Cases 2012
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CASES REFERRED TO AIP FOR LEGAL ADVICE AND CONSULTATION DURING 2011
GENERAL CHARACTERISTICS
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 Appendix 2: Statistics from the Access to Information Programme Electronic Data Base 2012).
Number of Cases Referred for Legal Help
The number of cases referred to AIP for legal help within the period January – December 2012 is 311. Twenty-six were referred from AIP coordinators in the country. In the rest, the information seekers have requested assistance in our office, by e-mail, or by phone.
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 – 263 instances;
• Next largest group of cases is related to violations of the right of personal data protection granted by the Personal Data Protection Act – 24 instances;
• In a few cases, we have given legal advice with regard to violation of the right to seek, receive and impart information – 16 instances;
• Cases related to freedom of expression – 4 instance, 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 2012, again the largest number of consultations was provided to citizens who had sought the assistance of AIP - 182 instances. In 66 cases, journalists and AIP coordinators (all of them journalists) from central and local media asked for legal assistance, while 53 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 bodies and the local self-government bodies (mayors and municipal councils) is the largest - 108 and 96 cases respectively.
Less frequently, information was sought from public-law organizations (20), regional units of the executive power bodies (22), from the judicial power bodies (14), independent government bodies (14), etc. (See Appendix 2: Statistics from the Access to Information Programme Electronic Data Base 2012).
Most Frequently Used Grounds for Refusal
In 2012, again the number of registered silent refusals is high - 28. 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 - 12. Five 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
The number of cases referred for legal help remains stable – around 300. This is valid for 2012 as well. We have, however, observed an increase of the number of consultations in a specific case. In 2012, 643 consultations were given in 311 cases, while in 2011, 330 cases received 579 consultations.
In 2012, the number of NGOs who have addressed AIP for legal advice has increased – in 2011 they were 34, while in 2012 – 53.
In 2012, a lot of institutions did not respond to access to information requests (the so called silent refusal). The number of refusals grounded on the third party interests is also high. The number of cases referred to AIP by email is also increasing. The number of written consultations provided by e-mail in 2010 was 137, in 2011 they were 219, while in 2012 - 251.
SPECIFIC EXAMPLES
We hereby will describe some of the most interesting cases, referred to AIP for legal help and consultation. The specific examples illustrate how the APIA is efficiently used by citizens, journalists, and NGOs for making analyses on important public events, for journalistic investigations, or for finding solutions of every-day problems.
INFORMATION ABOUT PUBLIC ISSUES AND EVENTS
Access to information in the energy sector. National Referendum
Energy related issues are of high public interest and are permanently in the focus of the public debate. Traditionally, the seekers of information in that area during the years were environmental organizations. Their cases were described in previous reports on the access to information in Bulgaria. The review of cases in which information was sought in the energy sector shows persistent unwillingness of every government to provide information, as well as complete lack of transparency of policies in this sector.
What happened with the access to information in the energy sector in 2012?
The traditional seekers of information in the area – the environmental organizations, were joined by business organizations – the Bulgarian Wind Energy Association and the Bulgarian Photovoltaic Association.
In the beginning of 2012, the Bulgarian Wind Energy Association (BWEA) filed two requests for access to information addressed to the State Energy and Water Regulatory Commission (SEWRC) and the Ministry of Economics, Energy and Tourism (MEET). Representing 60 companies in the wind energy sector, the aim of the BWEA was to prepare a report on the current state of the sector and to make it publicly available. With the request, the BWEA wanted to obtain detailed information about preliminary contracts for accession of power production sites from renewable sources; number of concluded preliminary contracts for accession to the power distribution network; geographical distribution of the sites, etc. The SEWRC refused all of the requested information grounding the decision in the provision of Art. 13, Para. 2 of the APIA. The motivation was that the information had no significance of its own. The MEET provided partial access releasing data about the number of signed preliminary contracts. The ministry claimed they did not dispose of information about the geographical distribution of the sites. The refusal of the SEWRC was appealed in the court.
In the autumn of 2012, the Bulgarian Photovoltaic Association (BPA) also tried to obtain information held by the SEWRC. Access was requested to copies of documents filed to the Regulatory Commission by the three power distribution companies in Bulgaria. The SEWRC responded that the subject of the request was unclear. The BPA should have not only listed the requested documents, but also had to describe the information they wanted to receive.
These two cases one more time demonstrate that the interest in the topic is permanent, active and conditioned by the society. The responsible institutions in the sector, however, traditionally remain closed and the decision making process – non-transparent.
Information about the National Referendum for the development of nuclear power in Bulgaria
The energy topic was of particular interest in 2012 mainly due to the organization and holding of the first National Referendum in the democratic history of the country. Bulgarian citizens were consulted about the development of the nuclear power. The procedure for calling a referendum is regulated by the Law on Citizens Direct Participation in the State and Local Government. On March 29, 2012, the parliamentary majority passed a decision for terminating the construction of the Nuclear Power Plant Belene. In a response, the opposition drafted and introduced in the parliament a petition for a referendum on the construction of a new nuclear power plant. The final formulation of the question which citizens were to answer yes or no was: "Should nuclear energy be developed in Bulgaria through the construction of new nuclear power units?" The referendum date was set on 27 January 2013.
The importance of the availability and accessibility of information with regard to referendums on any topic is apparent. Citizens can reasonably answer yes or no on any kind of a question only if they are aware of the essence of that question, its analysis and expert assessments, which should be publicly available.
A month before the referendum, we reviewed the official web sites of the institutions responsible for the nuclear power, as well as the web site of the Council of Ministers, responsible for the holding of the referendum.
What was published at that moment?
We found no economic analysis or forecasts.
Due to the scarce availability of public information, AIP filed two requests for access to information – to the Ministry of Economics, Energy and Tourism (MEET) and to the National Assembly. We wanted to know where in the Internet is published the information which should have been prepared and served as a basis for the decision to initiate the construction of a nuclear power plant and for the debate on such a decision and where it is physically available for reading.
The response of the parliament revealed that they did not have such documentation, while the MEET responded that the only assessments for nuclear safety, the social-economic effect and the management of spent nuclear fuel and radioactive waste dated back to 2005. More importantly, however, as the ministry informed us, they were once online available but are not any more. The only available document was a copy of the Strategy for Managing the Radioactive Waste till 2030.
Based on the above, we can justly conclude that the available and disclosed public information by the competent state authorities was extremely insufficient for the citizens to make an informed decision on the referendum question.
ACCESS TO INFORMATION AND JUDICIARY
Transparent Judicial Appointments Initiative
The issue about transparency of judicial appointments was part of the public life in 2012 also in relation to the preparation and running of elections for new members of the Supreme Judicial Council (SJC). The low level of public trust in the judiciary and the EU critics were some of the reasons which motivated a group of nongovernmental organizations to initiate a campaign for greater transparency and reforms in the judicial system and transparency of the elections candidates for members of the Inspectorate of the SJC and the SJC. Thus, under the pressure of the nongovernmental sector, new rules were crafted and more transparent elections were held.
Among the initiatives was the so called civil monitoring of the judicial appointments performed via the web based platform Transparent Judicial Appointments Initiative. The Internet site developed and maintained by the Bulgarian Institute for Legal Initiatives (BILI) consolidated public information scattered in different sources about the candidates for administrative-management positions in the branches of the judicial power. For each candidate for a key position in the judiciary, a standardized profile was created summarizing all available information about them serving as a basis for an objective and motivated decision. For instance, the profiles contain data about the asset and conflict of interests declarations, information from the personnel file, additional information obtained under the APIA, even information about assets of relatives of the candidate.
The issue about the transparency of information related to the election of inspectors in the Supreme Judicial Council's Inspectorate, as well as information about the work of the Inspectorate itself, was raised before the court as well. A request was filed by the BILI for a statement, prepared by the Inspectorate acting on a signal for inspection on a judge, later nominated by the National Assembly for Inspector with the Inspectorate. Access to the requested information was refused on the ground of the third party's interest exemption. The Administrative Court Sofia City repealed the refusal. The court held that there was overriding public interest in the disclosure of that information which would increase the Inspectorate’s transparency at a time when it was especially necessary because the judiciary was subject to increased public attention.
