Improvement of transparency practices within the Prosecutution in Bulgaria in 2011. The change has occured after successful litigation supported by Access to Information Programme.
Summary on some of the Access to Information Programme supported litigation on which court decisions were delivered during 2011.
1. Zarko Marinov (Otzvuk newspaper – town of Smolian) vs. the Mayor of the Municipality of Smolian
The chief editor of the regional newspaper Otzvuk at the town of Smolian, Zarko Marinov, demanded access to the copies of two contracts for waste management and waste treatment signed by the municipality. On March 29, 2011, the journalist filed a request under the Access to Public Information Act to the mayor who provided partial access to the contracts. The price and the penalty clauses were blacked out on the ground that the third parties – the contracted companies, did not consent the disclosure of the information. With a Decision No. 195 as of June 16, 2011, the Administrative Court – Smolian repealed the refusal and obligated the Mayor of the Municipality of Smolian to provide access to the requested information. In their judgment, the court emphasized that pursuant to the law, there was a presumption of overriding public interest in the disclosure of the information in the case.
2. Violeta Andreeva vs. Community Center Rayna Knyaginya – town of Sofia
Violeta Andreeva seeks information related to the activity of the Community Center Rayna Knyaginya in the town of Sofia. More precisely, with a request filed on January 10, 2011, the citizen demanded access to the bylaws of the community center; the names of the members of the board of trustees and the auditing committee; minutes of the general assembly meetings; activity reports, as well as revenue reports of the community center. The Chairperson of the Community Center did not deliver a decision on the request. With the support of AIP, the silent refusal was appealed before the Administrative Court – Sofia City (ACSC). The procedural representative of the Community Center claimed before the court that the center is not a body obliged under the Access to Public Information Act (APIA). The ACSC repealed the refusal by accepting that the community centers are obliged bodies under the Art. 3, Para. 2, Item 2 of the APIA being legal entities with activities funded from the state and/or municipal budget.
3. Liuben Obretenov (Sega daily) vs. the Chief Secretary of the President
The journalist Liuben Obretenov from Sega daily was seeking information related to the process of pardoning in Bulgaria in 2008 and 2009. In response to the request filed by the journalist, the Chief Secretary of the President gave some remarks and explanations on the questions set forth by the journalist but explicitly refused to provide information about the names of the members of the Pardons Committee and the names of the persons to whom pardon was granted. Personal data protection was quoted as the ground for the refusal. With the support of AIP the refusal was challenged before the Administrative Court Sofia City. The court repealed the refusal, assuming that the Chief Secretary of the President should disclose the names of the members of the Pardons Committee, while information about the names of the pardoned persons should be provided without identification data about those persons. Two appeals were submitted against the decision of the ACSC – by the President’s Office and by AIP.
4. Krum Blagov vs. the Chief Secretary of the President
The journalist Krum Blagov was seeking information about the list of persons, invited as guests to three official receptions held by the President, precisely for Christmas (December 2009), for the National holiday of Bulgaria (March 3, 2010), and for the Day of Bulgarian Education and Culture (May 24, 2010). As a result, the Chief Secretary of the President granted access to information only about the persons holding high government officials and refused to disclose information about the others, arguing that their names were subject to protection under the Personal Data Protection Act. The refusal was challenged before the Administrative Court Sofia City with the support of AIP. The court repealed the refusal, assuming that the President’s Office should also provide to the journalist the invitation list of those who did not hold high government officials, as well as information about the capacity in which they were invited. In their judgment, the court panel emphasized that the receptions held by the President were covered by all media which shows maximum transparency and consequently there is an overriding public interest in the disclosure of the information.
