Access to Information Programme
30/06/2014

Results from AIP 2014 Audit of the Web Sites

of Executive Bodies in Bulgaria.

2014 Active Transparency Rating

 

by Gergana Jouleva, AIP Executive Director

and Kiril Terziiski, attorney-at-law of AIP Legal Team

 

 

ONLINE PUBLICATION OF INFORMATION – BASIC ELEMENT

OF THE RIGHT OF ACCESS TO INFORMATION

 

Тhe proactive publication of information is among the most important elements of the right of access to information. Its significance for the exercise of that right has been increasing and the standards in the area have been gradually set. In most of the access to information laws adopted during the past decade, obligations for online publication of specific categories of information have been established. States with older legislation have either amended it or adopted new laws regulating the electronic access to information. A review of this legislation shows that some categories of information mandatory for online publication are common.[1] For instance, information about the powers and the normative acts of the public authorities, about their structure and functions, their activities, signed contracts, the transparency of the decision making process are mandatory for publication under most of the access to information laws. In a number of states, which had access to information legislation before 1990, the obligations for proactive disclosure have been extended not only by the access to information laws, but also by specific laws introducing obligations for publication of specific categories of information – contracts, budget transparency, or developing the so called guided transparency. Recently, the process of enhancing transparency has been specifically studied and systematized.[2]

 

What are the reasons and factors which lead to the elaboration of legislation providing for active transparency of institutions? What is the role of the crises in that process? Why concepts of active transparency should be leading in the establishment and the development of the electronic government?

 

In all surveys, the conclusion is drawn[3] that the regulation of the obligations for proactive disclosure is conditioned by several reasons:

1. The necessity for setting minimum standards for proactive disclosure;

2. Increased demand for public information;

3. Growing recognition of the proactive disclosure as an integral part of the right of access to information. [4]


The development of proactive disclosure of information online legislation and practices allows for an analysis of the moving forces and the factors influencing the process. One of the main moving forces of the functioning democracy is the accessibility of legislation and the transparency of the legislative process, providing the possibility for interested parties to take part in its discussion. The second moving force, coming to the front especially in the new democracies, is the necessity for accountability, transparency of government actions and the role of access to information for the exercise of other rights. Active transparency is significant for the decrease of bad administrative practices and corruption. The third factor for the development of active transparency is the increasing public participation in the decision making process for public policies. Civil participation in this process is impossible without the development of active transparency. Citizens and interested parties should dispose of as much information as government experts in order to take part and be equal in the discussion process. Clearly, access to information in this regard is related to active publication and not to the comparatively slower process of filing written requests.

 

The Council of Europe Convention on Access to Official Documents (CETS 205, the Convention)[5] open for signatures in June 2009, sets forth active transparency as one of the principles of the right of access to information. Article 10 of the Convention gives a broad formulation of the obligation for executive power institutions, but, nevertheless, reflects the developing legislation in the member states, namely:

 

Article 10 – Documents made public at the initiative of the public authorities

 

At its own initiative and where appropriate, a public authority shall take the necessary measures to make public official documents which it holds in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest.[6]

 

The Explanatory Report to the Convention[7] clarifies what the “official documents of general interest” are which shall be made public without the need for individual requests, namely: documents on structures, staff, budget, activities, rules, policies, decisions, delegation of authority, information about the right of access and how to request official documents, as well as any other information of public interest.

 

All these documents ensuring that citizens are able to form an opinion on the authorities that govern them and to become involved in the decision making process should be published at the initiative of the public authorities.

 

One more criterion to serve as a guideline for national legislators in regulating the obligations for proactive publication has been introduced – the orientation towards the most frequently requested documents. In a number of regulations on electronic access to information, this principle has been followed for quite a long time (USA, Mexico, Slovenia).