The Ministry of Interior refused information about the award of the new Prosecutor General
After journalistic investigations in 2011 revealed disturbing practices of the Ministry of Interior (MoI) accepting private donations, in 2012 the ministry has become in the focus of the public debate again – this time in relation to the election of the new Prosecutor General. The reason was allegations that the candidate for the position Sotir Tsatsarov had received an award from the MoI – a gun, in his capacity of Chairperson of the District Court – Plovdiv, although under the Judicial Power Act magistrates may be awarded only by the Supreme Judicial Council (SJC). Tsatsarov told about the award from the ministry during his hearing before the SJC but later the minister of the interior refused to give any details. In November 2012, the BILI filed a request to the MoI asking if Sotir Tsatsarov had received an award under Art. 216 of the Ministry of Interior Act in his capacity of Chairperson of the District Court – Plovdiv. The time frame for response to the request was extended in order to obtain Tsatsarov's consent. After that the Minister of Interior refused to provide access on the ground that “in its essence the information constituted personal data of Sotir Tsatsarov.”
With the assistance of AIP, the refusal of the minister was challenged before the court. The case with the gifted gun raises again the question where does the limits of relations between the executive and the judicial power lie and shows in practice how the refusal of information may harm only the institutions.
BREAKTHROUGHS
Seeking information from monopolists/companies providing public utilities
Seeking information from the so called monopolists has always been of serious public interest. There is a development during the last years in view of the new possibilities for seeking information from such companies. Before the latest amendments in the Access to Public Information in 2008, obtaining such kind of information was almost impossible due to the lack of legal regulations to cover these companies as bodies obliged under the law. The 2008 amendments to the APIA extended the scope of the obliged bodies adding to the public-law entities the public-law organizations. As a result of several specific cases in 2012, the question was raised if heating companies were obliged bodies, more precisely, the Sofia Central Heating Company “Toplofikatsiya Sofia” JSC.
In the case of the citizen Yulian Tsankov, he addressed us in seeking information from “Toplofikatsiya Sofia” JSC about the formation of the delivery price of heating energy for a certain period of time. With the assistance of AIP, the citizen filed a request to the company. “Toplofikatsiya Sofia” JSC refused access grounding the refusal on the statement that it was a company and was not obliged to provide information. As a result of the litigation initiated by the citizen, the court held that “Toplofikatsiya Sofia” JSC was an obliged body in its capacity of public-law organization under the APIA and ruled that the executive director should decide on the access to information request. The court decision was followed by other cases of seeking information from such type of companies in the country.
Transparency of Public Officials' Remunerations and Bonuses
The remunerations of public officials have often been subject of interest to journalists and citizens. In 2012, the public interest focused on this topic after it was revealed that officials from state institutions received bonuses for 2011 in the form of additional material stimulus despite the officially announced government position that there was not budget for such.
The lack of transparency about the amount of the received bonuses and the criteria for their distribution resulted in serious debates and triggered the interest of citizens, journalists, and politicians to obtain specific answers.
It is certain that both the discussions and the actions undertaken to give answers to the unclear questions preconditioned future stable practices of transparency of information.
The public pressure forced the administration to release a big part of the missing information. For instance, the Ministry of Foreign Affairs provided complete access to the bonuses paid to the ministerial officials besides their remunerations. Also, it became clear that in some institutions unscrupulously big amounts of bonuses were distributed and the recipients had to leave their positions. Other officials at high positions were fired after they refused to follow the prime minister's recommendation to transfer the bonuses in a special donation account.
At the same time, the Commission for Personal Data Protection was addressed with several demands for official statement on the question if the information about the received remunerations and bonuses was personal with regard to public officials. In one of those cases, the Commission was addressed by members of the parliament who were asking if there was a violation of the personal data protection if the requested information explicitly excluded the names of the officials, as that was used as ground for refusal of information by a number of ministries.
In its Statement No. 1094/12.03.2012, the Commission held that the information about bonuses received in 2011 in addition to the main remunerations of the ministerial officials constituted personal data only if the information may identify a particular physical person. According to the Commission, in such cases, a possible condition for permissibility of processing the information by dissemination and provision of the data is necessary for the accomplishment of a task carried out in the public interest.
One of the most important steps towards the resolution of the debate on the transparency of the information related to the bonuses of the administration was made by the court. During the year, the court ruled on several cases of refusals of such type of information.
In one of those cases, a request was filed by the journalist Dinka Hristova from the Sega daily. She requested information if bonuses were distributed within the Ministry of Labor and Social Policy and on what criteria. Access was denied on the grounds that the requested information constituted personal data and the consent of the third parties was necessary for the disclosure. The Administrative Court Sofia City repealed the refusal holding that there is overriding public interest in the disclosure of the information about the amount and type of bonuses distributed within the institution and it should not be refused. The Supreme Administrative Court upheld the arguments of the first instance court with a decision No. 178/08.01.2013.
CHANGE OF PRACTICES
In several cases from 2012, due to timely signals from information seekers about wrongdoings in the work of the institutions, changes of information provision practices were achieved. We present two cases from the City of Varna which demonstrate how the active civil position and the good knowledge of rights can often be beneficial.
The Municipality of Varna ceased to require the APIA requestors to provide personal identification number
In March, while filing an information request to the Municipality of Varna about the work of the municipal police, the citizen Nikolay Tsvetkov realized that the personal identification number of customers of any municipal services, but also of Access to Public Information Act requestors, was required. The reason was the integration of a new software requiring a personal identification number at the entering of any document. Tsvetkov refused to provide his identification number for the registering of the request, quoting the provisions of the APIA according to which only the names, the address, and the description of the requested information were required. The municipal official refused to register the request, but kindly advised the citizen to send the request by post because thus he would avoid the requirement to give his personal identification number. AIP was informed about the incident and AIP coordinator in Varna – the journalist Krastina Marinova, checked up the case by attempting to file a request herself. The municipal official refused to register the request without a personal identification number again. Marinova was persistent and as a result of a conversation with the head of the department, her request was accepted without a personal identification number. Later, the municipality changed the practice and stopped requiring personal identification numbers from access to information requestors.
0.09 BGN for a page instead of 2.5 BGN
The second case is related to a practice in the Regional Directorate of the National Construction Control – Varna to collect fees for the provision of information different from the stipulated in the APIA. We were again informed about this practice by Nikolay Tsvetkov who was asked to pay a fee too high for information provided under the APIA – 2.5 BGN for a copy of a page. For comparison, pursuant to Order No. 1472/2011 which determines the fees for disclosure of public information – a copy of a page is 0.09 BGN. The explanation of the Regional Directorate for the higher fee was that the fees were determined under the regulation of Tariff No. 14. This Tariff is related to the provision of information as part of the administrative services and is about the fees collected by the Ministry of Regional Development and Public Works and by the Regional Governors and its implementation in relation to information requested under the APIA was not appropriate. After conversations and clarifications made by AIP, the Regional Directorate of the National Construction Control reconsidered their position.
GOOD PRACTICES IN PROACTIVE DISCLOSURE
For the 13 years of the APIA, the implementation practices have considerably developed. The institutions have acquired the attitude of not only responding to information requests, but also of proactive disclosure of public information. A considerably positive development is the initiative of some institutions to publish online documents for which there is no explicit legal obligation.
Publication of contracts
There is no explicit legal provision which binds the state bodies to publish their contracts. Nevertheless, some heads of public bodies have realized the high public interest in such type of information and started to disclose these documents. Positive examples in this regard are given by the Municipality of Dobrich which published some of its signed contracts. The same has done the Control-Technical Inspection of the Ministry of Agriculture and Food. The Municipality of Momchilgrad have published the contracts for financial aid under different European project.
