ISSN 1313-6496

Oversight of the APIA Implementation

Standards which precondition the introduction of a specialized public body to oversee the APIA implementation

The Convention on Access to Official Documents (the Convention) sets forth the right of the requestor, whose request for information has been denied expressly or impliedly, to appeal the denial before a court or another independent and impartial body.[1] In addition to the review procedure, the Convention sets forth a requirement for “an expeditious and inexpensive review procedure.”[2]

 

The requirement for a guarantee of the right to a review procedure is fulfilled by the Bulgarian law. Pursuant to Art. 40 of the Access to Public Information Act (APIA), the requestors have the right to appeal the denials and the decisions on their access to information requests before the administrative courts and the Supreme Administrative Court. The right to appeal the silence of the administration on access to information requests, or the so called silent refusals is not explicitly provided by the APIA. However, it has been substantiated and deduced in the case law of the Supreme Administrative Court.[3]

The requirements for a fast and inexpensive review procedure usually raise the question for the establishment of a public body which would exercise especially these functions, separately and independently from the courts. Parallel to these functions, the existence of a specialized public body with administration and expertise in the access to public information area requires legislative decisions which would entitle him to wider powers. The latter are related to the monitoring of the implementation practices, the analysis of the monitoring results, the issuing of guidelines, handbooks, holding of trainings for the administration, running raising awareness campaigns on the right of access to information, imposing of sanctions. Within the European Union, the activities of this authority are also related to the ensuring of the right to good governance,[4] as well as to the monitoring and analysis of the provision of information for re-use.

 

The application of the provisions related to the re-use of public sector information creates the reasoning for the assigning of specific functions to such a public authority. Pursuant to Art. 4, Para. 4 of the Directive 2003/98/ЕC (the Directive) on the Re-use of Public Sector Information, revised by Directive 2013/37/ЕU, the Member States shall provide for means of redress in case the applicant wishes to appeal the decision on the provision of information for re-use, including the possibility of review by an impartial review body. Pursuant to Art. 7, Para. 4 of the Directive, Member States shall ensure that applicants for re-use of documents are informed of available means of redress relating to decisions or practices affecting them. This means that on a national level, a system for monitoring, analysis and unification of decisions and practices should be established. For that purpose, a competent public authority shall be entitled which disposes of the respective financial, technical, human, etc. resources. Within the functions of the public authority, it is possible that it is also assigned to oversee the implementation of the obligation under Art. 9 of the Directive for making practical arrangements facilitating the search for documents, such as asset lists of documents with relevant metadata, online accessibility in proper formats, and portal sites that are linked to the asset lists. In the end, a specific public  body is required to undertake the preparation of a report on the implementation of the Directive in every 3 years, as stipulated by the revised Art. 13, Para. 2. A possible and reasonable approach would be that the listed functions are undertaken by a public body with assigned functions related to the control and implementation of the APIA. In the context of Bulgaria, this would also comply with the commitment “enhanced coordination and control over the implementation of the law,” provided by the Second National Action Plan within the Open Government Partnership initiative.

 

Information Commissioner/ Ombudsman and the courts

In different national legislative models, the specialized public authority which reviews appeals under the access to information laws, is the Information Commissioner, Ombudsman, Commission. A substantial issue regarding the establishment of such an oversight/enforcement mechanism is the comparison with the functions of the courts. A common point is that the introduction of a Commissioner/ Ombudsman does not exclude the court review. Meaning that this oversight mechanism appears as parallel and not “competitive” to the judicial. The issue that the appealing before the courts is not a fast, accessible and inexpensive procedure is raised. In a number of cases, it is even a hardly accessible and expensive initiative.[5] The need for using  legal help and councilor's services, as well as the overburdening of the courts, are among the common obstacles in most of the systems. An example is given in one of the research papers on the topic that a 2002 court case in South Africa against an access to information denial cost nearly 30,000 USD.[6]

 

In Bulgaria, the court review of the denials and the decisions for provision of public information has been introduced with the APIA as early as 2000.[7] Pursuant to the effective Tariff No. 1 to the Law on State Taxes, the taxes collected by the courts, the prosecution's office, the investigative services, and the Ministry of Justice for the review of appeals against administrative acts amount to 10 BGN (5 Euro) for natural persons or legal non-profit persons, and 50 BGN (25 Euro) for legal commercial persons.[8] At the submission of a second instance court appeal, half of the amount of the tax is due, i.e. 5 BGN or 25 BGN respectively.[9] These taxes are applicable for the appeals against denials and decisions under the APIA. The duration of an APIA litigation is around an year, year and a half encompassing the hearing at two instances. In comparison to a number of other types of cases, these cases are processed and heard relatively fast. The comparison is not only with types of cases in Bulgaria, but also with other systems' types of cases.