           

During the past several years, within the global Open Government Partnership initiative, Open Government Standards were developed and widely discussed.[8] An important part of these standards are the “Standards for Proactive Publication of Information,” namely the online publication of:

  • Institutional information – legal basis of the institution, internal regulations, functions and powers;
  • Organizational information – organizational structure, information on personnel, and the names and contact information of public officials;
  • Operational information – strategies and plans, policies, activities, procedures, reports, and assessment of performance – including factual analysis and other documents and data on the base of which policies are being formulated;
  • Decisions and acts – including data and documents which prove the necessity of these decisions and acts;
  • Public services information – description of the services provided by the authority, manuals and guidelines, forms and information about the fees and the time periods for their provision;
  • Budget information – budget procedure, draft budget, budget, financial reports, including information about the salaries within the public institution, auditor’s reports;
  • Open meetings information – the topic, the time, the agenda, information about public discussions and the conditions for participation in them;
  • Decision-making and public participation – information about the decision-making procedures, including the mechanisms for public consultation and participation in the process;
  • Subsidies information – about subsidized persons, about the purposes of the subsidies, the amounts paid and the state of execution;
  • Public procurement information – about the tender procedure, the selection criteria, the results of the tender, the contracts signed,and execution reports;
  • Information volumes and resources – description of the information resources, indexes, lists of public registers, description of public registers, the access procedure, including online registers and databases;
  • Information about the information generated and held by the information – register of the documents/information, generated and held;
  • Information about the publications issued by the institution, including information about free and paid publications;
  • Information about the right to information:
  • Information on the right of access to information and how to request information, including contact information for the responsible person in each public body. [9]

Bulgarian Legislation

 

The standards for the proactive publication of specific categories of information that are of public interest suppose regulations for the update of the information, its free obtaining, an obligation for the authority to also seek other channels of prompt dissemination of the information, when it aims at the prevention of a threat against people’s life, health, and property. Additionally, an obligation is established for the administration to inform the citizens as fast as possible and in all appropriate ways, as it is provided by the Estonian law.[10] There are similar provisions in Art. 14 of the Bulgarian Access to Public Information Act (APIA), as well as in the Environmental Protection Act, however, lacking details about the time frames, specific obligations, and formats.

 

Another important and debated issue is the publication of open data, in machine-readable format. The launch of open data portals does not substitute for the implementation of the obligation for proactive publication of information by public bodies, neither does the two contradict. A good example in this regard is the Australian government data portal which contains 36,000 data bases and state catalogues/registers.[11]  

 

A good example for a detailed regulation of the proactive publication of information is the Estonian access to information law (Part 4).

 

A lot of the categories of information listed above as standards in the area are mandatory for online publication under the Bulgarian legislation as well, although not specified in such details. For instance, the institutional, organizational, and operational information, the administrative acts, information about the exercise of the right of access to information and about the information resources, registers, and data bases is mandatory for publication in the institutional Internet sites under Art. 15 and Art. 15a of the Access to Public Information Act (APIA) after its 2008 amendments. The law, however, does not specify how often the update of the publications should be done, neither what the content of some broadly formulated categories should be. Thus, the practices of proactive publication are extremely diverse. 

 

The list of the acts issued within the scope of the powers of the administrative structures is subject to mandatory publication under Art. 15, Para. 1, Item 2 of the APIA since 2000. The online publication of that list is obligatory since the 2008 amendments to the Access to Public Information Act. The 2008 amendments have elucidated which acts of the authorities should be proactively published, namely “a structured aggregation of all legal, common, and individual administrative acts, issued by the respective administrative body.”[12]

 

The issue about the availability of a unified portal of all administrative acts remains legislatively unsolved. The initial intention of the legislators as of 2000 for the establishment of a Register of Administrative Structures and Administrative Acts has not been fulfilled. In 2002, the obligation for publication of administrative acts in that Register was repealed. Only the obligation for publication of the acts which establish regulatory regimes remained. Currently, the data base is titled Administrative Register and does not contain administrative acts, except for these related to the regulatory regimes.[13] 

 

The decisions of the municipal councils should be announced “through the Internet site of the municipality and by other appropriate means” pursuant to Art. 22, Para 2 of the amended Local Self-government and Local Administration Act (SG, issue 69 as of 2006). 

 

The proactive disclosure of the draft budget, the budget, and the draft financial reports and the financial reports is regulated by the Public Finance Law.[14]

 

A number of laws regulate the online maintaining of public registers. A review of these obligations was made by AIP in 2011 and the results served as a basis for the launch of the Public Registers portal.[15]

 

The publication of the structure, functions, services, information resources available, registers maintained, as well as contact information are also an important element of the proactive disclosure of information. The Bulgarian legislation regulates the publication of the structure, functions, and the information resources available as early as 2000 when the APIA was adopted. These categories of information should be published online pursuant to the 2008 APIA amendments (Art. 15a of the APIA).

