CASES REFERRED TO AIP FOR LEGAL ADVICE AND CONSULTATION DURING 2014
Provision of legal aid continues to be among the principal activities of Access to Information Programme (AIP). In 2014, on some of the cases referred to it AIP provided legal assistance at the initial stage of the search for information, where the legal team gave advice and / or prepared a request for access to information. In other cases legal aid was rendered following a refusal by an obliged body to disclose information. (See: Statistics from AIP data base)
An essential part of the legal assistance provided by the legal team of AIP is the preparation of complaints to the court and the representation in court of requestors who sought help from the organization.
Number and type of cases handled
Between January and December 2014, legal aid was provided in 391 cases. Eight of these cases were referred through AIP’s coordinators operating throughout the whole country. In the remaining cases the information seekers have requested our assistance directly at the office via e-mail or phone.
Depending on the nature and legal qualification of the cases, we divide them in the following groups:
- the majority of them reflect practices in violating the obligations of the institutions under the APIA – 326;
- the next group of cases are related to violations of the right of personal data protection – 47;
- less frequently we have provided advice in cases involving violations of the general right to seek, receive and impart information – 10;
- a small group of cases concerned freedom of expression – 8, etc.
Who is most frequently seeking information
AIP statistics show that most frequently information under APIA is sought by citizens, journalists and NGOs. In 2014, once again most consultations were provided to citizens seeking legal aid from AIP – in 214 cases. In 77 cases, journalists and AIP coordinators from central and local media turned to us for legal aid, and 56 cases were submitted by NGOs. In 28 cases, our team was contacted for advice from civil servants, and in 13 – from businesses.
Which institutions information is sought from
The largest number belongs to cases where information seekers turn to the central executive bodies – 132, followed by institutions of local government (mayors and municipal councils) – 109 cases.
In fewer cases information is requested from public law bodies and organizations – 26, territorial executive authorities – 21, bodies of the judiciary – 35, independent government bodies – 18, etc.
The 18 registered cases of legal advice where a defendant was not indicated are those in which our team was contacted for a general consultation on the law, or with a question on the development of a court case, on the respective time limits, etc.
(See: Statistics from AIP data base)
The most frequently used grounds for refusals
In 2014, the number of silent refusals remained significant – 28. Out of the refusals in substance, dominant are the grounds related to affecting third party interests– 22 and personal data – 12. The protection of preparatory documents under Article 13, par. 2 of the APIA was cited in 7 of the handled cases, and the protection of trade secrets – in 1.
Specific examples FROM AIP’S PRACTICE in 2014
As every year, this part of the report will present some of the most interesting and typical cases filed for legal advice or comment in AIP. The specific examples of our practice are an illustration of how the APIA is effectively used by citizens, journalists and NGOs in cases of public reaction to current events, in campaigning, in investigative journalism or in solving everyday problems.
The seeking of information during the year reflects important public events. While 2013 was marked as a year of protests, 2014 was the year of the banking crisis. In early summer, the fourth largest bank in the country went bankrupt, which proviked a strong social reaction. The bank's offices were closed, and the depositors’ money – withheld. For months the topic was central in the news, and representatives of the competent state institutions did not cease to give explanations about what is happening. In parallel, citizens, informal groups of depositors in the bank, and journalists began to request access to public information from various government bodies, realizing that the APIA is the only tool through which it is possible to obtain reliable information in such a situation.
As witnessed in this part of the annual report on the state of access to information, virtually all events, exciting public life and debate in 2014, are accompanied by a wave of requests for access to public information, addressed to the institutions involved with the case. Citizens, journalists and NGOs ask questions relating to the deficit of transparency in the investigation of each particular case, as well as to the processes of decision-making conducted by the competent authorities in resolving the specific problem.
The year that passed was a year of yet another special parliamentary election. Thanks to the increased civilian control by the NGOs involved in the elections monitoring, we note positive developments in terms of transparency in the preparation of the elections. Many of the media promptly published their tariffs and contracts with participants in the election campaign and the Council for Electronic Media published a list of the media who did not. The Central Elections Commission continued to publish on the Internet the protocols of its sittings and for the second time it took special measures to protect the personal data of voters, giving citizens the opportunity to check whether their personal data are included in the lists of supporters of the respective parties registered for the elections.