Publication of urban development plans
Another positive development in the proactive disclosure is the publication of the urban development plans by some municipalities. Currently, these are the municipalities of Bansko, Batak, Belovo, Varna, Dolni Chiflik, Kostinbrod, Maritsa, Pernik, Pleven, Plovdiv, Sofia Municipality, Tundzha, and Yambol.
In 2012, amendments to the Town and Country Planning Act were introduced which created the obligation for the municipal administrations to publish in their Internet sites the drafts of urban development plans and their amendments. Most of the municipalities have not done this yet, probably because the obligation is new.
Publication of construction permits
Lastly, as a positive practices of proactive disclosure of information, we will signify the publication in the Internet of the issued construction permits by some municipalities. The data from our audit on the web sites of the institutions show that this was done by 16 municipalities (out of a total of 264).
CASES WHICH SHALL NOT HAPPEN
We are still witnessing cases characteristic for the first years of the law implementation. The appropriate application of the provisions of the APIA is a difficult task for some administrations even in not so complicated cases. During the past year, we have assisted information seekers who faced problems, illustrating that some harmful practices exist.
Kancho Bonev in a fight with the administration
With fight and arrest ended Kancho Bonev's reqest for access to information. Kancho Bonev is deputy-chairperson of the United Civil Association, which is very active in the protests against construction works in the Sea Garden in the City of Varna. His story begins with a request filed to the Regional Governor, who responded to three out of four questions set forth in the request and referred the fourth question to the competent authority – the Regional Geodesy, Cartography and Cadaster Service in Varna. This last question was about Order No. РД-20-03-1/30.01.2009 related to the changing of the status of the land of the Sea Garden. Bonev received a decision granting him access to the requested information. When going to the Cadastre Service to obtain the information, however, Bonev was given only part of it. So, he decided to signify that he was actually granted partial access to the information in the protocol which was to be signed by the requestor and the providing authority. The Head of the Cadastre Service declined to countersign the protocol with the objection in it. She also declined to provide complete access to the information. After that development, the citizen tried to leave the building with the protocol containing only his signature. The verbal fight between Bonev and the head of the Cadastre Service ended with a physical fight with the security guard of the institution and charges for a document theft. The medical examination of Bonev found that the citizen had nasal hemorrhages, bruises at the jaw, the eyebrows and on one of the thighs. He was then taken to the closest police station where he was arrested for hooliganism by the prosecutor on duty while the officials from the Cadastre Services were released. In the meanwhile, the Regional Court of Varna stopped the proceedings against Kancho Bonev and sent it to the Prosecutor's Office for investigation of crime under Art. 325 of the Criminal Code.
Refusals of the territorial directorates to provide information
In 2012, we were asked for legal assistance in cases in which the regional units of central agencies refused to provide information despite the explicit provision of Art. 3, Para. 1 of the APIA which obligates the territorial units to provide information on their own. We could not draw the conclusion that this is a regular practice on the base of the cases we received. However, it is a fact that such cases exist.
An environmentalist from the city of Varna filed a request to the Regional Food Safety Directorate. The citizen demanded access to copies of finding protocols issued by the directorate as a result of inspections carried out in the territory of Varna. The directorate refused to provide access although they did not oppose that the information should be provided. They referred the request to the central body in Sofia – the Bulgarian Food Safety Agency (BFSA). The central agency granted full access, requested the documents from the regional directorate in Varna and invited the citizen to obtain them on spot in Sofia. The agency explained that this was the procedure regulated by the Internal APIA implementation rules of the BFSA.
The AIP coordinator in Montana Liubomir Yordanov also reported similar cases. For two years, the territorial structure of the Executive Agency for Hail Suppression has refused to provide to journalists information about the shootings they do against hail clouds, the spent rockets, the caused damage to agriculture, and financial resources allocated to them. The questions to the management of the polygons were transferred to the press center of the Ministry of Agriculture and Food which most frequently answers in writing that "sufficient funds are provided, necessary actions undertaken, and a certain acres of land were protected."
At the end of March 2012, in the Regional Directorate of the National Construction Control – Vratsa, received an order that prohibits the structure to provide information to the media. The order was signed by the Minister of Regional Development and Public Works Lilyana Pavlova, who ordered the reporters to get the data they require only from the press center or from the official web site of the ministry.
We have repeatedly noted that such practices are not only in violation of Art. 3, para. 1 of the APIA, but they actually hinder the work of the administrations which refer documents to each other instead of deciding quickly and efficiently on the request.
In conclusion, we recommend to the central executive authorities with regional structures to explicitly include in their internal rules on access to information a clear procedure for regional units to independently provide access to information.
PERSONAL DATA PROTECTION
In 2012, AIP continued receiving for consultation cases concerning violations of the right to protection of personal data, a part of the citizens’ privacy. Let us mention some of the emblematic cases that caused an active public reaction. The first two cases show attempts by personal data administrators to process a larger amount of personal data than actually needed for accomplishing the stated purposes, thus infringing the principle of proportionality of data processing laid down in Article 2, paragraph 2, item 3 of the Personal Data Protection Act (PDPA).
Registers of children between 0 and 7
“Public transportation subscription cards for babies too” – similar humorous titles appeared on the pages of the print and electronic media in the late summer in 2012. At the same time a parent from Plovdiv who was asked for copies of personal documents (identity cards, birth certificate and photo of the child), as a condition for the issuance of a free public transport card for his two-year old child, turned to AIP for legal advice. The question which raised this case is why for the issuing of such cards that only certify, but do not create the right to free public transport, should be established new registers containing annually updated personal data on parents and children.
This story started on 21 December 2011 when the Council of Ministers (CoM) adopted Decree no. 352 amending Decree no. 66 of 1991 on setting minimum amounts of the reductions of public transport prices on automobile transport for certain groups of citizens. As a result of these amendments, mandatory issuance of free subscription cards for public transportation to persons between 0 and 7 years old was introduced. The organization of the issuance was to be carried out by each municipality following the Ministry of Transport guidelines. Since no guidelines were published till mid 2012, the municipalities created their own regulations on the issuing of free public transport cards for the children between 0 and 7. Thus it turned out that in some municipalities such as Varna and Plovdiv in implementation of this objective, special new registers have been established for processing of personal data, which should be updated annually.
The AIP team considers that the described case constitutes a violation of the principles of proportionality and expediency of data processing set out in the PDPA. Pursuant to Article 2, paragraph 2 of the PDPA, any action of data processing should be carried out in accordance with the above principles. In this case, in order to respect the principles of the PDPA, the concerned individuals should only prove their right once by producing a proper reference document.
In practice there were established new, completely unnecessary registers of personal data of individuals. We consider and recommend that this practice be stopped and the created registers - destroyed.
Personal data registers for the purposes of parking in Sofia
A similar problem in the implementation of the PDPA – personal data processing not proportional to the stated purposes – emerged concerning the 2012 amendments of the Ordinance on traffic organization on the Sofia Municipality territory adopted by the Sofia Municipal Council. Annex no. 15 (to Article 50a, paragraph 6) of the ordinance determining the “Terms and conditions for issuing a vignette sticker for locally paid parking of vehicles of owners of distinct residential properties falling within the zones of hourly paid parking.” According to the adopted earlier this year amendments, the property owners in the paid parking zones wishing to receive a parking sticker had to file an application, enclosing a copy of an identity card, a copy of the tax paid on the vehicle, a copy of the paid civil responsibility insurance, a copy of a proof of ownership of the property and a copy of a document of payment of a utility bill.
After a heated public debate on the subject, the ordinance and Annex no. 15 were amended, the requirement of copies of the documents was revoked and the number of required documents was significantly diminished.
Currently in order to issue the necessary vignette sticker for parking should be provided only for reference documents (and not copies to be left) certifying ownership of the vehicle and the property.
