ISSN 1313-6496

Transparency and civil participation remain problematic

AIP annual report Access to Information in Bulgaria 2012

Gergana Jouleva

We have always believed that transparency of institutions and the conditions for exercising the right of access to information constitute a system of normative acts, policies for their implementation, administrative practices and capacity, litigation and awareness about the right of access to information by both the administration and the citizens. That is why we try to cover the developments in all areas in our annual reports – legislation, implementation and reform policies, proactive disclosure, administrative practices reflected in specific cases of information seeking, the case law during the year.

The recommendations given in AIP previous reports regarding the legislation were related to several problems with the law implementation:

The absence of assigned units within the institutions to implement the transparency principles and the provisions of the law, which creates inconsistent practices, makes the process unorganized and dilutes responsibilities.

Lack of control over the implementation and lack of sanctions for incompliance with the obligations which results in general irresponsibility.

There are no systematic trainings on the implementation of the obligations and compliance with the litigation which results in incorrect administrative decisions which have been overcome through litigation long ago. 

These common problems are rooted in the Access to Public Information Act (APIA) which was adopted 13 years ago. With the development of practices, they have become clearer and need specific legislative solutions.  

Policies

Without purposeful transparency policies, the changes will never happen. Experience shows that open government can develop by means of civil participation. That is why the principles which united 8 states to launch the Global Open Government Partnership (OGP) Initiative in 2011 were transparency, civil participation, accountability and technological innovation.[2]

Bulgaria joined the OGP in September 2011. The expectations were for announcement of the national action plan and public discussion with the responsible institutions and the interested parties. In June 2012, the Government Operational Plan with commitments towards the OGP was adopted by the Council of Ministers and published on the government public consultations web portal.[3]

Adopting an Operational Plan without public consultation and civil participation would have meant that the government did not respect its commitments. That is why all efforts were channeled to the adoption and the publication of the Operational Plan and several statements in the government public consultations web site.[4]

Thus the initiative has remained in a section in the public consultation portal known only to some and no one feels part of it as they have not taken part in its discussion and adoption. The government did not make policies in line with the three pillars of the initiative: transparency, civil participation and partnership.

In the Operational Plan, we find 33 measures which are not bad by themselves but seem like a five-year plan. A serious government intention to implement the measures would have meant a preliminary assessment of the capacity, evaluation of existing transparency problems, interest towards the activities and operational plans of other governments. It is better to have two measures but implementable within a year than numberless plans and strategies.

We find nothing in the Operational Plan about Bulgaria’s ratification of the Council of Europe Convention on Access to Official Documents, although this was the first and main question put forth to the OGP coordinator for Bulgaria at the presentation of the National Action Plan in Brazil. There is nothing about the coordination and oversight of the proactive disclosure of information; nothing about assigning a public body responsible for the coordination and oversight of the APIA implementation – an independent institution which, based on other countries’ experience, is an important element of the good legislation for transparency and its implementation.

Instead about clear and feasible measures, we read about a new strategy for managing the state debt; a vision for financing NGOs; strategy for developing the mining industry; new law for the underground resources and two more measures for transparency of underground resources; impact assessment of legislation, considering that such an assessment is at the moment mandatory and the thing that have to be done is to extend the timeframes for public consultation; accountability and transparency of the persons providing health services and the so called electronic health care;  several measures related to the corporate social responsibility, viewed as an initiative and, unclearly how and why, a government task; several measures for the register of the registers; the information system of the cadastre; several measures related to the budget transparency and financial accountability which found their legal solution in the recently adopted Public Finances Act[5] without covering the secondary budget spending authorities included in the Operational Plan; several measures for increasing the transparency of the Council of Ministers and amendments to the APIA with regard to the proactive publication. All this – to be fulfilled in a year. One of the most frequent of the expected results in the Operational Plan is Improving the publicity and transparency through informing instead of Improving the informing through publicity and transparency which would have shown the rational comprehension of what should be done. It is not possible to improve government transparency by informing since it is the transparency of government that makes citizens more informed and not vice verse.[6]          

In fact transparency has a simple definition: Openness of government information and its use by the public for civil participation in making policies, exercising control, making business and above all building trust in the institutions.

Government Assessment of the Access to Information Situation

The assessment is being made by government experts and is part of the annual report on the state of the administration on Bulgaria. The evaluation is made on the base of data collected from all administrations within the executive power.

What does this annual report show about the access to information?[7]

For a second year, we observe the tendency of a decrease in the number of requests filed to the executive bodies and increase in the number of refusals compared to the data from previous years.

One of the explanations for the decreased numbed of filed requests is the increase of information published in the institutional web sites.

It lacks an analysis and explanation about the increase of the percentage of refusals for provision of information. There is no analysis of the reasons for the permanent tendency of using the ground “the access is of a nature to affect third party's interests and the third party did not give its explicit written consent for the disclosure of the requested public information, unless there is overriding public interest” (Art. 37, Para. 1, item 2 of the APIA).

We find summarized data in the report that out of 8,679 decisions on information requests, after a balance of interests, the decision was in favour of the overriding public interest in 168 cases. An analysis of the cases in which the administration has balanced the interests of the third party with the public interest and has provided the requested information would be interesting.

The report from 2012 presents the situation but differs from the previous reports in the absence of recommendations for overcoming the problems.

The chart is based on the data in the government reports The State of the Administration 2003-2012.

The chart is based on the data in the government reports The State of the Administration 2003-2012.

It is interesting that there is no data and analysis related to the obligations for proactive publication. Indeed, the legal requirements for the reports of the administration are to contain the number of filed requests, the number of refusals and the grounds for them, but it is extremely important that the report on the state of the administration also analyzes the state of the proactive publication and to outline the problems related to the unfulfilling of the obligations.

AIP Report[1]

It starts with recommendations with regard to the legal regulations and the implementation practices. They are prepared on the base of analysis of the problems in the legislation, assessment of the proactive publication of information, problems stemming from the cases referred to AIP for legal help and consultation, the litigation tendencies. 

The report contains an analysis of the access to information legislation from the point of view of problems that have emerged in the process of implementation. The author of the analysis is Alexander Kashumov.

The second part of the report analyzes the results from the audit on online disclosure of categories of information subject to publication by executive bodies. The assessment of 489 web sites was made by Darina Palova, Diana Bancheva, Fany Davidova, Gergana Jouleva, Katerina Kotseva, Kiril Terziiski, Nikolay Marekov, Nikolay Ninov, Ralitza Katzarska, and Stephan Anguelov. The team of Svetlozar Online Ltd developed the software necessary to perform the audit and the rating of the institutions. Gergana Jouleva made the analysis of the results.

The third part of the report makes a review of the cases referred to AIP for legal help and commentary by citizens, partner nongovernmental organizations, and journalists. The analysis of the cases this year outline the most important spheres of public interest in view of information search. The analysis was made by Darina Palova and Fany Davidova.

The fourth part presents the litigation during the year, gives a short description and analyzes the characteristics of court practices during 2012. The review was made by Kiril Terziiski.

As an appendix to this report, we include the comparative results from the Internet sites audits from 2010, 2011, 2012 and 2013, as well as comparative results for 2013 by type of executive body; statistics from AIP internal information system on the cases referred for legal help; annotations of court cases in which AIP has provided representation.

The report outlines the problems related to the access to public information and the openness of government and gives reasonable recommendations for their overcoming.

We honestly hope that the recommendations that we give will be heard by the parties which will go for the forthcoming general elections. The events from the last months have showed the consequences from the deficits in transparency and the effective mechanisms for civil participation and control.