During 2018, 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. “Lords of the Air” v. the Mayor of Blagoevgrad Municipality
 
In the beginning of 2016, GLOBAL FRAME OOD – producer of the TV show “Lords of the Air” filed a request to the mayor of Blagoevgrad Municipality demanding access to information on the main parameters of the 2012 contract concluded by the Blagoevgrad Municipality with the subject – provision of municipal property – spots for the installation of retail outlets of the Lafka network, financial conditions, and the terms of the contracts.
Partial access was granted to the requested information grounded in the explicit refusal of the third party – party to the contract.
By a decision of 19 June 2016, the Administrative court – Blagoevgrad repealed the partial refusal of the mayor of Blagoevgrad. The court held that in this case there is an overriding public interest of disclosure in the meaning of § 1, item 5, letter "f" of the Additional Provisions (AP) of the APIA, since the requested information is related to the parties, subcontractors, the object, price, rules and obligations, the conditions, terms, sanctions determined by a contract to which one of the parties is an obliged subject under the law. According to the court, the law provides a presumption for the existence of overriding public interest of disclosure in such cases. The mayor was obliged to disclose the information or establish the lack of an overriding public interest. The decision has been appealed by the mayor before the Supreme Administrative Court.
By a decision as of September 2019, the SAC upheld the decision of the first instance court. The supreme justices upheld the arguments related to the assessment of the overriding public interest. Until the contrary has been proven, public interest in the disclosure is demonstrated, when it is related to the parties, the subcontractors, the object, the price, the rights and the obligations, the conditions, the terms, the sanctions specified in the contracts under which one party is an obliged body under Art. 3 of the APIA – the mayor of Blagoevgrad undoubtedly being such body. The court decision is final. At the end of September 2018, the mayor of Blagoevgrad provided the "Lords of the Air" with the requested information in its entirety.
  1. Decision no. 899/20.06.2016 of the АС Blagoevgrad, on a. c. no. 153/2016, judge Mariana Mitseva
  2. Decision No. 10748/04.09.2018 of the SAC (in Bulgarian), Fifth Division, adm. case No. 10191/2016, judge-rapporteur Zdravka Shumenska

2. 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 Healthcare, 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. With a Decision as of October 2018, the Supreme Administrative Court (SAC) upheld the Decision of the first instance court. The justices assumed as correct the conclusions of the first instance that the requested information constituted official public information with a significance of its won and the refusal grounded on the exemption of Art. 13, Para. 2, item 1 of the APIA is groundless. The court also assumed that the administrative body should have done an assessment of the overriding public interest in the disclosure. The decision is final.
  1. Decision No. 1988/24.03.2017 (in Bulgarian), SAC, Second Division, 48th panel, adm. case No. 12539/2016, judge Kalina Petsova
  2. Decision No.  11625/02.10.2018 of the SAC (in Bulgarian), Fifth Division, adm. case No. 6497/2017, judge – rapporteur Anna Dimitrova.

3. Elena Hristova v. Ministry of Economy
 
In September 2016, Elena Hristova (Sofia) filed a request to the Minister of Economy demanding access to information from the Irregularities Register, maintained by the Managing Authority of the Operational Programme "Innovation and Competitiveness 2014-2020". Specifically, the requestor wishes to receive registered 2016 irregularities - date of the alert, description of the violation, check stage, actions taken (if any) and conclusion (if any).
The Deputy Minister of Economy refuses access to the requested information. The refusal states that the system (the part of which is the register) has been developed in a way that prevents external users from consulting. It is pointed out that according to the Law on the Management of the European Structural and Investment Funds and the Regulation on the Administration of Irregularities of the European Structural and Investment Funds, the information in the register is used only by certain officials in each managing authority and by the authorities carrying out inspections and imposing control. Lastly, the refusal states that the information in the register is restricted because it is official public information related to the operational preparation of the acts of the managing authority (exemption under Art. 13, Para 2, item 1 of the APIA).
By decision of January 2018, the Supreme Administrative Court repealed the refusal and returned the request to the Minister of Economy to issue a new decision in line with the mandatory instructions on the interpretation and application of the law. The court panel assumed that the case is not about information related to the operational preparation of acts of the administration but us about information subject to creation and holding by the body in compliance with its obligations to manage the funds from the European Structural and Information Funds (ESIF). The management should be implemented while ensuring publicity and transparency pursuant to Art. 2 of the Law on the Management of the EU Structural and Investment Funds. According to the court, the grounds for refusal under Art. 13, para. 2, item 1 of the APIA is inapplicable as the requested information does not contain opinions, recommendations, opinions and consultations, which does not fall within the category of the provisions of the APIA.
The magistrates accept that the other argument on which the information was denied (the information in the register of irregularities is used only by certain officials in each managing authority and by the inspection and control authorities) is also unfounded, since in the Regulation on the Administration of Irregularities of the European Structural and Investment Funds do not prohibit the provision of information from the register to persons outside the control and control bodies. Access to this information is therefore free and is provided under the APIA. The decision came into force, the information was provided.
  1. Decision No. 318/09.01.2018 of the SAC (in Bulgarian), Fifth Division on adm. case No. 12383/2016, judge – rapporteur: Iliana Slavovska