5. Petko Kovachev (Green Policies Institute) vs. the National Electricity Company
Petko Kovachev, Director of the NGO Green Policy Institute, is seeking information about the project for the construction of the Nuclear Power Plant (NPP) Belene. On March 2, 2010, he files a request to the Ministry of Economy, Energy and Tourism (MEET) demanding access to the loan contract between the National Electricity Company (NEK) and BNP Paribas for the amount of 250 million Euros for the project NPP Belene. The MEET redirected the request to the NEK on the ground that the ministry did not hold the requested information. The Nek refused to provide the requested information on the ground that it was not a body obliged under the Access to Public Information Act (APIA). The refusal was challenged before the Administrative Court Sofia City which left the complaint without consideration and suspended the proceedings by assuming that the NEK indeed was not an obliged body under the APIA. The Supreme Administrative Court repealed the ruling of the ACSC and returned the case to the first instance court by assuming that the NEK is an obliged body under the APIA as the company is funded by consolidated state budget for the implementation of the project for construction of a new nuclear power plant at the site of the NPP Belene (Decree by the Council of Ministers No. 259/27.10.2008). Consequently, the company is a body obliged under the provision of Art. 3, Para. 2, Item 2 of the APIA regarding information about the project NPP Belene.
6. Konstantin Bobotzov vs. the Mayor of the Municipality of Plovdiv
Konstantin Bobotzov is seeking information about a 2010 audit report under the Program for Improvement of the Quality of Air within the Territory of the Municipality of Plovdiv. He filed a request and as a response, the Chief Secretary of the Municipality delivered a decision granting full access to the information. After the payment of the costs determined in the decision at the amount of 0.14 BGN (0.07 Euro), the citizen received a response stating that the requested information was about to be prepared. Administrative Court – Plovdiv repealed the decision of the Chief Secretary signifying that the challenged decision was unlawful since the requested information had not existed neither at the moment of the filing of the request nor at the moment of the delivery of the decision which substantiated the lack of ground for issuing a decision for provision of access to that information. Instead, the hypothesis of Art. 33, Para. 1 of the APIA by informing the requestor that the municipality did not dispose of the requested information.
7. Ana Mihova (Klassa daily) vs. the Ministry of Justice
Ana Mihova from Klassa newspaper requested the Ministry of Justice about the application procedure and the evaluation procedure of projects of NGOs applying for funding from the state budget in 2010. In response to the request, the Ministry of Justice granted access to the bigger part of the requested information, but refused information about the names and the positions of the members of the Ministry of Justice Committee which evaluates the project submitted by non-profit legal entities. The ground for refusal was personal data protection exemption. With a decision as of April 21, 2011, the Administrative Court Sofia City repealed the partial refusal and obligated the Ministry of Justice to provide the requested information. In their judgment, the court signified that the information could not be defined as personal data since the disclosure of the official position of the persons did not contain identification data about their personal lives. The court decision was appealed by the Ministry of Justice.
8. Kalina Pavlova vs. the Chamber of Architects in Bulgaria
On August 20, 2010, Kalina Pavlova requested from the Chamber of Architects in Bulgaria (CAB) all minutes, documents and decision taken since the establishment till the moment of the request filing of the Regional College of the Chamber of Architects in Varna. With a letter as of August 25, 2010 the Chairperson of the CAB refused to provide the information on the ground that the CAB is a professional organization and is not an obliged body under the APIA and that the request should be directed to the particular regional body. The refusal was challenged before the ACSC. With a decision as of December 22, 2010, a panel of the ACSC repealed the refusal and returned the case to the CAB for reconsideration. According to the court, the Chambers of Architects and Engineers of Investment Design Act vested the CAB with public functions. Therefore, the CAB is obliged body within the meaning of Art. 3, Para. 2, Item 1 of the APIA in its capacity of public-law body. The court also stated that the regional colleges were not and could not be obliged under the meaning of Art. 3 of the APIA since they only support the activities of the Chamber at a regional level but had no independent functions.
