02 November 2007

In a decision, as of November 2, 2007, a panel of the Sofia City Court repealed the refusal of the Director of the Government Information Service (GIS) to provide access to information to the journalist from Capital weekly, Rosen Bosev. He requested information about the conditions under which the former minister of state administration, Mr. Dimitar Kalchev, signed a contract with Microsoft Company for the purchase of software licenses for the needs of the state administration, as well as a copy of the document itself.


The issue became widely discussed after publications in the press about the increase of the number of software licenses to 48,000, which meant that the overall price had gone beyond 28 mln. USD. Moreover, the Bulgarian government had been signed the few contracts with Microsoft Company without a public procurement procedure.


In May 2007, the Director of the GIS refused to grant access to the requested information. The Director of the GIS claimed that the conditions for the signing of the contracts, and the contracts themselves, were trade secret – disclosure of the contracts would have brought to unfair competition. With the legal assistance of Access to Information Programme (AIP), the journalist submitted a complaint to the Sofia City Court, whose last hearing of the case was on October 3, 2007.


IntheirjudgmentasofNovember 2, thejustices declared the refusal unlawful.


Protectionoftradesecretandtheprevention from unfair competition might have served as grounds for the refusal. In such cases, the public institution should request the consent of the affected party as stipulated by Art. 31 of the Access to Public Information Act. On one hand, the GIS had not requested the consent of the third party, being Microsoft Company in the particular case, which amounts to a procedural failure.


The court also stated that even the explicit dissent from the company did not mean that the administrative body should automatically refuse access to public information – after consideration, the body may provide the partial access to the requested information.

 

The GIS did not appeal the court decision and it became effective.


However, thebenefitscomingoutofthatdealwouldremainquestionableas long asthegovernmentwithholds information about thecontracts. The unwillingness to make the contracts public has continued along the terms of two Bulgarian governments already. AIP has tried to break that unwillingness two times.


The first attempt to cast light on contracts signed between the Bulgarian government and the Microsoft Company was made right after the signing of the first contract four years ago. In 2003, Access to Information Programme and two MPs from the opposition requested from the then minister of state administration a copy of the contract. The Minister refused to grant access. The refusal was challenged before the court which dismissed the claim on adminssability grounds.

 

For the summary of court developments, please visit: http://www.aip-bg.org/library/dela/case67.htm

 

For more information and analyses on the past proceedings, visit: http://www.aip-bg.org/library/dela/case53.htm and http://www.aip-bg.org/bulletin/19_eng/01.htm.