22 June 2020

"During a little more than a month - from May 4 to Wednesday - June 17 this year, the government has authorized three ships owned by the Russian company Gydrostroy to operate in the country's inland waters. The ships are about to deepen the navigable canals 1 and 2 in the Port of Varna under a project worth nearly 180 million EUR. However, Gydrostroy was selected without a public tender and without competitors, reports "Dnevnik" newspaper. And the state-owned company "Port Infrastructure", to which the government has allocated funds for the deepening, has imposed a total information blackout on the terms of the contract with the Russian company, registered in the Kaliningrad enclave.


The data was requested by "Dnevnik" newspaper under the Access to Public Information Act (APIA), but "Port Infrastructure" refused to provide it. The legal grounds? Trade secret."

The text is part of the article in "Dnevnik" "Why is it a secret how a Russian dredger was hired under a project for 350 million BGN" by the journalist Spas Spasov, who was denied the information under the APIA. Is the refusal of the director of the State Enterprise "Port Infrastructure" to provide the requested information justified? The case is currently pending after the requestor filed a complaint against the refusal of access to information.


Background

Spasov filed his request on May 7, 2020, requesting the following information:
1. The contract between the State Enterprise "Port Infrastructure" and "Transport Construction and Reconstruction" JSC (TCR JSC) regarding the deepening of Canal 1 and Canal 2 of the Port of Varna;
2. The technical design under which the deepening of the canals is to be carried out;
3. The companies with which TCR JSC has concluded contracts for the implementation of the project;
4. The price at which the deepening will be performed according to the concluded contracts,.

The refusal of the director of the State Enterprise "Port Infrastructure" is based on the fact that the requested information affects the interests of a third party - TCR JSC, which has explicitly expressed its disagreement for the requested information to be disclosed, on the grounds of a trade secret.

With the support of AIP, the refusal was appealed to the Administrative Court - Varna. The complaint argues that  TCR JSC (whose sole capital owner is the state, through the Minister of Transport, Information Technology and Communications) is obliged to provide access to information since it is as an obliged public nody under the APIA. Having this in mind, there were no legal grounds for the State Enterprise “Port Infrastructure” to carry out a procedure for seeking a third party's consent. Accordingly, his explicit disagreement to the provision of access to information is irrelevant and cannot justify a lawful refusal. By virtue of Art. 31, para. 5 of the APIA, the consent of the third party is not required in the cases when it is an obliged body and the information related to it is public.

The court case is currently pending.


 






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