9. Petar Penchev (National Movement Ekoglasnost) vs. the Ministry of Economy, Energy, and Tourism
Petar Penchev seeks information about a report of the Ministry of Economy, Energy, and Tourism (MEET) related to the revealing of the presence or lack of a corruption scheme for the substitution of fresh nuclear fuel in the Nuclear Power Plant Kozloduy. The MEET partially refused the provision of access to the requested information on the ground that parts of the report contained protected commercial information. The partial refusal was appealed before the Administrative Court Sofia City which repealed it. In a decision as of January 10, 2011, the court found that the requested information is of nature and obviously having the purpose to increase the transparency and accountability of the obliged bodies. That information was subject to current discussion regarding the security of the work of the nuclear power plant which undoubtedly constituted information of high significance to the society in its essence and meaning. According to the court, there were evidence or data for harming the claimed interests of third parties and trade secret which might override the public interest and the purpose of the APIA. The decision was appealed by both the MEET and the NPP Kozloduy, which is an interested party in the case.
10. Ivan Petrov vs. The Sofia Municipal Council
With a written request under the Access to Public Information Act, Ivan Petrov demanded access from the Chairperson of the Sofia Municipal Council (SMC) about all official leaves made by the Chairperson of the SMC during the current term of the SMC (from 2003 till August 2007) – by date and duration; as well as about all official trips in the country and abroad made by the Chairperson of the SMC during the same term of the SMC – by date, places of visit, purpose of visit, duration and amount of expenses made. No answer was received and the silent refusal of the Chairperson of the SMC was challenged before the Administrative Court Sofia City. The court repealed the refusal with its decision as of February 2008. The Supreme Administrative Court upheld the decision of the first instance court with its decision as of March 2009.
In compliance with the court decisions, the Chairperson of the SMC delivered an explicit refusal on the ground that information about the chairperson’s official trips did not constitute public information under the meaning of Art. 2 Para. 1 of the APIA. With regard to the information about the official trips, the response only stated that no orders for sending the Chairperson of the municipal council to official trips were issued.
The ACSC repealed that explicit refusal with a decision as of May 11, 2010. The court delivered instructions to the Chairperson of the SMC on how to interpret and apply the APIA. The Supreme Administrative Court upheld the repealing of the refusal. As a result, the Sofia Municipal Council provided the requested information with a decision as of July 14, 2011.
Summary on some of the Access to Information Programme supported litigation on which court decisions were delivered during 2011.
1. Zarko Marinov (Otzvuk newspaper – town of Smolian) vs. the Mayor of the Municipality of Smolian
The chief editor of the regional newspaper Otzvuk at the town of Smolian, Zarko Marinov, demanded access to the copies of two contracts for waste management and waste treatment signed by the municipality. On March 29, 2011, the journalist filed a request under the Access to Public Information Act to the mayor who provided partial access to the contracts. The price and the penalty clauses were blacked out on the ground that the third parties – the contracted companies, did not consent the disclosure of the information. With a Decision No. 195 as of June 16, 2011, the Administrative Court – Smolian repealed the refusal and obligated the Mayor of the Municipality of Smolian to provide access to the requested information. In their judgment, the court emphasized that pursuant to the law, there was a presumption of overriding public interest in the disclosure of the information in the case.
2. Violeta Andreeva vs. Community Center Rayna Knyaginya – town of Sofia
Violeta Andreeva seeks information related to the activity of the Community Center Rayna Knyaginya in the town of Sofia. More precisely, with a request filed on January 10, 2011, the citizen demanded access to the bylaws of the community center; the names of the members of the board of trustees and the auditing committee; minutes of the general assembly meetings; activity reports, as well as revenue reports of the community center. The Chairperson of the Community Center did not deliver a decision on the request. With the support of AIP, the silent refusal was appealed before the Administrative Court – Sofia City (ACSC). The procedural representative of the Community Center claimed before the court that the center is not a body obliged under the Access to Public Information Act (APIA). The ACSC repealed the refusal by accepting that the community centers are obliged bodies under the Art. 3, Para. 2, Item 2 of the APIA being legal entities with activities funded from the state and/or municipal budget.
