Provision of legal help is among the priorities in Access to Information Programme activities. That part of the annual report focuses on the cases referred to us for legal consultation by citizens, journalists, and nongovernmental organizations who have had difficulties exercising their right of access to information. In some of these cases, AIP has provided legal help at the initial phase of the search for information and the legal team has given advice and/or has prepared a request for access to information. In other cases, we have helped after a refusal for provision of information.
(See: Statistics from the Data Base of Access to Information Programme 2011).
Number of Cases Referred for Legal Help
The number of cases referred to AIP for legal help within the period January – December 2011 is 330.
Depending on the characteristics and the legal qualification, three types of cases are identified:
- The majority are related to practices of non-fulfillment of the Access to Public Information Act obligations by public bodies – 257 instances;
- Next largest group of cases is related to violations of the right of personal data protection granted by the Personal Data Protection Act – 47 instances;
- In a few cases, we have given legal advice with regard to violation of the right to seek, receive and impart information – 15 instances, etc;
Most Active Groups of Information Seekers
AIP experience shows that most frequently the APIA is used by citizens, journalists and nongovernmental organizations (NGOs). In 2011, again the largest number of consultations was provided to citizens who had sought the assistance of AIP - 203 instances. In 80 cases, journalists and AIP coordinators (all of them journalists) from central and local media asked for legal assistance, while 34 cases were referred to AIP by NGOs.
From Which Public Bodies 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 - 123 and 100 cases respectively.
Less frequently, information was sought from public-law organizations (31), regional units of the executive power bodies (16), public-law entities (13), from the judicial power bodies (14), etc. (See Appendix 2: Statistics from the Data Base of Access to Information Programme 2011).
Most Frequently Used Grounds for Refusal
In 2011, the highest number of registered refusals is that of the silent refusals - 32. Out of the grounded refusals, the most are related to the third party interests’ exemption (Art. 37, Para. 1, Item 2 of the APIA) – 18; and the personal data protection - 15. Eight are the refusals based on the trade secret exemption and 10 are grounded in the exception provided by Art. 13, Para. 2 of the APIA.
Specific Characteristics of the 2011 Cases
The continuing tendency of increase in the number of cases referred for legal help compared to the numbers of the previous two years remains. For example, in 2008, the number of cases was 235, while in 2009 and 2010 the cases were 328 (the number was the same for the two successive years). In 2011, the number is even higher - 330. The number of cases related to the exercise of the right of access to information has also been increasing – from 151 in 2008; 237 in 2009; 248 in 2010, to 257 in 2011.
In 2011, the number of citizens who sought AIP advice has also increased. In 2010, their number was 144, while in 2011 it is 203. 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 2010 was 137, while in 2011 they are 219.
The specific practical examples illustrate how the APIA is efficiently used by citizens, journalists, and NGOs for making an analysis of important public events, for journalistic investigations, and even for finding a solution of every-day problems.
INFORMATION ABOUT PUBLIC ISSUES AND EVENTS
Journalistic Investigations on the Donations to the Ministry of Interior
In the end of May 2011, journalists from two national dailies - SEGA and Dnevnikhave sought information related to a disturbing practice in the work of the Ministry of Interior (MoI), namely the receiving of cash in the form of donations from private donors. The case deserves to be emphasized also because of the impressing persistency of the reporters from the two newspapers to use the APIA to obtain information about specific donations made to police departments in different regions of the country. The initial requests were filed to the Minister of Interior. Subsequently, the ministry referred the requests to the Regional Police Departments of the MoI. Then, the reporters had to travel hundreds of kilometers to different parts of the country during the summer to receive the information which was valuable not to them, but to the public as it contained data about the received donations.
The revealed information triggered a huge debate on the permissibility of private donations to the MoI which resulted in reforms. Pushed by the grounded criticism that private donations create grounds for conflict of interests and undermine the public trust in the police, the Minister of Interior adopted guidelines for accepting donations. An online National Donations Register was launched on the web site of the Ministry. 
Members of Parliament Declarations Related to Political Parties’ Subsidies
In July and August 2011, a public debate was held in the media about the transparency of political parties’ financing from the state budget. In the Political Parties Act, there is a norm providing that the state attributes subsidies to the parliamentary represented parties on the basis of their seats in the Parliament. The sum attributed to each MP is defined by order of the Minister of Finance. Therefore, the question was to which parties the 17 independent MPs sent their attributed subsidy. Three different media journalists – one TV (Victoria Petrova from bTV), another from a radio station (Ilia Valkov from Darik Radio) and the third from a print media (Pavlina Zhivkova from Banker weekly) filed similar requests for access to copies of the MPs declarations by which they had declared to which parties their subsidy should be attributed. The ground for the journalists’ requests was the public interest in knowing the political party preferences of each of the independent MPs. In practice, the MPs can attribute their subsidy to a certain parliamentary group by only declaring belonging and not necessarily joining it.