Outside the emblematic public debates, the interest in seeking access to information traditionally remains in several areas: seeking information relating to the expenditure of public funds – regarding methods of selection of contractors for public procurement, the contracts, setting prices for various activities, etc.; prevention or detection of corruption and irregularities; as well as the process of decision making and accountability of institutions. Consulted cases show that it remains difficult to access information on the results of inspections, as well as results of conducted competitions for public officials’posts.
Some of the cases on access to public information presented in this section of the annual report found their continuation in court, and their development in the judicial phase can be traced in the “Litigation” section.
Seeking information on current public issues
Bank secret about the banking crisis
The Corporate Commercial Bank (CCB) bankruptcy was one of the leading topics in 2014. Only weeks after the International Monetary Fund declared the Bulgarian banking system “stable and liquid, with banks’ non-performing loans buffered by provisions and significant capital,” it was shown that this is not exactly the case for one of the largest banks in the country. Media reports about the risks associated with Corporate Commercial Bank, and about how it has been drained by loans to companies close to the bank manager surfaced (on the news plane). Subsequently the bank was placed under the supervision of the Bulgarian National Bank (BNB) after depositors began withdrawing their deposits from it en masse. The CCB crisis raised many questions on the banking policy led by BNB, as well as on the specific mechanisms of oversight over the banking business. Citizens and journalists submitted requests on the subject. In one of those cases the citizen Branimir Morfov made a request to the Governor of the Bulgarian National Bank, asking for information on banking supervision performed by the institution in connection with the collapse of CCB. The specific information that was requested, concerned the existence of a written assessment by the BNB on the approval for acquisition by CCB of "Credit Agricole Bulgaria" JSC (subsequently renamed to Commercial Bank "Victoria"). By decision of the Deputy Governor of the National Bank the requested information was refused on the ground that it was covered by professional secrect under the provisions of the Credit Institutions Act. BNB did not indicate in its decision how disclosure of the requested information would harm the protected interest. There was also no assessment of the overriding public interest, particularly necessary in a time when the problems surrounding CCB were among the headlines in the media and affected the social, economic and political life in the country. Currently, the refusal is challenged before the Supreme Administrative Court.
After the management of Corporate Commercial Bank informed the BNB of the depletion of liquidity and suspension of payments, as well as all types of banking operations, the BNB Governing Council decided to place the Corporate Commercial Bank under special supervision. From this moment all shareholders rights were revoked and conservators were appointed. On this occasion the journalist Tsvetelina Yordanova from “Trud” (a leading newspaper) requested from the National Bank the conservators’ reports and audit reports (prepared by “Deloitte Audit”, “Ernst & Young” Ltd. and "AFA" Ltd.) on the state of Corporate Commercial Bank and "Credit Agricole Bulgaria", prepared after putting the credit institutions under special supervision. On this case too, the National Bank refused to provide access stating in its decision that the information was not public, since it is not created by the BNB and is related to the activities of third parties – banks, which are not obliged bodies under the APIA. As additional grounds for refusal were stated the existence of “banking secrecy” and “professional secrecy.”
Depositors in CCB also made attempts to obtain information on the measures taken by the state in solving the bank crisis. In one of the cases AIP’s legal aid was sought by Radka Petrova, a customer of the bank and a coordinator of an informal civic association representing its depositors. After the placing of the bank under special supervision, citizens asked the National Bank to provide them with information on the amount of remuneration of the auditors. In response they received a refusal based on the protection of personal data.
The presented cases are a small part of the requests for information concerning the bank crisis received and consulted by our team during last year. Unfortunately, it turns out that, despite the increased interest in the subject and the need for transparency of the banking supervision by the BNB, it is difficult to obtain clear and definitive answers and bank secrecy clearly outweighs the public interest, at least for now.
Seeking information on the construction
of the gas pipeline “South Stream”
The “South Stream” gas pipeline topic – an international project for transportation of natural gas from Russia to Italy and Central Europe across Bulgaria – was constantly discussed in the public space over the last few years. During this period, on several occasions we noted the reluctance of institutions to inform the public of the decisions they were taking on this important issue for our country. Between 2011 and 2014, multiple refusals to disclose any specific information on the project were received in response to requests from citizens, journalists, and political parties. In the end, thanks to public pressure and the court cases challenging the refusals, in the autumn of 2014 the caretaker government published on the internet most of the documents concerning the project.