 

With the December 2008 APIA amendments, the obligation for creating and maintaining an Access to Information section in the institutional web sites was established (Art. 15a of the APIA). 

 

CIVIL AUDIT ON ACTIVE TRANSPARENCY[16]

 

AIP has been evaluating the online publication of information by the public bodies for years. The aim of the first such evaluations performed within the period 2006 – 2008 was the campaign for legal regulation of the obligations for online publication of information. The 2008 APIA amendments introduced the obligations for online publication of specific categories of information and AIP evaluations have become a tool for assessment of the implementation of these obligations. That is why we call our assessments civil audits on active transparency. In 2010, AIP has developed a range of indicators, integrated in our internal information management system, which allows the evaluation of institutional web sites at any time.

 

For comparison purposes, the audit is performed during a predefined period of time. On the base of the results, we formulate recommendations towards to legislative and executive power with regard to proactive disclosure of information. AIP recommendations formulated in several successive annual reports were the following:

  • To assign an internal unit within the administration to coordinate the process of proactive disclosure of information online;
  • To orient the internal record management systems towards the public;
  • To specify the procedure for proactive publication of information online and to ensure its timeliness;
  • To unify the process of handling electronic requests without contradicting the requirements of the APIA;
  • To assign a unit within the administration to be responsible for the oversight of the APIA implementation;
  • To outline measures for enhancing financial and budget transparency, including the public procurement contracts.

Every year, AIP reviews and increases the assessment indicators on the base of several grounds:

1. New legal obligations for online publication of information.

2. Precision of the indicators on the base of practical experience from the previous audits.

3. Inclusion of indicators on the base of practical seeking of specific categories of information. These categories are identified on the base of the systematization and analysis of the cases referred to AIP for legal help and consultation and the monitoring of the media publications.

 

Some indicators evaluate the proactive disclosure of information which is not mandatory to be published on the institution’s web site but there is an explicit obligation for publication in a particular centralized register. The publication on the own web site of the institutions speaks clearly of the practical understanding of the meaning of transparency and not only the fulfillment of an obligation for online disclosure coming from above. This is the situation with the information related to the announcement and assignment of public procurements. Nobody prohibits the authorities to maintain an online register of public procurement tenders and the assigned public procurements, when a big part of that information has to be sent to the Public Procurement Agency. The information about contracted public procurements published in the centralized Public Procurement Register contains data about the contracting authority, the subject of the public procurement, description of the contract, name and address of the executing party, the price, relation to the EU funds, etc.

 

In 2014, the indicators evaluating the budget and financial transparency were increased following the requirements of the Public Finance Law. The AIP team also assessed the level of online publication of master and detailed city development plans and construction permits by the municipalities.

 

The 2014 audit encompassed 535 institutions – executive bodies at central, regional, and local level, independent state bodies and the National Insurance Institute and the National Health Insurance Fund. Last year the number of the evaluated web sites was 489. The 2014 audit scope was extended, encompassing the regional offices of central government authorities.

 

Within the period 3 February – 3 March 2014, 534 web sites were evaluated on the base of 66 indicators and additional 9 indicators for the municipalities’ web sites. During the audit period, one web site which had been available was down – that of the Regional Governor’s Administration – Vratsa.

 

2014 Audit on Web Sites 

 

 

RESULTS

 

The audit results are available on AIP web site and are visualized by type of institution, by indicators, by ways and time frames of response to the electronic requests filed to 535 institutions.

 

The indicators were quantitatively assessed according to the significance of the information subject to publication in Internet. This assessment served as the basis for the 2014 Active Transparency Rating. The latter also allows the generation of separate ratings by type of public body, by geographical regions, by municipalities. A comparative rating for three successive years shows the tendencies in the development of active transparency in Bulgaria.

 

The results are organized along several big topics which allows for a comparison with previous years' results. The topics under which we organize the results follow the “Standards for Proactive Publication of Information:”

  • Institutional informationlegal basis of the institution, functions, services provided, data bases and information resources;
  • Organizational structure and contact information;
  • Operational information – acts, strategies, plans, activities, reports;
  • Financial transparency and integrity related information – budgets and financial reports, contracts, conflict of interests declarations, asset declarations;
  • Existence and content of the Access to Information sections. 