The police requested personal data of drug addicts
In the end of 2012, several media reported that by an official letter the Sofia Directorate of Interior (SDI) has requested from several health facilities lists containing the three names and personal identification numbers of all drug addicted citizens included in the special methadone programs. The first publication on the case is in the internet edition “e-vestnik”, where a facsimile of the letter signed by a chief of sector in the SDI was also published. The request for provision of the personal data lists is based on Article 159 of the Criminal Procedure Code. The factual grounds of the request is that the SDI is investigating a series of burglaries in Sofia pharmacies committed by unknown persons, where besides money from the pharmacies had also disappeared drugs. This is why according to the police all drug addicts constitute a class of potential suspects.
The case provoked an instant reaction from journalists and human rights organizations, because obviously a specific group of people could not be presumed as collectively “guilty” only because of their specific health status. Immediately after the publication in the media, AIP published a statement that the actions of SDI constitute a breach of the fundamental principles of the right of protection of citizens personal data as a part of the constitutionally guaranteed right of everyone to privacy. The request for providing lists of persons included in methadone programs violates specific statutory guarantees of personal data protection. The Personal Data Protection Act provides a special, higher protection of health related data. Article 5 of the PDPA prohibits processing (respectively provision to third parties) of personal data, related to the persons’ health. Exceptions to this prohibition are provided for, but they are exhaustively listed in Article 5 of the PDPA and the purposes of criminal proceedings are not amongst them.
The case constitutes also a breach of Article 157, paragraph 1 of the Ministry of Interior Act prohibiting collecting information on citizens based solely on racial or ethnic origin, political, religious or philosophical convictions, membership in political parties, organizations, associations with religious, philosophical, political or trade union purposes, as well as on health or sexual life. In this case there is a discriminatory attitude towards people, suspected as a group of committing a crime solely on the basis of their health status - drug dependence.
Doctors of medicine working in the said methadone programs turned to AIP for legal advice. A motivated refusal for provision of the requested personal data was prepared for the SDI director.
Personal data protection in the use of Special Surveillance Means and traffic data
In 2012, AIP consulted cases related to breaches of the right of personal data protection in the sphere of the use of special surveillance means and traffic data surveillance by the competent authorities. This practice shows, firstly, that there is a broad interpretation of the Electronic Communications Act by the Ministry of Interior bodies, aiming at access to traffic data, and, secondly, that there is no possibility for citizens to have access to any whatsoever information whether special surveillance means have been used against them. In the autumn of 2012 AIP together with attorney-at-law Mihail Ekimdjiev and the Association for European Integration and Human Rights filed a complaint with the European Court on Human Rights which was against the whole system of surveillance and wiretapping provided for by the Special Surveillance Means Act (SSMA) and the Electronic Communications Act (ECA).
AIP’s practice in this area is also confirmed by the conclusions made in the 2011 Annual report on the activity of the subcommittee to the Legal Affairs Committee of the National Assembly which carries out the parliamentary oversight and monitoring under Article 34b of the Special Surveillance Means Act and Article 261b of the Electronic Communications Act (ECA).
The report was published in July on the National Assembly’s webpage. It contains aggregated information of the inspections made that show disturbing data. A decrease in the total number of requests for the use of SSMs was reported, but this decrease is due to the newly established vicious practice of combining multiple means of special surveillance in a single request. Regarding the Ministry of Interior bodies the number of requests for the use of SSM has increased. In 2011 an increase of 26% compared to 2010 was reported. The number of people subjected to SSMs increases. In 2011, special surveillance means were applied to 7,881 Bulgarian citizens. This is an increase of 30% compared to 2010. The application of wiretapping as an operative method also grows by 20% compared to 2010.
Based on the inspections results the special subcommittee made the following conclusions which AIP finds deeply disturbing from the viewpoint of the right to privacy:
In addition to the parliamentary subcommittee conclusions AIP also expresses concern over the ever more frequently observed bypassing of the provided in the ECA judicial procedure of allowing access to traffic data. Next, in the ECA framework lacks a mechanism of informing citizens after a certain period of time and under certain conditions about the effectuated access to their traffic data. Therefore and in the view of achieving an adequate protection of citizens rights, AIP recommends that the legislator adopts the absolutely essential amendments to both laws – the SSMA and the ECA.
ACCESS TO INFORMATION AND CONTRACTS – RESPONSES TO REQUEST FILED WITHIN THE 2013 AUDIT
The contracting process between state bodies and private persons has always been a topic of particular public interest and the contracts themselves subjects to access to information requests. During the years of APIA implementation, the practices of refusing access to copies of contracts signed between public bodies and private companies has been stable. Of course, in the cases when the contracts are signed under the procedure of the Public Procurement Act (PPA), the citizens have access to the information subject to publication in the web site of the Public Procurement Agency.
The Public Procurement Register available on the Public Procurement Agency web site contains data about all public procurements contracted under the PPA. The data includes the subject of the procurement, the contracting authority, the executing party, the price, the deadlines for execution, the dates of signing. The 2008 APIA amendments guaranteed the minimum publicity of all types of contracts signed by state bodies, public-law entities, and public-law organizations.
Within the 2013 audit on the public bodies’ web sites, AIP filed identical electronic access to information requests to all institutions covered by the audit. The subject of all requests was the same – we sought to obtain a copy of the last public procurement contract signed by the respective institution under the procedures of the PPA in 2012. The purpose was to check the attitude of the institutions towards releasing the entire contracts, information from which is available in an online public register on the web site of the Public Procurement Agency.
236 institutions granted full access to the requested information, while 57 – partial. We received explicit refusals from 50 administrations.
We will point out some interesting moments from the audit, which are not apparent from the statistics.
Comparatively small municipalities with not so well developed web sites responded quickly, providing copies of the requested contracts by e-mail without any formalities.
At the same time, some central government authorities, which should have well developed APIA implementation practices, demanded clarifications on the subject of the requests and responded in longer period of time. For comparison, the Municipality of Nevestino provided access to the contract in 6 days after the filing of the request, while the Executive Agency Electronic Communication Networks and Information Systems responded after the legally prescribed timeframes, by ordinary post and required the requestor to prove that she had representative authority in the Access to Information Programme. Finally, the Executive Agency explicitly stated that the provision of information by e-mail and in electronic form was not stipulated by the law.
The statistics show that in 57 cases partial access was granted. There is no, however, special statistics that would show what parts of the contracts were blanked. Most often, those were data about the executing companies, the price of the contracts, and in some cases even the date of the signing of the contract. This is strange as all these data are published in the Internet and can be found on the Public Procurement Agency web site.
Lastly, we would like to point out as a positive element that the majority of the institutions did not require payment of fees for the electronic provision of information. Payment of fees was required in only 30 cases. It is worth saying that initially more institutions required payment of fees. In response, AIP sent its official statement justifying the right of free access to information by electronic mail (In Bulgarian: http://store.aip-bg.org/stanovishta/2013/Forma_e-mail.pdf).
The communication with the Ministry of Environment and Waters (MOEW) is also interesting. The officials from the MOEW consulted the Ministry of Finance in order to decide if fees are due for the electronic provision of information. Apparently, the Ministry of Finance assumed that for the provision of information under the APIA via electronic mail, the requestors owe no payment of costs since we have received the requested contract from the MOEW free by e-mail.
Generally, the provision practices under the Access to Public Information Act have been developing in a positive direction. Public officials are aware of the legal procedures and try not to formalize the process. Often, access to information officials contacted us by phone if they had doubts about the subject of the request or needed other clarifications. This is a good and effective method to clear out vagueness and eventually provide the requested information. The stable practice of non-disclosure of public bodies’ contracts mentioned in the beginning has apparently been left out. And although there are still some refusals, public officials more and more often decide in favour of the access to information.
GENERAL CHARACTERISTICS
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 Appendix 2: Statistics from the Access to Information Programme Electronic Data Base 2012).
Number of Cases Referred for Legal Help
The number of cases referred to AIP for legal help within the period January – December 2012 is 311. Twenty-six were referred from AIP coordinators in the country. In the rest, the information seekers have requested assistance in our office, by e-mail, or by phone.