Among the cases submitted to AIP for advice on seeking information on the subject, the case of the political association “National Union Edinstvo (unity)” stands out. In early February 2011 the Bulgarian Energy Holding (BEH) selected a contractor for the feasibility study on the Bulgarian section of the project. The contractor had to examine the technical, legal, environmental, financial and economic feasibility of the Bulgarian section of the South Stream gas pipeline in order to ensure the supply of natural gas to Central and Southern Europe. In August 2013 the Supreme Expert Environmental Council with the Ministry of Environment and Water (MEW) approved the section through which the gas pipeline would pass and the construction officially began in the autumn of that year. On this occasion – the public announcement and start of the construction by the Bulgarian side to the project South Stream – the National Union Edinstvo, represented by several members of the Bulgarian parliament, requested under the Access to Public Information Act from the Ministry of Economy and Energy (MEE) the documents related to the project : agreements, contracts, transcripts of meetings, minutes of meetings, memoranda and other documents concerning the project, its implementation and financing on the territory of Bulgaria. The then Minister of Economy said that such documents were not stored in the ministry. The ministry’s refusal was challenged in court, the case was led with legal assistance from AIP. During the trial, it became clear that the statements in the ministry's refusal do not reflect reality. The court instructed the General Secretary of the Ministry to submit on the case a list of “all documents concerning the project South Stream, including copies and duplicates stored in the entire documentary data set of the ministry.” From the presented printout of all documents that have been registered and contain the words “South Stream”, became evident the huge number of documents related to the project that the MEE kept. Precisely due to the ongoing court case, a major part of the information on the construction of the South Stream gas pipeline was revealed. From the set of documents lodged on the case, for instance, it became clear that the company “South Stream Transport” made proposals for legislative amendments to the Energy Act, in order to circumvent EU antitrust legislation, in relation with the “Sea gas pipeline – South Stream” project. As a result, a signal was submitted to the prosecution, while in the meantime in early September 2014 the MEE made publicly available the majority of the documents on the project by publishing them on its website. In late 2014, Russia declared its intention to suspend the development of the South Stream project through Bulgaria, and to realize a similar project through the territory of Turkey, under a different name.
The National School for Ancient Languages and Cultures case
This example of seeking information on current public events is also an illustration of disclosing information necessary for the campaign of an active citizens’ group defending a public cause. The story began in 2013, received its final outcome at the beginning of 2015 and throughout 2014 was the focus of constant public debates. The National School for Ancient Languages and Cultures is a specialized high school that provides classical education in humanities. In 2013, the Ministry of Culture (MC), the school’s patron and owner, undertook renovation of the school building. The renovation was financed with funds from an EU program and the amount of funding is over 2 million BGN (over 1 million euros). Upon completion, however, the MC decided that in spite of the renovation it will provide the school with another building, which – though not renovated and in poor condition – is located in the city center, unlike the newly repaired one, which is based in an outer neighborhood of Sofia. This decision provoked a strong public reaction of teachers, former and current high school students, as well as the general public. Two civic groups took opposing positions in the debate where the school should be housed: in the renovated building in the outer neighborhood of the city or in the outdated not renovated building in the city center. The particular questions that were raised in the public debate are: Is it rational to spend 2 million BGN to repair a building, which ultimately will not be used for the needs of the school? What are the reasons for giving the school a building in poor condition that needs the spending of new funds for repair? What is the technical condition of the two buildings? What are the competent authorities’ assessments regarding the satisfaction of health and safety regulations in both buildings?
In 2013, the group of teachers and students defending the return of the school in the renovated building, submitted more than 30 requests for access to public information, addressed to various government institutions, the purpose of which was to obtain information that would prove the good quality of the repair and the effectiveness of the project’s implementation. The main institutions to which the access to information requests were addressed are:
- The Ministry of Culture – the submitted requests sought access to copies of various documents concerning the effected repair works on the building, to documents regarding public discussions held in the MC on the issue, opinions, expert statements, etc. Access to information from this institution is difficult to obtain and disclosure of much of the information has been refused, such as the protocol from a public discussion in the MC, for example. The refusal was challenged and the successful development of the case at its court phase can be found in the “Litigation” section of this report.
