During 2016, 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.
1. The Access to Information Programme vs. the Director of the Basin Directorate for Water Management – West Aegean Region
In March 2015, within the annual audit on the institutional web sites, the Executive Director of the AIP filed a request to the Director of the Basin Directorate for Water Management – West Aegean Region (BD WAR) demanding access to provide a copy of the order assigning an official responsible under the APIA and the job description of that official. The Director of the Basin Directorate issued a refusal on the grounds that the APIA did not provide for requesting access to specific documents, but only for access to information.
By Decision No. 1988 as of 16 December 2015, the Administrative Court – Blagoevgrad repealed the refusal of the Director of the BD WAR and obligated him to grant access to the requested documents.
The court upheld that the public body should have granted access to the requested copy of the job description. Regarding the copy of the order, the public body should have applied the procedure of seeking consent and in case that the order contained personal data of the public official, to disclose the requested information by excluding those data. The decision was not appealed and became effective. In February 2016, the Director of the BD WAR provided the requested information.
2. Martin Dimitrov and Petar Slavov vs. the Bulgarian National Bank
In July 2015, the members of parliament Martin Dimitrov and Petar Slavov filed a request to the Governor of the Bulgarian National Bank (BNB). They demanded information on how the remunerations within the bank were defined and specifically, the salaries and the bonuses received by the BNB Governor and the members of the Governing Council in 2014 and 2015. The BNB Governor informed the requestors that the Governing Council had adopted a policy for the definition and disclosure of the remunerations if the governor, deputy governors and the members of the council at a session held on July 30, 2015 and that those were published on the BNB web site. Access to the information about the salaries payed before June 30, 2015 to the members of the Governing Council, including to the Governor, was denied on the grounds of personal data protection, as well as the classification of the requested information as official secret during the specific period. By its decision as of January 2016, the Supreme Administrative Court repealed the partial refusal of the BNB Governor and obligated him to provide the requested information. The court panel assumed that in cases when the public interest is overriding, the 2 cumulative preconditions – third party’s interests and the lack of their consent, were losing their restrictive effect on the right of access to public information and the public body was thus obliged to disclose the requested information. That hypothesis exactly was valid in the particular case and the BNB Governor being an obliged body should have recognized the “overriding public interest” and disclose information about the salaries remunerations received by the members of the BNB Governing Council. The court also pointed out that the salaries of the members of the council and the management of the BNB could not be classified as official secret since they did not fall under any of the categories under Art. 23 of the Law on the Bulgarian National Bank which gave the definition of “official secret” for the aims of the BNB.
The decision was not challenged and came into effect.
3. Krassen Nikolov vs. the Prosecutor’s Office of the Republic of Bulgaria
In August 2015, the journalist from the online media Mediapool filed a request to the Prosecutor’s Office of Bulgaria demanding information about the establishment and composition of the special unit “Anticorruption”. The Prosecutor General did not respond to the request and a complaint against the silent refusal was submitted to the Administrative Court Sofia City (ACSC). By a decision of 15 February the ACSC repealed the silent refusal and returned the request to the Prosecutor’s Office to issue a decision. The court indicated that the obliged body can only issue an explicit act (official document). The court decision entered into force and the information was provided.
4. Alexander Dunchev vs. the Ministry of Agriculture and Food
In September 2014, Alexander Dunchev from the capital of Sofia filed a request to the Ministry of Agriculture and Food (MAF) demanding access to copies of market assessments of state property on which the Ministry carried out different transactions in the period 2008 – 2012. The MAF refused access on the grounds that the assessments are not public information and their provision would violate the copyright of the independent evaluators who prepared them. With a decision as of December 2014, the Administrative Court Sofia City (ACSC) repealed the refusal. The court assumed that the market assessments allow on one hand to know if the ministry took into consideration the assessment of the independent evaluator, and on the other hand if the assessment was made in compliance with the State Property Act. According to the court, the copyright over the assessments could not be an obstacle before the disclosure under the APIA since there is an overriding public interest in the disclosure. The ACSC decision was appealed by the MAF before the Supreme Administrative Court (SAC). The SAC upheld the first instance court decision. In their decision as of March 2016, the supreme justices held that there is an overriding public interest in the disclosure of this information. The APIA provides a presumption of the existence of such an overriding interest of disclosure when the information relates to the commercial activity and concerns the conditions, rights and obligations, terms, and sanctions specified in contracts where one of the contracting parties is an obliged body under the APIA. The decision is final and the information was provided. In April 2016, the requested information was provided to the requestor.