4. Zornitsa Markova (Capital daily) v. the Ministry of Economy
 
In the summer of 2016, Zornitsa Markova, a journalist from the Capital Daily filed a request to the Minister of Economy asking for access to the correspondence between the Ministry of Economy (MI) and the commercial companies of which the ministry was the principal owner, regarding the amount of money and in which banks the state bodies and state enterprises had entrusted their deposits in 2009 and 2010.
The Minister of Economy refused to grant access to the requested information on the grounds that it was not public and that the APIA was not applicable for access to it.
Initially, the Supreme Administrative Court (SAC) left complaint without consideration on the grounds that it was overdue, but subsequently that SAC's ruling was overruled by a five-member panel of the court and the case was returned back for proceedings.
Upon re-examination by a three-member panel, the court delivered a decision on the.
By decision of October 2018, the SAC repealed the refusal and returned the request to the Minister of Economy for a new decision in line with issued court instructions on the interpretation and application of the law. The judges assume that the correspondence of the Ministry of Finance (MF) and the Ministry of Economy and Energy (MEE)[1] and, subsequently, that of the Ministry of Economy with the companies in which the latter is the principal and for the provision of information on what amount of money and in which banks the deposits of those state authorities and state-owned enterprises have been deposited as of 31.09.2009 and respectively as of 31.03.2010 is an activity related to the fulfillment of the duties of the administration in the Ministry of the Economy. Therefore, the authority had incorrectly assumed that it was not public information, as far as it possesses the character and the features of official public information. The decision is subject to appeal.
  1. Decision No. 12927/24.10.2018 (in Bulgarian) of the SAC, Fifth Division, adm. case No. 11138/2016, judge – rapporteur: Ilyana Slavovska


5. Ivan Petrov v.  the Sofia Urban Mobility Center
 
In November 2015, Ivan Petrov (Sofia) filed a request to the municipal company Sofia Urban Mobility Center (UMC) asking for a copy of the Instruction on Passengers’ Inspection in the public transport in Sofia.
The refusal of the Executive Director of the UMC stated as factual grounds that the requested information is official public information related to the company's operating activities. At the same time, it is stated that the information is not public under the APIA. As the legal basis for the refusal, Art. 37 of the APIA was stated.
By decision of May 2016, the Administrative Court Sofia – City (ACSC) repealed the refusal and returned the file to the director of the UMC with instructions for granting access. The Court held that the reasons given in the refusal were ungrounded, inconsistent, devoid of any legal basis and generally irrelevant to the dispute. According to the court, the decision of refusal is devoid of legal basis, as the refusal is grounded in the provision of Art. 37 of the APIA, which in the its first paragraph has three hypotheses and none of which coincided with the stated factual reasons for the refusal.
The stated factual grounds that the requested information is administrative and related to the center’s operating activities do not exist in the quoted provision as a ground for refusal. Thus, there is a contradiction in the legal basis and the factual ground, thus making the refusal deprived of any legal basis for its issuing.
The decision of the ACSC was challenged by the Deputy Mayor of the Sofia Municipality (as the principal of the UMC).
By decision of February 2018, the Supreme Administrative Court found the cassation appeal of the Deputy Mayor of the Sofia Municipality is unfounded and upheld the decision of the ACSC. Supreme justices agree that the dispute of the case is whether access to administrative information is granted under APIA. Every citizen has the right to access public information, which is divided into administrative and official, pursuant to the APIA. Access to administrative public information is free - Art. 13, para. 1 of the APIA. In the particular, the hypotheses under Art. 13, para. 2 of the APIA for limiting the right of access to information regarding preparatory documents, which do not have significance on their own, are not present. In its refusal, the obliged body has referred to Art. 37 of APIA, stating that the information is not public. In this case, however, the information is public within the meaning of Art. 2, para. 1 of the APIA, since it refers to the order and the manner in which the UMC Executive Director has designated to authorized persons to exercise control powers and inspections of passengers in the public transport of the Sofia Municipality. The first instance court had rightly pointed out that the facts set out in the refusal were inconsistent with the legal grounds. The decision is final. At the end of February, the UMC provided the requestor with a copy of the instruction.
  1. Decision No. 3583/26.05.2016 of the ACSC, Second Division, 33rd Panel, adm. case No. 11746/2015, judge Galin Nestorov;
  2. Decision No. 1539/05.02.2018, SAC, Fifth Division, adm. case No. 8024/2016, judge – rapporteur Yovka Drazheva