- Regional Health Inspectorate (RHI) – Sofia City – requests have been submitted for access to copies of documents containing the findings of the RHI on the safety of the renovated school building, and in particular on the levels of asbestos in the walls. The information received indicates that the building is safe and fit for use, and the detected asbestos was below the maximum permissible levels. With the disclosure of this information was put an end to the speculations that the building is dangerous and the educational process in it could not be carried out.
- Sofia Municipality – requests have been submitted for access to information regarding the ownership of the two school buildings together with a copy of the technical passport of the renovated building.
- Ministry of Regional Development and Public Works (MRDPW) – requests have been submitted for access to copies of all correspondence between the MRDPW and the Ministry of Culture, which concerned the case of the project for renovation of the school. The Ministry of Regional Development provided full access to the requested information, which reveals how the repair works were carried out and what are the assessments of these activities.
Thanks to the information received under the APIA a group of teachers and students were able to argue their positions in the public discussions.
Explosion in a munitions factory in the village of Gorni Lom
In the autumn of 2014, a blast in the workshop for utilization of ammunition of the company Videx in the Midjur factory (Gorni Lom village), killed 12 people. The incident raised questions related to the safety of the activities carried out on the utilization of old ammunition, the oversight by public authorities on this activity and the procedures for issuing permits.
The topic of the safety of utilization activities was brought to public attention for the first time in 2009, when the citizen Petar Penchev, Deputy Chairman of the National Movement Ecoglastnost submitted requests for access to information to the Ministry of Environment and Water (MEW) and the Interagency Council on the military industrial complex and mobilization readiness of the country to the Council of Ministers. Back then, using the APIA, Petar Penchev received key documents such as a copy of the authorization for the transfer of weapons issued to Videx for the import of landmines, a copy of a company’s contract for utilization of ammunition and others. Again following the APIA procedure, the MEW also disclosed Videx’s authorization for utilization of ammunition. Despite the request made, the Ministry did not provide assessments of the impact on the environment, together with the results of activities (if they were being already carried out) on destruction of Greek mines in Bulgaria, including on monitoring of the impact on the environment. Using the obtained documents back in 2009, Penchev warned in writing the responsible institutions of the danger to human health and the environment that exists in the import and utilization of old ammunition, but received no response to his signals. In 2014 a tragic accident actually happened.
Immediately after the blast in Gorni Lom, Petar Penchev once again submitted requests for access to information to the same institutions, seeking various documents attesting the imports of 1,568,159 landmines in view of their utilization. He also sought information on the price to pay for the destruction – € 0.32 for a mine. The information was disclosed and using the received documents, Petar Penchev submitted a signal to the prosecution of the Republic of Bulgaria for committed abuses and violations of safety rules.
Information on the expenditure of public funds
In the past year, the interest in the topic of public expenditure exceeded the usual interest shown from citizens, journalists and NGOs. Several local administrations took the role of access to information seekers. The case was prompted by the distribution of funds under the Public Investment Program (PIP) of the government “Growth and development of the regions,” according to which some municipalities have received funding, while others have not. How did the actual distribution of around half a billion BGN happened remained unclear to the public. Therefore, in early 2014, the Municipality of Gabrovo requested access to the minutes of the committee evaluating the projects. In an official letter to the then Minister of Finance in his capacity of Chair of the Interagency Council for Evaluation, Prioritization and Selection of Project and Program Proposals to Implement the Objectives of the PIP “Growth and development of the regions”, the Mayor of Gabrovo requested to receive copies of the following documents:
- Minutes of the sittings of the Interagency Council;
- The methodology developed under the criteria set in Council of Ministers Decree №4 / 16.01.2014, under which the project proposals were evaluated;
- The detailed evaluations of all project proposals received – by criteria, and the total score obtained.
Later in the year the mayors of three other municipalities – Kozlodui, Byala Slatina and Oryahovo – challenged in court two Decrees of the Council of Ministers that actually allocated the funds under the program. Among the grounds for the challenge was the lack of transparency and access to information to the methodology of the allocation of funds. That battle for transparency was lost and access to information was not obtained.