5. Marieta Sivkova vs. the Municipality of Yambol
In February 2014, Marieta Sivkova from the city of Yambol filed a request to the Municipality of Yambol demanding access to a copy of an out-of-court settlement between the Municipality and a construction company. The secretary of the municipality refused access on the ground that the request does not contain a valid description of the information sought, but only a claim for the provision of a document, which is inadmissible under APIA. By a decision as of January 2015, the Administrative Court – Yambol repealed the refusal. The court assumed that the APIA equals the information contained in a certain document to the document itself as a material carrier. Thus, the request for access to a document equals a request for access to the information contained in it. The first instance court decision was appealed before the Supreme Administrative Court by the secretary of the municipality. By a decision as of March 2016, the SAC upheld the first instance court decision. The court ruled that the information sought is public, since the requester will be able to form an opinion on the activity of the obliged subject related to expenses of budget funds. The decision is final and the information was provided to the requester in April 2016.
6. Viktor Ivanov vs. Government Information Service
In September 2014, Viktor Ivanov, a journalist from the 24 Hoursdaily filed an access to information request to the Government Information Service (GIS) for access to three inspection reports issued by the Council of Ministers General Inspectorate. Access was denied on the grounds that the inspections reports contain the names and the positions of civil servants and thus constitute personal data under the ambit of the Personal Data Protection Act. With a decision as of April 2016, the Administrative Court Sofia – city (ACSC) repealed the refusal. According to the justices, the claims that the documents contain personal data and that the APIA is inapplicable are ungrounded since the subject of the request is not the personal data of the officials, their names and positions, but the inspection reports of the Council of Ministers General Inspectorate. The fact that the reports might contain personal data, whose disclosure required the consent of the third parties did not mean that the whole information should be denied. The court decision was appealed by the CoM before the SAC. With a decision as of February 2016, the Supreme Administrative Court upheld the decision of the first instance court. The supreme justices point the provision of Art. 37, Para. 1, item 2 of the APIA which explicitly provides for the disclosure of information in cases of overriding public interest. Under § 1, item 6 of the APIA, “Overriding public interest is at hand when the requested information aims at the revealing of corruption and abuse of power, increase of transparency and accountability of obliged bodies.” It is apparent from the subject of the request that the requestor aims to form his opinion on the work of the obliged bodies. The court decision is final.
7. Ralitsa Petrova vs. the Sofia Region Prosecutor’s Office
In May 2014, the journalist Ralitsa Petrova from “Legal world” magazine filed a request to the Sofia Region Prosecutor’s office demanding information on who is the overseeing prosecutor who ordered the State Agency National Security (SANS) to investigate on Nikolay Barekov’s signal against the President of the Republic of Bulgaria Mr. Rossen Plevneliev in relation to the latter’s meeting in Vienna with a representative of EVN. Access was refused on the grounds that the information is not public in the meaning of the law, but is protected personal data. The refusal as appealed before the Administrative Court Sofia City which by a decision as of January 2015 dismissed the appeal assuming that the requested information related to third parties and their personal data which did not fall within the scope of the APIA, but under the protection of the Personal Data Protection Act. The first instance court was appealed before the Supreme Administrative Court. By a decision[1]of April the SAC repealed the decision of the ACSC as well as a refusal of the Sofia Region Prosecutor’s office to provide information. The SAC held that the protection of the personal data of the persons occupying public office, among who are the prosecutors, is far lower in comparison to the protection of the rest of the citizens. In this case, despite that the information sought is personal data in the meaning of the Personal Data Protection Act (PDPA), there is no legal impediment for the provision of the information on the name of the respective prosecutor under the APIA. The decision is final.
8. Architect Vessela Toncheva vs. the Sofia Municipaliy
In August 2013, architect Vessela Toncheva from the city of Sofia filed a request to the Sofia Municipality demanding access to a copy of a Mayor’s order and to a report by the Chief Architect of the capital city on an inspection of the movable objects (kiosks and small shops) in the “Borissova gradina” park. The refusal claimed that the information is of professional (internal) nature and does not have a meaning of its own, since it is not a final administrative act (document ending the respective administrative procedure). By a decision as of October 2014, a panel of the Administrative Court Sofia City (ACSC) repealed the refusal and obligated the Sofia Municipality to provide the requested information. In its judgment, the court ruled that the grounds for refusal under Art. 13, Para. 2 of the APIA are inapplicable since it covers administrative public information, while the request is for official public information contained in the acts of the Mayor and the Chief Architect. The ACSC decision was appealed before the SAC. By a decision as of April 2016, the Supreme Administrative Court held that the first instance conclusions are correct. The requested information is official public informationin the meaning of Article 10 of the APIA. It is contained in acts (documents) of the Mayor and the Chief Architect of the Sofia Municipality, which were issued in implementing their powers given to them by the law. The information concerns the results of the administrative inspection which had been finalized prior to the request. Respectively, the information relates to the grounds for the inspection and to the drafting of a plan-scheme for the park’s movable objects. The said acts (documents) have proper meaning in themselves since they are not bound to a single administrative procedure which they would prepare. The decision is final.