6. Emilia Dimitrova v. the Secretary of the Municipality of Sevlievo
 
In December 2017, Emilia Dimitrova (journalist from Sevlievo Online and AIP coordinator for Gabrovo District) filed a request to the Municipality of Sevlievo asking for information about the officials sent on business trips abroad in 2017. She requested information about
-          Officials’ position, the exact dates of the trip, the purpose of the trip, way of travel (by airplane, car, bus, etc.) and number of days spent abroad;
-          Information on the costs incurred in each of the trips for visas, transport and per diems;
-          Information on the visits of foreign delegations and guests to the municipality of Sevlievo in 2017 according to dates, purpose of the visit, the position of the guests, the number of days spent and the costs incurred by the municipality to ensure the visit.
The Secretary of the municipality granted partial access to the requested information - the total amount of funds spent from the municipal budget for official trips of municipal officials abroad and the total amount of funds for provision of visits of official foreign delegations in the Sevlievo municipality. The rest of the information - the details of each trip abroad and of foreign visits, is denied on the grounds that it is a protected personal data.
By decision of March 2018 of the Gabrovo Administrative Court, the partial refusal was repealed and the request was returned to the municipal secretary for a new decision in compliance with the court instructions on the interpretation and application of the law. The court accepts that the refusal on the grounds of personal data is unlawful, as the information requested concerns the activities of the local authorities and the local administration, which means that the trips for which data are sought are official and refer to specific activities related to the realization of the activity of the municipality itself. Therefore, the information concerns the citizens and their organizations. These trips and visits are funded by the municipality budget. The budget is raised from taxes paid by citizens and legal entities. The latter are entitled to the requested information in order to be able to find out how the administration works, what for their money indirectly go in the end, how are the international relations of the municipality formed and maintained, and what kind of persons were invited from abroad, what were the purposes of their visits and for what period.
The decision also noted that the municipality had not conducted a third-party consent procedure or took into account the possibility of granting partial access to the requested information.
The decision came into force, and the information was provided.
  1. Decision No. 25/09.03.2018 of the Administrative Court – Gabrovo on adm. case No. 7/2018, judge: E. Kirova - Todorova


