The Access to Information Programme presented the book Litigation Under the Access to Public Information Act (2013 - 2023) at a conference held on March 14, 2024 in Sofia.

 

The book (full text in Bulgarian) contains an overview and analysis of the practice of the Bulgarian Supreme Administrative Court and the administrative courts under the Access to Public Information Act (APIA) over the last 10 years. We hope it will be useful in the daily work of administrative judges, lawyers, legal advisers, prosecutors, researchers, lecturers and students, representatives of non-governmental organizations, journalists and public figures who use the APIA in their work.

 

The book is published in the frames of the 10 Years Court Practice under Access to Public Information Act supported by a grant from The Netherlands Embassy at Sofia, Bulgaria

The Access to Information Program (AIP) has already published five books on the legal practice under the APIA. The first of them was issued in 2002,[1] and the last - in 2012,[2] covering a period of 10 years in total. In this period, the legal practice under the APIA was formed and developed in a relatively dynamic manner. In the first part of this period, until 2006, an interpretation was given of APIA provisions, related to core issues, such as the range of obliged bodies, the scope of the definition of public information, the approach towards each of the restrictions. Amendments to the APIA as of 2008[3] are also a significant factor. They introduced a wider scope of obliged bodies, the legal institute of the overriding public interest, at whose presence the restrictions could not be applied. 2008 APIA amendments narrowed the scope of the trade secret, provided for more detailed obligations of public bodies for active publication of information on the Internet, etc.

 

The practice of the Bulgarian courts was not isolated from the development of international law. The right of access to public information has undergone significant development over the past quarter of a century. When the Bulgarian APIA was adopted, there were twenty-some national laws on access to information in the world, today there are 140.[4] The interest in sharing the experience of individual countries and legal systems in connection with the administration of justice in such cases was the reason for the organization of the international conference on "Access to Information Litigation" held in Bulgaria in 2002. The result of this global event was the establishment of the International Right to Know Day[5] and the International Freedom of Information Advocates Network.[6] A few years later, within the framework of the Council of Europe, the first international legally binding document in this area was adopted, the Convention on Access to Official Documents.[7] Meanwhile, the practice of the European Court of Human Rights was also developing. After the first decisions of the ECtHR in 2009,[8] in 2016 the Grand Chamber of the Court recognized the right of access to documents held by state institutions that are essential for participation in the public debate as falling within the scope of Article 10 of the ECHR.[9] In the practice of the Court of the European Union and the European Ombudsman, there are important decisions on the application of Regulation (EC) No. 1049/2001 on public access to European Parliament, Council and Commission documents.[10]

 

In the decade 2012 - 2022, new circumstances occurred in social and political life in Bulgaria, as well as in the legal context. The consistent and developing democratic standards judicial practice, which considered the right of access to information as a principle, and its restriction as an exception,[11] have been seen as problematic by certain circles in the executive and related political circles. A provision, opaquely introduced without the legally prescribed public consultation in the Transitional and Final Provisions of the Draft Law on Amendments to the Administrative Procedure Act, eliminated the possibility of challenging court decisions under the APIA at a second instance court.[12] The subsequent challenge of that amendment before the Constitutional Court[13] did not receive the necessary[14] thorough consideration.[15]

 

After the 2018 amendments to the APIA, the judicial proceedings became single-instance, and appeals are now considered only by the administrative courts.[16] The three-member panels of the Supreme Administrative Court (SAC) continued to consider procedural issues only in cases of termination of the first instance court proceedings. Despite the hopes of some circles in the administration that the judicial review of refusals and decisions under the APIA would be weakened, the annual statistics in the following years show a dominant number of court decisions in favor of the applicants, which are subject to faster execution due to the absence of a second court instance.

 

In the absence of a cassation instance to perform the constitutionally prescribed role of the Supreme Administrative Court in accordance with Article 125, Paragraph 1 of the Constitution to unify conflicting practice, the administrative courts are faced with a challenge. Summarizing and collating available practice on topics and issues is more important than ever to avoid conflicting or divergent practice and unequal application of the law. To assist both sitting judges and lawyers, litigating activists, academics and researchers, as well as students, AIP presents this analysis to the attention of the reader.

The overview of the judicial practice covers about 700 decisions and rulings of the Supreme Administrative Court and the administrative courts in the country. The practice of the Constitutional Court and the European Court of Human Rights is also taken into account.

 

The topics in the book were developed as follows; by attorney-at-law Kiril Terziiski – the obliged subjects, the concept of "public information", access to information – access to documents, leaving an information request without consideration, silent refusals; by attorney-at-law Stephan Anguelov – access to information electronically, electronic signature of the application, provision of information by specifying an electronic address, refusal due to information provided in the previous 6 months, trade secret, overriding public interest related to accountability when disposing of public funds; attorney-at-law Alexander Kashumov – restriction related to the personal data protection, the restriction, related to the protection of preparatory documents, editing of the whole text.

 

Alexander Kasumov, Executive Director of Access to Information Programme