ISSN 1313-6496

Seeking and providing information via Internet

Internet has become a commonly used intermediary to seek, receive and disseminate information. As a cheaper and faster means of exchange, of even large amounts of data, Internet should facilitate the use of the right of access to information. However, the statistics for recent years shows that the requests submitted electronically are approximately between 9% and 15% of total applications for access to information – in 2013 they are 1431 out of 9447 requests received by the executive bodies[1]. Access to Information Programme’s annual surveys reveal even more clearly the problems concerning seeking and obtaining access to information via the Internet. Although the number of government bodies, that refuse to provide information on a request submitted by e-mail is decreasing, it remains 20% of the surveyed institutions (or 107 have not responded out of the 535 studied in 2014).[2] At the same time the administrative authorities provided information only by e-mail as requested in the application are merely more than half[3] – 269 – of the 535 studied in 2014. Behind these figures lies a wide variety of practices in the handling of “electronic requests” and in providing information by electronic means, and this diversity reflects the different ways in which administration officials seek solutions to the problems flowing from vague legal provisions.

Seeking and providing information by electronic means are two procedures laid down in different provisions of the Access to Public Information Act and raising a few very specific issues that will be discussed hereafter. The aim is to find the most appropriate, direct and pragmatic solutions to problems encountered in practice.

 

Requesting access to information by electronic means

 

The Access to Public Information Act (APIA) in its Article 24, paragraph 2 provides: “The application is deemed written also in cases where it is sent electronically subject to conditions determined by the respective body.” The issues that most often arise when applying this provision can be divided into three groups – problems with the procedure for submission of applications, problems with requirements for clearer identification of the applicants, problems with the confirmation of receipt of the application by the administrative body.

 

Procedure for submitting requests by electronic means

Article 24, par. 2 of the APIA leaves it to every obliged body alone to determine the procedure for handling electronic applications. This text is unchanged since the adoption of the Act in 2000. At that time, access to the Internet was not as developed and probably this motivated the legislator to allow a certain level of discretion to the obliged bodies in finding solutions for receiving applications for access to public information through the Internet. Administrative practices provide many different solutions. Some of them, however, unduly restrict the avenues for filing an application by electronic means and sometimes lead to disguised, at times illegal restrictions on the fundamental right of access to public information. For instance, the Sofia Municipality receives applications electronically only if submitted through its "Virtual office" service. There the requester should fill a certain type of electronic "form" which gives the impression that it requires different and more data than the exhaustively listed three requirements of Article 25 of the APIA (three names, a description of the information and mailing address). It is not clear why citizens cannot use their own e-mail or letter form to file a request for access to information with the Sofia Municipality. Instead of facilitating citizens such practices tend to increase the unnecessary formalities when seeking public information.

 

Such impressions are shared by many regular users of the right of access to information. The discussion that AIP held with journalists produced the overall proposal that "the procedure for electronic submission of requests and provision of information by electronic means should be regulated in more detail in order to harmonize practices".[4] The draft Law on amendments to the APIA, submitted for public discussion by the Ministry of Transport, Information Technology and Communications[5] proposes modifying Art. 24, par. 2, by deleting the words "subject to conditions determined by the respective body" and replacing them with "to the electronic address under Art. 15, par. 1, item 4.” This reform gives two consequences. On the one hand, the heads of the bodies’ discretion to determine themselves the method of receiving applications electronically is revoked. On the other hand, the duty for every executive power body to establish an "electronic address" where to receive requests for access to public information is clearly set. In short, if under the term "electronic address" all understand "e-mail", this solution would lead to uniformity of practice to a large extent and to the clear result that everyone can send and application through their own e-mail, in free text, subject only to the requirements of Article 25 of the APIA.

 

Certain ambiguities arise in two directions. On one hand, the term "electronic address" is not defined in the proposed bill and it seems to cover both e-mail and website address. Here the risk is that the different administrations create anew diverging practices or the now existing remain unchanged. Sofia Municipality, for example, will not be forced to change its procedure since the section "Virtual office" on its website is a form of "electronic address". A definition of "electronic address", which supports this interpretation, is enshrined in the draft Law on amendments to the Electronic Governance Act[6]: "Electronic address" is an identifiable by a common standard information system for receiving electronic statements." In turn, the fact that "electronic statements" are not provided for in the APIA creates inconvenience. A more appropriate option would be that this term be replaced by the term "e-mail" in the text of the APIA.

 

On the other hand, Article 15 binds only the heads of administrative structures "in the system of executive power." The draft Law on amendments to the APIA omits to require that the other subjects under the law (public law organizations, persons financed by the state budget or EU funds, etc.) determine an "electronic address" for receiving requests for access to information electronically. This could be used by some to restrict the receipt of applications by e-mail.

