During 2017, 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. Association “Nongovernmental Organizations Center in Razgrad” vs. the Supreme Judicial Council
In February 2015, the Association “Nongovernmental Organizations Center in Razgrad” filed a request to the Supreme Judicial Council demanding access to copies of the rental contracts with all the annexes signed by the SJC for accommodating members of the council who did not possess housing in the territory of the Capital of Sofia. The Chief Secretary of the SJC refused to grant access to the requested information on the ground that the contracts contained information about third parties, requiring their consent for the disclosure. Two of the property owners had expressed such a consent within the legal timeframe, and due to the explicit dissent or lack of response from the rest of the property owners and the tenants, the Chief Secretary assumed that the requested information should not be disclosed. By a decision as of June 29, 2015, the Administrative Court Sofia City (ACSC) repealed the refusal and returned the request to the SJC Chief Secretary with instructions for the interpretation and application of the law. The court ruled that there was overriding public interest in the disclosure and information should be provided excluding the personal data of the third parties. The ACSC decision was appealed by the SJC Chief Secretary before the Supreme Administrative Court (SAC). By a decision as of January 2017, the SAC upheld the decision of the first instance court. The SAC concluded as well that there was overriding public interest in the disclosure of the information pointing out that the SJC received annually funding from the consolidated state budget and the Bulgarian citizens (taxpayers) had the right to information about the spending of public funds and the beneficiaries of public funds should provide information in this regard in view of enhancing transparency and accountability. The SAC decision is final. As a result, by Decision No. 6/ as of 31.01.2017, the SJC Chief Secretary provided full access to 7 rental contracts with their annexes, effective at the time of the filing of the request.
2. Alexander Dunchev vs. the Ministry of Environment and Waters
In September 2014, the environmentalist Alexander Dunchev filed a request to the Ministry of Environment and Waters (MOEW), demanding access to a legal analysis related to the settlement of agreements between the state and property owners, whose property was located and had an impact on the environment in the national parks. Instead of issuing a decision on the request, the Ministry left it without consideration claiming that it was not a valid request for access to public information under the ambit of Art. 2 of the APIA or a request for access to environmental information under the ambit of Art. 19 of the Environmental Protection Act (EPA). By a ruling as of May 20, 2015, the Supreme Administrative Court repealed the decision of the minister to leave the request without consideration and returned it for issuing a decision on the merit. Subsequently, the Minister explicitly refused to provide access to the requested information on the grounds that in its essence it was not public information or information related to the environment. The refusal as well stated that the access to the requested information should be restricted pursuant to the provision of Art. 13, Para. 2, item 1 of the APIA as it was administrative public information related to the preparatory work of the acts of the public body and had no significance of its own. The refusal further stated that the requested information was related to a third party which had explicitly dissented its disclosure. The requested information would affect the interests of the legal company that had prepared the analysis as far as the analysis required specialized legal expertise of highly qualified lawyers and thus the document should be considered copyright.
By decision as of August 29, 2016, a Three-member Panel of the SAC repealed the refusal of the minister and obligated him to provide access to the requested information. The court ruled that undoubtedly and unarguably, the information related to the national parks – Rila, Pirin, and Central Balkan, is related to the public life in the Republic of Bulgaria. According to the court panel, the preparation of a “Legal Analysis of the Buildings, Premises, and other Objects in the Territory of the National Parks Rila, Pirin, and Central Balkan” by highly qualified lawyers could not subject the document to copyright in the ambit of Art. 3, Para. 1 of the Copyright and Related Rights Act since the legal analysis was not a product of science, which is a result of creative activities.
With a decision as of February 16,[1]the Supreme Administrative Court upheld the repealing of the refusal of the Minister of Environment and Waters (MOEW) to grant access to a legal analysis concerning the settlement of the State's relations with owners of property located and impacting on the environment in the national parks. The information was requested by the ecologist Alexander Dunchev. The refusal was grounded in the fact that, by its nature, the requested information was not publicly or environmentally related. Moreover, the refusal also stated that access to this information should be restricted, according to the provision of Art. 13 Para. 2, item 1 of the APIA - insofar as it concerns official public information related to the operational preparation of the acts of the body that has no significance of its own. Apart from those reasons, the refusal stated that the information sought would affect the interests of the law firm, in so far as the legal analysis involves specialized legal work of highly qualified lawyers, and the document drawn up by them should be considered as the author's legal right. The Court held that the requested information did not concern the third party who produced the analysis as it did not imply disclosure of information on the structure, organization of the work and the activities of the law firm. Therefore, the explicit dissent of the law firm to provide the requested information in the case is not sufficient to motivate the refusal of the administrative body, especially since there are no considerations for the absence of overriding public interest within the meaning of § 1, item 6 of the Additional Provisions of the APIA. The information requested is collected and analyzed under a contract mandated by the MOEW, and the assignment involves the management and spending of state funds. Furthermore, the information requested concerns the activities of the public body as they relate to possible management decisions in relation to the settlement of the State's relations with the owners of property located within the national parks. Therefore, it must be assumed that there is an overriding public interest in disclosure, as the transparency and accountability of the Ministry will be increased by providing the requested information. The motivation of the authority to refuse access on the grounds of Art. 13, Para. 2, item 1 of the APIA were correctly found by the three-member panel as illegal, since this exemption is applicable up to two years from the creation of the information, and more than two years have elapsed from the preparation of the analysis until the refusal. The decision is final.
