In July 2012, Access to Information Programme published Litigation under the Access to Public Information Legislation, which is the fifth book which is part of the continuous analyses we make on the Access to Public Information Act litigation in Bulgaria. It contains analysis and commentary on the litigation on specific issues related to the free access to information and its restrictions. The book also contains summaries of sixteen court cases which have resulted in changes in the practices and the strengthening of the principles of the right of access to information. Authors of the analytical part are the attorneys-at-law from AIP legal team Alexander Kashumov, head of the team, and Kiril Terziiski.
A review and analysis of the 2012 most important developments in the litigation under the access to information litigation can be found in AIP annual report Access to Information in Bulgaria 2012 pp 58-66.
News on ongoing court cases are also available in the section: http://www.aip-bg.org/en/cases/News/2012/.
Summary on some of the Access to Information Programme supported litigation on which court decisions were delivered during 2012.
1. Balkani Wildlife Society v. the Ministry of Physical Education and Sports
In May 2011, the chairman of the Association Balkani Wildlife Society Alexander Dutsov filed a request to the Ministry of Physical Education and Sports (MPES) asking for an abstract of all contracts (number and date of conclusion, price and subject of the contracts) concluded between the Ministry and the Bulgarian Ski Federation since 01 January 2007 to the date of the request.
The Ministry’s chief secretary refused access to the requested information on the grounds that the Bulgarian Ski Federation was a third party whose protected interests were involved and the Federation had expressly refused provision of the documents. The explicit refusal was challenged before the Administrative Court Sofia City (ACSC). By Decision no. 4474 of 19 October 2011 the ACSC dismissed the action as unfounded. The decision stated that the information really affects the interests of the federation and the administrative body has lawfully refused to grant access to it since its consent has not been obtained. It is also pointed out that the applicant has not demonstrated the existence of an overriding public interest in the disclosure of the requested information.
The ACSC decision was appealed before the SAC.
By Decision no. 13492 of 29 October 2012 the SAC repealed the decision of the ACSC, as well as the refusal by the MPES chief secretary and instructed him to provide access to the requested information. The Justices stated that the additional provisions of the APIA have laid down a presumption of overriding public interest in disclosure of the contracts concluded by obliged subjects under the APIA. Therefore, the applicant should not demonstrate any overriding public interest but the institution must prove the absence of such. The decision is final.
2. Dimitar Dimitrov v. the Communications Regulation Commission
With a request of May 2011, the citizen Dimitar Dimitrov wants the Communications Regulation Commission (CRC) to provide information on whether the person appointed as chief secretary has the necessary professional experience for this position. By a decision of 9 June 2011, the CRC chairman refused to provide the requested information. The decision stated that this was not public information within the meaning of Art. 2 of the APIA, but personal data. The decision also stated that the information affects the interests of a third party and its consent on the disclosure is lacking. The explicit refusal was challenged before the Supreme Administrative Court (SAC). By Decision no. 2726 of 24 February 2012 the SAC repealed the refusal and instructed the chairman of the CRC to provide the requested information. The Justices stated that the duration of professional work experience is not related to privacy and family life but is an objectively existing fact. In this sense, the requested access to information does not affect protected personal data, as the applicant does not raise the question of the chief secretary’s professional experience in general but whether he had the professional experience required under the rules. Therefore, it is not personal data that are concerned but rather access to information, enabling the applicant to form an opinion about the activities of the obliged subject and specifically whether the chairman of the CRC observes the rules for appointment of staff in the commission. The SAC three-member panel decision was challenged by the CRC chairman before a five-member panel of the SAC. By Decision no. 8572 of 14.06.2012, the five-member panel of the SAC upheld the decision of the three-member panel. The Justices held that the duration of professional work experience is a prerequisite for appointment to a particular post, and in this case the information is sought about a senior public official with management functions. As to the expressed dissent for disclosure of the information by the employee, the judicial panel notes that in this case it is without any legal significance and cannot justify a refusal to provide the requested information. The decision is final.