 

Institutional Information – legal basis of the institution,

description of functions, services provided, data bases and information resources

 

Heads of executive bodies are obliged to publish online up-to-date information about their powers, functions and the responsibilities of the respective administration. A big part of this information is contained in the published online legal acts and the rules of the administration which regulate the establishment and the activities of the respective institution, complemented with special web site sections where a summary of the functions and responsibilities of the authority are published, as well as the services it provides to citizens and legal entities. With regard to the performing of its functions and fulfilling its responsibilities, the administration also maintains information resources, registers, part of which need to be accessible to the public in order to ensure the freedom of civil and commercial contracting and the exercise of certain rights and regulated activities.

 

The results show an increase in the level of proactive disclosure of legal basis regulating the powers and the responsibilities of the authorities with 3% compared to 2013. There is an almost 100% implementation by the central government authorities, state agencies, commissions, executive agencies, and independent bodies of power, with the persistent tendency of the poorest performance by the regional units of central government authorities and the municipalities.[17]  

 

Despite the increase in the total number of assessed bodies which have published information about their functions from 393 to 418, there is a decrease in terms of percentage. The total number of institutions which have published information about the services they provide has increased with twenty – from 422 to 442.

 

No considerable improvement is observed with regard to the obligation for publication of a description of the data bases and information resources. Apparently, this obligation needs detailed definitions and regulation with regard to the content, formats, and the update of the proactively disclosed information.

 

Organizational Structure and Contact Information

 

The most considerable level of implementation relates to the obligations for online publication of information about the organizational structure of the public bodies – over 90% at all levels. A positive development is the additional information published online with the organograms – the names of the public officials by departments and directorates, their functions, and contact information.

 

There is a continuing tendency of increase in proactively disclosed contact information – of the public relations office, the address, the phone number, the e-mail address. However, the increase does not affect the publication of information about the working hours of the institutions.

 

2014 Audit on Web Sites 

 

Operational Information – acts, strategies, plans,

activities and reports

 

There is not a particular change in the disclosure of normative acts by the public bodies.[18] The overall implementation for 2014 is 81%, the best performance belonging to the central government authorities and the independent bodies of power – 100%.

 

The tendency of increasing the number of online registers of individual administrative acts remains. Regarding the implementation of the obligation for disclosure of the acts of the municipal councils, the level is very high – 93%.

 

We believe that the integration of internal information management systems and the attitude of opening the registers of the normative, general, and individual administrative acts of the municipalities to the public is a big step forward to the operational transparency of the public bodies in Bulgaria.

 

Development plans and strategies have always been actively and well communicated, in contrast to the activity reports of the institutions. This tendency is preserved in 2014 as well: 76% of audited public bodies publish their development programs and strategies, and 17% publish activity reports.

 

The percentage of institutions which maintain a section on their web site containing draft normative acts has increased – from 28% in 2013 to 36% in 2014. The completeness of the disclosed information, however, is another issue. As a rule, there is no information about the grounds behind the amendments of a normative act or the adoption of a new one, the time frames for the public consultation and the results of it.

 

Financial and Other Transparency – contracts, budgets and

financial reports, conflict of interests declarations

 

An important element of active transparency is the disclosure of the budget and the financial reports of the authorities. The precision of that obligation was made by the Public Finance Law which establishes more obligations for first degree budget spending units, the use of program budgeting and respective reports. We have assessed the level of online disclosure of the draft budgets of municipalities, as well as the publication of the dates for their public discussion and the public discussion on the financial reports.

 

2014 Audit on Web Sites
 

 

As a rule, the precision of the obligations for online publication in a law results in an increase in the level of proactive disclosure. This is valid for the first degree budget spending units – 71% of the central government authorities have published their 2014 budgets; out of the 264 municipalities, 39% have done so; and 50% of the independent bodies of power have published their 2014 budgets. The level of implementation regarding the proactive disclosure of the financial reports is much lower.