3. Iliya Valkov v. the President of the Republic of Bulgaria
In January 2017, the journalist Iliya Valkov (BiT) filed a request to the President of the Republic of Bulgaria demanding access to the information contained in the minutes and the sound recording of consultations on the state's financial condition chaired by the President on July 24, 2014. The Chief Secretary refusal was based on the fact that the minutes contained classified information within the meaning of Art. 25 of the Protection of Classified Information Act (PCIA). The refusal also indicated that President Rosen Plevneliev’s statement was published on the official page of the presidency, which provided information on the consultations carried out in a manner that satisfies the public interest.
By decision as of June 5, 2017, the Administrative Court Sofia City (ACSC) repealed the refusal of the Chief Secretary of the President of the Republic of Bulgaria. The court accepted that the presidency had unlawfully invoked the classification of information as a state secret to refuse access. Undoubtedly, the information is related to public life - it related to the debates and decisions about the emerging banking crisis - an issue of particular social significance. According to the court, disclosure of that information by July 2014 would have lead to an increase in public tensions with unpredictable consequences. However, all events have passed about three years ago, and the data presented by the participants in the 14 July 2014 consultation meeting on the financial stability of the state and national security have lost their relevance. The Court observes that the refusal did not state the reasons for the classification of the information, the refusal of access in these cases could not be "presumed". The law does not exempt the institutions but, on the contrary, obliges them to state reasons on a factual basis, including the grounds for refusal, related to the alleged existence of classified information. On the other hand, it is clear from the evidence in the case that, in any event, the minutes do not contain information that can be classified as "state secret", the decision states. For example, the views and opinions of those present at the meeting cannot be such a secret. No judgment has been made to provide at least partial access to the minutes. President Plevneliev's statement published in 2014 cannot be considered as partial access because it lacks specificity and does not contain the reproduction of the position of the representatives of the executive power and the parliamentary parties or the proposals for solving the problem. The court decision has not been appealed and has entered into force, the information has been provided.
4. Martin Dimitrov, Peter Slavov, and Metodi Andreev v. the Ministry of Finance
In December 2015, the MPs Petar Slavov, Martin Dimitrov, and Metodi Andreev filed a request to the Ministyr of Finance (MF) demanding access to information on the maximum capacity of the tax warehouses in the country by types of fuels and the concentration of ownership for 2014 and 2015. The refusal of the MoF was grounded in the fact that this information constitutes a tax-insurance secret within the meaning of the Tax Insurance Procedure Code and the APIA is not applicable for access to it.
With a Decision as of March 9. 2019, the ACSC upheld the refusal of the MoF, assuming that there is a special procedure for access to the requested information, which is why the APIA is inapplicable.
With a decision as of March 21, the SAC repealed the decision of the first instance court as well as the refusal and returned the file to the MoF for a new decision with instructions on the interpretation and application of the law. The judges agree that in this case there is no special procedure for access to the requested information that might exclude the application of the APIA. Consequently, in concluding that the APIA is not applicable at all, the ACSC has ruled against the substantive law. The SAC decision also stated that the requested information is public and the procedure under Art. 31 of the APIA applies for seeking the consent of third parties concerned. The court decision is final.
5. Bulgaria Without Smoke Association v. the Ministry of Healthcare
In September 2016, Bulgaria Without Smoke Association filed a request to the Ministry of Healthcare (MH) demanding access to information on the composition and the sessions of a working group preparing amendments to the Health Act to improve the controls on the compliance with the ban on indoor smoking and some open public places.
The refusal of the Chief Secretary of the MH was motivated by the fact that this information is related to the operational preparation of the acts of the body and has no significance of its own - a ground for refusal under Art. 13, Para. 2, item 1 of the APIA.