 

Proposal: All obliged subjects under the APIA should announce on their websites an e-mail address, through which they receive requests for access to public information. If such an address is not announced, the requests are considered regularly received on the official e-mail address of the subject or, if such an address does not exist, on any e-mail address used by the subject.

 

When the obliged bodies set out the procedures for receiving requests electronically in their respective internal rules, they sometimes add additional to Art. 25 of the APIA requirements that sharply restrict the right of access. Such is the case with the requirement for clearer identification of the applicant by the application of an electronic signature.

 

Requirement for identification of the applicant by electronic signature

AIP’s annual survey[7] indicates that the institutions requiring an electronic signature when submitting an access to information request through the internet are not many. For 2014 they are 12 out of the 535 researched institutions, but some of them have a crucial role in the administration – the National Revenue Agency, the Registry Agency, the State Agency "State Reserve and War – Time Stocks", Regional Administration - Gabrovo.

 

The main practical problem with this requirement is that not every citizen has an electronic signature. Its possession is not mandatory for everyone, in contrast to the possession of personal documents, and also such a signature must be purchased. The electronic signature is a way for attesting the identity of the applicant and amounts to a handwritten signature, according to Article 13 of the Electronic Document and Electronic Signature Act. However, Article 25 of the APIA, which is also lex specialis and applies notwithstanding the Article 29 of the Administrative Procedure Code, clearly defines the requisites of a request for access to public information, which exclude the affixing of signature. This situation is also logically derived from the idea that the APIA does not differentiate between applicants and their objectives. Public information is available to the entire society.

 

The draft Law on amendments to the APIA provides for amending Article 24, par. 2, which regulates the submission of requests electronically, by adding a second sentence: “In these cases a signature under the Electronic Document and Electronic Signature Act is not required.”[8]

 

This proposal seems to solve the problem with the requirement of electronic signature, replacing the need for interpretation of several legal provisions by expressly settling the matter in the APIA itself.

 

During the discussions held by AIP around the question "Are APIA Amendments Necessary?” on several occasions was raised the issue of the formal proof of receipt of requests or responses. The establishment of the actual time of receipt is crucial for the calculation of legal deadlines. In order to exhaust the issues concerning the request for access to public information, we will discuss only the receipt of the application, leaving the receipt of response or information for later.

 

With no proof of receipt or registration of their request no citizen may demand that the court upholds their right of access to information. The establishment of the time of receipt and registration of the request for access to public information is crucial for determining the day, on which starts running the 14-day period for consideration under Article 28 of the APIA, as well as the subsequent time limits for a possible court appeal. When submitting requests on paper, the acknowledgment of receipt or the registration number issued by the obliged subject serves for attesting the period’s start date. The acknowledgment of receipt, however, has no equivalent with a similar level of credibility and reliability when exchanging letters through e-mail. And each administration is responsible for determining how to register applications received electronically and whether to inform applicants thereof.

 

Generally, questions concerning the registration of correspondence and document circulation in general in the administrative bodies find their common solutions in procedural legislation, outside of the specific acts that governs matters of substantive law, such as the APIA. However, during the public discussions organized by AIP, a number of users of the act offered different solutions for settling the matter explicitly in the APIA. Some suggestions propose that the use of specific technical standards for e-mail exchange and attesting of sending and receiving should be required[9]. These standards, however, do not provide a completely secure technical solution[10], they would be difficult to implement in the practice of all obliged subjects and do not represent official standards of the Republic of Bulgaria. Other proposals focused on a possible obligation for institutions when receiving a request electronically to return a reply containing the reference number under which the application was registered[11]. Such a solution is enshrined in Article 34 of the Electronic Governance Act: "(1) Upon registration of the received in the administration of the administrative body incoming electronic document an acknowledgment of receipt is generated and sent to the applicant."

 

The possible solutions are many, but as the problem to establish the receipt of an electronic request is primarily technical, it is best that its solution be also firstly technical. Such a solution could be to establish a common Internet platform for submitting requests and receiving answers on them operating without excluding other avenues for seeking and providing access to public information, but alongside, in addition to them. This platform, as a kind of intermediary between the requester and the different administrations, will provide a reliable and precise identification of the moments of sending and receiving letters electronically. Such platforms operate successfully in Europe and around the world[12]. Pitaigi.bg[13] is the project of the NGO Obshtestvo.bg, supported by AIP, for the creation of such a voluntary platform for Bulgaria.

 

Proposal: Providing in the APIA an additional opportunity for requesters to use such a general internet platform would also bring a normative solution to the problems with attesting of receipt of electronic requests.