9. Ivan Petrov vs. the Sofia Municipality
In October 2014, Ivan Petrov from the Capital of Sofia filed a request to the Sofia Municipality demanding information on the procedures on coordination of payments of insurance indemnities to tenants of municipal property. The refusal claimed that the information is not public under the meaning of the APIA and was upheld by the Administrative Court Sofia City as a first instance. By a decision as of May 2016, the Supreme Administrative Court repealed the ACSC decision as well as the refusal of the Sofia Municipality’s secretary to provide information. The SAC ruled that the requester seeks public information, related to the management of municipal real estate properties. Its provision will provide the requester with the opportunity to form a personal opinion on the municipality’s actions on management of municipal property and specifically on the giving of consent for the payment of insurance indemnities to tenants of municipal property. The decision is final.
1. The Access to Information Programme vs. the Director of the Basin Directorate for Water Management – West Aegean Region
In March 2015, within the annual audit on the institutional web sites, the Executive Director of the AIP filed a request to the Director of the Basin Directorate for Water Management – West Aegean Region (BD WAR) demanding access to provide a copy of the order assigning an official responsible under the APIA and the job description of that official. The Director of the Basin Directorate issued a refusal on the grounds that the APIA did not provide for requesting access to specific documents, but only for access to information.
By Decision No. 1988 as of 16 December 2015, the Administrative Court – Blagoevgrad repealed the refusal of the Director of the BD WAR and obligated him to grant access to the requested documents.
The court upheld that the public body should have granted access to the requested copy of the job description. Regarding the copy of the order, the public body should have applied the procedure of seeking consent and in case that the order contained personal data of the public official, to disclose the requested information by excluding those data. The decision was not appealed and became effective. In February 2016, the Director of the BD WAR provided the requested information.
- Decision No. 1988/16.12.2015 (in Bulgarian), Administrative Court Blagoevgrad, adm. case No. 297/2015.
2. Martin Dimitrov and Petar Slavov vs. the Bulgarian National Bank
In July 2015, the members of parliament Martin Dimitrov and Petar Slavov filed a request to the Governor of the Bulgarian National Bank (BNB). They demanded information on how the remunerations within the bank were defined and specifically, the salaries and the bonuses received by the BNB Governor and the members of the Governing Council in 2014 and 2015. The BNB Governor informed the requestors that the Governing Council had adopted a policy for the definition and disclosure of the remunerations if the governor, deputy governors and the members of the council at a session held on July 30, 2015 and that those were published on the BNB web site. Access to the information about the salaries payed before June 30, 2015 to the members of the Governing Council, including to the Governor, was denied on the grounds of personal data protection, as well as the classification of the requested information as official secret during the specific period. By its decision as of January 2016, the Supreme Administrative Court repealed the partial refusal of the BNB Governor and obligated him to provide the requested information. The court panel assumed that in cases when the public interest is overriding, the 2 cumulative preconditions – third party’s interests and the lack of their consent, were losing their restrictive effect on the right of access to public information and the public body was thus obliged to disclose the requested information. That hypothesis exactly was valid in the particular case and the BNB Governor being an obliged body should have recognized the “overriding public interest” and disclose information about the salaries remunerations received by the members of the BNB Governing Council. The court also pointed out that the salaries of the members of the council and the management of the BNB could not be classified as official secret since they did not fall under any of the categories under Art. 23 of the Law on the Bulgarian National Bank which gave the definition of “official secret” for the aims of the BNB.
The decision was not challenged and came into effect.
- Decision No. 652/20.01.2016 of the SAC(in Bulgarian), Fifth Division, adm. case No. 9103/2015.
3. Krassen Nikolov vs. the Prosecutor’s Office of the Republic of Bulgaria
In August 2015, the journalist from the online media Mediapool filed a request to the Prosecutor’s Office of Bulgaria demanding information about the establishment and composition of the special unit “Anticorruption”. The Prosecutor General did not respond to the request and a complaint against the silent refusal was submitted to the Administrative Court Sofia City (ACSC). By a decision of 15 February the ACSC repealed the silent refusal and returned the request to the Prosecutor’s Office to issue a decision. The court indicated that the obliged body can only issue an explicit act (official document). The court decision entered into force and the information was provided.