The Ministry of Finance rejected on the ground of personal data protection. The three denials were appealed in court. The court has ruled on two of the cases judging in favor of the journalists, stating that the requested information did not constitute personal data. In the meanwhile, the National Assembly assigned to the National Audit Office to find out if the allocation, receiving, and spending of state subsidy to the parties to which the independent MPs had declared belonging was lawful.
Information About Public Officials Remunerations
Information about the money received by public officials is often of interest to journalists and citizens. In the beginning of 2011, the citizen Mr. Ivan Dzhabirov filed a request to the National Social Security Institute (NSSI), demanding access to information about the amounts paid to the NSSI officials as additional material stimulus. Pursuant to the Social Security Code, 15% of the money collected by the NSSI through material sanctions imposed during completed inspections should be paid to the NSSI officials in the form of additional material stimulus. The citizen demanded the total amount of the sum, paid to the NSSI officials beyond their labor remunerations, for additional material stimulus for 2009 and 2010. The Governor of the NSSI did not respond within the legally prescribed period and the refusal was appealed. The Administrative Court – Sofia City repealed the refusal and Dzhabirov received the information in the midst of the public scandal about the distribution of bonuses within the state institutions.
Consumers’ Type of Information on the Prices of Central Heating
The APIA may successfully be used in order to achieve better protection of consumers’ rights. The continuous increase in prices of electricity and heating is the occasion on which the lawyer Stoyan Terziiski filed a request to the State Energy and Water Regulatory Commission (SEWRC). He sought access to documents connected with a 2008 decision for raising the prices of energy, including the minutes of the discussion in the commission and the submissions of the heating companies who actually proposed the change. The latter information was denied on grounds of the protection of third party’s interests – the energy companies which in fact are in dominant position. The Administrative Court – Sofia City repealed the refusal and compelled the Chairman of the SEWRC to grant full access to the information. The court emphasized that the requestor, as well as any consumer, are entitled to know if and how the Regulatory Commission guarantees the principle of the fair balance between the conflicting interests of consumers’ and energy companies. The lack of transparency in determining prices prevents the citizens from their right to know that this determination was based on objective criteria. The court went further by ascertaining that provision of this information is the only way to ensure the principle of transparency in determination of prices.
ACCESS TO INFORMATION AND 2011 ELECTIONS
Transparency of Elections is the ultimate criteria for assessing whether the principles of democracy, the rule of law, the public order and the rights of voters have been respected. The case referred to AIP for legal help and comment related to this topic reveal the main problems and give tips what should be done to enhance greater transparency. In the autumn of 2011 Bulgaria held presidential and local elections.
Publicity of Meetings of the Central Electoral Commission (CEC)
Within the framework of the public campaign of the nongovernmental organization Institute for Public Environment Development, it advocated for the publication in the Internet of the minutes of the meetings of the Central Electoral Commission in order to ensure transparency of decision-making process. According to the stakeholders, publicity is the only way to gain the voters’ trust that the Commission took the best decision based on convincing arguments. The CEC remained deaf to this call for more openness. Therefore, the Institute for Public Environment Development filed a request for access to the minutes of key meetings. The CEC formally refused access on the ground that the minutes contain opinions and relate to the ongoing work of the Commission and have no significance in themselves. With the assistance of AIP, the NGO appealed the refusal before the Supreme Administrative Court.
Media coverage of the Elections
At the second round run-off of the local and presidential elections, a journalist from Lompress daily was summoned before the regional police department and was handed-in an order prohibiting her to photograph near the regional electoral commissions and to approach the premises of the sitting of regional electoral commissions. According to eye-witnesses, in some electoral sections an undue pressure was exercised over voters. Allegedly, voters had been transported to the electoral section, instructed to vote for specific candidate and their presence had been recorded on printed-out list of names. The journalist alerted the police officers but they did not take any steps to prevent the misconduct. Afterwards, she succeeded to take pictures of this mechanism – she photographed some of the persons and part of the list of names. An hour later, she was called to make depositions at the police station. As a result she was handed the prohibiting order. In practice, the order hindered her right to do her work as a journalist and disseminate information about the election process. With the AIP help, the journalist filed a complaint against the order as unlawful to the Regional Police Department. Two weeks later the head of the police department rejected the complaint. The order was then challenged before the Administrative Court – Montana. The court set aside the order signifying that such measure unproportionally interfered with fundamental rights such as the right to freely receive and impart information, the right to independent journalism and the freedom of media.
