Here you can find information about the most important cases supported by AIP, which have been decided by the courts in favor of the complainants in 2023. The cases are presented with a brief description of the submitted information request, the received response and the relevant court judgment. Copies of the court judgments are also available.
More information about cases supported by AIP in 2023 can be found in the News section.
1. Anita Cholakova (actualno.com) vs. the Regional Health Inspectorate – Vratsa
With an information request dated 24 March 2023, Anita Cholakova requested the Regional Health Inspectorate – Vratsa (RHI – Vratsa) to provide her with a copy of a statement of findings from an inspection carried out on 19 December 2022 at the Kozloduy NPP’s medical facility for treatment of the NPP’s employees.
With a decision dated 28 March 2023, the Director of the RHI refused access on the grounds that the statement of findings from the inspection was a preparatory document which formed part of an ongoing administrative procedure.
With Judgment No 120 of 18 May 2023, the Smolyan Administrative Court repealed the refusal.
The court held that the facts and circumstances, as well as the conclusions regarding legal violations, contained in a statement of findings from an inspection, or the conclusion that there were no legal violations, cannot be considered an opinion or a consultation. Such information has significance of its own and allows legal persons to form an opinion on the activities of an obliged body under the APIA, in this case related to the effectiveness of the control activities carried out by the body in question, as well as related to the subsequent actions taken by that body and, consequently, related to the effectiveness of the exercise of its powers.
The court judgment is final.
- Judgment No 120/18 May 2023 of the SCAC, Panel I on administrative case No 116/2023, Judge Ignat Kolchev.
2. Petar Marchev (Kazanlak) vs. the Burgas Municipality
With an information request dated 23 January 2023, Petar Marchev requested the Burgas Municipality to provide access to the following information:
- Photocopies of the evaluation cards of the members of the Committee on evaluation of projects submitted in the Third Session 2022 under Category 5;
- The evaluation according to the point system, developed for the Burgas Municipal Culture Fund, of Petar Marchev's film project for the musical "Shear Me If You Can";
- The evaluation cards of the other two competing film projects; and
- The minutes of the sessions of the evaluation Committee.
With Decision No ЕД-483/1/24 February 2023, the Deputy Mayor for Culture, Tourism and Sport of the Burgas Municipality refused to grant access to the requested information. The grounds for the refusal were that any information that citizens are entitled to receive in the framework of proceedings related to administrative services was excluded from the scope of the Access to Public Information Act (APIA), and the applicant had applied for funding via the procedure in question, therefore he was not entitled to receive more information than the one he had been given when he had been informed that his project had not been approved.
With Judgment No. 205/12 June 2023 of the Stara Zagora Administrative Court, the refusal was repealed and the case was remitted to the Burgas Municipality for a new ruling on the access to information request, together with instructions on the correct interpretation and application of the law.
The court held that in view of the tasks, structure and functioning, activity, budget and financing of the Municipal Culture Fund as specified in the "Rules on the work activities of the Culture Fund of the Municipality of Burgas” adopted by the Burgas Municipal Council, there could be no doubt that the requested information was related to public life in the Republic of Bulgaria. The second prerequisite for qualifying the requested information as public information within the meaning of Art. 2, par. 1 of the APIA was also applicable – by obtaining it, the applicant would form an opinion on the activities of the obliged body in relation to the functioning of the Culture Fund of the Burgas Municipality and the expenditure of the Fund's resources.
The court held that there were no grounds to refuse the requested information as it did not fall within any of the limitations on the right of access to information under the APIA.
The court judgment is final.
- Judgment No 205/12 June 2023 of the Stara Zagora Administrative Court on administrative case No 148/2023, Judge Rayna Todorova
3. Civil Movement “BOETS” vs. Bulgargaz EAD 2
With an information request dated 7 September 2023, BOETS requested information (systematized in 9 items) regarding the correspondence and negotiations held with natural gas suppliers, most notably GAZPROMEXPORT.
After the first refusal of Bulgargaz EAD to provide the requested information — justified with the argument that the company was not an obliged body under the APIA — was repealed by the court with a judgment dated 13 January 2023, the Director of Bulgargaz EAD once again refused access, this time invoking the trade secret exemption.
With Judgment No 99/16 June 2023 of the Vidin Administrative Court, the partial refusal was repealed and the case was remitted to Bulgargaz with instructions to grant access to information on 7 of the items in the information request.