3. Pavlina Zhivkova (“Banker” newspaper) v. the Ministry of Finance
In June 2011, the journalist Pavlina Zhivkova from Banker newspaper requested from the Ministry of Finance (MF) information about how many of the members of parliament (MP) who left their original parliamentary groups in the 41st National Assembly have filed declarations with the finance ministry to transfer the state subsidy money they are entitled to to other parties, and to which. She also sought information on who were these independent MPs and to which political party has each of them requested to transfer the state subsidy money. The interest of the journalist was prompted by the fact that several independent MPs have declared affiliation to political parties other than the ones they have been elected with. By a decision of 22 June 2011, the head of Directorate “Human Resources and Administrative Services” in MF denied access to the requested information. The refusal indicated that individual declarations of independent MPs contain personal data. The explicit refusal was challenged before the ACSC. By Decision no. 1442 of 19 March 2012, the ACSC repealed the refusal and instructed the administrative body to provide the requested information. The court held that MPs themselves are obliged subjects under the APIA as the information in question concerns the expenditure of funds from the state budget rather than personal income. It is noted that MPs are “bearers of public authority and to their capacity of public figures apply higher standards of transparency and accountability that are not typical for private individuals”. The decision was not appealed and became final.
4. Diana Boncheva v. the Municipal Electoral Commission – Yambol
On 25 October 2011, Diana Boncheva, a journalist and AIP coordinator for Yambol filed a request to the Municipal Electoral Commission (MEC) - Yambol, requesting access to the original protocols of the Sectional Electoral Commissions (SEC) of the local elections held on 23 October 2011 in 103 polling sections in the Municipality of Yambol and copies of selected protocols after review. Within the 14-day period under the APIA no response was received. The silent refusal was challenged before the Administrative court – Yambol (ACY). By Decision no. 400 of 11 January 2012, the ACY dismissed the action as unfounded. The court found that the legislator has provided an opportunity to provide transcripts of excerpts from the protocols, in compliance with the Personal Data Protection Act (PDPA). The judge stated that under the PDPA a name is undoubtedly personal data and each of the 103 SECs consists of individual commissions members whose names are written in the original protocols of the mayor and municipal councilors election. Thus, the court found, the MEC’s decision was correct and in compliance with the PDPA. The ACY decision was appealed to the SAC. By Decision no. 1619 of 4 February 2013, the SAC repealed the first instance decision, as well as the refusal and instructed the MEC to provide access to the original protocols. The Justices held that the names of officials are not protected personal data. According to Article 19, Para. 1 of the Electoral Code (EC), members of election commissions, including the sectional electoral commissions, have the status of public officials in the performance of their functions and therefore the display of their names in the protocols established by the Commission identify them as officials - members of the respective collective body rather than as individuals. Accordingly, the disclosure of original protocols will not reveal personal data. Finally, the court stated that the EC provision on public revealing of transcripts of excerpts from the SEC protocols is irrelevant to the original SEC protocols disclosure and cannot justify for refusal of access. The decision is final.
5. Lazar Lazarov v. the Elin Pelin Municipality
In early February 2012, Lazar Lazarov (resident of the village of Lesnovo, Elin Pelin Municipality) submitted an application under the Access to Public Information Act (APIA) with the mayor requesting access to the entire administrative file for approval of the detailed spatial development plan (DSDP) for allotment of property for the expansion of the airfield in the village of Lesnovo, including a request to assess the need for environmental impact assessment, assessment of management and control of the environment, declared and duly approved noise map of the site and more. By a decision of 16 February 2012 the mayor refused the requested information. The refusal was on the grounds that much of the information was not created by the municipality, represents information on administrative files on approval of a DSDP and is not public information under the APIA because the information is relating to administrative services. It is pointed out that pursuant to Article 131, Para. 1 of the Spatial Planning Act (SPA), only the interested (affected) parties have the right of access to such information. The explicit refusal was challenged before the Administrative Court Sofia Region (ACSR). By Decision no. 448 of 05 June 2012, the ACSR repealed the refusal and returned the case to the mayor for reconsideration in accordance with the court’s directions, according to which the APIA is the applicable law. In its reasoning, the court stated that the requested information is public within the meaning of the APIA because it concerned the public life in the village and affects the legal rights of each of its citizens. The court further notes that the elaboration of a DSDP represents proceedings relating to the issuance of an administrative act and not administrative services provided to citizens. The ACSR decision is challenged by the mayor of Elin Pelin before the SAC. By Decision no. 704 of 16 January 2013, the SAC upheld the ACSR decision repealing the refusal. The Justices find the allegation of the mayor that the information is not public groundless. According to the court, this information relates to the issuance and approval of a DSDP, an Environmental Impact Assessments and other documents pertaining to the allotment of land and construction of an airfield – i.e. a construction affecting public life in the village of Lesnovo. The information in the documents sought will enable residents, including the applicant, to form an opinion on the activities of state authorities and local government. The decision is final.
