Kiril Terziiski, Attorney-at-law in AIP legal team

The information related to the identified violations and the penalties imposed in 2022 on thermal power plants of the Maritsa-Iztok complex, and in particular on the Brickel TPP, constitutes environmental information which is subject to disclosure under the APIA.

This was the conclusion reached by a panel of the Sofia-City Administrative Court in a case brought by "Za Zemiata (For the Earth) – Access to Justice" against a second refusal of the Regional Inspectorate of Environment and Water (RIEW) – Stara Zagora to provide requested information.

With an information request submitted at the end of 2022, “Za Zemiata” requested from RIEW – Stara Zagora access to the following information:

1. In connection with your announcement that the RIEW –  Stara Zagora has imposed "18 penalty orders on thermal power plants from the Maritsa-East complex – 16 of them on TPP Brickel", we would like you to provide us with information about the penalty orders, the documentation related to them, including the penalty orders themselves, and for what period they were issued. We would like to know what action has been taken and what penalties have been imposed by these penalty orders, which of them have entered into legal force and what action has been taken to impose the penalties provided for therein.

2. We would like you to provide us with copies of all statements of administrative offence and penalty orders issued to TPP Brickel from 1 January 2022 until the date of this information request.

The Director of the RIEW –  Stara Zagora refused to grant access on the grounds that the requested information was not public within the meaning of the APIA. With the support of AIP, the refusal was appealed and revoked with Judgment No 3822/9 June 2023 of the SCAC, Second Division, Panel 27 on administrative case No 11351/2022, and the case was remitted to the RIEW –  Stara Zagora for a new ruling.

With a decision dated 27 June 2023, the Director of the RIEW –  Stara Zagora once again refused to grant access. This time the reasoning was that the requested information did not constitute environmental information within the Environmental Protection Act (EPA). The second refusal was also appealed before the SCAC with the support of AIP.

With
Judgment No 5654/25 September 2023 of the SCAC, Second Division, Panel 22 on administrative case No 6970/2023, Judge Desislava Kornezova revoked the refusal and remitted the case to the RIEW – Stara Zagora, with instructions to grant access to the requested information.

The court held that the requested information fell within the official definition of "environmental information" within the meaning of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (known as the Aarhus Convention) and the Environmental Protection Act (EPA), since it concerned administrative measures having an impact on the environment. The court did not share the arguments of the RIEW – Stara Zagora that information related to the imposition of administrative sanctions by the public body was different from administrative measures, as the regimes for imposing compulsory administrative measures and administrative penalties were different. According to the court, administrative penalties fell within the scope of the control activities carried out by the RIEW – Stara Zagora and as part of the control activities constituted administrative measures within the meaning of the Aarhus Convention and the EPA.

The court noted that pursuant to Art. 26, par. 1 of the EPA, the provision of environmental information was governed by the procedure stipulated in Chapter Three of the APIA. In view of the fact that the information requested by the requestor and available to the defendant related to the control activities of the Director of the RIEW – Stara Zagora, it should have been provided. The defendant was obliged to examine the hypotheses under Art. 20 par. 1 of the Environmental Protection Act and to assess whether any, and specifically what, restrictions existed with respect to the provision of the information. The defendant was also required to make an assessment under Article 20, par. 4 of the EPA, which states that when deciding whether to grant access to the requested information, the authority must take into account the public interest in disclosing it.

In conclusion, the court held that with the new ruling on the information request, the body must explicitly indicate which penalty orders have entered into force, which have been challenged before a court and the outcome of any such legal proceedings; what actions have been taken in order to enforce the financial sanctions imposed on the legal entities comprising the Maritsa-East complex.

The court judgment is final.

***

The information related to the export and transfer of arms and defense-related products is of public significance and access to it cannot be restricted, as there is an overarching public interest in its disclosure.

This was the conclusion reached by a panel of the SCAC in a case brought by Boryana Dzhambazova (New York Times) against a refusal of the Ministry of Economy and Industry (MEI) to provide requested information.

With an information request dated end of April 2023, Boryana Dzhambazova requested the MEI to provide her access to the following information:

1. The annual reports of the Interdepartmental Committee on Export Controls and Non-Proliferation of Weapons of Mass Destruction for 2020, 2021 and 2022. Pursuant to Article 70 of the Defence-Related Products and Dual-Use Items and Technologies Export Control Act, the Interdepartmental Committee on Export Control and Non-Proliferation of Weapons of Mass Destruction with the Minister of Economy and Industry is required to publish these reports on the Ministry's website, but none have been published since 2019. I request to be provided with the annual reports, including the Aggregate data on the issued authorizations/certificates for export and transfer of defense-related products from the territory of the Republic of Bulgaria and the realized export and transfer of defense-related products or the so-called Annex 2, which contains the number of issued authorizations, the value of the issued authorizations, the realized value in euro by country of export and the list of defense-related products;

2. How many companies have received licenses and certificates of registration for foreign trade activities involving defense-related products in each separate year – for 2020, 2021 and 2022?;

3. How many companies have received licenses and certificates of registration for foreign trade activities involving defense-related products from the beginning of the year to date?;

4. What are the figures for ammunition exports to the European Union from the beginning of the year to date? AND

5. What is the total value of the export and transfer of defense-related products from Bulgaria to other EU member states from the beginning of the year to date?

