Access to Information Programme
During 2015, a large number of lawsuits for access to information were brought with the AIP legal support. We are publishing short descriptions of several important access to information court cases that were successfully led with AIP’s legal team assistance. Information about ongoing and completed access to information cases is included in Bulgarian in AIP monthly FOI newsletter and is available in the special section of AIP web site. 
 
1. WWF – Bulgaria vs. the Ministry of Environment and Waters
 
In January 2013, the World Wide Fund Danube-Carpathian program – Bulgaria filed a request to the Ministry of Environment and Waters (MEW) about the results of legal analyses made by the ministry aiming to find the reasons and the possible solutions for overcoming the problem of exceeding the concession area of Bansko Ski Zone in the National Park “Pirin” with 65 hectares. The ministry found that mismanagement of concession area in 2010 – 2011. The refusal was on the grounds that the information was related to the operational preparation of the acts of the MOEW and had no significance of its own; related to ongoing negotiations; and affected the interests of third parties. In 2013, the Administrative Court Sofia – City repealed the refusal. The MEW appealed the court decision before the SAC, and the appeal is left with no consideration by two instances since it was not filed properly by an authorized lawyer of the ministry.Thus, the decision of the ACSC obligating the minister to provide the requested information to the WWF entered into force in February 2014. In May 2014 the Chief Secretary filed a request to the ACSC for rectifying an apparent factual mistake in the effective court decision which obligated the minister of environment and waters to provide the requested information. The request for rectifying an apparent factual mistake was dismissed by two new court instances.They found that the minister of environment and waters was the competent body which should provide the requested information. Thus, in July 2015, the ACSC decision repealing the refusal and obligating the minister to provide information about the results from the analyses finally entered into force. More about the case.
  1. Decision No. 5430/08.08.2013 of the Administrative Court Sofia – City, Second Division, 29th Panel 
  2. Decision No. 3586/28.05.2014  of the ACSC, Second Division, 29th Panel
  3. Decision No.  8404/07.07.2015 of the Supreme Administrative Court, Fifth Division

2. Diyana Boncheva vs. the Ministry of Environment and Waters
 
In September 2013, journalist Diyana Boncheva from the city of Yambol, filed a request to the Ministry of Environment and Waters (MEW) for a copy of a letter from the MEW to the European Commission stating the date of suspension of operation of a unregulated municipal landfill in the Municipality of Yambol, as well as the correspondence between the Ministry and the EC with regard to a petition. The refusal was on the grounds that the information relates to correspondence between the MEW and the EC and that the requestor has the right to file an application to the EC. With a decision as of June 2015, a Three-member Panel of the Supreme Administrative Court repealed the refusal and returned the request for reconsideration by the minister. The court ruled that Regulation (EC) 1049/2001 of the European Parliament and the Council of May 30, 2001 regarding public access to the documents of the European Parliament, the Council and the Commission provides for two possibilities when a request is filed to a Member State – either the Member State consult with the European institution concerned in order to take a decision, or the Member State refers the request to the institution. By the challenged refusal, the Minister of Environment and Waters, assuming that the request was for documents generated and held by it, but announced by the European Commission – did not comply with neither of the possibilities given by the Regulation, but issued an explicit refusal, notifying the requestor to request the information directly from the European Commission which was a violation of Art. 5 of the Regulation. The decision of the Three-member Panel of the SAC was upheld by the Five-member Panel of the SAC in October 2015. The decision is final.
  1. Decision No. 7557/23.06.2015 (in Bulgarian), Supreme Administrative Court, Fifth Division, Three-member Panel
  2. Decision No. 11252/ 27.10.2015 (in Bulgarian), Supreme Administrative Court, Five-member Panel, 2nd College

3. Alexander Dunchev vs. the Mayor of Samokov

In the summer of 2015, Alexander Dunchev filed a request to the Mayor of Samokov demanding access to copies of four market assessments of municipal property on the base of which the municipality had performed three sales and one exchange deal in the period 2007 – 2012. The mayor refused to disclose the information on the grounds that it affected the interests of a third party – the independent expert who had made the market assessments, who had expressed written dissent for the disclosure. The Administrative Court – Sofia –region (ACSR) found the refusal lawful, but on different grounds. The court ruled that the market assessments were preparatory documents with no significance of their own (a ground for refusal under Art. 13, Para. 2, item 1 of the APIA). The decision of the ACSR was appealed before the Supreme Administrative Court (SAC) which repealed the decision of the ACSR and the refusal of the mayor, turning the request back for granting access to the requested information. The supreme justices assume that the “market assessments” have significance of their own and their disclosure will allow the requestor to get to know the whole procedure of forming market assessments of municipal properties subject to municipal deals. In view of the essence of the requested information, regardless of the dissent of the third party, the information should be provided in the presence of overriding public interest in the meaning of § 1, item 6 of the Additional Provisions of the APIA since its disclosure aims at the revealing of corruption and misuse of power and would increase the transparency and accountability of the obliged public body. The decision is final. More about the case.
  1. Decision No. 894/13.10.2014 (in Bulgarian), Administrative Court Sofia - region
  2. Decision No. 9060/27.07.2015 (in Bulgarian), Supreme Administrative Court, Fifth Division, Three-member Panel

