of legislation in the countries where it is enforced, would read close to the following: 'All information is accessible except for such, as is subject to limitations explicitly enumerated by the Act.' The general principles followed in respect of limitations are:

· First principle:
Limitations should be explicitly prescribed by the Act.
1. Each limitation imposed on expression or information should be prescribed by the Act. The Act should be accessible, unambiguous, rendered in specific and precise language, so as to enable the individuals to determine the legitimacy of a given action in advance.
2. The Act should provide efficient controls against misuse, including an immediate, full and effective judical review of the limitations by an independent court.
· Second principle:
Every limitation protects a legitimate interest.
· Third principle:
Every limitation arises from an existing need in the democratic society.
Based on the above comments, we recommend:
A) Inclusion in the Bill of a new chapter (following the logical structure of the text its place is right before Chapter Three of the existing Bill), titled 'Limitations to the Right of Access to Informaiton'.
B) The above-quoted principle should feature as a concrete provision, and the wording should read:

'Access to all records held by the persons obligated under this Act shall be free, except for the cases, explicitly enumerated in this Act.'
C) We recommend that legislators draw an exhaustive list of what protected interests are and what institutes would ensure their protection. We propose the following wording (whilst the list of protected interests under this Act could be extended to include new items, there should be effective controls against other legislation doing this):

'Access to records kept by persons obligated under this Act shall be restricted wherever such records contain information, affecting the interests of:
1. the national security
2. the personal life of the citizens
3. ………………………………'

'Protection of the above-listed interests shall be ensured as follows:
1. the interests of the national security - by means of the state secret institute
2. the interests of the personal life of citizens - by means of the personal secret.
3. ……………………..'

D) The specific data that would constitute state, personal or another secret protected under the Access to Information Act and the procedure for classifying such data should in our opinion be covered by the Protected Information Act and the Protection of Personal Data Act.

10. In respect of court control we propose that Article 42 (2) be reworded as follows:

'For the cases under (1) access to the requested records shall be granted on the grounds of a court decision.'

11.Still focusing on court control we propose a new text as would enable the court to objectively assess the refusal of the administration to disclose information for its legitimacy.

'Where the court has found a refusal to be legitimate, such court shall be entitled to access to all of the records, access to which has been refused to the claimant.'