The solutions discussed so far would lead to a greater degree of uniformity of practices on receipt of requests for access to public information electronically. In turn, this would increase public trust in the reliability of this procedure and hence would increase its use on the expense of the more demanding procedure of correspondence on paper. In order to maximally facilitate the work of the administration, however, it is necessary to pay attention to the difficulties in providing public information electronically.

 

Providing public information by electronic means

Officials from the administrations and other obliged subjects, that answer to requests for access to public information by electronic means, are encountering several problems in their work – sending electronically the decision of the body, arranging payment of the charges due, the form of access to information and obtaining proof of receipt.

 

Sending electronically the decision to provide or refuse access

Having received a valid request for access to information, the head of the administrative structure or of the obliged subject must, within a certain time limit, issue a decision and notify thereof the requester in writing, according to Article 28, par. 2 of the APIA. How could this be done only by electronic means? The problem does not seem particularly important and of any serious consequences, but still it raises concerns. This is indicated in the heterogeneous practice on addressing it. For example, the decision is sent only by regular mail with acknowledgment of receipt, or in parallel electronically and by regular mail with acknowledgment of receipt, or is not sent at all, etc.[14] The decision under Article 28, par. 2 of the APIA is an individual administrative act (i.e. official legal document), which by itself generates consequences in the legal order.

 

The draft Law on amendments to the APIA offers a partial solution to the question as in Article 34, par. 3 of the APIA, in addition to the possibilities for service of the decision against the signature of the applicant or through registered mail, it adds the option that the decision be sent electronically, when the applicant has requested that access be provided electronically and has indicated an email address[15]. This approach is partial, since it concerns only the decisions granting access to public information. The draft Law on amendments to the APIA does not propose to amend Article 39, which provides: ” A decision refusing access to public information shall be handed over to the applicant against his/her signature or sent by registered mail.” In this proposed situation the fate of the decisions granting partial access, which at the same time also issue a partial refusal, remains unclear. It seems their delivery to the requesters will have to continue to be made on the condition of applying a signature or by regular mail with acknowledgment of receipt. Thus, a fuller protection of the requesters' rights will be guaranteed in the event of a conflict between Article 34, par. 3 and Article 39. At the same time, nothing prevents the obligated subjects to send these decisions in parallel electronically. Ultimately, the proposed reform is practically without serious consequences, since the decisions of refusal or partial refusal, i.e. the more frequently contested acts, should continue to be served the traditional way.

 

The form of providing access to public information through the Internet

It seems that so far the biggest stumbling block in the provision of public information through the Internet has been the form of access under Article 26 of the APIA. Some obliged subjects have used the argument that since the law does not provide for a form of access “provision by electronic mail”, they could not provide information in this way. AIP has more than once criticized such unlawful interpretations[16], [17]  and the case law clearly states that e-mail is included in the term "technical carrier" (“technical bearer/medium”) in Article 26, par. 1, item 4 of the APIA[18]. However, for the uninitiated citizen, who should also apply the law, the ambiguity in the text remains, all the more so the term "technical carrier" is not defined in the act itself. The current text does not really make it easy to understand that the term "technical carrier" plays the dual role of the form in which the very information is presented (digital, audio or other) and of the way of transmission, through which it reaches the requester (sent by regular mail, handed personally or sent by e-mail).

 

The draft Law on amendments to the APIA[19] offers a solution to this problem in two steps. Firstly, it obliterates the distinction between copies on paper and technical carrier (from Art. 26, par. 1, item 3 and item 4) and replaces it with the general concept of "copies on a material carrier" in Article 26, par. 1, item 3. The definition proposed for "material carrier" in the Additional Provisions of the law is as broad as possible and clearly left inexhaustive in order to include any future types of media (”carriers”): "Material carrier" is any paper, technical, magnetic, electronic or other media, regardless of the type of the recorded content – text, plan, map, photograph, audio, visual or audio-visual image, file and the like." Thus is achieved the objective of Article 2 par. 2 of the APIA that access to any public information, whatever its carrier, is made possible.

 

Secondly, in a new item 4 of Art. 26, par. 1 the bill adds "copies, provided electronically, or an Internet address where the data is stored." This part of the provision reflects the ways of transmission of information to the requester over the Internet. The text leaves beyond doubt that public information may lawfully be provided through e-mail or other Internet intermediary such as temporary storage services for large volume files.

 

The solution proposed by draft Law on amendments to the APIA, on the one hand, with its express provisions removes the existing ambiguities in Article 26, par. 1, and the other –  logically separates the role of the carrier from the way of transmission. Consequently, the text of the act should eliminate the obstacles, seen in Article 26, to the provision of public information through the Internet.

Some other difficulties in the provision of information electronically occur in the concomitant payment of costs.

