ISSN 1313-6496

Sanctions under the APIA – problems and how they could be solved

Darina Palova

The administrative sanctions in the APIA are provided for in Articles 42 and 43. The current legal framework covers four main administrative infringements for which the imposition of an administrative sanction – fine – for individuals and property sanction – for an offense committed by a legal person:

Art. 42. (1) If not subject to a harsher penalty, a civil servant who failed to respond within the specified time limits to a request for access to public information without exculpatory reason, shall be fined between 50 and 100 leva.
(2) If not subject to a harsher penalty, a civil servant who did not follow a court order to grant access to public information shall be fined between 200 and 2000 leva.
(3) Any failure to meet the obligations under art. 31, par. 3 shall be punished with a fine between 50 and 100 leva for physical persons or between 100 and 200 leva for legal entities.
(4) For failure to provide access to public information by the persons described in art. 3, par. 2, the punishment shall be a fine between 100 and 200 leva.

Problems arising from the existing legislation

Problem with the imposition of the fine

Sanctions under the APIA are not being imposed over the years, indicating that the current model does not work. Such conclusion follows from both the observation of administrative practices of APIA implementation, which we constantly monitor, and the data published in the annual Reports on the state of the administration, prepared by the Council of Ministers on the basis of aggregated data obtained for the given year. For the first and only time in the 2013 Report on the state of the administration was indicated a case of imposition of an administrative sanction for a breach of the APIA[1]. One of the main reasons for this lack of sanctions is the determination of the sanctioning body. Under Article 43 of the APIA sanctions are imposed either be the respective administrative body, or by the Ministry of Justice in the cases, where the breach of the APIA was carried out by an obliged body outside the system of state authority – such as the so-called public law subjects. At the same time, according to Article 28, par. 2 of the Act decisions on requests received in the institution are taken by the bodies or by officials expressly designated by the former. In practice, in cases where the head of the institution has not designated another official, entitled to take such decisions, but does it herself/himself, it appears that in case of a breach she/he must punish herself/himself.

Problematic is the question concerning the establishment of infringements under the APIA – under the provision of Article 43 violations under this Act shall be established by the officials designated by the Minister of Justice in the cases set forth Article 3, par. 2 or by the respective body in the other cases. This means that at this stage of the administrative sanction proceedings too, the person, having committed the violation and the person, who must establish the existence of the violation, may be the same person.

For comparison, in personal data protection the issue is resolved as follow. In the Personal Data Protection Act, both the establishment of violations and the imposition of sanctions is carried out by the Commission for Personal Data Protection. The establishment of the infringement – by a member of the Commission, and the imposition of the sanction – by the Chairman of the CPDP. The monitoring of practices on sanctioning violations of personal data protection indicates the effectiveness of this model – each year hundreds of fines are imposed for violations committed by personal data administrators[2].

So far, there is no evidence of sanctions imposed by the Ministry of Justice against an obliged body under Article 3, par. 2 of the APIA.

Monitoring of existing practice indicates that ministries’ inspectorates are not very active in the implementation of control on the implementation of the APIA. The inspectorates have general functions of oversight over the implementation of the legislation, which includes the APIA, by the ministries’ administration, but in fact these functions remain unrealized.

Based on the above, it can be argued that the system in which the respective public body is competent to impose administrative sanctions for violations of the APIA to its own administration is not appropriate. As a whole, the absence of a single authority monitoring the implementation of the APIA, and vested with the sanctioning functions, affects adversely the existing administrative practices on the imposition of sanctions.

Amounts of fines

The amount of the statutory APIA fines is low, ranging between 50 and 200 levs. An exception is the amount of the fine imposed under Article 42, par. 2 of the Act, but this hypothesis concerns the cases of failure to implement a court instruction and the competent body to impose the fines is the respective court.

The comparison with the fines imposed under the laws governing restrictions on the right of access to information – the Protection of Classified Information Act and the Protection of Personal Data Act (respectively up to 20 000 and 100 000 levs), indicates a lack of proportionality. The right to access information is a fundamental human right, which is why its violations should be adequately sanctioned, which would have a positive effect on the practices of implementation of the APIA.

Expanding the cases where a fine is imposed

At present, the above-mentioned APIA sanctions cover only a few hypotheses of failure to fulfill obligations prescribed by the Act. They do not exhaust the violations detected in practice and, therefore, new proposals to expand the scope of the sanctions, should be brought forward. In its current version, the APIA does not provide for sanctions against failures to fulfill obligations for active disclosure of information under Article 15 et seq., as well as against failures to provide information electronically, which affects adversely the relevant administrative practices on publication / provision of information. The results of AIP’s annual surveys of the information published on the institutions web site, show a number of problems in the implementation of the law, which can be removed to a large extent by introducing specific sanctioning provisions. A possible legislative solution of this issue could be the adoption of the punitive model, introduced in the administrative sanction provisions of the Public Finance Act. Its Article 173 reads: “(a) responsible official who has failed to fulfill the obligation to publish information or documents on a website as prescribed by this Act, the state budget act for the respective year or its implementing ordinance shall be punishable with a fine of BGN 100 to BGN 500, whereas a repeated violation shall be punished with a fine in double amount.”

The draft Law on amendments to the APIA of October 2014 has a single proposal for changes in the administrative sanction provisions. It is the introduction of a sanction for failure to provide information for re-use by adding a paragraph 5 with the following text: “For failure to provide information for re-use shall be imposed a sanction of 50 to 200 levs.”

Proposals for amendments

Solving the issues concerning the body which establishes the violations and respectively the sanctioning body – for example a Minister may be empowered – such as the Minister of Justice for all cases; introduction of specific functions as regards the ministries’ inspectorates.

Introduction of new violations subject to sanction – for example, failure to fulfill obligations for active publication.