6. Mila Trifonova v. the Sofia Municipality
With an application under the Access to Public Information Act (APIA) of 17 September 2011, Mila Trifonova (resident of the capital of Sofia) requested from the mayor of Sofia Municipality (SM) access to the project for realization of green spaces in the "Vazrazhdane" park. The documents specifically requested are those from the file on issuing a decision of the Municipal Council relating to entitling the municipal company to expend funds for green spaces realization. The file includes a report, an opinion of a standing committee and a draft decision. Separately, with the application is requested also the municipality’s program for management of municipal property in 2011. By a decision of 21 September 2011, the SM secretary denied access to the requested information. The motives stated that in respect of the report and the file attached to it there was a restriction of disclosure under Article 13, Para. 2 of the APIA relating to preparatory information that has no significance in itself. Concerning the remaining information it is indicated that it is not covered by the APIA. Finally, the refusal stated that all programs and strategies of the SM are published on the website of the municipality. The explicit refusal was challenged before the ACSC. By Decision no. 940 from 22 February 2012, the ACSC repealed the refusal and returned the file to the SM secretary for a new decision with mandatory instructions on the interpretation of the law. In its reasoning, the court stated that the SM secretary exhibited no factual and legal grounds for refusing to provide information on each of the requests in the application. In this connection the court notes that the lack of reasoning in the administrative act deprives the court of the opportunity to consider whether the act has been issued in accordance with the purpose of the law and under its proper implementation, which is why even on that ground alone the administrative act is unlawful. Concerning the preparatory documents restriction, the court held that it applies only if a final decision by the administrative authority is issued, as in these cases the public can obtain information from the latter. The court held that access cannot be denied to a whole report on the basis of preparatory documents as besides opinions and recommendations it contains findings with completely independent significance because they reflect the situation at a given time and are not subject to change. The decision was not appealed and became final.
7. Ivan Atanassov (Sakar news) v. Harmanli Municipality
In early September 2011, Ivan Atanasov (a journalist from Sakar News) submitted an application under the APIA with the mayor of Harmanli, requesting access to the audit report and the conclusion of an inspection done by the Public Financial Inspection Agency (PFIA) in the Harmanli Municipality. By a decision of 14 September 2011, the mayor denied access to the requested information. The refusal stated that the audit report should be requested from the PFIA, as it is the institution, creator of the information. He laid down the argument that the information falls within the exemption under Art. 13, Para. 2, item 2, which is applicable to the information containing opinions and positions regarding ongoing or prospective negotiations led by the authority or on its behalf, as well as information relating to those and which was prepared by the respective authorities administrations. The explicit refusal was challenged before the Administrative Court - Haskovo (ACH). By Decision no. 17 of 30 January 2012, the ACH repealed the refusal of the mayor and returned the case for reconsideration. The court held that the unclear, vague and contradictory motives of the mayor's refusal amount to a lack of reasoning. Furthermore, the audit report obviously does not contain opinions and positions regarding negotiations led by the authority, nor is it prepared by its administration. Finally, the court noted that the allegations that the applicant may request that information from the PFIA, since the document was issued by the Agency are unfounded, because even if the report was created by another authority, the Harmanli Municipality has the report at its disposal. The ACH decision was challenged by the mayor of Harmanli before the SAC. By Decision no. 1364 of 29 January 2013, the SAC upheld the first instance decision repealing the refusal. The Justices held that the mayor's attempt to “complete” the contested decision by the statement of reasons in the cassation appeal is inadmissible. In order for the court to carry out an effective judicial review of its legality, the act should contain extensive reasoning including the specific factual and legal grounds which led the authority to issue it. On the issue of the illegality of the contested mayor’s decision, the SAC shares completely the reasoning of the ACH and did not consider necessary to reiterate it. The decision is final.