4. Alexander Dunchev vs. the Ministry of Agriculture and Food
In September 2014, Alexander Dunchev from the capital of Sofia filed a request to the Ministry of Agriculture and Food (MAF) demanding access to copies of market assessments of state property on which the Ministry carried out different transactions in the period 2008 – 2012. The MAF refused access on the grounds that the assessments are not public information and their provision would violate the copyright of the independent evaluators who prepared them. With a decision as of December 2014, the Administrative Court Sofia City (ACSC) repealed the refusal. The court assumed that the market assessments allow on one hand to know if the ministry took into consideration the assessment of the independent evaluator, and on the other hand if the assessment was made in compliance with the State Property Act. According to the court, the copyright over the assessments could not be an obstacle before the disclosure under the APIA since there is an overriding public interest in the disclosure. The ACSC decision was appealed by the MAF before the Supreme Administrative Court (SAC). The SAC upheld the first instance court decision. In their decision as of March 2016, the supreme justices held that there is an overriding public interest in the disclosure of this information. The APIA provides a presumption of the existence of such an overriding interest of disclosure when the information relates to the commercial activity and concerns the conditions, rights and obligations, terms, and sanctions specified in contracts where one of the contracting parties is an obliged body under the APIA. The decision is final and the information was provided. In April 2016, the requested information was provided to the requestor.
- Decision No. 7309/01.12.2014 of the ACSC (in Bulgarian), Second Division, 32nd Panel on administrative case No. 10032/2014
- Decision No. 2573/09.03.2016 of the SAC (in Bulgarian), Fifth Division on adm. case No. 1386/2015
5. Marieta Sivkova vs. the Municipality of Yambol
In February 2014, Marieta Sivkova from the city of Yambol filed a request to the Municipality of Yambol demanding access to a copy of an out-of-court settlement between the Municipality and a construction company. The secretary of the municipality refused access on the ground that the request does not contain a valid description of the information sought, but only a claim for the provision of a document, which is inadmissible under APIA. By a decision as of January 2015, the Administrative Court – Yambol repealed the refusal. The court assumed that the APIA equals the information contained in a certain document to the document itself as a material carrier. Thus, the request for access to a document equals a request for access to the information contained in it. The first instance court decision was appealed before the Supreme Administrative Court by the secretary of the municipality. By a decision as of March 2016, the SAC upheld the first instance court decision. The court ruled that the information sought is public, since the requester will be able to form an opinion on the activity of the obliged subject related to expenses of budget funds. The decision is final and the information was provided to the requester in April 2016.
- Decision No. 9/22.01.2015 of the Administrative Court – Yambol (in Bulgarian) on administrative case No. 256/2014
- Decision no. 3541/29.03.2016 of the SAC (in Bulgarian), Fifth Division on a. c. no. 3046/2015
6. Viktor Ivanov vs. Government Information Service
In September 2014, Viktor Ivanov, a journalist from the 24 Hoursdaily filed an access to information request to the Government Information Service (GIS) for access to three inspection reports issued by the Council of Ministers General Inspectorate. Access was denied on the grounds that the inspections reports contain the names and the positions of civil servants and thus constitute personal data under the ambit of the Personal Data Protection Act. With a decision as of April 2016, the Administrative Court Sofia – city (ACSC) repealed the refusal. According to the justices, the claims that the documents contain personal data and that the APIA is inapplicable are ungrounded since the subject of the request is not the personal data of the officials, their names and positions, but the inspection reports of the Council of Ministers General Inspectorate. The fact that the reports might contain personal data, whose disclosure required the consent of the third parties did not mean that the whole information should be denied. The court decision was appealed by the CoM before the SAC. With a decision as of February 2016, the Supreme Administrative Court upheld the decision of the first instance court. The supreme justices point the provision of Art. 37, Para. 1, item 2 of the APIA which explicitly provides for the disclosure of information in cases of overriding public interest. Under § 1, item 6 of the APIA, “Overriding public interest is at hand when the requested information aims at the revealing of corruption and abuse of power, increase of transparency and accountability of obliged bodies.” It is apparent from the subject of the request that the requestor aims to form his opinion on the work of the obliged bodies. The court decision is final.
- Decision No. 3007 as of April 29, 2015 (in Bulgarian) of the ACSC, Second Division, 35th Panel, adm. case No. 10101/2014.