7. Dototheya Dachkova v. Commission for Combating Corruption and the Withdrawal of Illegally Acquired Property (KPKONPI)
 
In September 2017, Dorothea Dachkova (journalist from Sega daily) filed a request to the Chairman of the Commission for the Withdrawal of Illegally Acquired Property (KONPI) demanding information on the Commission's expenditure incurred in the proceedings for the revocation of the property acquired by the banker Tsvetan Vassilev.
The Chairperson of CONPI refuses to provide the requested information on the grounds that it was “official secret.”
By decision of March 2018, the ACSC repealed the refusal and returned the request to the Chairman of the KONPI with instructions to provide the requested information. The court accepts that it is public by definition – as it concerns expenses incurred by the commission in connection with the proceedings for revoking the property acquired by Tsvetan Vassilev. These expenditures represent public budget funds and the commission owes transparency in their spending, respectively the provision of information to citizens under the APIA, which makes it impossible to share the view that the APIA is not applicable to the activity of the commission. The requested information is not an official secret within the meaning of the Protection of Classified Information Act, since the simple reference to Art. 26, para 1 of the PCIA does not justify the existence of a ground for refusal. In the present case, it is unclear why the defendant assumes that the information on the costs incurred in the specific case is an official secret or how the provision of such information would harm the interests of the State or third parties, especially since the provision under the APIA does not constitute "unregulated access," but rather the opposite. The costs incurred cannot be classified as trade secrets either. No analysis has been made by the obliged body if there is an overriding public interest in the presence of which it owes the provision of the information, despite the existence of a ground for refusal (which is not found). The burden of the refutation of the presumption for the overriding public interest in the disclosure is entrusted by the law to the obliged authority. The decision is subject to appeal.
  1. Decision No. 1448/06.03.2018 (in Bulgarian), Administrative Court Sofia City, Second Division, 40th Panel, adm. case No. 12102/2017, judge: Dilyana Nikolova


8. “Bivol” v. “Customs” Agency
 
In April 2016, the website for investigative journalism “Bivol” filed a request to the “Customs” Agency demanding access to provide information whether cigarettes produced in Bulgaria have been exported to the United Arab Emirates, through which border crossings, with what kind of transportation, and what is their total quantity.
The Director of the “Customs” Agency refused to provide access on the ground that the information sought was statistical and tax data, which constituted administrative and trade secret.
By a decision of 19 October 2018, the Administrative Court Sofia – City (ACSC) repealed the refusal. The court held that no secrets were concerned since what was sought was information whether cigarettes were exported and what their total amount is. These data are aggregated and do not aim at individualizing the specific exporter of Bulgarian cigarettes, but just informing the requesters whether cigarettes have been exported to certain contractors registered outside Bulgaria, through which border crossings, and in what amount. The court noted that the information sought is not statistical, since it was not created under the Statistics Act. With this regard, the refusal did not contain arguments about classifying it as such. The information sought is not tax or trade secret either, since its disclosure would not reveal data from the commercial activity of a specific company, as far as no information is requested on which are the specific exporting companies or who is the Bulgarian cigarette manufacturer. On another hand, the court found that there is an overriding public interest in the disclosure of the information, since it undoubtedly aims at increasing the transparency and accountability of the “Customs” Agency in the customs control which it carries out, including on the excise goods such as cigarettes. The information would provide the opportunity to assess whether the Agency implements lawfully and appropriately its legal obligations on customs control. The decision was appealed by the “Customs Agency”.
By a Decision as of March 2018, the Supreme Administrative Court upheld the decision of the first instance court. The judges agree that the Agency's arguments for the existence of tax and statistical secrets are unfounded. The nature of the information sought - whether Bulgarian cigarettes are exported, when and in what amount, of two companies registered in the UAE - is undoubtedly not protected by the Tax-Insurance Procedure Code because it does not reveal facts about tax and insurance information of liable persons and entities; nor the value and type of individual assets and liabilities; nor other data such as bank accounts, income amount, taxes paid, etc. Apparently, the public information sought by the requestors is not a statistical secret, as it is not information obtained as a result of a statistical survey. The court decision is final.
  1. Decision no. 6342/19.10.2016  of the ACSC, Second Division, 32 panel on a. c. no. 6170/2016, judge: Maria Nikolova
  2. Decision No № 4001/28.03.2018 of the SAC (in Bulgarian), Fifth Division, adm. case No. 14366/2016