 

Payment

Public Information itself is free (Article 20, par. 1 of the APIA), because the right of access is a fundamental right, and anyway the collection and creation of public information is already paid by the state budget, i.e. by the taxes of citizens. If necessary, only the transfer of the public information to a given carrier and the carrier itself is paid for without profit (Article 20, par. 2 of the APIA). This payment must be carried out before the requester obtains the information sought (Article 35, par. 1 of the APIA). The current order of the Minister of Finance[20], which sets the standards for costs, set aside the payment for 1 Mb of information which had been introduced by the previous order[21]. In other words, the provision of information through the Internet should be free. However, payment continues to be required in different cases[22]. What are the potential costs of the provision of information electronically?

 

In the discussion with civil servants in charge of responding under the APIA, organized by AIP[23], the payment for the provision of written reference (written abstract) electronically was brought forward as a major issue. This topic has also been considered in the discussion with journalists, where it was proposed that the law indicate clear criteria for the drafting of written references (written abstracts) and standardize practices in the calculation of their cost[24]. It was also proposed that the law expressly provide that concerning the costs for providing public information, value added tax should not be charged[25]. Another problem shared by many journalists, was the lack of opportunity for direct payment of the determined costs from distance and without the (sometimes much more expensive) bank transfer fees. It was proposed that be considered the possibility of paying the costs for provision of public information through some internet payment intermediaries for (for example) utility bills, whose respective fees are far lower than those for bank transfer.

 

There is apparent need for clearly regulating the details on payment of costs for the provision of public information electronically. But which normative instrument would be best suited for this? The standards for costs, by reference from Article 20, par. 2 of the APIA, are set by a regulation of the Minister of Finance. Participants in the said discussions preferred that these reforms be enshrined in the law, which would probably lead to a higher level of protection. However, as a specialized body the Minister of Finance seems better placed regarding the clarification of the methodology for determining the standards of costs. There seems to be a need for a more detailed and well-reasoned order for determining the standards for the costs of provision of access to information. It should provide for explicit and clear terms on payment for written reference (written abstract) provided electronically. This order must also provide opportunities for diversification and facilitating of the payment methods. In order to avoid high transfer fees it should provide the possibility for payment through nonbank internet intermediaries and other similar solutions.

 

In the sum of issues arising around the provision of information by electronic means after the payment comes the chronologically last issue – that of proof when and how the obliged under the APIA body has provided the requested access.

 

Proof of receipt of the requested information

How the administration should prove that it has fulfilled its obligation under the APIA and has provided public information electronically? This problem was raised by civil servants in the discussion with them, organized by AIP[26]. In practice, many solutions[27] that are not always satisfactory for the requester and the responding obliged subject are observed. Currently the issue is regulated by Article 35, par. 2 of the APIA, which requires the preparation and signing by the requester and the relevant official of a protocol for the provision of information. Civil servants often require that the applicant sign the protocol before giving him the requested information, which leads to the situation that the applicant signs that he received something she/he has not yet seen. When this procedure must be carried out via the Internet, further complications occur.

 

The draft Law on amendments to the APIA[28] offers a partial solution to the problem in favour of the requesters. A new paragraph 3 of Article 35 is introduced, which should be applied alternatively to the previous provision (Art. 35, par. 2). As a result, when providing public information through the Internet, the requirement to draw up a protocol is removed. The requester, if she/he has expressly chosen it, will receive the requested information by e-mail or via an Internet service for temporary storage of large volume files, which will be the end of the statutory procedures. The only guarantee for the obliged subject is provided for in the new paragraph 4 of Article 35: "If the requester has changed the e-mail address without informing the body or has indicated an incorrect or nonexistent address, the information is deemed to be received from the date of its sending." In terms of proof, date of fulfillment of the obligation is considered the one, on which the requester receives the public information sought. When providing access personally and on-site, the drawn up and signed protocol certifies that date. And certifying the date is important for determining the beginning of the period for demanding court review and other legal deadlines. In this proposed solution, only in the event when the applicant has indicated an incorrect or nonexistent address, the obliged body would have a proof of the precise date (proposed Article 35, par. 4). In all other cases, the administration will have no sure way for attesting the date. It is true that this problem does not seem like loaded with high risk. Such a lack of regulation is also encountered in Regulation (EC) № 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and the Commission documents, still, there is no evidence in the practice of specific disputes arising from this. However, the Bulgarian administrative culture attests of particular formalism and attention to the detail of the form. The discussion of the matter is not without interest.

One possible solution is the inclusion in the APIA of an additional possibility for requesters and obliged bodies to use a common internet platform (see above, section 3.1.3 Confirmation of receipt).