8. Ivan Petrov v. The Bulgarian National Radio
On 13 October 2009 Ivan Petrov (resident of the capital) submitted an application under the APIA to the Director General of the Bulgarian National Radio (BNR), requesting information on the number of vehicles property of the BNR, their brands and models, as well as registration numbers and the parking permits. By a decision of 22 October 2009 the Director General of the BNR refused to provide access on the grounds that the requested information is not public within the meaning of Art. 2, Para. 1 of the APIA. The refusal also indicates that this information is operative, has no significance in itself, and concerns the security of the vehicles owned by the BNR and of those owned by BNR employees. The explicit refusal was challenged before the ACSC. By Decision no. 3209 of 20 October 2010, the ACSC repealed the refusal in the part concerning the number, brands and models of cars owned by the BNR and held it well founded concerning the registration numbers and parking of the vehicles. The court stated that the information about the number, brand and model of the vehicles owned by the BNR is public because it is related to the activity of the BNR as a national provider of radio services. From this information the applicant could form his own opinion on the activity of the BNR, all the more so in the case of property acquired with funds from the state budget. Regarding the information on the license plate numbers and parking of vehicles, the court stated that this information is not public under the APIA because the applicant could not draw any opinion whatsoever about the activities of the obliged subject. The decision was challenged by the Director General of the BNR before the SAC. By Decision no. 170 of 05 January 2012, the SAC upheld the first instance decision for partial repeal of the refusal. The Justices pointed out that the administrative court correctly and in accordance with the substantive law ruled that from the information to be provided by the new pronouncement of the Director General of the BNR, the applicant will form his own opinion on the activities of the BNR related to the particular property. The decision is final.
9. Petyo Blaskov v. the National Customs Agency
With an application of 15 September 2011, Petyo Blaskov (chief editor of newspaper “Republica”) requested from the director of the National Customs Agency information whether there are excise customs warehouses other than those of “Lukoil Bulgaria,” where were not installed measuring instruments in accordance with Ordinance no. 3 on the specific requirements and the control exercised by the customs authorities on the measurement of excisable goods, which companies possessed these warehouses, the list of companies and the number of points without installed measuring instruments. By a decision of 12 October 2011 the Agency director refused to provide the information on the ground that it affects the interests of third parties (the owners of the warehouses) and their consent to provide it was lacking. The explicit refusal was challenged before the ACSC. By Decision no. 1885 of 6 April 2012, the ACSC repealed the refusal and returned the file to the National Customs Agency for a new decision with instructions on the interpretation and application of the law. According to the court the nature of the requested public information excludes the applicability of the stated ground for refusal. The decision indicates that the interpretation of the legal provisions leads to a conclusion for restrictive interpretation of the grounds for refusal. This also applies to the hypothesis of affected third parties’ interests and their lack of consent, whereas in the cases of overriding public interest access cannot be denied. According to the court the requested information concerns directly the transparency and accountability of the National Customs Agency and there is an overriding public interest for its provision. The ACSC decision was appealed by the Agency before the SAC.
A hearing of the case at an open hearing is scheduled for 3 April 2013.
10. Yuriy Ivanov v. the Ministry of Regional Development and Public Works
With an application under the APIA of 5 October 2011, Yuriy Ivanov (Association “Public barometer” – Sliven) requested from the Ministry of Regional Development and Public Works (MRDPW) access to the inspection report by the Ministry Inspectorate on the activities of "ViK" Ltd. – Sliven (water and sewage supplier) for the period 2005 – 2010 in connection with a received signal for violations in the conduct of public procurement proceedings for the supply of water meters. No reply was received in the 14-days legal time limit. The silent refusal was challenged before the SAC. By Decision no. 702 of 13 January 2012, the SAC repealed the silent refusal and returned the file to the MRDPW for explicit decision on the application. The Justices held that as the SAC has repeatedly ruled in its court acts, silent refusal under the APIA is inadmissible and therefore only for that reason it is subject to repeal. The court considered that in this case there is no reason to deviate from this constant jurisprudence. The decision was not appealed and became final.