With a decision as of March 24, the ACSC repealed a refusal by the Ministry of Healthcare (MH). The court found that the information was requested with the purpose of forming an opinion on the work of an already established inter-institutional working group, which was made public by the Minister of Health. The task of the working group was to gather opinions and recommendations from a variety of interested groups, including from outside the government, such as associations and business representatives, to make the most beneficial changes to the Health Act in the section on the control of the smoking ban. Therefore, the result of the actions of this group, the data of which and whose work so far has been requested, will be the draft law for amendments to the Health Act. The draft amendments would be submitted to the National Assembly and then would be subject to subsequent voting and eventual approval by the competent body. Therefore, the court panel accepts that the final act, which will end the work of the committee at the level of the Ministry of Health, is the draft proposal for amendments to the law and not the amendment itself, as long as the latter is not within its competence. That is, the information on the participants in this inter-institutional working group has a significance of its own because the structure of its composition will help to form an opinion on the representation of the various interested groups - public and private, respectively the performance of its activities. The criteria for the selection of the participants are also information which has significance of its own. The decision also states that the minutes from the working group's work also contain information with significance of its own on both the subject matter of the working group, and on the degree of completion of its work. The court therefore considers that there are not any prerequisites for imposing the restriction under Art. 13, Para 2, items 1 and 2 of the APIA, which was grounds for the MH refusal.
A cassation appeal was filed against the court decision by the Ministry of Health and administrative case No 6497/2017 of the Supreme Administrative Court, Fifth Section was formed, scheduled for hearing on 19.09.2018.
1. Association “Nongovernmental Organizations Center in Razgrad” vs. the Supreme Judicial Council
In February 2015, the Association “Nongovernmental Organizations Center in Razgrad” filed a request to the Supreme Judicial Council demanding access to copies of the rental contracts with all the annexes signed by the SJC for accommodating members of the council who did not possess housing in the territory of the Capital of Sofia. The Chief Secretary of the SJC refused to grant access to the requested information on the ground that the contracts contained information about third parties, requiring their consent for the disclosure. Two of the property owners had expressed such a consent within the legal timeframe, and due to the explicit dissent or lack of response from the rest of the property owners and the tenants, the Chief Secretary assumed that the requested information should not be disclosed. By a decision as of June 29, 2015, the Administrative Court Sofia City (ACSC) repealed the refusal and returned the request to the SJC Chief Secretary with instructions for the interpretation and application of the law. The court ruled that there was overriding public interest in the disclosure and information should be provided excluding the personal data of the third parties. The ACSC decision was appealed by the SJC Chief Secretary before the Supreme Administrative Court (SAC). By a decision as of January 2017, the SAC upheld the decision of the first instance court. The SAC concluded as well that there was overriding public interest in the disclosure of the information pointing out that the SJC received annually funding from the consolidated state budget and the Bulgarian citizens (taxpayers) had the right to information about the spending of public funds and the beneficiaries of public funds should provide information in this regard in view of enhancing transparency and accountability. The SAC decision is final. As a result, by Decision No. 6/ as of 31.01.2017, the SJC Chief Secretary provided full access to 7 rental contracts with their annexes, effective at the time of the filing of the request.
- Decision No. 4516/29.06.2015 of the ACSC (in Bulgarian), Second Division, 32nd Panel on administrative case No. 3764/2015, Judge: Maria Nikolova
- Decision No. 40/04.01.2017 of the SAC (in Bulgarian), Fifth Division on adm. case No. 10987/2015, Rapporteur: Sibila Simeonova
2. Alexander Dunchev vs. the Ministry of Environment and Waters
In September 2014, the environmentalist Alexander Dunchev filed a request to the Ministry of Environment and Waters (MOEW), demanding access to a legal analysis related to the settlement of agreements between the state and property owners, whose property was located and had an impact on the environment in the national parks. Instead of issuing a decision on the request, the Ministry left it without consideration claiming that it was not a valid request for access to public information under the ambit of Art. 2 of the APIA or a request for access to environmental information under the ambit of Art. 19 of the Environmental Protection Act (EPA). By a ruling as of May 20, 2015, the Supreme Administrative Court repealed the decision of the minister to leave the request without consideration and returned it for issuing a decision on the merit. Subsequently, the Minister explicitly refused to provide access to the requested information on the grounds that in its essence it was not public information or information related to the environment. The refusal as well stated that the access to the requested information should be restricted pursuant to the provision of Art. 13, Para. 2, item 1 of the APIA as it was administrative public information related to the preparatory work of the acts of the public body and had no significance of its own. The refusal further stated that the requested information was related to a third party which had explicitly dissented its disclosure. The requested information would affect the interests of the legal company that had prepared the analysis as far as the analysis required specialized legal expertise of highly qualified lawyers and thus the document should be considered copyright.