4.  Krasimir Kalinchev vs. National Customs Agency

Krasimir Kalinchev filed a request to the Director of the National Customs Agency demanding information about the realization of sanctions in the case of improperly incurred fuel costs established by the "Internal Audit" Department which constituted damages to the Customs Office – Kyustendil. The refusal was grounded in the lack of the third party’s consent. The Administrative Court Sofia – City repealed the refusal but the National Customs Agency appealed before the Supreme Administrative Court. According to the justices, if the public body quotes the third party’s interest as a ground for refusal, the body should identify the specific interest and the extent to which it could be harmed. The SAC upheld the deicison of the first instance court. Furthermore, the supreme justices point out that in such cases, the public body should make an assessment of the presence or lack of overriding public interest before seeking the consent of the third party. The court decision is final.
  1. Decision No. 322/ 17.01.2014, Administrative Court Sofia – City
  2. Decision No. 225/09.01.2015 of the SAC (in Bulgarian), Seventh Division, a.c. No. 3292/2014.

5. Svetla Vasileva (Duma newspaper) vs. the Sofia Municipality

In March 2013, the journalist Svetla Vasileba requested information about disposal transactions with municipal property, including under procedures of the Public Procurements Act, for the period 2009 – 2013 from the Mayor of the Sofia Municipality. The mayor did not respond. The Administrative Court Sofia – City repealed the silent refusal and returned the request to the mayor for an explicit decision under the APIA. The Mayor of the Sofia Municipality appealed before the Supreme Administrative Court on the grounds that the requested information was not public. The SAC upheld the first instance court decision. The court ruled that information related to transactions with municipal property is public and the arguments in the appeal could be subject of discussion only in case they are materialized in an administrative act issued by an administrative body. Arguments make it possible for the oversight judicial body to judge on the lawfulness of the decision and this is even more important when access to requested information is refused. The court decision is final.
  1. Decision No. 2616/ 17.04.2014,(in Bulgarian) of the Administrative Court Sofia – City
  2. Decision No. 2976/18.03.2015 (in Bulgarian) of the Supreme Administrative Court

6. Association “Friends of Railway Transport” vs. the Ministry of Transport, Information Technologies, and Communications

Litigation was initiated after the refusal of the Ministry of Transport, Information Technologies, and Communications (MTITC) to provide access to the contract, its annexes and implementation reports signed with the “BDZ – Passenger Services” EOOD (the national railway transport company) for the provision of the public service “rail transport of passenger.” The refusal was grounded in the argument that the requested information was not public under the meaning of the APIA and was not due to that law, but as the contract was signed after a public procurement tender, the Public Procurements Act (PPA) applied. According to the PPA, the contractors sent the information to the Public Procurements Register which was online.
The Administrative Court Sofia – City repealed the refusal on the grounds that the provisions of the PPA guaranteeing the publicity of the information about the signed contracts do not exclude those of the APIA with regard to the access to information.  The transparency guarantees provided by the PPA have supplementary character with regard to the common principles of access to public information provided under the APIA, according to the justices.
The Supreme Administrative Court upheld the decision of the first instance Administrative Court Sofia – City. The decision is final. 
More about the case: http://aip-bg.org/library/37NGOstories/32.html
  1. Decision No. 1703/17.03.2014 (in Bulgarian), Administrative Court Sofia – City
  2. Decision No. 5972/25.05.2015, (in Bulgarian), Supreme Administrative Court

7. Rossen Bossev (Capital weekly) vs. срещу the Sofia City Prosecution Office

The journalist Rossen Bossev filed a request to the Prosecutor’s Office under the procedures of the Access to Public Information Act (APIA). He demanded access to information related to the work of Mr. Delyan Peevski as an investigator in the Sofia Investigation Service. Peevski is a media mogul and a current member of the National Assembly. The Prosecutor’s office referred the request to the Sofia City Prosecution Office (SCPO) as a responsible institution. The city prosecutor refused to grant access to the journalist on the grounds that the requested information was not public under the meaning of the APIA. Furthermore, the information would affect the interests of a third party, who had not expressed consent for a disclosure. The ACSC dismissed the appeal of the journalist against the refusal of the city prosecutor.  The decision of the ACSC was appealed before the Supreme Administrative Court (SAC). According to the court, the requested information was public despite the fact that it did not concern the overall activities of the Prosecution Office, but the work of a single magistrate. In their judgment, the SAC also pointed out that considering the type of the requested information, the provision of Art. 5 of the Law on the Judiciary was applicable in the current case. It provides for the citizens’ right to information about the work of the judiciary and respectively an obligation for the judicial authorities to ensure openness, accessibility and transparency of its activities. The decision is final.
More about the case.
  1. Decision No. 3196/13.05.2014 (in Bulgarian), Administrative Court Sofia - City
  2. Decision No. 5400/ 13.05.2015 (in Bulgarian), Supreme Administrative Court