CHANGE OF PRACTICES
DISCLOSURE OF INFORMATION AFTER CHANGE OF GOVERNANCE/RESTRUCTION
Our experience through the years enabled us to draw some conclusions and trends in the provision of information practices. One is that the new governance (regardless whether it is new Legislature, Executive or Head of State) is more disposed to provide information related to the previous government at the beginning of the term, or to release information that was persistently kept secret for different reasons. For example, in the case of change of the Executive, the new Government provided information about the repair works of the cabinet of the former Prime Minister; a new Mayor would provide access to documents tenaciously kept hidden by the predecessor, etc. Over the last year again we became witnesses of such practices.
The New President Provided the Guest List of Official Receptions
Mr. Krum Blagov, a journalist, requested from the President’s Administration the list of persons invited as guests to three official receptions held by the President. More precisely, he demanded access to the guest lists for Christmas (December 2009), for the National Holiday of Bulgaria (March 3, 2010), and for the Day of Bulgarian Education and Culture (May 24, 2010). According to the media, the receptions were attended respectively by 3,000 and 5,000 people. It was unclear in what capacity some of the guests were invited. Although the receptions were widely covered by the media (which reflects the presence of public interest) and despite the fact that the receptions are funded by the state budget, access to the information was denied on the ground of personal data protection. The refusal was challenged before the court, the case was heard at two instances but they did not result in disclosure of information. After the Presidential Elections, the journalist filed a new request for the same information to the new administration. The Presidency provided the lists of guest to the last four presidential reception and a list of the invitees to the first reception held by the new President. The names of private individuals have been given only with their initials.
Disclosure of Information on Pardons Granted
The granting of pardons during the two successive mandates of the President Georgi Parvanov provoked a heated debate in 2010 although the interest in transparency of this process came across earlier. For the first time, the issue has been raised in 2009 when the journalist Luben Obretenov (Segadaily) filed an access to information request for the names of the members of the Pardon Committee and the names of the persons to whom pardon was granted in 2008 and 2009. The Chief Secretary of the President refused to provide access on the ground of personal data protection. Immediately after the inauguration of the new President, the journalist Dorothea Dachkova with the AIP legal support filed a new request for the same information. She was granted access to the number of pardons issued, the grounds for each pardon, initials of the pardoned persons, and the Rules of Procedure of the Pardon Committee. The disclosure resulted in a number of media publications which triggered a large public debate on the process of granting pardon.
The Bulgarian Food Safety Agency Provided Information on
the Activities of the Former National Veterinary Service
The Bulgarian Food Safety Agency (BFSA) provided access to information sought by Ms. Vania Hristova from the former National Veterinary Service (NVS). With a request filed in the beginning of 2011, she requested information about an inspection carried out by the NVS authorities in a dog shelter in the town of Pleven, managed by an Association for the Protection of Animals – Pleven 2008. More precisely, Hristova demanded the protocol from the inspection, the directions given on the base of that inspection and an order for stopping the activity of the shelter. The subsequent silent refusal was challenged in court. In the meantime, the NVS was closed and the BFSA was constituted as a party of the litigation being a successor of the NVS. The Administrative Court – Sofia City repealed the silent refusal with a decision as of May 2011, and returned the request to the BFSA for delivery of a decision. Right after the court decision, the Agency granted access to all of the requested information.
In 2010, several cases supported by AIP ended successfully in different areas where traditionally access to information is tough. They relate to information sought from the Prosecution Office and information on the implementation of projects. We present two cases which are breakthroughs.
Nearly 7,000 Pages Project Documentation Provided Under the APIA
The request was filed by a group of active citizens in the town of Lovech. They were interested in the massive construction works and improvements of the infrastructure in the town. It came clear that the repair works are financed under the project Improvement of the Physical and Vital Environment in the Municipality of Lovech financed by the EU Operational Programme “Regional Development” 2007-2013. The funds amounted to nine million BGN for a period of 20 months. However, this information was insufficient to Ms. Yanita Nesheva who was determined to find out exactly how the allocated funds have been spent by submitting an access to information request. She was consulted by AIP legal team and filed crossed requests to the Municipality of Lovech and to the Ministry of Finance. She sought access to the contracts signed within the project, tender procedures, reports on the project implementation, etc. After several months of official correspondence and specifications the Ministry of Finance granted full access to the documents. They provided nearly 7,000 pages (in electronic form) of documents relating to the project among which contracts pursuant to public procurement procedures, technological documentation, certificates of commissions, reports of inspections carried, etc.
