Cases 2010

CASES REFERRED TO AIP FOR LEGAL ADVICE AND CONSULTATION DURING 2010

Type of Legal Help Provided
In 2010, 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 - 42;

  • consultation on the cases received via the electronic mail - 137.

• 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 within the period January – December 2010 is 328.[1] Based on their nature and legal qualification, we classify them in three groups:

• Most cases relate to practices of non-fulfillment of the APIA obligations by the institutions (248 instances);

• Next largest group of cases is related to violations of the right of personal data protection granted by the Personal Data Protection Act (44 instances);

• In a few cases, we have given legal advice with regard to violation of the right to seek, receive and impart information(22 instances),and etc.

(See: Statistics from the Data Base of Access to Information Programme 2010).
 

From Which Public Institutions Do Information Seekers Mainly Request Information?
The number of cases in which information seekers request information from the central executive power bodies and the local self-government bodies (mayors and municipal councils) is the largest – 129and 73 casesrespectively. In a few cases, information was sought from regional units of the executive power bodies (23), public-law organizations (20), public-law entities (16), from the judicial power bodies (14), etc.

Most Frequently Used Grounds for Refusal

The highest number of registered refusals is that of the silent refusals – 48. Out of the grounded refusals, the most are related to the third party interests exemption(Art. 37, Para. 1, Item 2 of the APIA) – 19 and the personal data protection – 15. The official secret exemption was used in five cases; the same is the number of refusals based on respectively the trade secret exemption and the provision of Art. 13, Para. 2 of the APIA.^[2]

Information Requestors

AIP experience shows that the APIA was most frequently used by citizens, journalists, and nongovernmental organizations. In 2010 again, citizens have most frequently turned to AIP legal team for assistance – in 144 cases. In 109 cases, journalists from local and national media, as well as AIP coordinators in the country also journalists, have sought the help of AIP. The number of cases referred by nongovernmental organizations is 44.
Also, officials from the state administrations have addressed AIP when they had difficulties implementing the APIA – in 19 cases.

Specific Characteristics

There is a continuing tendency that the number of cases referred to AIP for legal help increases in comparison to the previous years. From 235 in 2008, their number has reached 328 in 2009 and 2010 (the number for the two successive years is the same). There is also an increase in the number of cases related to the right of access to information – from 151 in 2008, to 237 in 2009, and 248 in 2010.

The largest number of cases referred to AIP for legal advice and consultation came from citizens. In 2009, they were 138, and in 2010 they were 144.

 
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 2010 they were 137.

It was already mentioned that the number of silent refusals during the past year remains high.

SPECIFIC EXAMPLES

Cases Related to Information

about Wrongdoings and Corruption

During the past ten years, the APIA has turned into one of the main tools of citizens and journalists to seek and reveal information about important topics which have remained beyond the range of public vision. In 2010, with the help of the information requestors, light was cast over public issues which were triggering suspicions for wrongdoings and power abuse.

Transparency of State Companies Funds

With an access to information request, 11 chief editors of newspapers and magazines, members of the Union of Publishers in Bulgaria, demanded that the Minister of Finance disclose the banks in which the largest state companies keep their money. Thus, some of the biggest printing media in the country urged for transparency of the management of state companies money among which the Bulgarian Posts PLC, the National Electric Company EAD, the Bulgartabac Holding AD, the Sofia Airport EAD, the Bulgargaz EAD, etc. The chief editors requested information about the amount of the deposits of ministries and state companies and about the criteria for selecting the operating banks.

The urge for the request came after media found out that as of the middle of 2009, over 50 percent of the money of state companies was deposited in three Bulgarian banks. Those media publications increased the suspicions that the money of the state was managed in darkness, without public procurements which inevitably created conditions for corruption. The information requested by the chief editors was disclosed with a decision of the Ministry of Finance.

