Cases 2009

CASES REFERRED TO AIP FOR LEGAL ADVICE AND CONSULTATION DURING 2009

Type of Legal Help Provided
In 2009, AIP legal team has provided legal help in the following ways:

• Oral consultations on referred cases – by phone or at the office.
• Written consultations in two ways:

  • written comments on the cases sent by the journalists from AIP coordinators' network - 114;

  • consultation on the cases received via the electronic mail - 122.

• Significant part of the legal help provided by AIP is the preparation of appeals to the court and court representation in cases of complainants requesting the help of the organization.

Number of Cases
The total number of cases in which legal help was provided in 2009 is 327 [1]. Based on their nature and legal qualification we classify them in three groups:

• Most cases relate to practices of non-fulfillment of APIA obligations by the institutions (237 instances);
• Next largest group of cases is related to violations of the right of personal data protection granted by the Personal Data Protection Act (53 instances);
• In a few cases, we have given legal advice with regard to violation of the right to seek, receive and impart information (25 instances) and etc.

From Which Public Institutions Do Information Seekers Mainly Request Information?
The largest number belongs to the central executive power bodies – in 143 cases. In 58 cases, information has been requested from the local self-government bodies; in 25 – from legislative power bodies. In a few cases, information was sought from public-law organizations (21), from the judicial power bodies (15), from the regional units of the executive power bodies (16), etc.

Most Frequently Used Grounds for Refusal
The highest number of registered refusals is that of the silent refusals - 39. Out of the grounded refusals, the most are related to the personal data protection - 19, trade secret exemption - 8, and the third party exemption - 11. The number of the latter has decreased in comparison to the previous year when information was refused in 25 cases. The official secret exemption was used in eight cases; the same is the number of refusals based on the provision of Art. 13, Para. 2 of the APIA.^[2]

Who Requested the Assistance of AIP in 2009?

In 2009, the legal help of AIP was sought mainly by citizens, journalists and nongovernmental organization. Journalists from national and local media and AIP coordinators in the country, also journalists, have most frequently turned to AIP for legal consultations – in 126 cases. In 137 cases, consultations have been provided to citizens. 44 cases were referred by non-governmental organizations. Also, officials from the state administrations have addressed AIP in cases when they had difficulties implementing the APIA.

Specific Characteristics
The number of cases referred to AIP for legal help has increased. From 235 in 2008, their number has reached 327 in 2009. The number of cases related to the right of access to information has also increased – from 151 in 2008 to 237 in 2009. The number of journalists who turn to AIP for legal help and consultation has increased. In 2008, they were 38, while on 2009, they were 126. The number of cases referred by citizens has also increased – from 71 (2008) to 137 (2009).
More and more citizens, nongovernmental organizations and journalists refer their cases to AIP through the electronic mail. The number of written consultations provided by e-mail in 2009 was 122, while in 2008 they were 75.

The number of silent refusals has been increasing recently. This was typical for 2009 as well. The cases in which information is being provided after the submission of an appeal against the silent refusal have been increasing.
The number of refusals grounded in the provision of Art. 37, Para. 1, Item 2 of the APIA, namely the access may undermine the protection of the third party interests and there is no explicit written consent for the disclosure of the requested information has decreased. The reason for the two times decrease in the number of these refusals in 2009 is probably a consequence of the December 2008 amendments to the APIA due to which the practices of ungrounded using of the third party exemption were impeded.

SPECIFIC EXAMPLES

Information About Events of Public Interest

Citizens’ Protests in front of the Parliament

In the beginning of 2009, in front of the building of the National Assembly there were demonstrations. With the help of the social networks, citizens organized protests against the government. The dates of the protests, as well as all the planning were public, as the communication between the participants took place online. The authorities responsible for the security and public order were also informed. During the days of protesting, however, the participants were thoroughly checked and were let to enter the protest area after registration of their personal data which triggered public debate. Days after the protest, citizen William Popov submitted a written request for access to several categories of information related to the measures taken by the Ministry of Interior (MoI) in front of the National Assembly on January 14, 15, and 16, 2009. Among requested data was the number of citizens who had participated in the protests per day (based on information and evaluation done by the MoI); number of MoI officials who took part – policemen, gendarmerie, police dogs and other special units if there were any; expenses made for the organization of the security measures taken by the MoI – total amount and data per item; preliminary risk assessment prepared by experts with regard to provision of security and safeguarding public order for the forthcoming protests in front of the National Assembly, etc. Mr. Popov’s desire to receive that information was ignited while watching the direct coverage of the protests and after comparing the picture with the statements of the Commissioner General of the MoI Pavlin Dimitrov that the ministry had analyzed in advance the risk and based on those analyses, the police had organized their activities. Partial access was provided on the base of which the citizens draw some conclusions. The main conclusion was that due to wrong preliminary assessment of the expected situation in front of the National Assembly, the MoI had spent unnecessarily and unduly big resources for safeguarding the protests.