With a decision dated 4 May 2023, the Minister of Economy and Industry informed the requestor that the Ministry did not have at its disposal the information under items 2 and 3 of the request, and refused to grant access to the information under items 1, 4 and 5 with the argument that the arms exports reports were not yet approved by the National Assembly, while the consolidated reports of the Council of the EU on the topic had not yet been prepared.

The partial refusal to provide access to the information under items 1, 4 and 5 of the request was appealed with the support of AIP.

With
Judgment No 5862/9 October 2023 of the SCAC, Second Division, Panel 59 on administrative case No 5136/2023, Judge Zornitsa Doychinova dismissed the appeal on item 1, repealed the refusal on items 4 and 5, and remitted the case for a new ruling on the information request, together with instructions on the correct interpretation and application of the law.

The court held that under item 1 of the request, the requestor sought official information which, however, fell within the scope of Art. 13, par. 2, subpar. 1 of the APIA, and was therefore correctly refused. The requestor sought access to the annual reports of the Interdepartmental Committee on Export Controls and Non-Proliferation of Weapons of Mass Destruction for 2020, 2021 and 2022. The court held that the Committee’s reports become official documents only after they are submitted by the Council of Ministers to the National Assembly, and the National Assembly publishes them. Until that moment, the reports have the nature of preparatory information that does not have significance of its own. The court reached the conclusion that since the reports for 2020, 2021 and 2022 have not gone through the official procedure, the access to them was correctly refused; however, it held that there was no obstacle to providing access to aggregated data concerning the issued authorizations/certificates for export and transfer of defense-related products from the territory of the Republic of Bulgaria and the realized export and transfer of defense-related products.

With respect to item 4, the court held that the refusal on the grounds of the fact that the respective European reports have not yet been prepared was unfounded. The judge’s reasoning was that the requestor had not sought copies of the reports, but aggregated data for the respective periods, which should be at the disposal of the public body, given that the latter submits such data to the Council of the EU so that they can be incorporated into the consolidated European reports.

As regards item 5, the court held that the requested information was not such that would be summarized in a report, but was information regarding the export and transfer of particular products for the current year, which should be at the disposal of the defendant. These are specific data, statistical and aggregated information that can be provided to the requestor.

Last but not least, the court held that there was an overriding public interest in the requested information, so access to it could not be restricted. The case concerned information relating to the export and transfer of defense-related products from the territory of the country, which information was of essential importance in the context of an ongoing war in the territory of a neighboring country. Moreover, one of the main and very important topics in society is precisely the provision of arms to another country during wartime, and the arming of such a country by Bulgarian companies. Therefore, the subject of our country's arms exports is a matter of public importance and, because of the overriding public interest, access to it cannot be restricted.

The court judgment is final.

***

There is an overriding public interest in the provision of information by the Ministry of Youth and Sports (MYS) regarding the sports license issued to the Automobile Federation of Bulgaria.

This is the conclusion reached by a panel of the Burgas Administrative Court in a case brought by Venelin Urumov (Burgas) against a refusal of the MYS to provide requested information.

With an information request dated 17 July 2023, Venelin Urumov requested the MYS to provide access to all annexes within the meaning of Art. 21, par.1, subpar. 5 of the Physical Education and Sports Act (PESA) to the application of the Automobile Federation of Bulgaria, on the basis of which their current sports license was issued, including a list of the names of the attached rules.

The Committee on the APIA at the MYS refused access to the requested information on the grounds that it did not constitute public information within the meaning of the APIA.

The refusal was appealed with the support of AIP.

With
Judgment No 933/17 October 2023 of the Burgas Administrative Court, Panel III on administrative case No 1574/2023, Judge Chavdar Dimitrov repealed the refusal and remitted the case to the defendant for a new ruling, together with instructions to observe the Personal Data Protection Act (PDPA) in case access is granted.

The court held that the requested information was public and had the nature of administrative information within the meaning of Art. 11 of the APIA, as it concerned documents that formed part of the application for a license, which were submitted by the respective candidate and were of an overriding public interest, since they contained safety rules for the organization of sporting events, which, according to press reports, were not always successful in protecting the life and health of contesters and fans during competitions.