On the Trail of a High Government Official Degree Diploma

During the autumn of 2010, news was spread that the degree diploma of the former executive director of the State Fund Agriculture, Kalina Ilieva, had been falsified. Based on media sources, and more precisely of 168 Hours weekly, Kalina Ilieva had not graduated the German university signified in her diploma which meant that she did not have the necessary education to hold that former government position. Pursuant to Bulgarian legislation, higher education completed abroad should be legalized by an authorized body which had been done. Based on her diploma and the letter of certificate issued by the Ministry of Education, Youth, and Science, Ilieva was managing for more than a year the state body operating the EU farm aid for Bulgaria.

In terms of those suspicions, journalists Darinka Nikolova and Daniela Teofanova from 168 Hours weekly turned to AIP for legal advice with regard to an access to information request by which they aimed at revealing the facts around Kalina Ilieva’s education abroad. The journalists requested the Ministry of Education, Youth, and Science to provide access to information regarding the legalization of Ilieva’s education completed at a German university, more precisely documents evidencing the graduation of the particular university, the name of that university, which was the year of earning a Master’s Degree, etc. The ministry transferred the request to the responsible National Center for Information and Documentation, while in the meantime the consent of Kalina Ilieva was sought for disclosing the requested information. Since such consent had not been given, the Center explained that they would not be able to decide on the request and left it without a response.

With the help of AIP, the silent refusal was challenged before the Administrative Court Sofia City. Despite the silence of the Ministry and the National Center, the suspicions about the falsified diploma were confirmed with a statement of a representative of theBerlin Institute of Mechanics and Economics.

Municipal Council of

Convicted Municipal Councilors

During the summer of 2010, the journalist Diana Boncheva from Tundzhanets newspaper at the town of Yambol requested the Chairperson of the Municipal Council of Yambol to provide copies of the criminal conviction certificates of all the members of the Council. Her interest was triggered by the fact that the Chairperson informed her in a phone conversation in June 2010 that the number of municipal councilors who had been convicted of a crime was six and that two of the convictions became effective during their term in the local parliament. Initially, access to the requested information was refused on the ground that the certificates had been sent to the Municipal Election Committee. The refusal was challenged in court and few days before the hearing the Chairperson reconsidered his decision and granted full access to the requested information to the journalist.

Seeking Trade and Financial Information

In several cases during the past year, the requestors obtained access to contracts of high public significance. Still, obtaining access to such information is an exception regardless of the obligation under the APIA for providing information when there is overriding public interest in the disclosure.

Access to the Contract with Siemens Bulgaria

For New Identification Documents

In April 2010, Genka Shikerova, journalist from the bTV requested access to documents related to the contract between the Ministry of Interior and Siemens EOOD and related documents for producing new ID documents of Bulgarian citizens. The contract triggered the interest of the media due to the delay in the production of the new ID documents which led to long queues and public dissatisfaction. In response to the request, the Ministry of Interior granted the bTV reporter access to 150 pages of documents for review, including the annex to the contract as of November 2009. Access was restricted only to that part of the information connected to the security of the ID cards.

Access to Contracts for Utilization of Old Ammunition

Citizen William Popov requested access to copies of all contracts signed by the Ministry of Defense for utilization of out of use and unnecessary ammunition for the period 01.01.1990 – 31.12.2009 with Bulgarian or foreign contractors. Information about purchased equipment and/or technology for the utilization of ammunition was also demanded with the request – by type and price, as well as information about financial aid, equipment, technologies, or expertise granted by other countries to Bulgaria free of charge for utilization of old ammunition. Full access to the requested information was granted. William Popov obtained 14 contracts for utilization of old or unnecessary ammunition at the amount of 30 million BGN (15 million Euro). From the response to the other demands, it turned out that the Ministry of Defense had signed a 294,000 BGN (150,000 Euro) contract with the Bulgarian Hydrogen Society for development, integration, and testing of an experimental Equipment for Gunpowder Utilization. Also, three utilization projects at the amount of 3 million USD were implemented with the US State Department aid, with a leading contractor TEREM EAD. The response of the ministry also stated that in 2010 nearly 10,000 units of small and light weapons and 1.5 million ammunitions were destroyed.