National Assembly and European Parliament Elections

During the summer of 2009 general parliamentary elections and elections for the European Parliament took place. Questions related to the accessibility of information about the candidates for members of parliament and questions with regard to the election day itself were referred to AIP. The main group who addressed AIP was of journalists of national and local media. The most frequent questions were:

• what type of information related to the funding of the political parties is accessible and where is it available;

• how, to whom, and within what time frames political parties submit their financial reports;

• how and where one can obtain access to information about the income and property of the candidates for members of parliament;

• how and where one can obtain information about the conflict of interest declarations of the candidates for members of parliament.

The regulation of access to the sources of the data which were of particular interest to citizens and journalists in the eve of the elections is relatively easy. These are the Internet sites of the National Audit Office, the National Assembly, The Central Election Commission and the public registers held by different institutions. The cases referred to AIP with regard to the elections raised other important questions like is there a minimum European standard guaranteeing freedom of information during elections. The issue was raised as a result of not allowing journalists in the election premises by the section election commissions in the region of Montana. Issue was raised by the coordinator of AIP in the region Liubomor Yordanov who was concerned that amidst the growing signals for illegal trading of votes such restrictions of the freedom of information would facilitate the violations. The legal consultation was published in the AIP monthly electronic newsletter.[3] We pointed out that the protocols to the European Convention on Human Rights contain a specific provision granting freedom of information during elections. It explicitly states that the contracting parties shall undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. The transparency of the elections is particularly guaranteed by the presence of advocates, observers, and media during the elections and during the counting of votes.

The А/H1N1 Flu Epidemic

 
During the autumn of 2009, an A/H1N1flu epidemic outbreak was announced. The team of AIP was asked what are the responsibilities of the institutions to actively provide information in such cases and if the measures undertaken for informing the citizens are sufficient. We have to note that the majority of the regional inspections for control and oversight of public health took sufficient measures for disseminating important information related to the restriction of the spreading of the new type of A/H1N1 flu. In some regions, letters were prepared and sent to the schools and companies with information about the epidemic outreach and recommendations for actions; educational materials for the citizens with regard to the flu; an exchange of information related to the registration of flu cases was organized.

Environmental Information

A considerable part of the cases referred to AIP for legal help were related to difficulties with obtaining environmental information. We were most frequently addressed by nongovernmental organizations and citizens, working in the field of environment protection. Contrary to the expected greater transparency of the institutions which generate and hold such kind of information, they either did not respond to access to information requests, or refused information which should be public. In one of the cases referred, the nongovernmental organization Green Balkans submitted a request to the Director of the Regional Inspection on Environment and Waters (RIEW)– Haskovo demanding access to his decision related to an evaluation of the necessity for Environmental Impact Assessment (EIA). The evaluation was related to an investment proposal for the construction of a wind generators park Svilengrad in the territory between the villages of Mihalich and Shtit in the Municipality of Svilengrad. The investment offer was submitted to the RIEW by Kableshkovo Energy EOOD. Regardless of the requirements under the Environmental Protection Act that the decisions for evaluation of the necessity for EIA shall be publicly announced, no response was given. That is why with the help of AIP, the silent refusal of the RIEW was appealed as illegal.

In the summer of 2009, Hristomir Ivanov submitted a request to the mayor of the village of Vetrino demanding access to information related to investment (which included digging work and pipe laying) for the digging of a canal along the village which goes to the dam. Ivanov had suspicions that there was no approved investment plan, that the investor did not have a permits for water use and water-taking, etc. With an order issued by the mayor the requested information was refused in the ground that it constituted administrative public information with limited access because it contained opinions and statements related to prospective negotiations to be led by the Municipality of Vetrino, as well as any data relating to it, and was prepared by the administration of the municipality (Art. 13, Para. 2 of the APIA). Against that refusal we also prepared an appeal. We stated that the provision of Art. 13 of the APIA is inapplicable in that case as the overriding part of the information related to the environment and so the Environment Protection Act was applicable and such exemption to the access to information was present.