 


2014 Audit on Web Sites 

 

Out of the 534 audited institutions, 297 are first degree budget spending units. We have assessed the level of publication of the monthly and quarterly financial reports. Only 18% of the ministries and 6% of the municipalities have published monthly financial reports for 2013. Quarterly financial reports were published by 76% of the municipalities, by 2% of the state commissions and agencies and by 4% of the municipalities.

    

The level of implementation regarding the obligation for part of the first degree budget spending units (excluding the municipalities) to use program budgets and respectively to report on the execution of the program budgets was the following: 18 public bodies, out of 23, have published program budgets on their web sites.

 

The disclosure of daily payments (SEBRA)[19] was started in line with the budget transparency commitment within the global Open Government Partnership initiative. These publications are made by 32 institutions only – 15 ministries, one regional unit, eight independent bodies of power, five state agencies and commissions, and three municipalities.

 

Within the Open Government Partnership initiative, there is also a measure for the publication of citizens’ budget. The Ministry of Finance was the first to publish an explanatory text “The Budget in Short.”[20] Disclosure of such information was made by only 19 institutions, most of which municipalities.

 

2014 Audit on Web Sites 

 

The questions related to the publication of the declarations of public officials under Art. 12 of the Prevention and Establishment of Conflict of Interests Act and the lists of the officials who have filed such declarations were included in that part of the audit. There is a tendency of increasing the number of institutions publishing lists of public officials who have submitted such declarations, while the number of those which have disclosed the declarations themselves remains the same

 – 32.77% . 

 

2014 Audit on Web Sites 

 

There is a considerable improvement in the active disclosure of public procurement tender announcements. 79.40% of audited institutions maintain a register of public procurement tender announcements. As regards registers of signed public procurements, however, the level of proactive disclosure does not exceed 10%.

 

Results from successive years show that below 3% of the institutions publish their contracts online. That is why AIP have filed an electronic request within the 2013 and 2014 audits for a copy of the last contract signed by the institution under the Public Procurement Act. In 2014, we have received over 300 public procurement contracts, which is a considerable improvement compared to 2013.

 

Access to Information Section

 

The Access to Information section has the purpose to facilitate and assist requestors or seekers of information by providing clarification on the process within the respective institution and description of the procedure for obtaining access to information, including the procedure for access to the maintained public registers. The section should contain information about the name of the department responsible under the APIA; the official assigned under the APIA; the address, the phone number, and the working hours of the department. The APIA implementation reports should also be published in the section.

 

Obligations for proactive disclosure established by other laws also enhance the access to information in the institution. That is why the results of two of the assessment indicators (is a list of declassified documents published and is a list of the categories of information subject to classification as official secret published) are included in the topic: information necessary for the exercise of the right of access to information.  

 

An Access to Information section is created in 55.43% of the audited web sites. For comparison with the previous year audit, such sections existed in 55.42% of the web sites. 238 institutions persistently refuse to fulfill their obligations under the law to create such sections. Among them are the Council of Ministers, the Ministry of Investment Planning, the Ministry of Agriculture and Foods, and, most strangely, the Ministry of Justice, which according to the Access to Public Information Act should be the administrative body imposing sanctions as stipulated by Art.43 of the law.

 

The content of the sections where they have been created does not comply with the requirements of the law in 94% of the cases. Only 17 are the public bodies which comply with the legal requirements. These are the Ministry of Defense, two regional governor’s administrations – Razgrad and Smolyan, the Executive Environment Agency and the Regional Inspections on Environment and Waters – Blagoevgrad, the Patent Office, and the municipalities – Devin, Dobrich, Dolni chiflik, Kocherinovo, Krivodol, Momchilgrad, Nikopol, Razgrad, Chelopech, Yablanitsa.

 

There is not a particular development with regard to the publication of the internal APIA implementation rules. Although over 50% of the institutions have published their internal APIA implementation rules online, their number has not been increased for the past three years as there is not any control over the implementation of the obligation.

 

There is a continuing non-fulfillment of the obligation for online availability of a description of the procedure for access to the public registers in the Access to Information section. Only 30 out of 534 institutions have published such a description.

  

Only 3% is the increase in the online publication of the APIA implementation reports, although the reports are being sent to the “State Administration” directorate at the Council of Ministers for the preparation of the annual report The State of the Administration. APIA implementation reports were published by 129 institutions out of the 535 audited.   