By decision as of August 29, 2016, a Three-member Panel of the SAC repealed the refusal of the minister and obligated him to provide access to the requested information. The court ruled that undoubtedly and unarguably, the information related to the national parks – Rila, Pirin, and Central Balkan, is related to the public life in the Republic of Bulgaria. According to the court panel, the preparation of a “Legal Analysis of the Buildings, Premises, and other Objects in the Territory of the National Parks Rila, Pirin, and Central Balkan” by highly qualified lawyers could not subject the document to copyright in the ambit of Art. 3, Para. 1 of the Copyright and Related Rights Act since the legal analysis was not a product of science, which is a result of creative activities.
With a decision as of February 16,[1]the Supreme Administrative Court upheld the repealing of the refusal of the Minister of Environment and Waters (MOEW) to grant access to a legal analysis concerning the settlement of the State's relations with owners of property located and impacting on the environment in the national parks. The information was requested by the ecologist Alexander Dunchev. The refusal was grounded in the fact that, by its nature, the requested information was not publicly or environmentally related. Moreover, the refusal also stated that access to this information should be restricted, according to the provision of Art. 13 Para. 2, item 1 of the APIA - insofar as it concerns official public information related to the operational preparation of the acts of the body that has no significance of its own. Apart from those reasons, the refusal stated that the information sought would affect the interests of the law firm, in so far as the legal analysis involves specialized legal work of highly qualified lawyers, and the document drawn up by them should be considered as the author's legal right. The Court held that the requested information did not concern the third party who produced the analysis as it did not imply disclosure of information on the structure, organization of the work and the activities of the law firm. Therefore, the explicit dissent of the law firm to provide the requested information in the case is not sufficient to motivate the refusal of the administrative body, especially since there are no considerations for the absence of overriding public interest within the meaning of § 1, item 6 of the Additional Provisions of the APIA. The information requested is collected and analyzed under a contract mandated by the MOEW, and the assignment involves the management and spending of state funds. Furthermore, the information requested concerns the activities of the public body as they relate to possible management decisions in relation to the settlement of the State's relations with the owners of property located within the national parks. Therefore, it must be assumed that there is an overriding public interest in disclosure, as the transparency and accountability of the Ministry will be increased by providing the requested information. The motivation of the authority to refuse access on the grounds of Art. 13, Para. 2, item 1 of the APIA were correctly found by the three-member panel as illegal, since this exemption is applicable up to two years from the creation of the information, and more than two years have elapsed from the preparation of the analysis until the refusal. The decision is final.
- Decision No. 9591/29.08.2016 of the SAC (in Bulgarian), Fifth Division, adm. case No. 11143/2015, Rapporteur Emanoil Mitev;
- Decision No. 1959/16.02.2017 of the SAC (in Bulgarian), Five-member Panel– ІІ College, adm. case No. 12841/2016, Rapporteur: Marieta Mileva
3. Iliya Valkov v. the President of the Republic of Bulgaria
In January 2017, the journalist Iliya Valkov (BiT) filed a request to the President of the Republic of Bulgaria demanding access to the information contained in the minutes and the sound recording of consultations on the state's financial condition chaired by the President on July 24, 2014. The Chief Secretary refusal was based on the fact that the minutes contained classified information within the meaning of Art. 25 of the Protection of Classified Information Act (PCIA). The refusal also indicated that President Rosen Plevneliev’s statement was published on the official page of the presidency, which provided information on the consultations carried out in a manner that satisfies the public interest.
By decision as of June 5, 2017, the Administrative Court Sofia City (ACSC) repealed the refusal of the Chief Secretary of the President of the Republic of Bulgaria. The court accepted that the presidency had unlawfully invoked the classification of information as a state secret to refuse access. Undoubtedly, the information is related to public life - it related to the debates and decisions about the emerging banking crisis - an issue of particular social significance. According to the court, disclosure of that information by July 2014 would have lead to an increase in public tensions with unpredictable consequences. However, all events have passed about three years ago, and the data presented by the participants in the 14 July 2014 consultation meeting on the financial stability of the state and national security have lost their relevance. The Court observes that the refusal did not state the reasons for the classification of the information, the refusal of access in these cases could not be "presumed". The law does not exempt the institutions but, on the contrary, obliges them to state reasons on a factual basis, including the grounds for refusal, related to the alleged existence of classified information. On the other hand, it is clear from the evidence in the case that, in any event, the minutes do not contain information that can be classified as "state secret", the decision states. For example, the views and opinions of those present at the meeting cannot be such a secret. No judgment has been made to provide at least partial access to the minutes. President Plevneliev's statement published in 2014 cannot be considered as partial access because it lacks specificity and does not contain the reproduction of the position of the representatives of the executive power and the parliamentary parties or the proposals for solving the problem. The court decision has not been appealed and has entered into force, the information has been provided.