Access to Document of the Prosecution Office
In 2011, there was a new tendency to open prosecution authorities’ documents to the public upon request. In August 2011, the Deputy Sofia City Prosecutor disclosed documents of check-up related to the Chairman of the District Court of Haskovo on the request of two journalists (Rosen Bosev from Capital weekly and Mirela Veselinova from the Legal World magazine). The judge was a candidate for a Chairperson of the newly created Specialized Criminal Court (which is competent to hear cases of high public interest as they relate to organized crime). The inspection revealed malfunctioning of the court of Haskovo and violations of the principle of random allocation of court cases (cases of important pecuniary interest were allocated to the Chairman) and often his rulings lacked reasoning and grounds. The documents were subsequently published by the journalists on the website of the Legal World magazine.
In late September 2011, the Prosecutor General’s Office disclosed an inspection report on a request of the Bulgarian Institute for Legal Initiatives (BILI). It reconsidered its previous denial of the same information only few days later, following the AIP argument adduced by BILI in informal way by e-mail that the court had already declared the denial of such information unlawful in 2010 and that the prosecution office disclosed not less sensitive information in August 2011 (the above described one). It was also argued that the Inspectorate to the Supreme Judicial Council published such reports on its website (but this specific one was not carried out by the Inspectorate so it had to be requested pursuant to the APIA). Based on information collected through the APIA and public registers BILI maintains a special website called “Transparent Judicial Appointments Initiative” which contains the profiles of magistrates who are candidates for administrative chiefs within the judiciary.
GOOD PRACTICES OF PROACTIVE ONLINE PUBLICATION OF INFORMATION
The Public Financial Inspection Agency Started to Publish Online Results from Audit Reports
The Public Financial Inspection Agency (PFIA) started to publish online the results from its from financial inspections and audits. According to amendments to the State Financial Inspection Act which came into force in August 2011, the PFIA is required to publish reports on the audit results till the 10th of each month. The PFIA provides also a summary of data from the reports on the number of infringements, amount of deficiency in accounts caused by wrongfully caused damages. The PFIA also publishes results from audits of public procurement procedures. The former regime of access provided only for the possibility to receive documents pursuant to the APIA. This was not an adequate solution having in mind the importance of the PFIA audits and findings. The Agency is auditing the spending of public funds from the state and municipal budgets and from the European funds and programs. The results of financial audits and inspections are of a serious public interest. Therefore, the online publication of audit results is an important step guaranteeing the standard of transparency of the Agency’s activities and the opportunity for the public to get acquainted with them promptly.
The National Audit Office Launched the Unified Public Register for Elections Participants
In early 2011, the new Electoral Code came into force and established an Unified Public Register For Elections Participants. The register contains a list of donations (name of donors, amount, purpose), origin of the funds, list of natural personal providing pro bono services for the party and type of the services provided. Thus, the information on financing of elections campaigns is easily accessible by everyone. Financial statements on incomes and expenditures for the election campaign shall be submitted to the National Audit Office within 30 days after the Election Day.
Information on Case-law and Courts’ Databases
From several years now, the courts have websites and searchable databases of court cases. Article 64 of the Judiciary Act requires the courts to publish online the decisions in due course. As a consequence, the access to information about court cases has been greatly facilitated. During the last year, we have observed new positive developments in the area of proactive publication by administrative courts. For example, besides information on scheduled hearings, some courts also publish the minutes of the court hearing and other acts of the court (Administrative Court – Sofia City, Administrative Court – Burgas, Administrative Court – Smolyan).
PERSONAL DATA PROTECTION
In 2011 again, the protection of personal data was the subject of some of the cases referred to AIP for legal help and consultation. The people who addressed AIP for assistance in the area were both citizens whose rights were infringed and personal data administrators who needed advice on how to correctly apply the requirements under the Personal Data Protection Act (PDPA). In the current report we would like to pay attention to two specific topics in the protection of the personal data which had been commented by the AIP legal team.
Protection of Personal Data in Street Video Surveillance
Analysis of problems related to Video Surveillance and personal data was part of the last year's report. Then the problems were related to the processing of data collected via CCTV positioned at public places for security purposes. In 2011, the lawfulness of collecting and processing data collected from CCTV was a topic of discussion again. The context was a little different though. AIP legal team was addressed by journalists from the private TV7 to comment on the following case: A private company sells specialized equipment for secret surveillance – spy cameras, listening and tracking devices, etc. The company has an Internet site showing the efficiency of the equipment. Spy cameras were installed at several public places in Sofia, streaming live images of people and buildings. The testing software allows for a big zoom of the cameras without any blur options which gives the possibility to recognize the passing-buyers and even images in the windows of the targeted buildings. A reasonable question in this case was if the live streaming including real time images of people and vehicles was a violation of the provisions of the PDPA.