Information About Remunerations of Experts Under

the EU Operational Program “Administrative Capacity”

In 2010, the journalist Rossen Bossev from Capital weekly requested the Supreme Judicial Council (SJC) for information about the implementation of projects under the EU funded Operational Programme “Administrative Capacity.” The SJC provided partial access to the requested information. The names of the experts who had received remuneration under the program were refused on the ground of personal data protection. The refusal was appealed in the court as unlawful since the 2008 APIA amendments made the recipients of funds under the European Union projects and programs obliged bodies. Thus, such information should not be refused on the ground of the “protection of third party’s interests.” In the meanwhile, the journalists filed a request demanding the same information but from the Ministry of Finance. The ministry granted access to the information about the experts.

Cases Which Should Not Happen

Ten years after the adoption of the APIA we are still witnessing cases referring to the past. Correct application of the APIA provisions may be a very hard task for some administrations, even if the case did not require complex assessment. During the year, we have assisted information seekers who had problems indicative of the existence of some “harmful” practices.

The Police Investigates APIA Requestors

In the end of 2010, a group of citizens, who had requested information from the Mayor of the Municipality of Varna, were investigated by the Regional Directorate of the Ministry of Interior – Varna.

Within a campaign for transparency of the discussions on the Urban Development Plan of the Municipality of Varna, 20 citizens filed form-requests with identical content, demanding from the mayor the minutes of all public discussions on the Draft Urban Development Plan of the Municipality of Varna on paper, as well as the audio records of the discussions. In the meanwhile, some of the requestors, Yulian Cholakov, chairperson of the Association for Optimization of Justice and Administration SOPA;Architect Kalina Pavlova (member of the Steering Committee of the Union of Architects in Bulgaria – Varna Chapter), and the citizen Nikolay Tsvetkov were summoned to the Regional Directorate of the Ministry of Interior – Varna at the “Economic Crimes” office of the “Pre-legal Trial” Department. The citizens were summoned as witnesses within the pre-legal proceedings No. 218/2010, initiated against unknown perpetrator. The witnesses were refused information about the grounds for the pre-trial proceedings. They were informed that proceedings were started by an appeal of the “Legal Services” Directorate in the Municipality of Varna. Citizens were interrogated on who made the form-request, did they have apprentices, where was the form drafted and printed, who disseminated it. They were made to give signature specimens for graphology analysis.

Access to Information Programme disseminated a declaration to express disagreement with such unacceptable actions against information requestors. Pursuant to the Bulgarian and international legislation, only the court has the power to solve access to information arguments.

Restricting Access With an Order

In the beginning of the summer of 2010, AIP coordinator in the town of Montana, Lyubomir Lyubenov, sent us a copy of the letter by the Director of the Regional Agricultural Service to all municipal agricultural services in the region. The Director was reminding all regional agricultural directorates, as well as the municipal services, that they “did not have the authority to provide information about their activities.” The same letter also conveyed the instructions that citizens and journalists who seek information from these services without signifying specific interest should be transferred to the Ministry of Agriculture and Food. AIP sent an official letter to the Regional Agricultural Service – Montana stating that instructions of that kind violated the provisions of the APIA which with the 2008 amendments introduced explicit obligation for all regional units of the executive power authorities to provide access to information on their own and on their own grounds (Art. 3, Para. 1 of the APIA). AIP recommended that the Regional Director reviewed the existing practices and ceased the restriction of free access to information on a regional level. As a result, we received a response stating that the practices of referring information requestors to the Ministry had been ceased and “regional and municipal services in the region of Montana conscientiously apply the APIA with all its requirements.”

Access to Information

Only After a Legal Status Certificate

Another example is the case of Association Zachatie (Conception), a nongovernmental patients' organization, working in the area of reproduction health. In November 2010, the organization filed a request to the Commission for Protection against Discrimination (CPD) demanding access to copies of all CPD decisions on an alleged age discrimination allowed by Regulation No. 28 as of June 20, 2007 for Activities in Assisting Reproduction by the Minister of Health Care. In order to provide the requested documents, the Commission demanded a copy of the Legal Status Certificate of the association. Commission's practices to provide information to legal persons only after a submitted legal status certificate was confirmed by the response we received from its administration within AIP performed audit on institutional web sites and filing electronic requests:

...the request for access to public information is in your capacity of representative of an organization registered under the Law for Non-Profit Legal Bodies. Consequently, you should present evidence for the existence of such an organization, as well as legal status certificate valid to the moment of filing the request, including the methods and persons of representation pursuant to the requirements of Art. 27, Para. 2, Items 4 and 6 in relation to Art. 18 of the Administrative Procedure Code. These provisions are applicable in the current case since the provision of public information at the request of any person is an administrative procedure for issuing an individual administrative act and requires a special form of authorized representation.”