9. Boryana Hristova v. the Mayor of the Sofia Municipality
 
In June 2016, Boryana Hristova from the Bulgarian Institute of Legal Initiatives filed a request to the Sofia Municipality demanding a copy of the declaration one of the deputy mayors had filled in under the Law on Prevention and Ascertainment of Conflict of Interests. 
The refusal of the Mayor was grounded in the claim that the requested information was not public under the meaning of the APIA.  By a decision as of November 2016, the Administrative Court Sofia City repealed the refusal and returned the request back to the mayor for consideration in line with the court instructions on the interpretation and application of the law. The court assumes that the information which had been sought and access to it refused is public and is related to the public life in the country. Particularly, the information constituted administrative public information under the meaning of Art. 11 of the APIA and no grounds for restricting the access to it were found.  The Sofia Municipality challenged the ACSC decision before the Supreme Administrative Court.
By a decision as of April 2018, the SAC upheld the decision of the first instance court repealing the refusal. The court found it as undoubtful that the requested information – a copy of the conflict of interest declaration of a deputy mayor of the Sofia Municipality – was in its essence public under the meaning of Art. 2, Para. 1 of the APIA since it is related to the public life in the country and allows the citizens to form their own opinion about the work of the obliged body with regard to its powers and responsibilities. The requested information was administrative under the meaning of Art. 11 of the APIA, as it is collected, generated and held in relation to the official information, as well as within the activities of the authorities and their administrations (Art. 11 in connection with Art. 9. Para 1 of the APIA).
According to the norms of the material law, the conclusion of the first instance court is that the mayor of the Sofia Municipality has owed a grounded decision on the request, as well as the provision of the requested information, which the legislator foresaw to be publicly announced on the website of the authorities in compliance with the Personal Data Protection Act (Art. 17, Para. 1 and Para. 2 of the Law on the Prevention and Ascertainment of Conflict of Interests - repealed). The court decision is final.
  1. Decision No. 6822/07.11.2016 of the ACSC, Second Division, 22 panel, adm. case No. 7346/2016, judge Desislava Kornezova;
  2. Decision No. 4305/03.04.2018 of the SAC (in Bulgarian), Fifth Division, adm. case No. 1072/2017, judge – rapporteur: Emanoil Mitev


10. Tanya Petrova (Sega daily) v. the Ministry of Finance
 
In March 2016, Tanya Petrova (a journalist from Sega daily) filed a request to the Ministry of Finance, requesting information about information on the financial justifications to three decisions of the Council of Ministers adopting draft legislation and two decrees for allowing additional expenses and payments from the state budget.  The Director of the “Human Resources and Administrative Services” Directorate from the Ministry of Finance (MoF) grounded the refusal in the exemption stated by Art. 13, Para. 2, item 1 of the APIA – the information is of preparatory character and does not have significance of its own.  By a decision of 29 June 2016, the ACSC repealed the refusal and returned the request to the Director obligating him to provide the requested information. The court held that the information indeed is preparatory information which does not have a proper meaning falling in the scope of Article 13, par. 2, item 1 of the APIA. However, the access to it should not be limited, since there is an overriding public interest of its disclosure. According to the court there is an overriding public interest of disclosure since the provision of the information aims at increasing the transparency and accountability of the obliged body in the meaning of § 1, item 6 of the Additional Provisions of the APIA.  The court decision was challenged by the Ministry of Finance before the Supreme Administrative Court (SAC). 
By a decision as of April 2018, the SAC upheld the first court instance decision. The court found the ACSC rightly accepted that according to Art. 13, para. 1 of the APIA the access to administrative public information is unrestricted. However, to the extent that the administrative body points out the grounds of Art. 13, Para. 2, item 1 of the APIA to restrict the access to this information, it should have assessed whether the grounds under Art. 13, Para. 4 § 1, item 6 of the APIA had not applied - the overriding public interest in the disclosure. This was not done by the obliged body. The court found that the administrative body has an obligation to assess the absence and existence of an overriding public interest within the meaning of § 1, item 6 of the APIA, regardless of whether the requestor has referred to the cited text, as far as the provision of Art. 13, para. 4 of the APIA does not limit the assessment to be made only at the reference of the requestor and given the obligation of the body to issue its act in compliance with its obligation under Art. 35 of the Administrative Procedure Code (APC) – after clarification of the facts and circumstances relevant to the case and the principles of legality (Article 4 of the  APC), authenticity (Article 7 of the APC) and the administrative beginning of the administrative process (Article 9 of the APC). The decision is final.
  1. Decision No. 4562/29.06.2016 of the ACSC, Second Division, 39th Panel, adm. case No. 4499/2016, judge: Miglena Nikolova;
  2. Decision No. 4393/03.04.2018 of the SAC (in Bulgarian), Fifth Division, adm. case No. 10353/2016, judge-rapporteur Ilyana Slavovska



[1] In the course of the proceedings, the Ministry of Economy and Energy was restructured into Ministry of Economy and Ministry of Finance