A review and analysis of the 2012 most important developments in the litigation under the access to information litigation can be found in AIP annual report Access to Information in Bulgaria 2012 pp 58-66.
News on ongoing court cases are also available in the section: http://www.aip-bg.org/en/cases/News/2012/.
Summary on some of the Access to Information Programme supported litigation on which court decisions were delivered during 2012.
1. Balkani Wildlife Society v. the Ministry of Physical Education and Sports
In May 2011, the chairman of the Association Balkani Wildlife Society Alexander Dutsov filed a request to the Ministry of Physical Education and Sports (MPES) asking for an abstract of all contracts (number and date of conclusion, price and subject of the contracts) concluded between the Ministry and the Bulgarian Ski Federation since 01 January 2007 to the date of the request.
The Ministry’s chief secretary refused access to the requested information on the grounds that the Bulgarian Ski Federation was a third party whose protected interests were involved and the Federation had expressly refused provision of the documents. The explicit refusal was challenged before the Administrative Court Sofia City (ACSC). By Decision no. 4474 of 19 October 2011 the ACSC dismissed the action as unfounded. The decision stated that the information really affects the interests of the federation and the administrative body has lawfully refused to grant access to it since its consent has not been obtained. It is also pointed out that the applicant has not demonstrated the existence of an overriding public interest in the disclosure of the requested information.
The ACSC decision was appealed before the SAC.
By Decision no. 13492 of 29 October 2012 the SAC repealed the decision of the ACSC, as well as the refusal by the MPES chief secretary and instructed him to provide access to the requested information. The Justices stated that the additional provisions of the APIA have laid down a presumption of overriding public interest in disclosure of the contracts concluded by obliged subjects under the APIA. Therefore, the applicant should not demonstrate any overriding public interest but the institution must prove the absence of such. The decision is final.
2. Dimitar Dimitrov v. the Communications Regulation Commission
With a request of May 2011, the citizen Dimitar Dimitrov wants the Communications Regulation Commission (CRC) to provide information on whether the person appointed as chief secretary has the necessary professional experience for this position. By a decision of 9 June 2011, the CRC chairman refused to provide the requested information. The decision stated that this was not public information within the meaning of Art. 2 of the APIA, but personal data. The decision also stated that the information affects the interests of a third party and its consent on the disclosure is lacking. The explicit refusal was challenged before the Supreme Administrative Court (SAC). By Decision no. 2726 of 24 February 2012 the SAC repealed the refusal and instructed the chairman of the CRC to provide the requested information. The Justices stated that the duration of professional work experience is not related to privacy and family life but is an objectively existing fact. In this sense, the requested access to information does not affect protected personal data, as the applicant does not raise the question of the chief secretary’s professional experience in general but whether he had the professional experience required under the rules. Therefore, it is not personal data that are concerned but rather access to information, enabling the applicant to form an opinion about the activities of the obliged subject and specifically whether the chairman of the CRC observes the rules for appointment of staff in the commission. The SAC three-member panel decision was challenged by the CRC chairman before a five-member panel of the SAC. By Decision no. 8572 of 14.06.2012, the five-member panel of the SAC upheld the decision of the three-member panel. The Justices held that the duration of professional work experience is a prerequisite for appointment to a particular post, and in this case the information is sought about a senior public official with management functions. As to the expressed dissent for disclosure of the information by the employee, the judicial panel notes that in this case it is without any legal significance and cannot justify a refusal to provide the requested information. The decision is final.