Citizen monitoring and evaluation
of specific areas of governance
During 2014, we noted cases of “campaign based search for information.” These are cases in which, mostly NGOs, sent identical requests to different institutions in order to monitor and apply civic control on certain of their administrative practices. We will point out two examples to illustrate.
The first one is a case of an international charity organization working in the field of animal protection – the “Four Paws” Foundation. The organization works actively to reduce the number of stray animals in a humane way by applying the Protection of Animals Act (PAA). In 2014, the organization aimed to assess the state of the stray animals’ populations in all municipalities, as well as the fulfillment of the respective obligations by local authorities under the PAA. Therefore, the organization sent identical requests for access to public information to all municipal administrations which asked whether the municipal council had adopted a program for controlling the population of stray animals under Article 40, par. 1 of the PAA, as well as for a summary, organized on a annual basis, on the activities carried out by the municipality under this program. In response to the applications, despite the occurrence of some refusals – explicit and implicit – was received a large amount of information that enabled the organization to perform the desired assessment and to make recommendations to the new national program for controlling the population of stray animals.
The second such case was initiated by the environmental NGO Foundation “BlueLink” which planned to produce a complete image and assessment of civic participation in the work of central and local executive power. For this purpose, the organization sent identical applications for access to public information, addressed to all central executive and local self-governing bodies, which sought the provision of information on the number of civil society councils functioning at the respective authorities, as well as normative grounds on which these councils operate.
Such campaign submissions of requests for access to public information aimed at assessing the state of a particular field of governance are becoming more and more popular in the activities of various NGOs and are used to support the work of the organizations.
Searching for public sector information for re-use
Amendments to the Bulgarian Access to Public Information Act in 2007 introduced the European Directive 2003/98/EC on the re-use of public sector information. The amendments included the introduction of a new chapter in the APIA on the access to such information. Although in the past seven years cases where we were asked for advice on requests under this chapter were rare, in 2014 we noted an increased interest in this type of information. AIP provided legal aid in initiating the first case against a refusal to provide information for re-use. The request on this case was submitted in April 2014 to the National Assembly. It sought a copy on technical carrier in an open format of the entire structured database used by the website of the National Assembly, with the exception of the data protected under special legislation. In his request, Petko Tsikov from the NGO “Obshtestvo.bg” indicated that he wanted to obtain the information in order to create a new product aimed at improving citizens' awareness of the activities of the National Assembly. According to the applicant the appropriate visualization of the parliamentary process will facilitate involvment of the citizens in the political process. Since, the President of the National Assembly did not issue a decision on the application in the statutory deadline, the silent refusal was appealed from in court. By decision of the Administrative Court – Sofia City, the refusal was repealed, the court pointed out that the President of the National Assembly was obliged to issue a decision on the application within the statutory deadline, which he did not do, therefore the case was returned to him for explicit pronouncement.
In another case, information for re-use was once again refused, this time by the National Revenue Agency (NRA) at the request of Bozhidar Bozhanov from the “Obshtestvo.bg” Foundation, submitted electronically. He asked for the provision in open format of a list of names and addresses (and / or geographic coordinates) of petrol stations in the country that have a digital connection with the NRA. The purpose of the request was for the data to be used for a website, which collects information on all petrol stations in Bulgaria and the fuels they offer. Initially, the NRA specifically requested that the application be signed with electronic signature – a requirement that, although contrary to the provisions of the APIA, for years has been part of the practice of the agency on provision of information electronically. Subsequently, the data was refused on the grounds that they could constitute a trade secret of the persons engaged in commercial activities through petrol stations, therefore it was necessary to ask each one of them whether the provision of the data would violate such a trade secret. The NRA pointed out that this is objectively impossible due to the large number of persons who should be asked. In addition, the information was refused on the grounds that the required investment of effort and resources go beyond the normal procedure of providing access to information available at the Agency (Art. 41a, par. 2 of the APIA).
