 Kiril Terziiski, Attorney-at-law in AIP legal team |
The grounds of the Prosecutor's Office for refusing to instigate pre-trial proceedings constitute public information subject to disclosure under the Access to Public Information Act (APIA)
This was the conclusion reached by the Sofia-City Administrative Court (SCAC) in a case brought by Nikolay Nedelchev (Sofia) against a refusal of the administrative head of the Sofia-City Prosecutor's Office (SCPO).
On 12 October 2022, Nikolay Nedelchev submitted an information request to the Sofia-City Prosecutor's Office in connection with information in the public domain that the Sofia-City Prosecutor's Office had refused to instigate pre-trial proceedings concerning bad loans in particularly large amounts granted by the Bulgarian Development Bank (BDB), specifically to Roadway Construction AD and International Investment EAD. The following information was requested:
1. To provide a copy of the decision of the SCPO, i.e. the decision not to instigate pre-trial proceedings.
2. To indicate whether the decision has been subject to a review – whether there is already a decision of the Prosecutor's Office of Appeal? If yes, to provide a copy of the decision of the Prosecutor's Office of Appeal, and of the Supreme Prosecutor's Office of Cassation (SPOC), if any.
3. The decisions shall be provided without erasing the names of the leading prosecutors.
With Decision No 20561/18 October 2022 of the administrative head of the SCPO, the requested information was refused. The refusal was legally justified with the provision of Art. 198, par. 1 of the Criminal Procedure Code (CPC), according to which investigation materials may not be disclosed without the prosecutor's permission. Furthermore, the public body held that the information requested was not public information within the meaning of Art. 2, par. 1 of the APIA. It argued that in order for the information to be deemed public, it should enable citizens to form their own opinion on the activities of the obliged body, which are linked to the administrative powers and activities of the Prosecutor's Office as part of the state apparatus, and not in relation to its function as part of the judiciary.
The refusal was appealed before the SCAC with the support of AIP.
With Judgment No. 2114/31 March 2023 of the SCAC, Second Division, Panel 50 on administrative case No 10366/2022, Judge Mariya Boykinova, the refusal was revoked and the administrative head of the SCPO was obliged to provide access to the requested information within 14 days.
The court did not share the public body's conclusion that the requested information was not public. For any information to be deemed public within the meaning of Art. 2, par. 1 of the APIA, the information must be related to public life in the country and enable citizens to form their own opinion on the activities of the bodies obliged under the law. Art. 9, par. 1 of the APIA stipulates that public information created and stored by the public bodies and their administrative structures is divided into official and administrative information, and the legal definitions of these terms are given in Art. 10 and 11.
The law does not contain a legal definition of the concept of public life, but given the widely accepted meaning of this concept in society – as the life of the public as a group of people, it should be assumed that any information that is related to the life of the public has the character of public information, as is the case here.
The prohibition introduced by the provision of Art. 198 of the Criminal Procedure Code applies only in cases of already instigated pre-trial proceedings. In the present case, it is not alleged by the parties that pre-trial proceedings have been instigated; on the contrary, it is expressly stated that information is requested in connection with publicly available information regarding the refusal of the SCPO to instigate pre-trial proceedings. A refusal to instigate pre-trial proceedings is issued there is no sufficient evidence that a crime has been committed. Therefore, information pertaining to the reasons for not instigating pre-trial proceedings is of a nature that would allow the public to form an opinion on the activities of the Prosecutor’s Office and a conviction on the manner in which the latter exercises its powers.
The court judgment is final.
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The information concerning the Prosecutor General's visit to the United States in March 2022 is not only public within the meaning of the APIA, but there is also an overriding public interest in its disclosure.
This is the conclusion reached by a panel of the SCAC on a case brought by Nikolay Nedelchev (Sofia) against a refusal by the Deputy Prosecutor General at the Supreme Prosecutor’s Office of Cassation (SPOC).
On 4 January 2023. Nikolay Nedelchev submitted an information request to the SPOC, requesting the following information related to the fact that in March 2022 the Prosecutor General, Ivan Geshev, travelled to the United States for a conference alongside the former president Rosen Plevneliev:
- At whose invitation was this trip made and for what purpose? In the form of a business trip, or in some other form? What specifically?
- Was the invitation addressed to Geshev in his official capacity or to him as an individual?
- Did Geshev make a speech/other appearance at the conference in question during his stay in the USA? If yes, please provide the text of the same.
- At whose expense was Geshev's trip to the USA made?
- What was the total amount paid for this trip from the budget of the Prosecutor's Office of the Republic of Bulgaria (PORB) or from another budget? Please indicate the amount in both BGN and USD.
- With which officials or private individuals did I. Geshev meet in the USA?
- Is there a business trip report, memo (or similar document) available to the Prosecutor’s Office that gives any account of this trip? If yes, please provide a copy.
- Please provide the business trip order (which Geshev issued for himself, most likely), any other similar/analogous document, as well as the complete administrative file related to this trip – if any is available to the Prosecutor's Office.
With Decision No 23-ГП/18 January 2023, the Deputy Prosecutor General at the SPOC, Krasimira Filipova, refused the information on the grounds that it did not constitute public information within the meaning of Art. 2, par. 1 of the APIA, but concerned "stories" from the media space.
The refusal was appealed before the SCAC with the support of AIP.