3. Pavlina Zhivkova (“Banker” newspaper) v. the Ministry of Finance
In June 2011, the journalist Pavlina Zhivkova from Banker newspaper requested from the Ministry of Finance (MF) information about how many of the members of parliament (MP) who left their original parliamentary groups in the 41st National Assembly have filed declarations with the finance ministry to transfer the state subsidy money they are entitled to to other parties, and to which. She also sought information on who were these independent MPs and to which political party has each of them requested to transfer the state subsidy money. The interest of the journalist was prompted by the fact that several independent MPs have declared affiliation to political parties other than the ones they have been elected with. By a decision of 22 June 2011, the head of Directorate “Human Resources and Administrative Services” in MF denied access to the requested information. The refusal indicated that individual declarations of independent MPs contain personal data. The explicit refusal was challenged before the ACSC. By Decision no. 1442 of 19 March 2012, the ACSC repealed the refusal and instructed the administrative body to provide the requested information. The court held that MPs themselves are obliged subjects under the APIA as the information in question concerns the expenditure of funds from the state budget rather than personal income. It is noted that MPs are “bearers of public authority and to their capacity of public figures apply higher standards of transparency and accountability that are not typical for private individuals”. The decision was not appealed and became final.
4. Diana Boncheva v. the Municipal Electoral Commission – Yambol
On 25 October 2011, Diana Boncheva, a journalist and AIP coordinator for Yambol filed a request to the Municipal Electoral Commission (MEC) - Yambol, requesting access to the original protocols of the Sectional Electoral Commissions (SEC) of the local elections held on 23 October 2011 in 103 polling sections in the Municipality of Yambol and copies of selected protocols after review. Within the 14-day period under the APIA no response was received. The silent refusal was challenged before the Administrative court – Yambol (ACY). By Decision no. 400 of 11 January 2012, the ACY dismissed the action as unfounded. The court found that the legislator has provided an opportunity to provide transcripts of excerpts from the protocols, in compliance with the Personal Data Protection Act (PDPA). The judge stated that under the PDPA a name is undoubtedly personal data and each of the 103 SECs consists of individual commissions members whose names are written in the original protocols of the mayor and municipal councilors election. Thus, the court found, the MEC’s decision was correct and in compliance with the PDPA. The ACY decision was appealed to the SAC. By Decision no. 1619 of 4 February 2013, the SAC repealed the first instance decision, as well as the refusal and instructed the MEC to provide access to the original protocols. The Justices held that the names of officials are not protected personal data. According to Article 19, Para. 1 of the Electoral Code (EC), members of election commissions, including the sectional electoral commissions, have the status of public officials in the performance of their functions and therefore the display of their names in the protocols established by the Commission identify them as officials - members of the respective collective body rather than as individuals. Accordingly, the disclosure of original protocols will not reveal personal data. Finally, the court stated that the EC provision on public revealing of transcripts of excerpts from the SEC protocols is irrelevant to the original SEC protocols disclosure and cannot justify for refusal of access. The decision is final.
5. Lazar Lazarov v. the Elin Pelin Municipality
In early February 2012, Lazar Lazarov (resident of the village of Lesnovo, Elin Pelin Municipality) submitted an application under the Access to Public Information Act (APIA) with the mayor requesting access to the entire administrative file for approval of the detailed spatial development plan (DSDP) for allotment of property for the expansion of the airfield in the village of Lesnovo, including a request to assess the need for environmental impact assessment, assessment of management and control of the environment, declared and duly approved noise map of the site and more. By a decision of 16 February 2012 the mayor refused the requested information. The refusal was on the grounds that much of the information was not created by the municipality, represents information on administrative files on approval of a DSDP and is not public information under the APIA because the information is relating to administrative services. It is pointed out that pursuant to Article 131, Para. 1 of the Spatial Planning Act (SPA), only the interested (affected) parties have the right of access to such information. The explicit refusal was challenged before the Administrative Court Sofia Region (ACSR). By Decision no. 448 of 05 June 2012, the ACSR repealed the refusal and returned the case to the mayor for reconsideration in accordance with the court’s directions, according to which the APIA is the applicable law. In its reasoning, the court stated that the requested information is public within the meaning of the APIA because it concerned the public life in the village and affects the legal rights of each of its citizens. The court further notes that the elaboration of a DSDP represents proceedings relating to the issuance of an administrative act and not administrative services provided to citizens. The ACSR decision is challenged by the mayor of Elin Pelin before the SAC. By Decision no. 704 of 16 January 2013, the SAC upheld the ACSR decision repealing the refusal. The Justices find the allegation of the mayor that the information is not public groundless. According to the court, this information relates to the issuance and approval of a DSDP, an Environmental Impact Assessments and other documents pertaining to the allotment of land and construction of an airfield – i.e. a construction affecting public life in the village of Lesnovo. The information in the documents sought will enable residents, including the applicant, to form an opinion on the activities of state authorities and local government. The decision is final.