The court reasoned that the questions posed in the information request did not require access to documents containing personal data. Instead, they sought information related to the submission of an application for a sports license, as well as access to a list of the rules appended to the application, without even requesting disclosure of the content of each individual rule.

In conclusion, the court held that the requested public information had to be provided due to the existence of an overriding public interest within the meaning of § 1, item 6 of the Additional Provisions of the APIA, as the provision of the requested information would improve the transparency and accountability of the public body — the Minister for Youth and Sport — as well as its administration, in particular with respect to the licenses issued for every type of sport.

The provision of § 1, item 6 of the APIA establishes a rebuttable presumption. The presumption of the existence of an overriding public interest implies prior acceptance of something as true until proven otherwise. For this reason, the party invoking this text is not obliged to prove the existence of an overriding public interest. The party that asserts the contrary is required to prove it, which was not done in this case. This conclusion also follows from the provision of § 1, item 5(b) and 5(c) of the Additional Provisions of the APIA, which establishes a presumption of public interest when information and data are related to facilitating the transparency and accountability in the decision-making of the obliged bodies, as well as to ensuring the lawful and expedient performance of the legal obligations of the bodies under Art. 3 of the APIA. In the present case, the respondent body has not provided any reasoning and has, without any arguments, overlooked the issue of the existence of an overriding public interest and has thus acted incorrectly.


The court judgment is final.

***

Any tacit refusal to provide access to public information is always unlawful.

This is the conclusion reached by a panel of the SCAC in a case brought by Anina Santova (Capital newspaper) against a tacit refusal of the Mayor of the Sofia Municipality (SM).

With an information request dated 3 June 2023, Anina Santova requested from the SM access to the following information:

1. The contracts for external legal services concluded by the Sofia Municipality in 2017, 2018, 2019, 2022, and up to May 2023;

2. The contracts for external legal services concluded by the municipal company Centar za gradska mobilnost (Център за градска мобилност) in 2017, 2018, 2019, 2022, and up to May 2023.

3. The contracts for external legal services concluded by all district administrations within the Sofia Municipality in 2017, 2018, 2019, 2022, and up to May 2023.

As no response was received within the legally prescribed 14-day time limit, the tacit refusal was appealed before the SCAC with the support of AIP.

With
Judgment No 6161/19 October 2023 of the SCAC, Second Division, Panel 77 on administrative case No 7613/2023, Judge Evgeniya Baeva repealed the refusal and remitted the case to the SM for a ruling on the information request.

The court held that the only lawful conduct of the obliged body was to issue a decision either granting or refusing access to the requested public information. It was stated that the requirement for a written ruling is one of the guarantees for the legality of the act, and the provision of reasoning by the public body has a dual significance: on the one hand, it conveys to the parties the considerations of the public body, thus assisting them in the choice and construction of their defense, and on the other hand, it facilitates the exercise of judicial review. In view of the nature of the regulated public relations, the purpose of the applicable substantive law and the imperative provisions of the APIA — obliging the bodies under Art. 3 of the APIA to issue a reasoned decision even in cases of refusal to provide the requested information — the public body that received the information request was obliged to issue a decision by means of a particular ruling on the request submitted by the association, within the legally prescribed time-limit. Since this has not been done, the tacit refusal under appeal is unlawful on this ground alone and should be repealed, and the case should be remitted to the Mayor of the Sofia Municipality for a decision on the information request by means of a proper ruling satisfying the content requirements of Art. 38 of the APIA.

The court judgment is final.

***

Any information related to the reporting on pre-trial proceedings via the electronic information system of the Prosecutor's Office of the Republic of Bulgaria (PORB) does not fall within the scope of the investigative secret exception and is subject to disclosure under the APIA.

This is the conclusion reached by a panel of the SCAC in a case brought by Nikolay Nedelchev (Sofia) against a refusal of the Deputy Prosecutor General at the Supreme Prosecutor’s Office of Cassation (SPOC) to provide requested information.

With an information request dated 1 March 2023, Nikolay Nedelchev requested from the SPOC access to information concerning the reporting of 5 landmark investigations in the electronic filing system of the Prosecutor’s Office. For two of the investigations, the requestor sought information regarding the grounds on which they were classified, and for the remaining 3 — information on which official made them invisible to external users and on what dates.

With a letter dated 14 March 2023, the Deputy Prosecutor General responded that some of the information had already been provided under a previous request by the complainant, where it had been indicated that if there is a classified document in any given case file, the officer entering it into the electronic system would do so in such a way that it would automatically become invisible to external users. The requested information as to the basis on which some of the investigations were classified was refused on the grounds that providing it would reveal the content of the files, and, therefore, any such information was also classified.

The refusal was appealed before the SCAC with the support of AIP.