In the summer of 2011, the Commission for Personal Data Protection was addressed with a request for an official statement on a similar case by the Google Ireland Ltd. The Commission was requested for interpretation of the PDPA with regard to the future plans of the Google Ireland to collect street images in Bulgaria for the purposes of the product Street View. The images would be uploaded in Google Maps and would be accessible to the customers from all over the world. The images are to be taken by a camera installed at the roof of a car driving in the streets.
In its statement No. 3949 as of October 4, 2011, the Commission for Personal Data Protection assumes that in order for the provisions of the Bulgarian personal data protection legislation to be fulfilled, the administrators should inform the public about the dates of the shooting, the length of the shooting, the schedules and the routes, as well as the places where the cameras would be used. The administrators are also obliged to inform the public about the type of the data that are going to be collected, the rights of the physical persons with regard to the processing of their personal data (right of access to information, of objection, the possibility for removing and deleting images, as well as the means by which they could exercise their rights). Furthermore, measures for blurring the images of physical persons should be taken, especially at places falling under special regime under Art. 5, Para 1 of the PDPA like: religious temples, hospital/clinics, headquarters of political parties, public places which would reveal the sexual orientation and/or the interests of certain physical bodies. The images of physical bodies taken in these specific cases should be completely blurred.
Protection of Personal Data in TV Games, Lotteries, and Direct Marketing
Out of the cases referred to AIP for legal help, several frequent violations of the PDPA related to the personal data processing for the purposes of TV games, lotteries, and direct marketing.
The Administrator of Personal Data is Not Always Known
Citizens should be able to unambiguously identify who approached them which is sometimes difficult. In one of the cases referred to AIP for legal help, a citizen has received an sms on his mobile phone with offers to take part in a TV game. Simultaneously, an advertisement was going on one of the TVs for the same lottery game. It was not clear which is the legal entity behind that game, consequently, it is not clear who is the data processing administrator. The sms recipient has to guess if it is the TV itself, an advertising company, or a production house.
Personal Data Processed After the Expiration of the Initially Announced Time Period
The above case is an example of violation of another provision of the PDPA. It turned out that the citizen had taken voluntarily part in another game providing his Unified Personal Number. Apparently, the data had been saved for future games. Thus, the provision of Art. 2, Para. 2, Item 2 of the PDPA was violated. It obligates the administrators to process collected data for specific, precisely defined, and legal purposes. After that the data should be deleted.
Physical Persons Targets of Unsolicited Commercial Communications Are Not Always Informed About their Right to Refuse to Receive Such Communication
Interesting is the case when the XBank used data from a public register to offer its bank services. The bank copied the registers of lawyers from the web site of the National Bureau for Legal Help (three names, registration number in the Sofia Bar Association, address, and phone number) and sent out personal letters to the lawyers offering them a deposit program. One of the recipient lawyers took this approach as unlawful use of his personal data by the bank since he had not given consent for such processing. He addressed the Commission for Personal Data Protection. The Commission assumed that the provision of Art. 34a of the PDPA is violated. The bank, in its capacity of personal data controller had processed the data of the targets of its direct marketing without informing them for their right to refuse commercial communications as required by the provision of Art 34a, Para. 1, Item 2 and Para. 2 of the PDPA. The case was also heard by two instances in the court. The justices upheld the arguments of the Commission. In their Decision No. 15546 as of November, 25, 2011, a Five-member panel of the Supreme Administrative Court emphasized that the data used by the bank had been taken from a public register but nevertheless the data processing should be in compliance with the requirements provided by the Personal Data Protection Act. The condition for processing the data as provided by Art. 4, Para. 1, Item 7 of the PDPA had not been present, thus the bank had unlawfully processed the data. The court also emphasized that in order for the requirements of the PDPA to be fulfilled, it was enough that the personal data administrators informed the citizens about their right to object against the processing of their data.
 The article provides that access to administrative public information may be restricted if it:
1. relates to the preparatory work of an act by the bodies, and has no significance in itself (opinions and recommendations prepared by or for the body, reports and consultations);
2. contains opinions and statements related to on-going or prospective negotiations to be led by the body or on its behalf, as well as any data relating thereto, and was prepared by the respective bodies' administrations.
After the 2008 amendments to the APIA an assessment should be made considering the overriding public interest.
 Journalists from Denvnik and Mediapool sought AIP expertise and advice on this case.
 The text of the Statement (in Bulgarian) is available on the CPDP web site: http://www.cpdp.bg/index.php?p=element_view&aid=670