3. Liuben Obretenov (Sega daily) vs. the Chief Secretary of the President
The journalist Liuben Obretenov from Sega daily was seeking information related to the process of pardoning in Bulgaria in 2008 and 2009. In response to the request filed by the journalist, the Chief Secretary of the President gave some remarks and explanations on the questions set forth by the journalist but explicitly refused to provide information about the names of the members of the Pardons Committee and the names of the persons to whom pardon was granted. Personal data protection was quoted as the ground for the refusal. With the support of AIP the refusal was challenged before the Administrative Court Sofia City. The court repealed the refusal, assuming that the Chief Secretary of the President should disclose the names of the members of the Pardons Committee, while information about the names of the pardoned persons should be provided without identification data about those persons. Two appeals were submitted against the decision of the ACSC – by the President’s Office and by AIP.
4. Krum Blagov vs. the Chief Secretary of the President
The journalist Krum Blagov was seeking information about the list of persons, invited as guests to three official receptions held by the President, precisely for Christmas (December 2009), for the National holiday of Bulgaria (March 3, 2010), and for the Day of Bulgarian Education and Culture (May 24, 2010). As a result, the Chief Secretary of the President granted access to information only about the persons holding high government officials and refused to disclose information about the others, arguing that their names were subject to protection under the Personal Data Protection Act. The refusal was challenged before the Administrative Court Sofia City with the support of AIP. The court repealed the refusal, assuming that the President’s Office should also provide to the journalist the invitation list of those who did not hold high government officials, as well as information about the capacity in which they were invited. In their judgment, the court panel emphasized that the receptions held by the President were covered by all media which shows maximum transparency and consequently there is an overriding public interest in the disclosure of the information.
5. Petko Kovachev (Green Policies Institute) vs. the National Electricity Company
Petko Kovachev, Director of the NGO Green Policy Institute, is seeking information about the project for the construction of the Nuclear Power Plant (NPP) Belene. On March 2, 2010, he files a request to the Ministry of Economy, Energy and Tourism (MEET) demanding access to the loan contract between the National Electricity Company (NEK) and BNP Paribas for the amount of 250 million Euros for the project NPP Belene. The MEET redirected the request to the NEK on the ground that the ministry did not hold the requested information. The Nek refused to provide the requested information on the ground that it was not a body obliged under the Access to Public Information Act (APIA). The refusal was challenged before the Administrative Court Sofia City which left the complaint without consideration and suspended the proceedings by assuming that the NEK indeed was not an obliged body under the APIA. The Supreme Administrative Court repealed the ruling of the ACSC and returned the case to the first instance court by assuming that the NEK is an obliged body under the APIA as the company is funded by consolidated state budget for the implementation of the project for construction of a new nuclear power plant at the site of the NPP Belene (Decree by the Council of Ministers No. 259/27.10.2008). Consequently, the company is a body obliged under the provision of Art. 3, Para. 2, Item 2 of the APIA regarding information about the project NPP Belene.
6. Konstantin Bobotzov vs. the Mayor of the Municipality of Plovdiv
Konstantin Bobotzov is seeking information about a 2010 audit report under the Program for Improvement of the Quality of Air within the Territory of the Municipality of Plovdiv. He filed a request and as a response, the Chief Secretary of the Municipality delivered a decision granting full access to the information. After the payment of the costs determined in the decision at the amount of 0.14 BGN (0.07 Euro), the citizen received a response stating that the requested information was about to be prepared. Administrative Court – Plovdiv repealed the decision of the Chief Secretary signifying that the challenged decision was unlawful since the requested information had not existed neither at the moment of the filing of the request nor at the moment of the delivery of the decision which substantiated the lack of ground for issuing a decision for provision of access to that information. Instead, the hypothesis of Art. 33, Para. 1 of the APIA by informing the requestor that the municipality did not dispose of the requested information.