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 – 263 instances;
• Next largest group of cases is related to violations of the right of personal data protection granted by the Personal Data Protection Act – 24 instances;
• In a few cases, we have given legal advice with regard to violation of the right to seek, receive and impart information – 16 instances;
• Cases related to freedom of expression – 4 instance, 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 2012, again the largest number of consultations was provided to citizens who had sought the assistance of AIP - 182 instances. In 66 cases, journalists and AIP coordinators (all of them journalists) from central and local media asked for legal assistance, while 53 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 bodies and the local self-government bodies (mayors and municipal councils) is the largest - 108 and 96 cases respectively.
Less frequently, information was sought from public-law organizations (20), regional units of the executive power bodies (22), from the judicial power bodies (14), independent government bodies (14), etc. (See Appendix 2: Statistics from the Access to Information Programme Electronic Data Base 2012).
Most Frequently Used Grounds for Refusal
In 2012, again the number of registered silent refusals is high - 28. 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 - 12. Five 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
The number of cases referred for legal help remains stable – around 300. This is valid for 2012 as well. We have, however, observed an increase of the number of consultations in a specific case. In 2012, 643 consultations were given in 311 cases, while in 2011, 330 cases received 579 consultations.
In 2012, the number of NGOs who have addressed AIP for legal advice has increased – in 2011 they were 34, while in 2012 – 53.
In 2012, a lot of institutions did not respond to access to information requests (the so called silent refusal). The number of refusals grounded on the third party interests is also high. The number of cases referred to AIP by email is also increasing. The number of written consultations provided by e-mail in 2010 was 137, in 2011 they were 219, while in 2012 - 251.
SPECIFIC EXAMPLES
We hereby will describe some of the most interesting cases, referred to AIP for legal help and consultation. The specific examples illustrate how the APIA is efficiently used by citizens, journalists, and NGOs for making analyses on important public events, for journalistic investigations, or for finding solutions of every-day problems.
INFORMATION ABOUT PUBLIC ISSUES AND EVENTS
Access to information in the energy sector. National Referendum
Energy related issues are of high public interest and are permanently in the focus of the public debate. Traditionally, the seekers of information in that area during the years were environmental organizations. Their cases were described in previous reports on the access to information in Bulgaria. The review of cases in which information was sought in the energy sector shows persistent unwillingness of every government to provide information, as well as complete lack of transparency of policies in this sector.
What happened with the access to information in the energy sector in 2012?
The traditional seekers of information in the area – the environmental organizations, were joined by business organizations – the Bulgarian Wind Energy Association and the Bulgarian Photovoltaic Association.
In the beginning of 2012, the Bulgarian Wind Energy Association (BWEA) filed two requests for access to information addressed to the State Energy and Water Regulatory Commission (SEWRC) and the Ministry of Economics, Energy and Tourism (MEET). Representing 60 companies in the wind energy sector, the aim of the BWEA was to prepare a report on the current state of the sector and to make it publicly available. With the request, the BWEA wanted to obtain detailed information about preliminary contracts for accession of power production sites from renewable sources; number of concluded preliminary contracts for accession to the power distribution network; geographical distribution of the sites, etc. The SEWRC refused all of the requested information grounding the decision in the provision of Art. 13, Para. 2 of the APIA. The motivation was that the information had no significance of its own. The MEET provided partial access releasing data about the number of signed preliminary contracts. The ministry claimed they did not dispose of information about the geographical distribution of the sites. The refusal of the SEWRC was appealed in the court.
In the autumn of 2012, the Bulgarian Photovoltaic Association (BPA) also tried to obtain information held by the SEWRC. Access was requested to copies of documents filed to the Regulatory Commission by the three power distribution companies in Bulgaria. The SEWRC responded that the subject of the request was unclear. The BPA should have not only listed the requested documents, but also had to describe the information they wanted to receive.
These two cases one more time demonstrate that the interest in the topic is permanent, active and conditioned by the society. The responsible institutions in the sector, however, traditionally remain closed and the decision making process – non-transparent.
Information about the National Referendum for the development of nuclear power in Bulgaria
The energy topic was of particular interest in 2012 mainly due to the organization and holding of the first National Referendum in the democratic history of the country. Bulgarian citizens were consulted about the development of the nuclear power. The procedure for calling a referendum is regulated by the Law on Citizens Direct Participation in the State and Local Government. On March 29, 2012, the parliamentary majority passed a decision for terminating the construction of the Nuclear Power Plant Belene. In a response, the opposition drafted and introduced in the parliament a petition for a referendum on the construction of a new nuclear power plant. The final formulation of the question which citizens were to answer yes or no was: "Should nuclear energy be developed in Bulgaria through the construction of new nuclear power units?" The referendum date was set on 27 January 2013.
The importance of the availability and accessibility of information with regard to referendums on any topic is apparent. Citizens can reasonably answer yes or no on any kind of a question only if they are aware of the essence of that question, its analysis and expert assessments, which should be publicly available.
A month before the referendum, we reviewed the official web sites of the institutions responsible for the nuclear power, as well as the web site of the Council of Ministers, responsible for the holding of the referendum.
What was published at that moment?
- A special section Referendum on the Nuclear Energy was found on the web site of the Council of Ministers. It contained the so called information list, prepared withinthe authority given to the CoM by Art. 15 of the Law on Citizens Direct Participation in the State and Local Government.
- A link to the Operational Model of the HSBC for Belene was published in section Energy of the Ministry of Economics, Energy and Tourism. However, a presentation in English opened without translation in Bulgarian.
- The richest information we found was on the web site of the Nuclear Regulatory Agency. Materials related to the licensing of the NPP Belene and results from stress tests were published.
We found no economic analysis or forecasts.
Due to the scarce availability of public information, AIP filed two requests for access to information – to the Ministry of Economics, Energy and Tourism (MEET) and to the National Assembly. We wanted to know where in the Internet is published the information which should have been prepared and served as a basis for the decision to initiate the construction of a nuclear power plant and for the debate on such a decision and where it is physically available for reading.
The response of the parliament revealed that they did not have such documentation, while the MEET responded that the only assessments for nuclear safety, the social-economic effect and the management of spent nuclear fuel and radioactive waste dated back to 2005. More importantly, however, as the ministry informed us, they were once online available but are not any more. The only available document was a copy of the Strategy for Managing the Radioactive Waste till 2030.
Based on the above, we can justly conclude that the available and disclosed public information by the competent state authorities was extremely insufficient for the citizens to make an informed decision on the referendum question.
ACCESS TO INFORMATION AND JUDICIARY
Transparent Judicial Appointments Initiative
The issue about transparency of judicial appointments was part of the public life in 2012 also in relation to the preparation and running of elections for new members of the Supreme Judicial Council (SJC). The low level of public trust in the judiciary and the EU critics were some of the reasons which motivated a group of nongovernmental organizations to initiate a campaign for greater transparency and reforms in the judicial system and transparency of the elections candidates for members of the Inspectorate of the SJC and the SJC. Thus, under the pressure of the nongovernmental sector, new rules were crafted and more transparent elections were held.
Among the initiatives was the so called civil monitoring of the judicial appointments performed via the web based platform Transparent Judicial Appointments Initiative. The Internet site developed and maintained by the Bulgarian Institute for Legal Initiatives (BILI) consolidated public information scattered in different sources about the candidates for administrative-management positions in the branches of the judicial power. For each candidate for a key position in the judiciary, a standardized profile was created summarizing all available information about them serving as a basis for an objective and motivated decision. For instance, the profiles contain data about the asset and conflict of interests declarations, information from the personnel file, additional information obtained under the APIA, even information about assets of relatives of the candidate.
The issue about the transparency of information related to the election of inspectors in the Supreme Judicial Council's Inspectorate, as well as information about the work of the Inspectorate itself, was raised before the court as well. A request was filed by the BILI for a statement, prepared by the Inspectorate acting on a signal for inspection on a judge, later nominated by the National Assembly for Inspector with the Inspectorate. Access to the requested information was refused on the ground of the third party's interest exemption. The Administrative Court Sofia City repealed the refusal. The court held that there was overriding public interest in the disclosure of that information which would increase the Inspectorate’s transparency at a time when it was especially necessary because the judiciary was subject to increased public attention.