 

In view of that exposition, the possible advantages of the introduction of the Information Commissioner/ Ombudsman should be sought in the exercise of other functions, rather than the review of appeals.

 

Review of the approaches adopted in national access to information laws

In different national access to information laws, the functions regarding the review of appeals against denials and decisions of access to information are entitled to different bodies. In some cases, the appeals are reviewed by the courts – administrative or civil. In other cases, the appeals are reviewed by a separate public body. The establishment of such an independent body has been observed during the past ten – fifteen years at European level and worldwide. In Europe, it exists at the EU level, in the UK, Scotland, Ireland, Germany – at a federal level and in the states, in Hungary, Slovenia, Serbia, Croatia, Montenegro, etc.

 

The issue of independence has a substantial significance for the efficient functioning of the Information Commissioner/ Ombudsman. In some laws, it is adopted that the body is elected by the parliament, in other – it is appointed by the executive power. Certainly, the independence of this body is of key significance for the promotion of the principles of independence and impartiality at the review of appeals. Within Europe, an approach different from that one would be extremely problematic as far as the effective protection of human rights is essential in view of the provisions of Art. 13 and Art. 6 of the European Convention on Human Rights.

 

The decisions of the Information Commissioners are somewhere of a recommendation character (Hungary, European Union), and somewhere are binding orders (UK, Slovenia, etc). A 2014 survey of the Center for Freedom of Information finds that the binding character of the decisions on appeals or complaints is a substantial factor for effective consecutive compliance.[10] Out of the participating Commissioners/ Ombudsmen in the survey, 62.3% (33) pointed that their decisions are binding, and 37.7% (20) that they issue recommendations.[11] Regarding the extent of compliance with their decisions, 55% of the former category responded that their decisions are always implemented, while none of the second category gave a confirmatory response.[12] Consequently, the recommendations towards the public bodies turns to be a less effective enforcement tool compared to the binding decisions.

 

As it has been already pointed out, the functions of the Information Commissioner/ Ombudsman beyond the review of appeals vary in different national legislation, encompassing preventive as well as repressive aspects. The former encompasses activities related to the raising awareness on the right to information and how to exercise it, monitoring of practices, holding of trainings, issuing of guidelines, instructions, prescriptions for the effective application of the law and the unification of the implementation practices, review and reporting before the parliament (or another body depending on the way of appointment of the Commissioner), recommendations for amendments to the legal framework. The latter aspect encompasses the powers related to investigation/ inspection of cases/, review of appeals and complaints, finding violations, and imposition of sanctions.

 

The issue about the powers which the Commissioner/ Ombudsman possesses with regard to investigation, i.e. collecting evidence, is interesting. It is important which powers are more often applied and which less often. The conclusion of the quoted survey is that strong powers are comparatively rarely used. Only one out of 34 Commissioners who have such powers responded that they often use the power to require an affidavit from a person, and only three out of 25 Commissioners who have the powers to search premises responded that they use their powers often.[13]

 

Similar tendencies are observed with regard to typically repressive powers related to the imposition of sanctions or even recommendations for disciplinary actions. A total of 37 commissioners responded that they have powers to impose a fee or another penalty, but only 2 pointed out that they use these powers often. Out of 21 Commissioners who have the powers to recommend disciplinary penalties, only 5 responded that they have done it frequently.[14]

 

At the same time both categories of Commissioners/ Ombudsmen apply frequently the methods of negotiating or mediation, and in around 40% of cases, the proceedings after and appeal end due to these methods, rather than by a decision of the Commissioner.

