Alexander Kashumov, Head of AIP legal team
March 12, 2020
On March 5, 2020, a group of 6 members of parliament from the ruling party, headed by the Chairman of the parliamentary Committee on Budgets and Finance Ms. Menda Stoyanova, submitted a legislative proposal for amendments to the Bulgarian Excise Duties and Tax Warehouses Act. At first glance, the bill only refers to changes in the transitional and final provisions of this act. Paragraph 5, however, amends two provisions of the Access to Public Information Act (APIA). The Committee on Budgets and Finance is the leading - and sole - parliamentary committee in charge of the legislative proposal.
The proposal is to repeal the power of the Minister of Finance under Art. 20, Para. 2 of the APIA to determine the maximum amount of the costs which applicants are obliged to pay upon their request and which shall not exceed the actual costs incurred for granting access to public information. The proposal for a new text of this provision is as follows:
“Applicants shall pay the actual costs incurred for granting access to public information.”
According to the members of parliament in charge of the draft amendment, applicants would thus be financially relieved, and the existence of an order by the Minister of Finance which determines the tariffs for the expenses incurred, “hides an objective risk to the strict compliance with the said legal requirement”.
Whatever this reflection of the members of parliament might mean, given the fact that no such problem has been identified for the past two decades of APIA’s implementation, let us say what risks we think this amendment is posing:
1. Most likely the amendment’s real effect will be that any legal entity obliged under the APIA will determine subjectively whatever amounts it deems to be in accordance with the “actual costs incurred for granting access to public information” and will consecutively burden the applicants to pay them. For instance, even until now many institutions are unaware that the order by the Minister of Finance does not take into account the remuneration of the public employee who is in charge of doing the copy.
2. There will be a discrepancy in the practices of the hundreds of institutions part of the central executive and local self-government, not to mention the other categories of state institutions, including judicial authorities, public-law organizations and others, when there is no existing mechanism whatsoever for unifying their practices.
3. The institutions that are not willing to be open and transparent and to provide information will be given yet another weapon to muzzle citizens in a discretionary manner.
4. Applicants who don’t feel discouraged and who decide to actually pursue their quest for access to public information will have to file cases in the administrative courts where, in addition to the usual court costs, they will also have to cover the remunerations of experts for the legal expertise needed in order to take into account what are the “actual costs incurred for granting access to public information”.
5. The administrative courts will have to deal with an additional workload because of such cases, which will complicate their work. That is to say, the logical question comes up of who actually benefits from such a situation where each institution can decide for itself on how to apply the law. Unless the members of parliament who proposed the bill are extremely naïve, then there is also the question whether they really are not at all as big of transparency friends as they present themselves to be.
Furthermore, we thought that in 2020 the members of parliament had already learned that a decent and good-quality legislative process entails a preliminary discussion of the legislative proposal, in accordance with the explicit obligation under the Law on Normative Acts. As a matter of fact, in his recent opinion to the Constitutional Court Decision No.1 from February 4, 2020, on constitutional court case No 17/2018 that refers to lawmaking behind closed doors, Judge Krassimir Vlakhov clearly stated: "In summary: a law adopted in disregard of the procedure laid down by the legislator himself - with the procedure guaranteeing the quality and transparency of the legislative process - such a law proves to be inconsistent with the idea of state, governed precisely by law, and therefore such an act is incompatible with the Constitution of the Republic of Bulgaria."
Had they held a preliminary public consultation, the members of parliament would have learned that, as a rule, access to public information is free of charge; that no actual costs incur when the requested information is being sent electronically to the applicant; that the Minister of Finance's 2011 order (Order No 1472, 29 November 2011) is practically being applied to this day without any problems.
Ultimately, we are left asking ourselves whether it is an accident or not that:
1/ the legislative proposal for amendment to the APIA is being introduced through a completely different act in order to cover up what is being introduced;
2/ the proposal is not envisaged to pass through the Committee on Legal Affairs, even if its content relates to a fundamental right guaranteed by the Constitution;
3/ the text has not been previously published and discussed with stakeholders;
4/ it is not based on problems identified in practice, nor on information from the Council of Ministers’ annual reports on the implementation of the APIA, nor on any other reports, such as those published annually by the Access to Information Programme;
5/ the adoption of the proposal would impede journalists, citizens, business and non-governmental organizations in their search for public information.
In summary, it all boils down to the following question: does the proposed legislative amendment benefit or harm Bulgaria’s citizens and institutional transparency?
The Access to Information Forum project is implemented with the financial support of Iceland, Liechtenstein and Norway under the EEA Financial Mechanism.
The main objective of the Access to Information Forum project is to improve the transparency and accountability of public institutions.