 

As far as the transparency of the declassification of documents under § 9 of the Final Provisions of the Protection of Classified Information Act is concerned, the level of implementation has been lamentable during the past four years.

 

2014 Audit on Web Sites 

 

Regarding the list of the categories, subject to classification as official secret, 15% of the public bodies have published it on their web sites.

 

The level of proactive disclosure of the contact information of the department responsible for the receiving of the access to information requests is much below 100%. The obligation for publication of the contact information of the access to information official is not well fulfilled either – it is not above 20%.

 

2014 Audit on Web Sites 

 


ELECTRONIC REQUESTS

 

The Access to Public Information Act provides for the filing of a request electronically since its adoption. Pursuant to Art. 24, Para. 2

“The request is deemed written also in cases where it is sent electronically subject to conditions determined by the respective body.”  This procedure or conditions could not contradict the requirements of the APIA and the rational expectation of the requestors was that it would be described in the internal access to information rules of the institutions.

 

AIP has been filing electronic requests within the audit of institutional web sites for a fifth successive year. The interesting conclusion that could be drawn is that the way the authorities respond to the e-requests does not depend on the topic of the requested information. During the first years, AIP was demanding information that should have been published in the Internet. During the past two years, we have requested a copy of the last contract signed under the Public Procurement Act. This type of information is usually sensitive for the institutions. The chart bellow shows that the responses to the e-requests have been increasing within the years, while the silent refusals have been decreasing. This is a positive tendency.

 

2014 Audit on Web Sites 

 

Within the 2013 audit on active transparency, AIP filed 535 electronic requests asking for copies of the last contract signed by the respective public body under the Public Procurement Act for 2013. We have received 420 responses. 115 institutions did not respond to the request at all.

 

We hereby present some administrative practices stemming from the responses either granting access to the requested information or refusing such.

 

Contradictory Practices

 

The Privatization and Post-Privatization Control Agency refused access to the contract with “Mobiltel” Single Person JSC on the grounds of the trade secret exemption and the dissent of the third party– the mobile operator.  At the same time, the Nuclear Regulatory Agency has sent the complete text of the contract with the “Mobiltel” Single Person JSC, without seeking the consent of the third party.

 

The way we have formulated our request – for a copy of the last public procurement contract, motivated some institutions to provide access to more than one contract. This happens when the latest public procurement tender contains several positions and separate contracts are signed for each of them. 

 

The Geodesy, Cartography and Cadastre Agency informed us that they would send 12 contracts. The National Statistical Institute informed us that their last public procurement had been for official cars insurance and they had signed 36 contracts.

 

We shall also emphasize the attitude of the Ministry of Interior (MoI) which had decided that they should provide information for all its structures, which are independent legal persons, consequently contracting authorities under the Public Procurement Act (the Academy of the Ministry of Interior, the Medical Institute of the MoI, the Chief Directorate “Border Police,” the Chief Directorate “National Police”, the Chief Directorate “Fire Safety and Civil Protection,” the Chief Directorate “International Projects,” the Directorate “Migration,” the Directorate “Special Delivery Services,” the Directorate “Property Management Social Policy”).

 

The Ministry of Interior had sought the consent of all contractors. They obtained the consent of 3 companies, one refused, 5 did not respond. In their decision, the MoI pointed out that under the Art. 31, Para. 4 of the APIA, they were obliged to provide partial access to the requested information in a way that did not disclose information about the third party. And they provided access to 9 redacted contracts. Strangely, the names of the heads of the respective directorates within the MoI were deleted, who are parties of the contracts. The names of the persons, representing the companies – parties of the contracts, were also deleted, while the data of the companies like the name, the identification number, and address were left. 

 

We consider as a positive administrative practice the response of the National Agricultural Advisory Service with Ministry of Agriculture and Food which informed us that they had not signed any public procurement contract in 2013 that was why they were sending the same for 2012.

 

Among the institutions which informed us that they did not have signed procurement contracts and consequently did not send us information were the Institute for Culture at the Ministry of Foreign Affairs, the State Gambling Commission, the Executive Agency “Bulgarian Accreditation Service,” the Executive Agency “Medical Audit,” the Executive Agency “National Film Center,” the Executive Agency for Transplantation, the National Institute for Conciliation and Arbitration, the National Evaluation and Accreditation Agency, the Regional Governor’s Administration – Montana, etc.