An example of a successful exercise of the right of access to information for re-use is the “WWF-Danube-Carpathian Programme – Bulgaria” work on creating a unified platform of the rivers in Bulgaria, which will help the conservation and restoration of river ecosystems. By submitting dozens of requests under the APIA, the organization was able to collect the full database of all rivers in Bulgaria with information about their environmental condition. Requests were made to the basin directorates in the country, the Regional Environment and Water Inspectorates, the Executive Environment Agency, as well as the Sustainable Energy Development State Agency. The collected data has been analyzed, processed and opened for re-use by creating a web-based GIS platform concerning the rivers with an open public access (http://gis.wwf.bg/rivers/). The platform provides the opportunity for all citizens to obtain detailed online information about the location, condition, use and threats to each river in Bulgaria. Checks can be made on all existing and approved hydropower plants, as well as their technical characteristics. The platform containing the rivers database was launched for public use in August 2014 and aims to enable civil society to participate more actively in the conservation of the rivers in Bulgaria.
Investigative journalism on issues of public interest
The consulted by AIP cases of journalists indicate that the use of the law in journalistic work is especially effective when its purpose is investigating opaque practices of the institutions; where there are serious doubts about the abuse of power or it is necessary to shed light on a topic of public interest. Journalistic investigations using the APIA do not always give clear answers, nor do they necessarily change existing practices. Sometimes it is more important that they raise “uncomfortable” questions and make them public.
The construction of a chlorine plant in
Gorna Oryahovitsa was suspended
with the help of the APIA
In a case of seeking information for an investigation of the journalist Zdravka Masliankova, from “Yantra TODAY”, a Veliko Tarnovo newspaper, the construction of a chlorine production plant in Gorna Oryahovitsa was suspended. The news of the construction of the factory led to an escalation of tension in the city, where an “Antichlorine” protest movement was immediately formed and produced a petition to the responsible authorities which received the support of over 3,000 people.
The investor company planned to create a production base for a huge amount of liquid chlorine – nearly 15,000 tons per year, which according to the Environmental Protection Act qualifies the enterprise as having high risk potential. The hazardous production had to be located less than a kilometer away from two schools, a hospital and residential neighborhoods in the city.
Documents received under the APIA showed that for years the company has been operating in its own warehouse for chemicals in Gorna Oryahovitsa thus occasioning numerous violations of the current legislation. It turned out that the base was operating illegally, without having been commissioned and despite the inspections by a number of institutions.
As a result of the investigation and the published information about the detected irregularities on the pages of "Yantra Today", as well as thanks to the active civil actions against the construction of the plant, at the end of 2014the investor company withdrew its investment intent (plan).
A publication on an accident on the railway line in Lovech
raised once again the issue of safety of level crossings
Using the APIA, the journalist Tzvetan Todorov from “People's Voice”, a Lovech newspaper, managed to collect, analyze and publish information on the status of railway crossings on the territory of Lovech region. His interest in the subject was triggered by a lawsuit concerning an accident with a disabled person, who, while trying to pass through the only nearby railway line crossing, which was closed and left without maintenance by the Bulgarian State Railways, saw his electric scooter fail just before the train passed. At the last moment he managed to move himself away from the line, but the train wrecked his vehicle. Following the incident the man remained immobilized for over a year because he could not get around without his scooter and therefore sought compensation before the court for pecuniary and non-pecuniary damages.
On this occasion, the journalist decided to request official information on the status of the crossings in Lovech region through access to information requests made to the competent institutions – the “Railway Administration” Executive Agency and the National Company “Railway Infrastructure”. The answer showed that for the last three years the incidents in the area are 11, but also that this is not the actual number, i.e. the official data are not complete. Of all the crossings in the area (31) only eight are equipped with automatic three – light systems with flashing light, while in the meantime no crossings had been closed. The provided information elucidated some of the problems associated with this topic, but it is up to state institutions to react, since it is in their powers to take measures to prevent accidents. Dozens of people living near the railway line in Lovech (and not only there), are still forced to cross it at unregulated crossings at their own risk.
Regulation of urban environment, designing the plans for urban development, construction of public buildings, parks, playgrounds, and improvement of landmark urban areas are topics traditionally sensitive for citizens, journalists and NGOs working in this field. Evidence of this high interest is the significant number of cases in this area, where AIP’s legal aid and advice was sought. Examples of such cases are the requests for access to information of the NGO “Association of Parks in Bulgaria”, which sought documents related to the detailed urban plans of the town of Tsarevo, where the obtained information testified for numerous suspicious transformations as to the purpose of certain plots in the municipality. On the territory of Sofia the organizations “Grupa grad” (“City Group”), “Citizens for Green Sofia”, as well as individual citizens in 2014 sought information on urban planning, renovation of the city’s central area and various symbolic places in Sofia such as the “Lions Bridge”, blvd. “Vitosha”, etc. In this report we also note the conclusion from our annual survey of the websites of the institutions – very few are still the municipalities that publish their general spatial/urban plans on the Internet, even though it is their duty under the Spatial Development Act.