The Ministry of Interior refused information about the award of the new Prosecutor General
After journalistic investigations in 2011 revealed disturbing practices of the Ministry of Interior (MoI) accepting private donations, in 2012 the ministry has become in the focus of the public debate again – this time in relation to the election of the new Prosecutor General. The reason was allegations that the candidate for the position Sotir Tsatsarov had received an award from the MoI – a gun, in his capacity of Chairperson of the District Court – Plovdiv, although under the Judicial Power Act magistrates may be awarded only by the Supreme Judicial Council (SJC). Tsatsarov told about the award from the ministry during his hearing before the SJC but later the minister of the interior refused to give any details. In November 2012, the BILI filed a request to the MoI asking if Sotir Tsatsarov had received an award under Art. 216 of the Ministry of Interior Act in his capacity of Chairperson of the District Court – Plovdiv. The time frame for response to the request was extended in order to obtain Tsatsarov's consent. After that the Minister of Interior refused to provide access on the ground that “in its essence the information constituted personal data of Sotir Tsatsarov.”
With the assistance of AIP, the refusal of the minister was challenged before the court. The case with the gifted gun raises again the question where does the limits of relations between the executive and the judicial power lie and shows in practice how the refusal of information may harm only the institutions.
BREAKTHROUGHS
Seeking information from monopolists/companies providing public utilities
Seeking information from the so called monopolists has always been of serious public interest. There is a development during the last years in view of the new possibilities for seeking information from such companies. Before the latest amendments in the Access to Public Information in 2008, obtaining such kind of information was almost impossible due to the lack of legal regulations to cover these companies as bodies obliged under the law. The 2008 amendments to the APIA extended the scope of the obliged bodies adding to the public-law entities the public-law organizations. As a result of several specific cases in 2012, the question was raised if heating companies were obliged bodies, more precisely, the Sofia Central Heating Company “Toplofikatsiya Sofia” JSC.
In the case of the citizen Yulian Tsankov, he addressed us in seeking information from “Toplofikatsiya Sofia” JSC about the formation of the delivery price of heating energy for a certain period of time. With the assistance of AIP, the citizen filed a request to the company. “Toplofikatsiya Sofia” JSC refused access grounding the refusal on the statement that it was a company and was not obliged to provide information. As a result of the litigation initiated by the citizen, the court held that “Toplofikatsiya Sofia” JSC was an obliged body in its capacity of public-law organization under the APIA and ruled that the executive director should decide on the access to information request. The court decision was followed by other cases of seeking information from such type of companies in the country.
Transparency of Public Officials' Remunerations and Bonuses
The remunerations of public officials have often been subject of interest to journalists and citizens. In 2012, the public interest focused on this topic after it was revealed that officials from state institutions received bonuses for 2011 in the form of additional material stimulus despite the officially announced government position that there was not budget for such.
The lack of transparency about the amount of the received bonuses and the criteria for their distribution resulted in serious debates and triggered the interest of citizens, journalists, and politicians to obtain specific answers.
It is certain that both the discussions and the actions undertaken to give answers to the unclear questions preconditioned future stable practices of transparency of information.
The public pressure forced the administration to release a big part of the missing information. For instance, the Ministry of Foreign Affairs provided complete access to the bonuses paid to the ministerial officials besides their remunerations. Also, it became clear that in some institutions unscrupulously big amounts of bonuses were distributed and the recipients had to leave their positions. Other officials at high positions were fired after they refused to follow the prime minister's recommendation to transfer the bonuses in a special donation account.
At the same time, the Commission for Personal Data Protection was addressed with several demands for official statement on the question if the information about the received remunerations and bonuses was personal with regard to public officials. In one of those cases, the Commission was addressed by members of the parliament who were asking if there was a violation of the personal data protection if the requested information explicitly excluded the names of the officials, as that was used as ground for refusal of information by a number of ministries.
In its Statement No. 1094/12.03.2012, the Commission held that the information about bonuses received in 2011 in addition to the main remunerations of the ministerial officials constituted personal data only if the information may identify a particular physical person. According to the Commission, in such cases, a possible condition for permissibility of processing the information by dissemination and provision of the data is necessary for the accomplishment of a task carried out in the public interest.
One of the most important steps towards the resolution of the debate on the transparency of the information related to the bonuses of the administration was made by the court. During the year, the court ruled on several cases of refusals of such type of information.
In one of those cases, a request was filed by the journalist Dinka Hristova from the Sega daily. She requested information if bonuses were distributed within the Ministry of Labor and Social Policy and on what criteria. Access was denied on the grounds that the requested information constituted personal data and the consent of the third parties was necessary for the disclosure. The Administrative Court Sofia City repealed the refusal holding that there is overriding public interest in the disclosure of the information about the amount and type of bonuses distributed within the institution and it should not be refused. The Supreme Administrative Court upheld the arguments of the first instance court with a decision No. 178/08.01.2013.
CHANGE OF PRACTICES
In several cases from 2012, due to timely signals from information seekers about wrongdoings in the work of the institutions, changes of information provision practices were achieved. We present two cases from the City of Varna which demonstrate how the active civil position and the good knowledge of rights can often be beneficial.
The Municipality of Varna ceased to require the APIA requestors to provide personal identification number
In March, while filing an information request to the Municipality of Varna about the work of the municipal police, the citizen Nikolay Tsvetkov realized that the personal identification number of customers of any municipal services, but also of Access to Public Information Act requestors, was required. The reason was the integration of a new software requiring a personal identification number at the entering of any document. Tsvetkov refused to provide his identification number for the registering of the request, quoting the provisions of the APIA according to which only the names, the address, and the description of the requested information were required. The municipal official refused to register the request, but kindly advised the citizen to send the request by post because thus he would avoid the requirement to give his personal identification number. AIP was informed about the incident and AIP coordinator in Varna – the journalist Krastina Marinova, checked up the case by attempting to file a request herself. The municipal official refused to register the request without a personal identification number again. Marinova was persistent and as a result of a conversation with the head of the department, her request was accepted without a personal identification number. Later, the municipality changed the practice and stopped requiring personal identification numbers from access to information requestors.
0.09 BGN for a page instead of 2.5 BGN
The second case is related to a practice in the Regional Directorate of the National Construction Control – Varna to collect fees for the provision of information different from the stipulated in the APIA. We were again informed about this practice by Nikolay Tsvetkov who was asked to pay a fee too high for information provided under the APIA – 2.5 BGN for a copy of a page. For comparison, pursuant to Order No. 1472/2011 which determines the fees for disclosure of public information – a copy of a page is 0.09 BGN. The explanation of the Regional Directorate for the higher fee was that the fees were determined under the regulation of Tariff No. 14. This Tariff is related to the provision of information as part of the administrative services and is about the fees collected by the Ministry of Regional Development and Public Works and by the Regional Governors and its implementation in relation to information requested under the APIA was not appropriate. After conversations and clarifications made by AIP, the Regional Directorate of the National Construction Control reconsidered their position.
GOOD PRACTICES IN PROACTIVE DISCLOSURE
For the 13 years of the APIA, the implementation practices have considerably developed. The institutions have acquired the attitude of not only responding to information requests, but also of proactive disclosure of public information. A considerably positive development is the initiative of some institutions to publish online documents for which there is no explicit legal obligation.
Publication of contracts
There is no explicit legal provision which binds the state bodies to publish their contracts. Nevertheless, some heads of public bodies have realized the high public interest in such type of information and started to disclose these documents. Positive examples in this regard are given by the Municipality of Dobrich which published some of its signed contracts. The same has done the Control-Technical Inspection of the Ministry of Agriculture and Food. The Municipality of Momchilgrad have published the contracts for financial aid under different European project.
Publication of urban development plans
Another positive development in the proactive disclosure is the publication of the urban development plans by some municipalities. Currently, these are the municipalities of Bansko, Batak, Belovo, Varna, Dolni Chiflik, Kostinbrod, Maritsa, Pernik, Pleven, Plovdiv, Sofia Municipality, Tundzha, and Yambol.