The court held that in this case there was evidence of an overriding public interest, and that there were numerous publications on the Internet pointing to such an interest. The measures taken by the Council of Ministers in the period in question (establishment of an Energy Crisis Headquarters), as well as the measures taken by the National Assembly in the immediately preceding period (establishment of an ad hoc committee whose report is available on the Internet) were also noteworthy. Thus, not only had the presumption of an overriding public interest not been rebutted in this case, but evidence of such interest had been collected.
The court ruled that the decision was unlawful in its entire appealed part, as the company had not proven that the requested information constituted a trade secret. The arguments given by the obliged body were merely theoretical as to the applicable legal provisions, but were not supported by any factual findings, not a single fact was set out, still less was any evidence adduced to justify the defendant's final conclusion. The decision was delivered in the complete absence of any factual basis for its adoption, which prevented the court from carrying out any verification of the facts and circumstances set out, since none were in fact set out. The grounds for issuing the administrative act are essential both for the exercise of the information requestor's rights of defence and for the court to rule on the arguments raised in the concrete case. The reproduction of the content of legal provisions and their analysis without reference to specific findings of fact does not constitute reasoning in support of the issued administrative act. It is not for the court to ascertain the content of the documents requested for the first time in the proceedings and to make an assessment of each of them as to the applicability of the Access to Public Information Act (APIA), still less to do so by incorporating all the information in the event that it is established that there is a need to provide the requested public information in the form of partial access, which is precisely what is established in the present proceedings.
The court judgment is final.
- Judgment No 99/16 June 2023 of the Vidin Administrative Court on administrative case No 37/2023, Judge Biliyana Pantaleeva
4. Nataliya Dimitrova (Blagoevgrad) vs. the Blagoevgrad Municipality
With an information request dated 22 March 2023, Nataliya Dimitrova requested the Blagoevgrad Municipality to provide information, systematized into 10 items, concerning the bicycle paths and playgrounds built in a particular park in the city.
With a decision dated 18 April 2023, the Mayor of the Blagoevgrad Municipality refused to provide full access to the requested information. The refusal was not substantiated, but instead contained vague descriptions of planned facilities and facilities under construction.
With Judgment No 1151/26 June 2023, the Blagoevgrad Administrative Court revoked the refusal and remitted the information request to the Mayor for a new ruling, together with instructions on the correct interpretation and application of the law.
The court found it indisputable that the requested information fell within the scope of the APIA, which is why even the public body had provided such information to the reqeustor by means of the contested decision, however it was established that the information provided, with the exception of that under item 1 of the decision, was incomplete. For example, under item 2 of the information request, no information was provided on the sources and amount of funding for the playgrounds and no indication was given of the amount of funding envisaged. Under item 3, no information was provided on the procedure to be followed for the renovation and equipping of the playgrounds. No information at all was provided under items 4 and 5. Under items 6, 7, 8 and 9, the requestor requested copies of specific documents or their equivalents and the body limited itself to clarifying whether the sites were under construction or not. At the same time, no document was provided, for example, showing their lawful placement in the park, which is in fact what the requestor requested. With regard to item 10, the public body did not indicate in its decision the information sought – what was the total amount paid for the Velopista since the start of its operation and up to the date of the request for access to public information. From which source is the maintenance financed, and which head of the municipal budget are the funds coming from? This inevitably points to the conclusion that the appeal is well founded and has legal basis and should be upheld, and the contested decision, excluding item 1 thereof, should be repealed as having been issued in compliance with the procedural rules but contrary to the substantive law and its purpose. Pursuant to Article 41, par. 1 of the APIA, the public body is required to make a new ruling on the points raised in the information request. In the new ruling, the body should provide clear and specific information on each of the items, including the specific documents requested.
The court judgment is final.
- Judgment No 1151/26 June 2023 of the Blagoevgrad Administrative Court on administrative case No 461/2023, Judge Dimitar Uzunov
5. Desislava Nikolova (Capital newspaper) vs. the University Multiprofile Hospital for Active Treatment "Dr. Georgi Stranski" EAD – Pleven
With an information request dated 5 January 2023, Desislava Nikolova (Capital newspaper) requested the University Multiprofile Hospital for Active Treatment (UMHAT) "Dr. Georgi Stranski" EAD – Pleven to provide access to the following information:
- How many clinical pathways, outpatient procedures, examinations, consultations, surgeries, or other types of medical activity paid for by the National Health Insurance Fund (NHIF) has each of the board members and deputy executive directors participated in?