With
Judgment No 6144/19 October 2023 of the SCAC, Second Division, Panel 58 on administrative case No 3358/2023, Judge Snezhanka Kyoseva repealed the refusal and remitted the case to the SPOC for a new ruling on the information request, together with instructions on the correct interpretation and application of the law.

The court held that the SPOC’s letter was in effect a refusal, as it did not provide a concrete response to any of the questions in the information request.

The court rejected the SPOC’s argument that the requested information fell within the scope of the investigative secret exception under Art. 198 of the Criminal Procedure Code. According to the court, Art. 198 of the CPC does not apply to statistical data, which probably comprise information from the registers and case books of the respective unit of the Prosecutor's Office, which information is published in the information system of the Prosecutor's Office — the Prosecutor's Office’s E-services Portal. The complainant requested information about a case ID number, which should have been recorded in a case register. He did not request access to information on the substantive content of the case files. The registry system requires that any pre-trial proceedings or prosecution case must have a corresponding registration number. The registers should be accessible. Therefore, Art. 198, par. 1 of the Code of Criminal Procedure does not apply to registers.

The court pointed out that in the course of the proceedings the SPOC failed to prove that the requested information is classified under the Protection of Classified Information Act.

In conclusion, the court did not accept the defendant’s argument that the existence of an overriding public interest was irrelevant in this case on account of the fact that the requested access to public information related to documents in ongoing prosecution cases and pre-trial proceedings, and thus the provisions of the APIA were not applicable. It was stated that the ID number of the prosecution case or of the pre-trial proceedings, the information whether the case or the pre-trial proceedings are classified, and the legal grounds for any such classification are not documents incorporated in ongoing prosecution cases and pre-trial proceedings. In the presence of an "overriding public interest," the obliged body has to provide the requested information, and it is again the obliged body that has the burden of proof to rebut this presumption.

The court judgment is final.

***

The absence of reasoning justifying the rebuttal of the presumption of an overriding public interest in the disclosure of certain information constitutes an independent ground for repealing a refusal under the APIA.

This is the conclusion reached by a panel of the SCAC in a case brought by the Association "Za Zemiata (For the Earth) –  Access to Justice" against a refusal by the Electricity System Operator (ESO) EAD.

With an information request dated 11 April 2023, Za Zemiata requested ESO to provide access to information regarding payments made to producers of electricity in the period 1 September 2021 – 31 March 2023.

With a decision dated 24 April 2023, ESO’s executive director refused to grant access, claiming that the requested information affected the interests of third parties who had objected to its disclosure. The refusal also stated that the requested information was of administrative nature and constituted a professional secret, as well as that the requestor had not proven the existence of an overriding public interest.

The refusal was appealed before the SCAC with the support of AIP.

With
Judgment No 6269/24 October 2023 of the SCAC, Second Division, Panel 76 on administrative case No 4749/2023, Judge Plamen Panayotov repealed the refusal and remitted the case for a new ruling on the information request, together with instructions on the correct interpretation and application of the law.

The court held that the information specified in the request was not classified information constituting an administrative secret of ESO EAD, and there was no legal to its provision. The Compliance Programme, the provisions of which the defendant relied upon, is not a law stipulating circumstances in which the particular information claimed would constitute a “professional secret,” or stipulating grounds for the protection and disclosure of such information.

According to the court, the defendant’s reasoning that there was no "overriding public interest" — in the presence of which the defendant would be obliged to provide the information — was also unfounded. The burden of rebutting the presumption is placed on the defendant by law. Pursuant to § 1, item 6 of the Additional Provisions of the APIA, an “overriding public interest” exists where the requested information is intended to expose corruption and abuse of power, and to improve the transparency and accountability of the obliged bodies. The lack of analysis and the non-observance of the aforementioned legal provisions, as well as the lack of specific and clear reasoning rebutting the presumption under § 1, item 6 of the Additional Provisions of the APIA, constitute an independent ground for repealing the appealed refusal. The presumption of existence of a public interest implies prior acceptance of something as true until proven otherwise. Therefore, the person invoking this text is not obliged to prove the existence of a public interest /Art. 14, par. 2, subpar. 3 of the APIA/. Whoever claims the contrary is obliged to prove it, which was not fulfilled by ESO EAD in this case. It is for the defendant to provide reasoning as to why it should be considered that no “overriding public interest” exists. In the appealed ruling, this burden of proof was incorrectly “transferred” to the Association “Za Zemiata (For the Earth) –  Access to Justice.”

 

The court judgment is final.

==============================================  

 

 

 

 

The case is supported by Access to Information Programme under a project "Legal Help to Access to Information Cases", funded by German Marshal Fund of the US.

© 2023 Access to Information Programme
All published materials are subject to copyright by Access to Information Programme.
Citing the source is required when quoting.