In 2012, amendments to the Town and Country Planning Act were introduced which created the obligation for the municipal administrations to publish in their Internet sites the drafts of urban development plans and their amendments. Most of the municipalities have not done this yet, probably because the obligation is new.
Publication of construction permits
Lastly, as a positive practices of proactive disclosure of information, we will signify the publication in the Internet of the issued construction permits by some municipalities. The data from our audit on the web sites of the institutions show that this was done by 16 municipalities (out of a total of 264).
CASES WHICH SHALL NOT HAPPEN
We are still witnessing cases characteristic for the first years of the law implementation. The appropriate application of the provisions of the APIA is a difficult task for some administrations even in not so complicated cases. During the past year, we have assisted information seekers who faced problems, illustrating that some harmful practices exist.
Kancho Bonev in a fight with the administration
With fight and arrest ended Kancho Bonev's reqest for access to information. Kancho Bonev is deputy-chairperson of the United Civil Association, which is very active in the protests against construction works in the Sea Garden in the City of Varna. His story begins with a request filed to the Regional Governor, who responded to three out of four questions set forth in the request and referred the fourth question to the competent authority – the Regional Geodesy, Cartography and Cadaster Service in Varna. This last question was about Order No. РД-20-03-1/30.01.2009 related to the changing of the status of the land of the Sea Garden. Bonev received a decision granting him access to the requested information. When going to the Cadastre Service to obtain the information, however, Bonev was given only part of it. So, he decided to signify that he was actually granted partial access to the information in the protocol which was to be signed by the requestor and the providing authority. The Head of the Cadastre Service declined to countersign the protocol with the objection in it. She also declined to provide complete access to the information. After that development, the citizen tried to leave the building with the protocol containing only his signature. The verbal fight between Bonev and the head of the Cadastre Service ended with a physical fight with the security guard of the institution and charges for a document theft. The medical examination of Bonev found that the citizen had nasal hemorrhages, bruises at the jaw, the eyebrows and on one of the thighs. He was then taken to the closest police station where he was arrested for hooliganism by the prosecutor on duty while the officials from the Cadastre Services were released. In the meanwhile, the Regional Court of Varna stopped the proceedings against Kancho Bonev and sent it to the Prosecutor's Office for investigation of crime under Art. 325 of the Criminal Code.
Refusals of the territorial directorates to provide information
In 2012, we were asked for legal assistance in cases in which the regional units of central agencies refused to provide information despite the explicit provision of Art. 3, Para. 1 of the APIA which obligates the territorial units to provide information on their own. We could not draw the conclusion that this is a regular practice on the base of the cases we received. However, it is a fact that such cases exist.
An environmentalist from the city of Varna filed a request to the Regional Food Safety Directorate. The citizen demanded access to copies of finding protocols issued by the directorate as a result of inspections carried out in the territory of Varna. The directorate refused to provide access although they did not oppose that the information should be provided. They referred the request to the central body in Sofia – the Bulgarian Food Safety Agency (BFSA). The central agency granted full access, requested the documents from the regional directorate in Varna and invited the citizen to obtain them on spot in Sofia. The agency explained that this was the procedure regulated by the Internal APIA implementation rules of the BFSA.
The AIP coordinator in Montana Liubomir Yordanov also reported similar cases. For two years, the territorial structure of the Executive Agency for Hail Suppression has refused to provide to journalists information about the shootings they do against hail clouds, the spent rockets, the caused damage to agriculture, and financial resources allocated to them. The questions to the management of the polygons were transferred to the press center of the Ministry of Agriculture and Food which most frequently answers in writing that "sufficient funds are provided, necessary actions undertaken, and a certain acres of land were protected."
At the end of March 2012, in the Regional Directorate of the National Construction Control – Vratsa, received an order that prohibits the structure to provide information to the media. The order was signed by the Minister of Regional Development and Public Works Lilyana Pavlova, who ordered the reporters to get the data they require only from the press center or from the official web site of the ministry.
We have repeatedly noted that such practices are not only in violation of Art. 3, para. 1 of the APIA, but they actually hinder the work of the administrations which refer documents to each other instead of deciding quickly and efficiently on the request.
In conclusion, we recommend to the central executive authorities with regional structures to explicitly include in their internal rules on access to information a clear procedure for regional units to independently provide access to information.
PERSONAL DATA PROTECTION
In 2012, AIP continued receiving for consultation cases concerning violations of the right to protection of personal data, a part of the citizens’ privacy. Let us mention some of the emblematic cases that caused an active public reaction. The first two cases show attempts by personal data administrators to process a larger amount of personal data than actually needed for accomplishing the stated purposes, thus infringing the principle of proportionality of data processing laid down in Article 2, paragraph 2, item 3 of the Personal Data Protection Act (PDPA).
Registers of children between 0 and 7
“Public transportation subscription cards for babies too” – similar humorous titles appeared on the pages of the print and electronic media in the late summer in 2012. At the same time a parent from Plovdiv who was asked for copies of personal documents (identity cards, birth certificate and photo of the child), as a condition for the issuance of a free public transport card for his two-year old child, turned to AIP for legal advice. The question which raised this case is why for the issuing of such cards that only certify, but do not create the right to free public transport, should be established new registers containing annually updated personal data on parents and children.
This story started on 21 December 2011 when the Council of Ministers (CoM) adopted Decree no. 352 amending Decree no. 66 of 1991 on setting minimum amounts of the reductions of public transport prices on automobile transport for certain groups of citizens. As a result of these amendments, mandatory issuance of free subscription cards for public transportation to persons between 0 and 7 years old was introduced. The organization of the issuance was to be carried out by each municipality following the Ministry of Transport guidelines. Since no guidelines were published till mid 2012, the municipalities created their own regulations on the issuing of free public transport cards for the children between 0 and 7. Thus it turned out that in some municipalities such as Varna and Plovdiv in implementation of this objective, special new registers have been established for processing of personal data, which should be updated annually.
The AIP team considers that the described case constitutes a violation of the principles of proportionality and expediency of data processing set out in the PDPA. Pursuant to Article 2, paragraph 2 of the PDPA, any action of data processing should be carried out in accordance with the above principles. In this case, in order to respect the principles of the PDPA, the concerned individuals should only prove their right once by producing a proper reference document.
In practice there were established new, completely unnecessary registers of personal data of individuals. We consider and recommend that this practice be stopped and the created registers - destroyed.
Personal data registers for the purposes of parking in Sofia
A similar problem in the implementation of the PDPA – personal data processing not proportional to the stated purposes – emerged concerning the 2012 amendments of the Ordinance on traffic organization on the Sofia Municipality territory adopted by the Sofia Municipal Council. Annex no. 15 (to Article 50a, paragraph 6) of the ordinance determining the “Terms and conditions for issuing a vignette sticker for locally paid parking of vehicles of owners of distinct residential properties falling within the zones of hourly paid parking.” According to the adopted earlier this year amendments, the property owners in the paid parking zones wishing to receive a parking sticker had to file an application, enclosing a copy of an identity card, a copy of the tax paid on the vehicle, a copy of the paid civil responsibility insurance, a copy of a proof of ownership of the property and a copy of a document of payment of a utility bill.
After a heated public debate on the subject, the ordinance and Annex no. 15 were amended, the requirement of copies of the documents was revoked and the number of required documents was significantly diminished.
Currently in order to issue the necessary vignette sticker for parking should be provided only for reference documents (and not copies to be left) certifying ownership of the vehicle and the property.
The police requested personal data of drug addicts
In the end of 2012, several media reported that by an official letter the Sofia Directorate of Interior (SDI) has requested from several health facilities lists containing the three names and personal identification numbers of all drug addicted citizens included in the special methadone programs. The first publication on the case is in the internet edition “e-vestnik”, where a facsimile of the letter signed by a chief of sector in the SDI was also published. The request for provision of the personal data lists is based on Article 159 of the Criminal Procedure Code. The factual grounds of the request is that the SDI is investigating a series of burglaries in Sofia pharmacies committed by unknown persons, where besides money from the pharmacies had also disappeared drugs. This is why according to the police all drug addicts constitute a class of potential suspects.
