Gergana Jouleva, Alexander Elenkov, Alexander Kashumov, Kiril Terziyski
Access to Information Programme presented the fifth book of analyses and commentary on access to information litigation in Bulgaria
On October 31, 2012, Access to Information Programme (AIP) presented its book Litigation Under the Access to Information Legislation. The book is part of the continuous analyses which AIP has been making on the Access to Public Information Act litigation in Bulgaria and is the fifth from the series: http://www.aip-bg.org/en/publications/books/. Authors are the attorneys-at-law from AIP legal team Alexander Kashumov, head of the team, and Kiril Terziyski. The foreword is by Gergana Jouleva, AIP Executive Director.
“I was impressed by the content of the book. Not big, but containing thorough analysis of the case law under the Access to Public Information Act (APIA) and raising a lot of questions. Such systematization and commentary is necessary for the court practice,” Supreme Administrative Court Judge Alexander Elenkov emphasized.
The title of the book – Litigation Under Access to Public Information Legislation – is different from the previous four in the series and indicates a different approach in the analysis. “We aimed to broaden the scope of the analyses, including not only case law under the Access to Public Information Act, but also under other laws since the right of access to certain types of public information is guaranteed by other laws as well”, stated one of the authors Alexander Kashumov.
The purpose of the book, according to the authors, is to review the court practices from the point of view of the international and regional standards set forth by the Council of Europe Convention on Access to Official Documents (2008), the Aarhus Convention, etc., and to evaluate the consistency of these practices.
The focus of the analysis is the litigation related to the 2008 APIA amendments which introduced an extended scope of obliged bodies, the balance of interests test and the narrowed scope of the trade secret exemption.
The book consists of three parts: general issues; terms, scope and procedures under the APIA; and the restrictions to the right of access to information.
The first part gives a summary of the content of the APIA, the national and international context and identifies tendencies in the court practices accumulated during the twelve years of APIA implementation in Bulgaria.
The second part deals with the terms, scope and procedures under the APIA.
“The term public information has been widely discussed during the years. We have quoted court decisions which define the widest possible scope thus complying with the international standards, Art. 41 of the Constitution and the APIA. We have selected those decisions which have established new practices and served to unify contradicting litigation,” Alexander Kashumov emphasized.
Regarding the scope of the obliged bodies, the author added: “Despite its extension with the 2008 APIA amendments, the courts still prefer the narrow interpretation of the scope of the obliged bodies.”
Other issues include the silent refusals, the time frames for appeal of administrative decisions for providing access or for refusals, and the litigation costs.
The third and most voluminous part analyzes the court practices regarding the access to information exemptions.
“The most difficult questions related to the application of the law are commented in that part. We have again referred to the applicable international standards and followed chronologically the case law related to certain types of exemptions. We have commented on decisions which make the balance of interests test introduced with the 2008 APIA amendments. We have emphasized the court practice on the applicability of different norms, i.e. the inapplicability of the preparatory documents exemption in terms of access to environmental information. Interesting is the question of balancing access to public information and the personal data protection. Constitutional Court decisions are quoted which affect the application of the legislation on these issues.”
The last part of the book contains annotations of 16 court cases by topic. They illustrate the issues contested in court and related to the analyzed problems.
“Our conclusion based on the review and analysis of the case law is that there is an undoubted tendency towards wider understanding of the right of access to public information and narrow interpretation of its exemptions. Some questions have not found final resolution yet and are subject to further development, like those related to the balance between the access to information and personal data protection. On other issues, we would expect positive development like those related to the extended scope of the obliged bodies. The courts function like an independent arbiter in access to information disputes and in a number of cases repeal access to information refusals.
At the same time, developments in Bulgaria should not fall behind the common European and Western context, where for example the access to public officials’ e-mails is discussed. More effort is required for the establishment and compliance of unified and consistent practices on similar cases.”
The book was presented in the Union of Bulgarian Jurists. More than 50 attended – journalists, lawyers, representatives of the authorities and the business, academics, AIP clients, partners and friends. Among the guests were the Chairperson of the Supreme Bar Council Ms. Daniela Dokovska, the Chairperson of the State Commission on Information Security Ms. Tsveta Markova, the Deputy Minister of the Interior Mr. Veselin Vuchkov, the Director of the National Institute of Justice Mr. Dragomir Yordanov, justices from the Supreme Administrative Court.
The speech of AIP Executive Director Gergana Jouleva, the review of SAC Judge Alexander Elenkov and the overview of Alexander Kashumov, Head of AIP legal team are published in AIP October FOI Newsletter (In Bulgarian).
The English translation of the book Litigation Under Access to Information Legislation is to be released.
The book is published with the financial support of Open Society Institute, Human Rights and Governance Grants Program, Budapest.
Litigation under the Access to Public Information Legislation, Access to Information Programme, 2012, 168 pages, ISBN 978-954-9953-49-7