- Decision No. 3750/05.06.2017 (in Bulgarian), ACSC, Second Division, 40th Panel, adm. case No. 1781/2017, judge Dilyana Nikolova.
4. Martin Dimitrov, Peter Slavov, and Metodi Andreev v. the Ministry of Finance
In December 2015, the MPs Petar Slavov, Martin Dimitrov, and Metodi Andreev filed a request to the Ministyr of Finance (MF) demanding access to information on the maximum capacity of the tax warehouses in the country by types of fuels and the concentration of ownership for 2014 and 2015. The refusal of the MoF was grounded in the fact that this information constitutes a tax-insurance secret within the meaning of the Tax Insurance Procedure Code and the APIA is not applicable for access to it.
With a Decision as of March 9. 2019, the ACSC upheld the refusal of the MoF, assuming that there is a special procedure for access to the requested information, which is why the APIA is inapplicable.
With a decision as of March 21, the SAC repealed the decision of the first instance court as well as the refusal and returned the file to the MoF for a new decision with instructions on the interpretation and application of the law. The judges agree that in this case there is no special procedure for access to the requested information that might exclude the application of the APIA. Consequently, in concluding that the APIA is not applicable at all, the ACSC has ruled against the substantive law. The SAC decision also stated that the requested information is public and the procedure under Art. 31 of the APIA applies for seeking the consent of third parties concerned. The court decision is final.
- Decision No. 1614/09.03.2016 of the Administrative Court Sofia – City (in Bulgarian), Second Division, 41th Panel, adm. case No. 740/2016, judge: Luiza Hristova;
- Decision No. 3390/21.03.2017 (in Bulgarian), SAC, Fifth Division, adm. case No. 4602/2016, judge-rapporteur Donka Chakarova
5. Bulgaria Without Smoke Association v. the Ministry of Healthcare
In September 2016, Bulgaria Without Smoke Association filed a request to the Ministry of Healthcare (MH) demanding access to information on the composition and the sessions of a working group preparing amendments to the Health Act to improve the controls on the compliance with the ban on indoor smoking and some open public places.
The refusal of the Chief Secretary of the MH was motivated by the fact that this information is related to the operational preparation of the acts of the body and has no significance of its own - a ground for refusal under Art. 13, Para. 2, item 1 of the APIA.
With a decision as of March 24, the ACSC repealed a refusal by the Ministry of Healthcare (MH). The court found that the information was requested with the purpose of forming an opinion on the work of an already established inter-institutional working group, which was made public by the Minister of Health. The task of the working group was to gather opinions and recommendations from a variety of interested groups, including from outside the government, such as associations and business representatives, to make the most beneficial changes to the Health Act in the section on the control of the smoking ban. Therefore, the result of the actions of this group, the data of which and whose work so far has been requested, will be the draft law for amendments to the Health Act. The draft amendments would be submitted to the National Assembly and then would be subject to subsequent voting and eventual approval by the competent body. Therefore, the court panel accepts that the final act, which will end the work of the committee at the level of the Ministry of Health, is the draft proposal for amendments to the law and not the amendment itself, as long as the latter is not within its competence. That is, the information on the participants in this inter-institutional working group has a significance of its own because the structure of its composition will help to form an opinion on the representation of the various interested groups - public and private, respectively the performance of its activities. The criteria for the selection of the participants are also information which has significance of its own. The decision also states that the minutes from the working group's work also contain information with significance of its own on both the subject matter of the working group, and on the degree of completion of its work. The court therefore considers that there are not any prerequisites for imposing the restriction under Art. 13, Para 2, items 1 and 2 of the APIA, which was grounds for the MH refusal.
A cassation appeal was filed against the court decision by the Ministry of Health and administrative case No 6497/2017 of the Supreme Administrative Court, Fifth Section was formed, scheduled for hearing on 19.09.2018.
- Decision No. 1988/24.03.2017 (in Bulgarian), SAC, Second Division, 48th panel, adm. case No. 12539/2016, judge Kalina Petsova