21 January 2010

Author, Kiril Terziiski, AIP
Translation from Bulgarian, Tereza Alexova, AIP

During 2009 a large number of lawsuits for access to information were brought with the AIP legal support. As in previous years some court battles have been successful, others have been lost. Some, such as the story related to the contract between the Bulgarian administration and Microsoft have been again postponed. The rich case law allows us to draw some conclusions and trends in the court practice.    


The Bulgarian Access to Public Information Act (APIA) does not provide for the possibility for the administration to remain silent upon a FOI request. The lack of decision of the competent authority on a FOI request is unlawful and it is ground for revocation by court in itself.

Regrettably, the silent refusals continue to be common in practice.

At least in five cases ran by AIP such silent refusals have been declared unlawful. The reasons for these court decisions vary, but they all share the idea that the only consistent with the law way to proceed with FOI requests is to give a motivated decision either granting or refusing access to the information. The public administration is obliged to notify the applicant for its decision.               


Despite the fact that silent refusals have almost always been declared unlawful, the institutions take advantage of this practice to defer the resolving of the question as a court appeal procedure inevitably delays the disclosure of information. Nonetheless, some institutions deserve to be distinguished. For instance the State Agency of Youth and Sport (now the Ministry of Physical Education and Sports), after a court ruling repealing its silent refusal, disclosed proactively on its website the list of subsidized bodies, which had been requested.


As in previous years, the mere fact of filing an appeal motivated the institution to reconsider its decision and to provide the information in order to avoid a lawsuit.


Positive case law has been developed regarding information related to the environment. The decision to grant or refuse access must be considered according to the Environmental Protection Act (EPA), which is special to the APIA and provide more favorable regime for requestors. In one of the cases the Court ruled that the constitutional right to a healthy environment is closely tied to the right to be informed.


In other cases during the past year access to contracts between public bodies and private companies has been denied on grounds of trade secret. The assessment of the authorities of what is covered by this exemption differs greatly from the assessment of the court. According to the latter, information relating to the overall cost of repair works of the office of the former Prime minister does not harm third party’s commercial interests, therefore must be disclosed (more information about the court case is available here). In another instance the court ordered disclosure of information about amount of public funds spent on publication of regulations and announcement in local and central newspapers as there is no evidence that the release of information would harm the commercial interests of the newspapers which have published the regulations (more information about the case is available here). 

In the end, after the court decision repealing the refusals, the information was provided to the requestors.


One of the most ludicrous answers given to a FOI request is the one of the Sofia Municipality. The information sought related to the analysis on the performance of the concession contact between the Sofia Municipality and “Sofia water” JSC. The subject of the contract was the management of the water system and sanitation in Sofia for the period 2000 – 2007. The mayor's refusal states that since the legal analysis was drafted by a law firm it fails under the duty of confidentiality ought by lawyers and counselors. In its decision as of June 16, 2009, the Administrative Court Sofia city (ACSC) rescinded the refusal and the case was returned for reconsideration. In its reasoning the court pointed that the subject of the “duty of confidentiality” as defined by the law is only a person having legal capacity and quality as “counselor”. Whatever profession the mayor may have, as an obliged body under the APIA he is not a “lawyer”. Therefore he is not bound to keep the duty of confidentiality and he cannot rely on this ground to refuse access to information.


For the first time the Access to Public Information Act was used to get access to the premises of an institution. Thus, the National Assembly Secretary General was obliged to provide access to the building to the movie director Malina Petrova to shoot a documentary related to one of the important events from the public life in Bulgaria during the past 18 years – setting the former Communist Party building on fire in 1990. 
According to the court, the representation (shooting) of the building constituted visual information related to the public life therefore the APIA is applicable. (Details on the case are available here).


As far as the contract with Microsoft is concerned it must be recalled that once again a refusal of the government to provide it was repealed by the court of first instance. The decision is appealed by the government and a hearing is scheduled for the 20th of January. (for more information please refer to the link). But hopefully the story will have happy ending as this was the case with the contract between the Ministry of Finance and the British consulting company Crown Agents, which has been subject to several lawsuits (http://www.aip-bg.org/library/dela/case42.htm; http://www.aip-bg.org/library/dela/case31.htm)  and was published on the website of the Ministry in November 2009.