- How many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activity paid for by the National Health Insurance Fund (NHIF) has the Rector of the Medical University – Pleven participated in?
- The size of the highest and lowest annual remuneration of a doctor with and without additional material incentive (AMI) in 2021 and currently in the medical institution; and
- The size of the highest and lowest annual remuneration of a nurse with and without additional material incentive (AMI) in 2021 and currently in the medical institution.
With Decision No РД-16-54/19 January 2023, the Executive Director of UMHAT refused to provide the information referred to in items 1, 3 and 4 of the information request with the argument that it constituted personal data, and the third parties to which these personal data relate had expressly disagreed to the disclosure of the information, and there was no overriding public interest in the disclosure.
With Judgment 3177/12 May 2023 of the SCAC, the refusal was repealed and the request was remitted to the defendant for a new ruling, together with instructions on the correct interpretation and application of the law.
The court pointed out that notwithstanding what is stated under item 1 of the contested decision — namely that information was provided in compliance with Art. 31, par. 4 of the APIA due to an explicit refusal by the relevant third parties, and there were provided links to declarations submitted by the members of the Board of Directors in accordance with the Anti-corruption and the Forfeiture of Illegally Acquired Property Act — in reality the information requested was different: the request was to provide information month-for-month regarding how many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activities paid for by the NHIF has each of the Board Members and each deputy executive director participated in; consequently, there is a refusal to provide the information under item 1 of the information request. The contested decision did not state the legal grounds on which the refusal was based, and the requestor’s objection in that regard was therefore well-founded. The factual grounds for the refusal point to Art. 37, par. 1, item 2 of the APIA, which provides that access to public information can be refused in cases where such access would affect the interests of a third party and the latter has expressly objected to the provision of the information, unless an overriding public interest exists. In the present case, the public body sought the consent of the members of the Board of Directors, who objected to providing access, and, accordingly, the contested decision sets out reasons related to the fact that the information sought affects the interests of third parties. At the same time, the public body did not consider, in accordance with the principles of Art. 31, par. 5 of the APIA, whether there was a statutory exception related to the existence of an overriding public interest within the meaning of § 1, item 6 of the Additional Provisions of the APIA. Pursuant to Art. 31, par. 5 of the APIA, the obliged body under Art. 3 of the APIA is obliged to set out reasons for rebutting the presumption that an overriding public interest exists. Where there is an overriding public interest, the two cumulative prerequisites for restricting the right of access — prejudice to the interests of a third party and lack of the latter’s consent — do not apply and the public body is obliged to provide the requested public information. The existence of an overriding public interest is defined in § 1, item 6 of the Additional Provisions of the APIA: where the requested information is intended to reveal corruption and abuse of power, or to promote the transparency and accountability of the bodies under Art. 3 of the APIA. In the present case, it should be considered that through the requested information the requestor can form an opinion on the activities of the medical institution, which, albeit a business company, spends public funds, since health services are funded by the NHIF budget. Disclosure of the requested information would ensure transparency in the spending of public funds. In this regard, the court considered that there was no issue with the provision of the information referred to in item 1 of the information request in respect of the members of the Board of Directors, insofar as the law aimed to facilitate transparency and accountability of the bodies referred to in Art. 3 of the APIA regarding the decisions taken by them, and to ensure the lawful and expedient performance of the legal obligations of these same bodies.
The court held that the information requested under items 3 and 4 of the information request should also be provided, insofar as no reference was made to the remuneration of specific individuals. While it is true that doctors and nurses are not senior public officials, the request did not seek information about specific individuals, but regarding the size of the highest and lowest remuneration they receive. The size of remunerations in the medical institutions financed from the NHIF budget is undoubtedly connected with public life in the country. Therefore, in the present case, no personal data are involved, and the requested information is only concerning the expenditure of budgetary funds and will enable the requestor to form an opinion on the activity of the obliged body.
The court judgment is final.
- Judgment No 3177/12 May 2023 of the SCAC, Second Division, Panel 72 on administrative case No 1476/2023, Judge Mariya Stoeva