7. Ana Mihova (Klassa daily) vs. the Ministry of Justice
Ana Mihova from Klassa newspaper requested the Ministry of Justice about the application procedure and the evaluation procedure of projects of NGOs applying for funding from the state budget in 2010. In response to the request, the Ministry of Justice granted access to the bigger part of the requested information, but refused information about the names and the positions of the members of the Ministry of Justice Committee which evaluates the project submitted by non-profit legal entities. The ground for refusal was personal data protection exemption. With a decision as of April 21, 2011, the Administrative Court Sofia City repealed the partial refusal and obligated the Ministry of Justice to provide the requested information. In their judgment, the court signified that the information could not be defined as personal data since the disclosure of the official position of the persons did not contain identification data about their personal lives. The court decision was appealed by the Ministry of Justice.
8. Kalina Pavlova vs. the Chamber of Architects in Bulgaria
On August 20, 2010, Kalina Pavlova requested from the Chamber of Architects in Bulgaria (CAB) all minutes, documents and decision taken since the establishment till the moment of the request filing of the Regional College of the Chamber of Architects in Varna. With a letter as of August 25, 2010 the Chairperson of the CAB refused to provide the information on the ground that the CAB is a professional organization and is not an obliged body under the APIA and that the request should be directed to the particular regional body. The refusal was challenged before the ACSC. With a decision as of December 22, 2010, a panel of the ACSC repealed the refusal and returned the case to the CAB for reconsideration. According to the court, the Chambers of Architects and Engineers of Investment Design Act vested the CAB with public functions. Therefore, the CAB is obliged body within the meaning of Art. 3, Para. 2, Item 1 of the APIA in its capacity of public-law body. The court also stated that the regional colleges were not and could not be obliged under the meaning of Art. 3 of the APIA since they only support the activities of the Chamber at a regional level but had no independent functions.
9. Petar Penchev (National Movement Ekoglasnost) vs. the Ministry of Economy, Energy, and Tourism
Petar Penchev seeks information about a report of the Ministry of Economy, Energy, and Tourism (MEET) related to the revealing of the presence or lack of a corruption scheme for the substitution of fresh nuclear fuel in the Nuclear Power Plant Kozloduy. The MEET partially refused the provision of access to the requested information on the ground that parts of the report contained protected commercial information. The partial refusal was appealed before the Administrative Court Sofia City which repealed it. In a decision as of January 10, 2011, the court found that the requested information is of nature and obviously having the purpose to increase the transparency and accountability of the obliged bodies. That information was subject to current discussion regarding the security of the work of the nuclear power plant which undoubtedly constituted information of high significance to the society in its essence and meaning. According to the court, there were evidence or data for harming the claimed interests of third parties and trade secret which might override the public interest and the purpose of the APIA. The decision was appealed by both the MEET and the NPP Kozloduy, which is an interested party in the case.
10. Ivan Petrov vs. The Sofia Municipal Council
With a written request under the Access to Public Information Act, Ivan Petrov demanded access from the Chairperson of the Sofia Municipal Council (SMC) about all official leaves made by the Chairperson of the SMC during the current term of the SMC (from 2003 till August 2007) – by date and duration; as well as about all official trips in the country and abroad made by the Chairperson of the SMC during the same term of the SMC – by date, places of visit, purpose of visit, duration and amount of expenses made. No answer was received and the silent refusal of the Chairperson of the SMC was challenged before the Administrative Court Sofia City. The court repealed the refusal with its decision as of February 2008. The Supreme Administrative Court upheld the decision of the first instance court with its decision as of March 2009.
In compliance with the court decisions, the Chairperson of the SMC delivered an explicit refusal on the ground that information about the chairperson’s official trips did not constitute public information under the meaning of Art. 2 Para. 1 of the APIA. With regard to the information about the official trips, the response only stated that no orders for sending the Chairperson of the municipal council to official trips were issued.
The ACSC repealed that explicit refusal with a decision as of May 11, 2010. The court delivered instructions to the Chairperson of the SMC on how to interpret and apply the APIA. The Supreme Administrative Court upheld the repealing of the refusal. As a result, the Sofia Municipal Council provided the requested information with a decision as of July 14, 2011.