- Decision No. 1167 as of February 4, 2016 (in Bulgarian), Supreme Administrative Court, Fifth Division, adm. case No. 8434/2015.
7. Ralitsa Petrova vs. the Sofia Region Prosecutor’s Office
In May 2014, the journalist Ralitsa Petrova from “Legal world” magazine filed a request to the Sofia Region Prosecutor’s office demanding information on who is the overseeing prosecutor who ordered the State Agency National Security (SANS) to investigate on Nikolay Barekov’s signal against the President of the Republic of Bulgaria Mr. Rossen Plevneliev in relation to the latter’s meeting in Vienna with a representative of EVN. Access was refused on the grounds that the information is not public in the meaning of the law, but is protected personal data. The refusal as appealed before the Administrative Court Sofia City which by a decision as of January 2015 dismissed the appeal assuming that the requested information related to third parties and their personal data which did not fall within the scope of the APIA, but under the protection of the Personal Data Protection Act. The first instance court was appealed before the Supreme Administrative Court. By a decision[1]of April the SAC repealed the decision of the ACSC as well as a refusal of the Sofia Region Prosecutor’s office to provide information. The SAC held that the protection of the personal data of the persons occupying public office, among who are the prosecutors, is far lower in comparison to the protection of the rest of the citizens. In this case, despite that the information sought is personal data in the meaning of the Personal Data Protection Act (PDPA), there is no legal impediment for the provision of the information on the name of the respective prosecutor under the APIA. The decision is final.
- Decision No. 154/12.01.2015 as of the ACSC (in Bulgarian),В Second Division, 24th Panel on adm. case No. 6552/2014
- Decision no. 4555/18.04.2016 of the SAC (in Bulgarian), Fifth Division on a. c. No. 3215/2015
8. Architect Vessela Toncheva vs. the Sofia Municipaliy
In August 2013, architect Vessela Toncheva from the city of Sofia filed a request to the Sofia Municipality demanding access to a copy of a Mayor’s order and to a report by the Chief Architect of the capital city on an inspection of the movable objects (kiosks and small shops) in the “Borissova gradina” park. The refusal claimed that the information is of professional (internal) nature and does not have a meaning of its own, since it is not a final administrative act (document ending the respective administrative procedure). By a decision as of October 2014, a panel of the Administrative Court Sofia City (ACSC) repealed the refusal and obligated the Sofia Municipality to provide the requested information. In its judgment, the court ruled that the grounds for refusal under Art. 13, Para. 2 of the APIA are inapplicable since it covers administrative public information, while the request is for official public information contained in the acts of the Mayor and the Chief Architect. The ACSC decision was appealed before the SAC. By a decision as of April 2016, the Supreme Administrative Court held that the first instance conclusions are correct. The requested information is official public informationin the meaning of Article 10 of the APIA. It is contained in acts (documents) of the Mayor and the Chief Architect of the Sofia Municipality, which were issued in implementing their powers given to them by the law. The information concerns the results of the administrative inspection which had been finalized prior to the request. Respectively, the information relates to the grounds for the inspection and to the drafting of a plan-scheme for the park’s movable objects. The said acts (documents) have proper meaning in themselves since they are not bound to a single administrative procedure which they would prepare. The decision is final.
- Decision No. 6363/27.10.2014 of the ACSC (in Bulgarian), Second Division, 34th Panel on a.c. No. 9073/2013
- Decision no. 4897/25.04.2016 of the SAC (in Bulgarian), Fifth Division on a. c. No. 3220/2015
9. Ivan Petrov vs. the Sofia Municipality
In October 2014, Ivan Petrov from the Capital of Sofia filed a request to the Sofia Municipality demanding information on the procedures on coordination of payments of insurance indemnities to tenants of municipal property. The refusal claimed that the information is not public under the meaning of the APIA and was upheld by the Administrative Court Sofia City as a first instance. By a decision as of May 2016, the Supreme Administrative Court repealed the ACSC decision as well as the refusal of the Sofia Municipality’s secretary to provide information. The SAC ruled that the requester seeks public information, related to the management of municipal real estate properties. Its provision will provide the requester with the opportunity to form a personal opinion on the municipality’s actions on management of municipal property and specifically on the giving of consent for the payment of insurance indemnities to tenants of municipal property. The decision is final.
- Decision No. 1836/20.03.2015 of the ACSC, Second Division, 24th Panel on adm. case No. 10941/2014
- Decision No. 5898/17.05.2016 of the SAC (in Bulgarian), Fifth Division on a. c. No. 5305/2015