One of the interesting cases of seeking information about urban environment, which was consulted by our team, illustrates how information obtained under the APIA supported a journalistic investigation revealing a waste of public funds.
The case is initiated by the journalist Spas Spassov – correspondent of the “Dnevnik” newspaper in Varna. In 2014, Spassov investigated the expenditures of the Municipality of Varna on the occasion of the participation of the city in the competition for European Capital of Culture in 2019. Researching how half a million levs (BGN) of municipal funds were spent for promoting the city in the contest, Spassov submitted requests for access to information, which sought the provision of minutes of meetings of the municipal committees, minutes of meetings of the Municipal Council of Varna, and a full report on the expenditures of the municipality made under the “Varna 2019” project. Following provision of the requested information, Spassov published his investigation into two parts: “The secret Plan B in Varna” and “How much does Varna’s loss in the contest for Capital of Culture 2019 costs”. The obtained documents reveal interesting facts, such as the way in which decisions are taken in the municipal committees and municipal council, the size of specific costs, and the curious fact that a 7,000 BGN (around 2,500 euros) fee was paid to the author of a drawing on an asphalt road. Spassov published all documents received using the APIA on his Internet blog.
In another case related to the topic, a group of citizens of Veliko Tarnovo asked the municipality to provide information concerning the reconstruction of a residential building that forms part of a group cultural monument called “Historical Settlement Veliko Tarnovo”, located in the “old town”. With their application they requested access to the construction documentation of the project for reconstruction of the building, and in particular – the visa for research and design; the building permit (reconstruction); the approved architectural project (in its architectural and design part); as well as a document certifying the approval of the National Institute of Immovable Cultural Heritage (NIICH). The reason for submitting the request werethe construction works on the site which were in obvious conflict with the requirements for construction and repair of buildings, declared as cultural monuments. This gave rise to doubts that they were performed without the requisite permits and approvals from competent institutions. In response to the application, the mayor of Veliko Tarnovo refused information on all the points on the grounds that the requested documents are part of administrative files and as such are not public information, but are documents on administrative services to individuals and legal entities, i.e. information outside the scope of APIA within the meaning of Art. 8, item 1 of the Act. The refusal also stated that, since the requesters do not have the status of interested parties within the meaning of the Spatial Development Act (SDA), they have no right of access to the requested information. The information was also refused, on the grounds of “personal data of third parties” and “the requested documents are not carriers of public information.” Subsequently, the case against the refusal was won on two court instances – the Administrative Court – Veliko Tarnovo and the Supreme Administrative Court. In its decisions, the court held that the applicable rules for access to the requested information are those of the APIA and not as the refusal stated – those of the Spatial Development Act. The judges added that the information makes it possible to increase transparency and accountability of the Veliko Tarnovo Municipality in connection with a socially sensitiveactivity – the preservation of architectural heritage and building the image of the city, i.e. there is an overriding public interest in disclosure. (More on this case can be found in the “Litigation” section of this report). Eventually, thanks to the legal proceedings and decisions of the court, the mayor of Veliko Tarnovo provided access to the requested information.
Personal data protection
There are several important points that should be noted in the area of citizens' right to protection of personal data for the past year.
Firstly, we have to mention the constitutional case № 8 of 2014 initiated at the request of the Ombudsman of the Republic of Bulgaria. Following the publication of the decision by the European Court of Justice declaring the EU Directive 2006/24/EC (the Data Retention Directive) invalid, the Ombudsman asked the Constitutional Court of the Republic of Bulgaria to review the compliance with the Constitution of the provisions in the Electronic Communications Act (ECA) relating to the storage and access to traffic data generated in electronic communications. According to the Ombudsman the contested provisions were adopted by an amendment of the ECA, which aims precisely at the introduction of the abovementioned directive. Under the law, providers of public electronic communication networks or services are required to keep all data generated or processed in the process of their activities relating to the traffic of messages. The purpose of storing the data is detection and investigation of crimes and the retention period is set out in the law.