The practices of the CPD as described above contradict not only the provisions of the APIA, but also the court practices,^[3] according to which access to public information is a phenomenon intrinsic to the civil society. This means that even informal organizations of citizens could request and have the right to receive any type of public information which is to their interest, regardless of the fact that they are not explicitly listed in the legal norm. That is why the APIA lacks a provision requiring organizations of citizens requesting access to information to prove its legal status.

Personal Data Protection

In 2010, AIP team also provided legal help and consultation in cases related to the personal data protection. We were addressed by citizens who had concerns about their personal data being unlawfully processed, but also by personal data administrators who had questions regarding the correct application of the provisions of the Personal Data Protection Act. An employee from a national university hospital asked for consultation regarding the overall internal regulation of the personal data protection in the hospital. AIP team advised the drafting of internal rules for personal data processing, the organization and description of the hospital registers, as well as necessary measures which the management should take to guarantee lawful processing of the data of the patients.

Personal Data Protection and the Schengen Information System

In the beginning of November 2010, Bulgaria was included in the Schengen Information System (SIS). The topic triggered the interest of the journalists. The AIP team was often addressed with questions about the content, operating mechanism of the system and citizens' rights in processing their personal data. What exactly is the SIS and whose personal data are processed? What could citizens do if they had suspected violation of their rights at the processing of data in the SIS? Which are the national competent bodies, responsible for the operation of the system and which is the oversight body with regard to the lawful processing of personal data? Those were some of the most frequently asked questions.

The Schengen Information System is the largest shared database on maintaining public security, supporting police and judicial co-operation and managing external border control. The SIS contains entries, called “alerts,” on wanted and missing persons, lost and stolen property and entry bans. Everybody has the right of access to their personal data contained in the SIS if any had been collected. If citizens suspect unlawful processing of their personal data in the SIS, they should address the national body responsible for the collection of the data (in Bulgaria this is the Ministry of Interior) or the national authority for protection of personal data (in Bulgaria – the Commission for Personal Data Protection).

Personal Data Protection and Video Surveillance

Are video records from the cameras installed in banks, shops, ATMs, hospitals, schools, and kindergartens personal data subject to protection? Should personal data administrators declare the processing of these data in the public register of data administrators maintained by the Commission for Personal Data Protection (CPDP)? Such questions were referred to AIP by citizens, as well as data administrators subject to registration to the CPDP. Citizens inquired about the cases and places where video surveillance was allowed, while the administrators questioned about their obligations with regard to video surveillance personal data protection. According to a written statement by the CPDP as of July 27, 2010, each administrator processing personal data by producing a video record from a surveillance tool is obliged to keep and declare a specific register Video Surveillance. The administrators should inform the persons about the video surveillance with signs put in a visible way containing information, identifying the respective personal data administrator, including contact information.

Right to Information and Personal Data Protection

In several cases, AIP has provided representation in proceedings before the Commission for Personal Data Protection. The newspaper Rositsa from the town of Sevlievo has requested our assistance. In 2009, the newspaper had published part of the bulletin of the Ministry of Interior which contained information about arrested persons for alleged robbery identified with the first letters of their names. After “recognizing” themselves in the publication, the perpetrators filed an appeal to the Commission for Personal Data Protection arguing that the newspaper had violated their right to privacy by publishing information about their arrest containing their initials. The Commission dismissed the appeal against the journalists motivating their decision in the fact that initials are not enough to identify a person in an unambiguous way. That is why there was no violation of the Personal Data Protection Act.