With Judgment No 2948/2 May 2023 of the SCAC, Second Division, Panel 39 on administrative case No 1144/2023, Judge Miglena Nikolova, the refusal was repealed and the file was remitted to the Deputy Prosecutor General at the SPOC for a new ruling on the information request, together with instructions on the correct interpretation and application of the law.
The court's reasoning for repealing the refusal was that the questions formulated into 8 items constituted "public information" within the meaning of Art. 2, par. 1 of the APIA (contrary to the defendant's opinion), as from it the requestor could form his own opinion on the activities of the obliged body (the PORB and the Prosecutor General, in particular).
The requested information is "administrative" within the meaning of Art. 11 of the APIA (it is collected, created and stored in connection with official information, as well as in connection with the activities of the bodies and their administrative structures), and access to it is generally free (Art. 13, par. 1 of the APIA), subject to the restrictions outlined in Art. 13, par. 2 of the APIA. However, pursuant to Art. 13, par. 4 of the APIA, even the restrictions of paragraph 2 should not apply if the information sought is of overriding public interest. In this case, there is an overriding public interest – as defined in § 1, item 6 of the Additional Provisions of the APIA (the aim is to increase the transparency and accountability of the bodies referred to in Art. 3) – in relation to the expenditure of public funds from the budget of the PORB. The questions are formulated in a sufficiently clear way, and the requested information is created and stored by the PORB.
The court judgment is final.
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Monthly/annual salaries for public sector positions constitute public information that does not fall under the protection of personal data.
This was the conclusion reached by a panel of the SCAC in a case brought by Desislava Nikolova (Capital newspaper) against the refusal of the Director of the University Multiprofile Hospital for Active Treatment and Emergency Medicine (UMHATEM) "N. I. Pirogov" (Pirogov).
On 29 December 2022, Desislava Nikolova submitted an information request to Pirogov requesting the following information:
1. How many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activity paid for by the National Health Insurance Fund (NHIF) has each of the board members and deputy executive directors of Pirogov participated in?
2. How many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activity paid for by the NHIF has the Rector of the Medical University – Plovdiv participated in?
3. The size of the highest and the lowest annual remuneration (with and without the additional material incentive – AMI) of doctors in 2021 and currently in the medical institution; and
4. The size of the highest and lowest annual remuneration (with and without AMI) of nurses in 2021 and currently in the medical institution.
With Decision No РД-26-102/11 January 2023, the Director of Pirogov responded under item 1 that members of the Board of Directors have not participated in such activities and refused the information under items 2, 3 and 4 on the grounds that the necessity and legitimate interest of the requestor was not substantiated in the request for access to information, that the requestor could not form an objective opinion on the work in the medical institution, and that the information was of organizational nature and had no significance of its own.
The refusal was appealed before the SCAC with the support of AIP.
With Judgment No 2781/24 April 2023 of the SCAC, Second Division, Panel 53 on administrative case No 1546/2023, Judge Stefan Stanchev dismissed the appeal under item 2 of the information request, repealed the refusal under items 3 and 4 of the information request and remitted the file for a new ruling on items 3 and 4, together with instructions on the correct interpretation and application of the law.
The court confirmed the refusal under item 2, holding that the requestor had not clarified the relationship between Pirogov and the Medical University in Plovdiv, and therefore it was not clear whether such information existed at all.
The court repealed the refusal on items 3 and 4, holding that the information sought was about "the highest and lowest annual remuneration of doctors and nurses," but the defendant had not addressed the specific content of "highest" and "lowest" remuneration, and had instead given general reasons why the remuneration information was not public in nature.
The remuneration, as compensation for the work done, is formed by and contains different elements, and this circumstance should be taken into account when assessing the merits of the request for access to public information. The Supreme Administrative Court has repeatedly ruled in its case-law that any information related to monthly/annual remuneration for public sector positions constitutes public information which does not fall under the protection of personal data. As a value unit, the size of the annual remuneration with/without the AMI is statutorily determined, it is undoubtedly related to the public life in the country, insofar as it is related to the evaluation of the work and the responsibilities connected with the performance of the public functions of the persons receiving it, and accordingly it enables citizens to form an opinion on the activity of the obliged bodies. Therefore, the information possesses the characteristics of the legal definition of public information within the meaning of Art. 2, par. 1 of the APIA. In view of the above specifics for obtaining access to information on annual remuneration, there is no need to seek consent from the persons whose rights the defendant claims may be affected. Further, the annual remuneration is calculated as the sum of the basic monthly remuneration and the additional remuneration for length of service, rank, degree, etc. These additional elements are also statutorily determined, but insofar as they relate to specifics concerning the total expenditure for the period covered by the information request, there is no issue with providing the information requested under items 3 and 4.
In addition, the information request does not ask for the remuneration of a specific individual. It should be pointed out that remunerations in entities operating with budget funds are undeniably an element of the public life of the country. Therefore, the present case does not concern personal data, but access to public information that enables the requestor to form an opinion on the activities of the obliged body and, in particular, on the expenditure of budget funds.
The court judgment is final.
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The publication is part of the project "Legal Help to Access to Information Cases", implemented by the Access to Information Programme, supported by a grant from the German Marshall Fund of the Unted States (GMF). The views expressed here do not necessarily represent the views of the German Marshall Fund or their partners.