 

The question if this independent public body should combine the oversight of the personal data protection and the access to information is very specific. If choosing this approach, it is possible that the functions related to the monitoring, coordination and control over the implementation of the APIA are assigned to the Personal Data Protection Committee. Some states have adopted such a model – Canada, Hungary, UK, Serbia, Croatia, and Slovenia. This model would suppose the division of the administration of the institution into two, each division taking the responsibilities for protection one of the two rights. Usually, each of the two structures is headed by a deputy commissioner – the UK, Slovenia.

 

In other national models, the institutions responsible for the oversight of the access to information are different from those entitled to protect the personal data. In France and Belgium, there exist commissions on access to administrative documents, while Information Commissioners with powers covering the access to information only are established in Ireland,[15] Scotland, Chili, Australia.  There is a third category of national models, where the review of appeals is performed by the parliamentary ombudsman – Sweden, Denmark, Norway, Finland, New Zealand.

Institutional environment, effective in the access to public information area

Monitoring, coordination, reporting, recommendations

In 2009, the Ministry of State Administration and Administrative Reform was closed. The functions of organization, support, development of state administration and the state service have not been undertaken by another executive body. Currently, a department within the administration of the Council of Ministers is responsible for the collection of data on the implementation of the APIA and prepares an annual report on the state of the administration, a chapter of which contains a summary of the APIA implementation.[16] Consequently, there are activities performed with regard to the monitoring and preparation of a report, while there is no coordination and no recommendations for improvements due to the lack of an entitled high government official.

Investigations and inspection at signals

The inspectorates at the ministries, established and functioning pursuant to Art. 46 of the Administration Act (AA), are entrusted with the powers to perform administrative investigations of alleged violations of the law and to recommend disciplinary actions. Within their powers, they perform planned and out-of-the-plan inspections,[17] inspections after submitted signals for illegal or wrong actions or inactions of civil servants,[18] including for conflict of interests,[19] corruption, and inefficient work of the administration,[20] propose disciplinary actions,[21] etc. The powers are broad, although there are no data about their efficiency in the access to information area. A serious problem is the subordination of the inspectorates to the respective ministry and the lack of any guarantee for a complete or partial independence from it. Thus, the lack of efficiency is explained.

Sanctions

Pursuant to the APIA, the administrative violations under the law should be found by an assigned official within the respective body, while the sanctions are imposed by the respective body of power or by an official assigned by this body (Art. 43, Para.2, item 1 of APIA). In the rest of the cases, this is done by the Minister of Justice, pursuant to Art. 43, Para. 2, item 3 of the APIA. Up to now, one case of sanctioning of a public official is reported in the annual report on the state of the administration in 2013.

 

Unification of practices

Pursuant to the powers entrusted by the law (Art. 20, Para. 2 of the APIA), the Minister of Finance should issue an order by which the fees for access to information provision are determined. Such orders were issued in 2001 and in 2011. The provision of Art. 20 of the APIA is, however, the only ground given by the APIA for  unification of practices. Thus, there is no unification with regard to the other elements of the procedure for access to information disclosure like the work with the electronic requests, provision of information by email, and the proactive publication of information.

Review of appeals against denials

The administrative courts are competent to review complaints and appeals against denials and decisions for access to information provision. They have the powers to repeal a denial and to obligate the public authority to provide the requested information within specific time frame; to alter the decision of the public body, to repeal the denial and return the request for a new decision or to announce the denial void and turn the request for reconsideration. The court could request the defendant – the public body, to present for a review even classified information.

 

Pursuant to the legally prescribed powers, the National Ombudsman could review complaints against violations of the APIA, although he could only give recommendations.[22] The Personal Data Protection Committee reviews appeals requiring a decision on the balancing of the access to information and the personal data protection (for instance, in cases when access is requested for information  about the bonuses of the public officials).[23] The appeals, however, are filed by persons, whose personal data protection rights are affected, and not the right of access to information.

 

Proactive publication

Different public bodies are responsible for the implementation of the obligation for publication of different types of information stemming from different special laws. The  Public Finances Act, adopted in 2013, provided for fines for non-publication of information within the legally prescribed time frames. The violations are found by officials assigned by the Minister of Finance. The sanctions are imposed by the Minister of Finance or by an assigned official. No sanctions are provided with regard to the obligations for proactive publication of information under the APIA.