 
Among the referred cases for access to information, the request submitted by Nikolai Veselinov to the Minister of Environment and Waters is distinguishable. He requested detailed information related to a publication in the Internet site titled The Inspectorate of the Ministry of Environment and Waters found serious wrongdoings in the record management and signing of documents in the RIEW – Sofia. With a decision of the Head of Administration of the Ministry of Environment and Waters (MEW), the information was refused on the ground that it constituted an official secret under the stipulation of Art. 11 of the APIA and related to the preparatory work of acts of the body, and has no significance in itself, thus grounds for refusal was at stake under the stipulation of Art. 13, Para. 2, Item 1 of the APIA. With the help of AIP an appeal against the refusal was submitted. After the parliamentary elections, the new government of the MEW reconsidered the decision and issued a new one by which Mr Veselinov was granted access to the requested information. The proceedings at the Administrative Court – Sofia City were stopped and the ministry was sued to pay the expenses of the citizen.

PROTECTION OF PERSONAL DATA

Personal Data and Police Registration

The protests in the beginning of 2009 raised questions related to the protection of personal data as it turned out that the policemen photoed and registered the identification of the participants in the protests. Affected citizens asked AIP if the police forces had the right to register the data of the participants in the protests; was there the so called police registration and what exactly was it; was the processing of personal data by the Ministry of Interior legal in cases of police registration. Our consultations were based on the provisions of the Regulations for Police Registration issued by the Ministry of Interior on 29.01.2004 . According to it, the police forces have the right to register at the presence of data for intentional crime. In that case there was a violation of the Personal Data Protection Act by the police forces.

Personal Data in Social Networks

AIP was addressed for consultation in one of the first cases in Bulgaria of identity theft in a social network. In September, a 21 years old mother from the town of Plovdiv signals the police that cheaters had used the picture of her one-year old son in the Internet by announcing that he was ill and needs funds for the treatment. The questions to AIP, mainly from journalists, were related to the right of protection of personal data and privacy of citizens in social networks like Facebook, LinkedIn, Netlog, etc. In the provided consultation, we pointed out that the Personal Data Protection Act does not protect us when we have published ourselves information about our personal life (Art. 5, Para. 1, Item 5). Citizens should know that the responsibility for the protection of their own personal data in the social networks is theirs. The development of the information society requires a new type of culture and habits and everybody should be careful with where and what type of information do they publish on the Internet. Once uploaded or published, a material or a picture stops to be personal and everybody can use them. The publication of personal information may have serious consequences for the personal and professional life.

Personal Data in the Conflict of Interests Declarations

In the beginning of 2009, the Prevention and Disclosure of Conflict of Interests Act became effective (PDCIA, promulgated in State Gazette, issue 94, 31. 10.2008) which introduced rules for the prevention and disclosure of conflict of interests of persons holding public positions. Pursuant to Art. 12 of the law, these persons shall submit several explicitly listed declarations: declaration for inconsistency, declaration for private interests, declarations for change of conditions, and declaration for private interest in a particular case. Declarations are accessible to everyone who request information under the provision of Art. 17, Para. 2. Pursuant to that provision, the declarations shall be published on the web site of competent bodies in compliance with the requirements of the Personal Data Protection Act. That provision raised a lot of questions with regard to the implementation of the law. Questions were referred to AIP, especially from public officials. Among the most frequent questions were: which information stated in the declarations under Art. 12 of the PDCIA is protected under the Personal Data Protection Act; which part of the declared information shall be published so that the provisions of the Personal Data Protection Act are respected; are copies of the declarations subject to provision after a request for access to information considering the provisions of the PDPA, etc.

At the same time, the Committee for Personal Data Protection issued two identical decisions after being addressed several times for official statement on the implementation of the problematic provision. The decisions stated that every information in the declarations under Art. 12 , Para. 1 may constitute personal data under the Personal Data Protection Act. That was why, the disclosure of personal data from the declarations shall be done after an explicit written consent of the declaring person, attached to the same declaration. Thus, having the consent of the physical person for the processing of their personal data by publication in the Internet, their rights would be protected to the greatest extent, the Committee stated/

AIP does not accept this interpretation as it contradicts the spirit of the law. The obligation established by Art. 17, Para. 2 of the PDCIA for disclosure of the declarations means nothing but the publication of declared data. No additional personal data like Personal Identification Number shall be published, however.