The Constitutional Court constituted as third parties on the case a number of state bodies and NGOs, including the Access to Information Programme. In early July 2014 AIP submitted an official statement, which supported the request of the Ombudsman and provided extensive reasoning for the position that the challenged texts of the ECA do not contain the necessary guarantees for the rights of citizens in relation to secret surveillance and contribute to unjustified interference with their personal sphere. Through Decision № 2 of 12 March 2015 the Constitutional Court declared unconstitutional all attacked texts of the ECA. The justices noted that the generated and stored data for the legally specified period contain full details of who has communicated, as well as when, with whom, how, with what device and from where.. In turn, this information allows for extremely detailed and full profiling of monitored people, including on sensitive criteria. The court adds that in transposing the European Directive the Bulgarian legislator has illegally expanded its scope both in terms of the purposes for which traffic data are stored, and in terms of the number of persons who have access to these data. One of the main problems with the impugned provisions is associated with the disproportionately long period for data retention – 12 months, as well as with the fact that in one of the hypotheses that period may be extended by six months, without any control by an independent authority or court.
Next, it is important to mention the published formal opinion of the Commission for Personal Data Protection (CPDP) on video recording in the context of personal data protection. The opinion is binding on all personal data administrators who maintain a video surveillance register. In its opinion, the Commission considers that in order for the processing of personal data through the use of video surveillance systems to be permissible, in each case an assessment of the balance of interests of the administrator and the recorded subjects is required. The competent state authorities are entitled to carry out video surveillance with the purpose of protection of national security and public order, but this should be regulated so as to avoid the possibility of misuse of the collected data. Whenever action is taken for processing data collected by video surveillance systems, a concrete assessment should be carried out of the proportionality of the purposes for which these data are collected and whether these purposes could not be achieved in a different manner.
During the past 2014, the AIP legal team offered assistance in 47 cases where citizens considered their rights of personal data protection violated. As noteworthy in terms of the right balance between the right of access to information and protection of personal data we will present the case of Georgi Serbezov against whom several complaints were submitted to the CPDP. Serbezov is an access to public information activist – he has led and won trials against refusals of the administration to provide information throughout the years. It is this activity that has demonstrated how important the knowledge of case law is, but at the same time even the Supreme Administrative Court’s site, recognized as the best in the judiciary, is not comfortable enough for use by citizens. Therefore, Georgi Serbezov created a specialized site that makes it easy to search through the already published decisions and rulings of the SAC specifically and solely on litigation under the APIA. In 2014 complaints were filed against Serbezov, in his capacity as administrator of the site in question, alleging that there has been unlawful processing of personal data, as the site (re)publishes the names of the applicants in their capacity as parties on cases of access to public information. The applicants do not deny that indeed the initial publication of their three names was made on the official website of the SAC, but they claim that Georgi Serbezov’s site makes their names searchable through the Google search engine. Therefore, the applicants requested from the CPDP that the alleged violation of their rights be discontinued. Subsequently, the Commission rejected both complaints as unfounded and after assessing the balance between the two rights –personal data protection of the parties to a public trial and the right of citizens of fast and easy access to case law, ruled in favor of the latter.
Among the most common cases in which citizens have turned to us for advice in the field of personal data according to AIP’sdatabase are the following:
- cases where citizens seek advice on the illegal processing of their personal data by political parties through the inclusion of their names and other data in the lists of supporters of the respective parties upon their registration for elections;
- cases where citizens turn to AIP for advice on the illegal processing of their data by debt collection companies;
- cases of seeking access to personal data of children from the State Agency for Child Protection. Primarily, these are cases of separated families where one parent approaches the Agency with the request for an inspection on how the other parent is raising the child, and then seeks access to information on the results of that inspection.
The number of provided consultations on cases is twice as large – 923, since some cases require more than one consultation.
 IMF Concludes Visit to Bulgaria, 12 June 2014, IMF Press Release No. 14/278, on a visit to Bulgaria during 6 – 11 June 2014.
 Decision no. 7832/15.12.2014, of the Administrative Court – Sofia City.
 ECJ, Grand chamber, 8 April 2014, Judgment in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger and Others
 Bulgarian version at: http://constcourt.bg/contentframe/contentid/4467