Trainings for the administration

The state administration officials are subject to trainings on specific topics carried out by the Public Administration Institute.

Conclusions

The main problem with the variety of institutions which are responsible for different aspects of the APIA implementation is the absence of a coordination unit which would accumulate expertise and information. Besides, with regard to a part of the activities which are usually performed by an Information Commissioner or an Ombudsman, in Bulgaria there is no institution to perform them, like the issuing of handbooks, guidelines and instructions, coordination of the implementation practices, etc.

Institutions with functions in the right to information right area

 

Currently, different institutions have powers related to the rights and legal interests related to the collection and holding of information by public bodies. The Personal Data Protection Commission (PDPC) have powers in the area of protecting personal data at their processing. Its establishment as an institution stems from the obligations arising from the EU legislation. The Commission is appointed by the National Assembly as an independent body. Along with other powers, the PDPC reviews complaints against the acts and actions of the personal data administrators,[24] issues statements,[25] performs inspections on personal data administrators,[26] issues binding prescriptions,[27], and could impose a temporary ban for personal data processing,[28] issues legal regulations in the personal data protection area.[29]

 

Functions related to provision of information, disclosure and announcement of affiliation to the former secret services are entrusted to the Committee for Disclosing the Documents and Announcing Affiliation of Bulgarian Citizens to the State Security and Intelligence Services of the Bulgarian National Army. Its members are elected by the National Assembly for the term of five years at the nomination of the parliamentary groups. In view of its specific activity, its powers are strictly and narrowly determined and could not serve as an analogue of the functions of an independent body under the APIA.

 

The Committee for Oversight of the Security Services, the Deployment of Special Surveillance Techniques and the Access of Data under the Electronic Communications Act in the 43^rd National Assembly is a typical parliamentary committee. Its functions encompass the control over the pointed intrusions in privacy by the collection of information. It does not review complaints and has a scarce administration. A substantial weakness in its functioning is that it ceases activity during the National Assembly recess. 

The National Ombudsman

The National Ombudsman is elected by the National Assembly. Its powers encompass the review of complaints against violations of rights and freedoms,[30] investigations related to the complaints,[31] mediation between the affected parties and the respective public bodies,[32] bringing of cases to the Constitutional Court,[33] issuing of legal statements, proposals, and recommendations to the National Assembly and the Council of Ministers, etc. Amendments to the Law on the Ombudsman have entrusted him with powers of prevention aiming at the protection of arrested or imprisoned persons from torture and other forms of violent, inhuman or humiliating treatment or penalty.[34]

 

Regarding the complaints, the Ombudsman issues recommendations and has the right to impose administrative sanctions in specific cases, for instance for not presenting evidence within the prescribed time frame.

Conclusions

In Bulgaria, the administrative justice system turns to be adequate and efficient in view of the protection of citizens' rights under the Access to Public Information Act. The legal proceedings are relatively fast and inexpensive for the complainants. The courts have considerable power to collect and inspect evidence, including at their own initiative.

 

The executive power system needs a public body that would be responsible for exercising the necessary coordination and for making recommendations for the improvement of the implementation practices on the base of monitoring and analysis. In the judicial system, this function could be and should be performed  by the Supreme Judicial Council.

 

The activities related to the review of complaints and issuing of statements and recommendations for changes in the public bodies' practices could be improved by the establishment of a public authority after the Information Commissioner or Ombudsman model. This institution should be independent and should be elected by the parliament. It is recommendable that its decisions are binding and subject to court review. Otherwise, a risk would emerge of disbalance with the strong powers of the Personal Data Protection Commission. In the cases of collision and balancing between the right of access to information and the right of personal data protection, a mechanism for review should be established that is in line with the international standards.

 

In view of the financial and administrative support that is necessary, a possible option would be the broadening of the National Ombudsman's functions. The undertaking of the review of complaints and the issuing of statements, recommendations, and prescriptions could relieve the work of the courts on more ordinary and repetitive cases like the ones related to the silent refusals, the proactive publication of information, the requirements to the requests, the forms of access.

 

In addition to the review of complaints functions, the Ombudsman could be entrusted with the issuing of instructions or statements, and the training of officials.