The case provoked an instant reaction from journalists and human rights organizations, because obviously a specific group of people could not be presumed as collectively “guilty” only because of their specific health status. Immediately after the publication in the media, AIP published a statement that the actions of SDI constitute a breach of the fundamental principles of the right of protection of citizens personal data as a part of the constitutionally guaranteed right of everyone to privacy. The request for providing lists of persons included in methadone programs violates specific statutory guarantees of personal data protection. The Personal Data Protection Act provides a special, higher protection of health related data. Article 5 of the PDPA prohibits processing (respectively provision to third parties) of personal data, related to the persons’ health. Exceptions to this prohibition are provided for, but they are exhaustively listed in Article 5 of the PDPA and the purposes of criminal proceedings are not amongst them.
The case constitutes also a breach of Article 157, paragraph 1 of the Ministry of Interior Act prohibiting collecting information on citizens based solely on racial or ethnic origin, political, religious or philosophical convictions, membership in political parties, organizations, associations with religious, philosophical, political or trade union purposes, as well as on health or sexual life. In this case there is a discriminatory attitude towards people, suspected as a group of committing a crime solely on the basis of their health status - drug dependence.
Doctors of medicine working in the said methadone programs turned to AIP for legal advice. A motivated refusal for provision of the requested personal data was prepared for the SDI director.
Personal data protection in the use of Special Surveillance Means and traffic data
In 2012, AIP consulted cases related to breaches of the right of personal data protection in the sphere of the use of special surveillance means and traffic data surveillance by the competent authorities. This practice shows, firstly, that there is a broad interpretation of the Electronic Communications Act by the Ministry of Interior bodies, aiming at access to traffic data, and, secondly, that there is no possibility for citizens to have access to any whatsoever information whether special surveillance means have been used against them. In the autumn of 2012 AIP together with attorney-at-law Mihail Ekimdjiev and the Association for European Integration and Human Rights filed a complaint with the European Court on Human Rights which was against the whole system of surveillance and wiretapping provided for by the Special Surveillance Means Act (SSMA) and the Electronic Communications Act (ECA).
AIP’s practice in this area is also confirmed by the conclusions made in the 2011 Annual report on the activity of the subcommittee to the Legal Affairs Committee of the National Assembly which carries out the parliamentary oversight and monitoring under Article 34b of the Special Surveillance Means Act and Article 261b of the Electronic Communications Act (ECA).
The report was published in July on the National Assembly’s webpage. It contains aggregated information of the inspections made that show disturbing data. A decrease in the total number of requests for the use of SSMs was reported, but this decrease is due to the newly established vicious practice of combining multiple means of special surveillance in a single request. Regarding the Ministry of Interior bodies the number of requests for the use of SSM has increased. In 2011 an increase of 26% compared to 2010 was reported. The number of people subjected to SSMs increases. In 2011, special surveillance means were applied to 7,881 Bulgarian citizens. This is an increase of 30% compared to 2010. The application of wiretapping as an operative method also grows by 20% compared to 2010.
Based on the inspections results the special subcommittee made the following conclusions which AIP finds deeply disturbing from the viewpoint of the right to privacy:
- The use of SSMs by competent authorities is not being applied as “extraordinary” means only in cases where all other methods and means of operative research activity and investigations are exhausted. On the contrary, the investigating authorities use SSMs primarily as the most convenient method of gathering information.
- The scope of investigating authorities and officials authorized to request the use of SSMs and traffic data is too wide. Serious preconditions for violating the rights and freedoms of citizens are created.
- There is no sufficiently effective control by the judiciary. The oversight activity carried out by the parliamentary subcommittee leads to the conclusion that the refusals for the use of SSMs issued by district courts are not the rule but rather the exception (0,85% of all requests). It is necessary to increase the controlling role of the court and to provide for ongoing and ex post judicial overview of the information collected through SSMs and used by investigating authorities.
In addition to the parliamentary subcommittee conclusions AIP also expresses concern over the ever more frequently observed bypassing of the provided in the ECA judicial procedure of allowing access to traffic data. Next, in the ECA framework lacks a mechanism of informing citizens after a certain period of time and under certain conditions about the effectuated access to their traffic data. Therefore and in the view of achieving an adequate protection of citizens rights, AIP recommends that the legislator adopts the absolutely essential amendments to both laws – the SSMA and the ECA.
ACCESS TO INFORMATION AND CONTRACTS – RESPONSES TO REQUEST FILED WITHIN THE 2013 AUDIT
The contracting process between state bodies and private persons has always been a topic of particular public interest and the contracts themselves subjects to access to information requests. During the years of APIA implementation, the practices of refusing access to copies of contracts signed between public bodies and private companies has been stable. Of course, in the cases when the contracts are signed under the procedure of the Public Procurement Act (PPA), the citizens have access to the information subject to publication in the web site of the Public Procurement Agency.
The Public Procurement Register available on the Public Procurement Agency web site contains data about all public procurements contracted under the PPA. The data includes the subject of the procurement, the contracting authority, the executing party, the price, the deadlines for execution, the dates of signing. The 2008 APIA amendments guaranteed the minimum publicity of all types of contracts signed by state bodies, public-law entities, and public-law organizations.
Within the 2013 audit on the public bodies’ web sites, AIP filed identical electronic access to information requests to all institutions covered by the audit. The subject of all requests was the same – we sought to obtain a copy of the last public procurement contract signed by the respective institution under the procedures of the PPA in 2012. The purpose was to check the attitude of the institutions towards releasing the entire contracts, information from which is available in an online public register on the web site of the Public Procurement Agency.
236 institutions granted full access to the requested information, while 57 – partial. We received explicit refusals from 50 administrations.
We will point out some interesting moments from the audit, which are not apparent from the statistics.
Comparatively small municipalities with not so well developed web sites responded quickly, providing copies of the requested contracts by e-mail without any formalities.
At the same time, some central government authorities, which should have well developed APIA implementation practices, demanded clarifications on the subject of the requests and responded in longer period of time. For comparison, the Municipality of Nevestino provided access to the contract in 6 days after the filing of the request, while the Executive Agency Electronic Communication Networks and Information Systems responded after the legally prescribed timeframes, by ordinary post and required the requestor to prove that she had representative authority in the Access to Information Programme. Finally, the Executive Agency explicitly stated that the provision of information by e-mail and in electronic form was not stipulated by the law.
The statistics show that in 57 cases partial access was granted. There is no, however, special statistics that would show what parts of the contracts were blanked. Most often, those were data about the executing companies, the price of the contracts, and in some cases even the date of the signing of the contract. This is strange as all these data are published in the Internet and can be found on the Public Procurement Agency web site.
Lastly, we would like to point out as a positive element that the majority of the institutions did not require payment of fees for the electronic provision of information. Payment of fees was required in only 30 cases. It is worth saying that initially more institutions required payment of fees. In response, AIP sent its official statement justifying the right of free access to information by electronic mail (In Bulgarian: http://store.aip-bg.org/stanovishta/2013/Forma_e-mail.pdf).
The communication with the Ministry of Environment and Waters (MOEW) is also interesting. The officials from the MOEW consulted the Ministry of Finance in order to decide if fees are due for the electronic provision of information. Apparently, the Ministry of Finance assumed that for the provision of information under the APIA via electronic mail, the requestors owe no payment of costs since we have received the requested contract from the MOEW free by e-mail.
Generally, the provision practices under the Access to Public Information Act have been developing in a positive direction. Public officials are aware of the legal procedures and try not to formalize the process. Often, access to information officials contacted us by phone if they had doubts about the subject of the request or needed other clarifications. This is a good and effective method to clear out vagueness and eventually provide the requested information. The stable practice of non-disclosure of public bodies’ contracts mentioned in the beginning has apparently been left out. And although there are still some refusals, public officials more and more often decide in favour of the access to information.