ISSN 1313-6496

Why is this Concept Necessary?

Gergana Jouleva

Sixteen years ago, an Access to Information Programme (AIP) team drafted a concept for legal regulation of the right of access to information in Bulgaria – The Right of Access to Information – Concept on Legislation.[1] At that time, the right to information had not yet received international recognition and was perceived as part of the right of freedom of opinion and expression, set forth by Art. 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. However, around 1998 only 22 states had their laws on access to/freedom of information.

There were few documents establishing standards in the area. A Recommendation of the Council of Europe on Access to Information from 1981; the Johannesburg’s Principles, prepared by a group of experts of the international organization Article 19; and a decision of the Bulgarian Constitutional Court as of 1996, framing standards and approaches towards future access to information legislation.

Today, a hundred states have access to information laws and the development of the implementation practices has been extremely intensive.

The Bulgarian Access to Public Information Act (APIA) was adopted after almost two-years of public debate in the summer of 2000.[2] The APIA regulated the main elements of the right of access to information, namely: who has the right to information; who is obliged to provide information proactively and at a request; the restrictions to the right to information, seen as a state and official secret at that time; the procedure for the provision of access to information; the obligations for active publication; the forms of access; the fees for the provision of information; the procedure for appealing decision for provision of information.

In 2003, Bulgaria ratified the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the 1998 Aarhus Convention). The ratification was a new step in the regulation of the right of access to information, public participation and access to justice in the environment.

The APIA was substantially amended in 2007 and 2008. The former amendments were dramatic. With the ostensible purpose to introduce the Directive of the EC on the Re-use of Public Sector Information (adopted 2003), a draft law was proposed which would have worsened the access to information regime. The public reaction was remarkable and as a result not only the proposed amendments that would have worsened the regime were rejected, but also positive amendments were introduced: 

1. Regulation of the re-use of public sector information by introducing the Directive 2003/98/EC;

2. Assigning of officials who are directly responsible for the provision of access to public information;

3. Assigning of an appropriate reading room for review of the provided information.

The APIA amendments as of December 5, 2008 brought the Bulgarian law into compliance with the standards set forth by the Council of Europe Convention on Access to Official Documents, adopted in 2008:

• The scope of the obliged bodies was extended by including the regional offices of the central authorities, natural and legal entities persons under the EU programs and funds, as well as public-law entities;
• The obligation for online publication of the categories of information under Art. 15 and other specific categories was introduced, including the establishment of the section “Access to Information,” which facilitates the information requestors;
• The overriding public interest principle (test) was introduced as regards the application of the restrictions related to the trade secret, the preparatory documents, and the negotiations;
• The obligation for provision of partial access to information was introduced.

Those amendments reflected the problems stemming from the practices and offered solutions.

Due to the active exercise of the rights under the APIA by citizens, journalist, nongovernmental organizations, the practices have been developing, the awareness on these rights has been raising.

The Access to Information Programme (AIP) has helped a lot for the enhanced exercise of the access to information right during the years and contributed for the debate on necessary amendments in the legislation and its implementation by formulating problems and recommendations for their overcoming in its annual reports.[3]    

A number of our recommendations have been realized either by the introduction of changes in the legislation or by the acquiring of good practices within the administration.

Some of these achievements are: the establishment of reading rooms; trainings for public officials; the overriding public interest in the application of the exemptions; mandatory partial access; adoption of internal APIA implementation rules; the obligation for online publications; provision of assistance to the requestors; review of the fees for access to information provision, etc.

Other of our recommendations were not taken into consideration. For instance, the regulation of the APIA implementation oversight, different from the judicial control.

In the beginning of 2013, in the course of the preparation of the AIP annual report on the state of access to information and the discussions within the initiative Open Government Partnership it has became clear that the lack of an oversight public body responsible for the APIA implementation is a serious obstacle before the development of an open government and the establishment of its infrastructure. At that time, AIP launched public discussions with different groups participating in the process of information seeking and provision on the need for amendments in the relevant legislation.[4]

Meanwhile, discussions were going on at the EU level for revision of the Directive on the  Re-use of Public Sector Information. It was revised in the summer of 2013 with a time frame to be introduced into the national legislation till the summer of 2015.

The second national Operation Plan within the initiative Open Government Partnership contained commitments for introducing the Directive, for amendments to the APIA with regard to the proactive publication of information and for starting the process for signing and ratification of the Council of Europe Convention of Access to Official Documents.

In the summer of 2014, a working group was established at the Ministry of Transport, Information Technologies and the Communications with the purpose to draft amendments to the APIA that would introduce the Directive. In the autumn of 2014, the draft law was published for one month of public consultation.

The purpose of our Concept is to present a broader range of problems stemming from the APIA implementation practices and possibilities for their overcoming, and not only of those related to the re-use of public sector information. Moreover, the practices related to that specific part of the law are not very well developed. We can find systematization of the APIA implementation in the annual reports of the Council of Ministers, but no data about the re-use of public sector information. In the Concept, we present as well the results from the five public discussions held by AIP in 2014, and the statements referred online within the consultation process.

The second Concept, which AIP presents 16 years after the first one, is based on more knowledge, developed international standards, extremely rich AIP experience in the provision of free legal help to access to information requestors, case law, the experience of training officials from the administration, journalists, NGOs, different campaigns.   

We hope that the Concept would become a basis for further debates on whether more amendments to the APIA are necessary and help for the improvement of the transparency practices of Bulgarian institutions, which would correspond to the world open government movement.