6. Mila Trifonova v. the Sofia Municipality
With an application under the Access to Public Information Act (APIA) of 17 September 2011, Mila Trifonova (resident of the capital of Sofia) requested from the mayor of Sofia Municipality (SM) access to the project for realization of green spaces in the "Vazrazhdane" park. The documents specifically requested are those from the file on issuing a decision of the Municipal Council relating to entitling the municipal company to expend funds for green spaces realization. The file includes a report, an opinion of a standing committee and a draft decision. Separately, with the application is requested also the municipality’s program for management of municipal property in 2011. By a decision of 21 September 2011, the SM secretary denied access to the requested information. The motives stated that in respect of the report and the file attached to it there was a restriction of disclosure under Article 13, Para. 2 of the APIA relating to preparatory information that has no significance in itself. Concerning the remaining information it is indicated that it is not covered by the APIA. Finally, the refusal stated that all programs and strategies of the SM are published on the website of the municipality. The explicit refusal was challenged before the ACSC. By Decision no. 940 from 22 February 2012, the ACSC repealed the refusal and returned the file to the SM secretary for a new decision with mandatory instructions on the interpretation of the law. In its reasoning, the court stated that the SM secretary exhibited no factual and legal grounds for refusing to provide information on each of the requests in the application. In this connection the court notes that the lack of reasoning in the administrative act deprives the court of the opportunity to consider whether the act has been issued in accordance with the purpose of the law and under its proper implementation, which is why even on that ground alone the administrative act is unlawful. Concerning the preparatory documents restriction, the court held that it applies only if a final decision by the administrative authority is issued, as in these cases the public can obtain information from the latter. The court held that access cannot be denied to a whole report on the basis of preparatory documents as besides opinions and recommendations it contains findings with completely independent significance because they reflect the situation at a given time and are not subject to change. The decision was not appealed and became final.
7. Ivan Atanassov (Sakar news) v. Harmanli Municipality
In early September 2011, Ivan Atanasov (a journalist from Sakar News) submitted an application under the APIA with the mayor of Harmanli, requesting access to the audit report and the conclusion of an inspection done by the Public Financial Inspection Agency (PFIA) in the Harmanli Municipality. By a decision of 14 September 2011, the mayor denied access to the requested information. The refusal stated that the audit report should be requested from the PFIA, as it is the institution, creator of the information. He laid down the argument that the information falls within the exemption under Art. 13, Para. 2, item 2, which is applicable to the information containing opinions and positions regarding ongoing or prospective negotiations led by the authority or on its behalf, as well as information relating to those and which was prepared by the respective authorities administrations. The explicit refusal was challenged before the Administrative Court - Haskovo (ACH). By Decision no. 17 of 30 January 2012, the ACH repealed the refusal of the mayor and returned the case for reconsideration. The court held that the unclear, vague and contradictory motives of the mayor's refusal amount to a lack of reasoning. Furthermore, the audit report obviously does not contain opinions and positions regarding negotiations led by the authority, nor is it prepared by its administration. Finally, the court noted that the allegations that the applicant may request that information from the PFIA, since the document was issued by the Agency are unfounded, because even if the report was created by another authority, the Harmanli Municipality has the report at its disposal. The ACH decision was challenged by the mayor of Harmanli before the SAC. By Decision no. 1364 of 29 January 2013, the SAC upheld the first instance decision repealing the refusal. The Justices held that the mayor's attempt to “complete” the contested decision by the statement of reasons in the cassation appeal is inadmissible. In order for the court to carry out an effective judicial review of its legality, the act should contain extensive reasoning including the specific factual and legal grounds which led the authority to issue it. On the issue of the illegality of the contested mayor’s decision, the SAC shares completely the reasoning of the ACH and did not consider necessary to reiterate it. The decision is final.