 

Third Parties

 

A common practice is that the institutions seek the consent of the third party (the contracting company) for the disclosure of the requested information. Among the inquired companies which have given their consent are the “Administrative Reform” Company under the Obligations and Contracts Act, “Armeec” Insurance JSC, “Bulstrad Vienna Insurance Group”, “Activ – College” Company under the Obligations and Contracts Act. 

 

Among the companies which have refused to provide consent for disclosure are “Mobiltel” Single Person JSC, “Victoria Insurance” JSC, Housing Construction Cooperation “Saglasie,” “Petrol” JSC, “Komeks” Single Person Ltd, “Lukoil Bulgaria” Single Person Ltd, “Panda” Cooperation, BTK Single Person JSC, “Cerb – BSK 2009” Consortium.

 

Two institutions stand out with curious administrative practices after the dissent of the third party: the Regional Governor’s Administrator – Vratsa, which has provided partial access to the information after the dissent of the company, and the Regional Governor’s Administration – Smolyan which has provided full access after the company did not respond within the prescribed time frame.

 

The Regional Governor of Burgas has pointed out in the decision that the consent of the third party should not be sought in that case, as there was an overriding public interest in the disclosure of the contracts. One can find the same indication in the decision of the Regional Governor of Sliven.

 

As a negative administrative practice, we could signify the cases in which the institutions did not send a notification to the requestor that they had started the procedure of seeking the consent of the third party, respectively of extending the period for a response to the request. Often, the requestor learns that the consent of the third party has been sought after receiving the decision for the provision or the refusal of the information.

 

Electronic Signature

 

Out of 535 institutions, only 10 have announced that they require an electronic signature of the e-request. Among these, which have refused or left the request unprocessed as it was not electronically signed are the State Agency “State Reserve and War-Time Stocks,” the National Revenue Agency, the Regional Governor’s Administration – Gabrovo, etc.

The Regional Governor of Lovech has granted access to the information despite the lack of an electronic signature, by specifying that he had taken into account the significance of the transparency of the public administration in the democratic society and as a result of evolutionary thinking he deemed that the information should be provided.

 

Provision of information electronically

 

The cases in which the institutions ask for a signed and scanned protocol for the provision of information to be sent back represent a curious administrative practice (the Central Balkan National Park Directorate – Gabrovo, the Executive Agency for Exploration and Maintenance of the Danube River, the Regional Governor’s Administration – Sliven, the Municipality of Bansko, etc.).

 

A negative administrative practice is the sending of the contract by the Ministry of Labor and Social Policy after the requestor has signed the protocol for receiving it on spot, at the institution.

 

Some institutions sent a scanned copy of the contract with an empty e-mail, without a decision of an accompanying letter (the Executive Forest Agency, the Regional Governor’s Administration – Razgrad, the Regional Governor’s Administration – Ruse).

 

There were institutions which sent the contracts with a short message “We are sending the requested information as an attachment” (the Executive Agency “Selection and Reproduction in Animal Breeding,” the Executive Agency “Seed Testing, the Crop Approbation and Seed Control,” the Commission for Protection against Discrimination, the Committee for disclosing the documents and announcing affiliation of Bulgarian citizens to the State Security and intelligence services of the Bulgarian national Army, the National Legal Aid Bureau, the Regional Governor’s Administration – Sofia, the Regional Governor’s Administration – Stara Zagora, etc.).

           

Partial Access

 

The cases in which we were granted partial access are divided into two types. The first is when no copy of the contract was sent, but the requestor was referred to the record in the Public Procurements Register (PPR). The second type of practice was when the contract was provided but with redacted data.

In the case of the PPR referral, not all institutions have provided the corresponding ID of the contract in the register. Only the name of the contract and the date of signing were provided without a reference to its identification number in the register which makes it considerably more difficult to find it. As regards the redacted data, the most common practice was the deletion of the names and the Unified Identification Number of the manager of the contracting company, signatures, address, bank accounts. 