8. Ivan Petrov v. The Bulgarian National Radio
On 13 October 2009 Ivan Petrov (resident of the capital) submitted an application under the APIA to the Director General of the Bulgarian National Radio (BNR), requesting information on the number of vehicles property of the BNR, their brands and models, as well as registration numbers and the parking permits. By a decision of 22 October 2009 the Director General of the BNR refused to provide access on the grounds that the requested information is not public within the meaning of Art. 2, Para. 1 of the APIA. The refusal also indicates that this information is operative, has no significance in itself, and concerns the security of the vehicles owned by the BNR and of those owned by BNR employees. The explicit refusal was challenged before the ACSC. By Decision no. 3209 of 20 October 2010, the ACSC repealed the refusal in the part concerning the number, brands and models of cars owned by the BNR and held it well founded concerning the registration numbers and parking of the vehicles. The court stated that the information about the number, brand and model of the vehicles owned by the BNR is public because it is related to the activity of the BNR as a national provider of radio services. From this information the applicant could form his own opinion on the activity of the BNR, all the more so in the case of property acquired with funds from the state budget. Regarding the information on the license plate numbers and parking of vehicles, the court stated that this information is not public under the APIA because the applicant could not draw any opinion whatsoever about the activities of the obliged subject. The decision was challenged by the Director General of the BNR before the SAC. By Decision no. 170 of 05 January 2012, the SAC upheld the first instance decision for partial repeal of the refusal. The Justices pointed out that the administrative court correctly and in accordance with the substantive law ruled that from the information to be provided by the new pronouncement of the Director General of the BNR, the applicant will form his own opinion on the activities of the BNR related to the particular property. The decision is final.
9. Petyo Blaskov v. the National Customs Agency
With an application of 15 September 2011, Petyo Blaskov (chief editor of newspaper “Republica”) requested from the director of the National Customs Agency information whether there are excise customs warehouses other than those of “Lukoil Bulgaria,” where were not installed measuring instruments in accordance with Ordinance no. 3 on the specific requirements and the control exercised by the customs authorities on the measurement of excisable goods, which companies possessed these warehouses, the list of companies and the number of points without installed measuring instruments. By a decision of 12 October 2011 the Agency director refused to provide the information on the ground that it affects the interests of third parties (the owners of the warehouses) and their consent to provide it was lacking. The explicit refusal was challenged before the ACSC. By Decision no. 1885 of 6 April 2012, the ACSC repealed the refusal and returned the file to the National Customs Agency for a new decision with instructions on the interpretation and application of the law. According to the court the nature of the requested public information excludes the applicability of the stated ground for refusal. The decision indicates that the interpretation of the legal provisions leads to a conclusion for restrictive interpretation of the grounds for refusal. This also applies to the hypothesis of affected third parties’ interests and their lack of consent, whereas in the cases of overriding public interest access cannot be denied. According to the court the requested information concerns directly the transparency and accountability of the National Customs Agency and there is an overriding public interest for its provision. The ACSC decision was appealed by the Agency before the SAC.
A hearing of the case at an open hearing is scheduled for 3 April 2013.
10. Yuriy Ivanov v. the Ministry of Regional Development and Public Works
With an application under the APIA of 5 October 2011, Yuriy Ivanov (Association “Public barometer” – Sliven) requested from the Ministry of Regional Development and Public Works (MRDPW) access to the inspection report by the Ministry Inspectorate on the activities of "ViK" Ltd. – Sliven (water and sewage supplier) for the period 2005 – 2010 in connection with a received signal for violations in the conduct of public procurement proceedings for the supply of water meters. No reply was received in the 14-days legal time limit. The silent refusal was challenged before the SAC. By Decision no. 702 of 13 January 2012, the SAC repealed the silent refusal and returned the file to the MRDPW for explicit decision on the application. The Justices held that as the SAC has repeatedly ruled in its court acts, silent refusal under the APIA is inadmissible and therefore only for that reason it is subject to repeal. The court considered that in this case there is no reason to deviate from this constant jurisprudence. The decision was not appealed and became final.