 

Fees for obtaining access to information

 

No surprises should be expected in terms of fees as the provision of information electronically is not connected with any costs and due to that fact is free. However, there are diverse practices in this regard. The Regional Governor’s Administration – Pernik sent us a copy of the contract by e-mail, only after the fee of 0.60 BGN (0.30 Euro) was paid. The highest fee charged was by the Regional Directorate of the Ministry of Interior – Sofia City – 9.45 BGN for 6 pages contract (1.59 BGN per page), the lowest – by the Municipality of Satovcha – 0.09 BGN.

 

FINDINGS AND RECOMMENDATIONS

 

Findings

 

1. Lack of methodology and unification of the structure and content of the web sites of the institutions. This lack is a result of another deficiency in the legislation – lack of a body to oversee, coordinate and provide methodological assistance to the administrations.

2. There is no other mechanism for exercising control over the implementation of the obligations for proactive publication online, but civil monitoring. Citizens, however, do not dispose of mechanisms that would push the administration to fulfill their obligations.  

3. The categories of information subject to online publication under the APIA are too broad which creates the grounds for diverse practices.

4. No control and sanction mechanisms have been provided in cases of non-fulfillment of obligations.

5. The update of the information could hardly be evaluated.

6. The Access to information sections do not serve their purpose – to facilitate the citizens in their search for information.

7. There is a huge variety in the way by which institutions respond to electronic access to information requests, despite their increasing number.

 

Recommendations

 

1. Amendments to the APIA are necessary that would specify the current categories subject to publication in compliance with the proactive disclosure of information standards within the Open Government Partnership initiative and the existing good legislative models in other countries.

2.  Amendments to the APIA are necessary that would specify the publication and announcement of information under Art. 14 of the APIA.

3. Clear obligations for the update of the information disclosed in the Internet are necessary.

4. Clear legal obligations about the formats in which the information is published are necessary.

5. A body that would coordinate and exercise control over the proactive disclosure of information is necessary.

6. It is necessary that sanctions for non-fulfillment of obligations for proactive publication of information are introduced.

 

 

 



[1] Comparative review of the categories of information for proactive disclosure (standard-setting) of the Council of Europe, the Organization for Security and Cooperation in Europe, etc. can be found in Helen Darbishire’s working paper: http://siteresources.worldbank.org/WBI/Resources/213798-1259011531325/6598384-1268250334206/Darbishire_Proactive_Transparency.pdf, p. 39. The paper was presented in AIP information newsletter, October 2010 issue (10)82): http://www.aip-bg.org/publications/Бюлетин/2010/.

[2] Full Disclosure. The Perils and Promise of Transparency, Archon Fung, Mary Graham, David Weil, Cambridge University Press, 2007.

[3] As we have already signified in the report Access to Information in Bulgaria 2011: http://store.aip-bg.org/publications/ann_rep_eng/2011.pdf.

[5] The Council of Europe Convention on Access to Official Documents: http://conventions.coe.int/Treaty/EN/Treaties/Html/205.htm

[12] APIA, Additional Provisions §1, item 3 (State Gazette, issue 104/2008): http://www.aip-bg.org/en/legislation/Text_of_the_APIA/200432/.

[13] Regulations for the Conditions and the Procedure of the Maintaining and Using of the Administrative Register, adopted with a Decree of the Council of Ministers No. 132 as of May 12, 2011, promulgated in the State Gazette, issue 39/2011, http://ar2.government.bg/ras/ 

[14]  Public Finance Law (SG issue 15/ February 15, 2013).

[16] Results are available on AIP web site: http://www.aip-bg.org/en/surveys/2014/101401/Comparative data from AIP audits 2011 – 2014 and 2014 Audit results by type of public body are also available: http://store.aip-bg.org/surveys_eng/audit_comp_tables_14.pdf.

[18] According to the Bulgarian general administrative law, there are three categories of administrative acts: individual acts are administrative decisions with application to certain individual/individuals; general administrative act is a decision with application to unspecified number of individuals; administrative normative act applies to unspecified number of individuals multiple times i.e. it has the legal character of "rules."

[19] The Electronic State Budget Payments System (SEBRA) is a system for monitoring the payments by the budget spending organizations which are part of it and management of the payments within preliminary set limits. Refer to:

 http://www.minfin.bg/bg/transparency