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Totev vs. Chief Tax Director

Facts:
Dimitar Chavdarov Totev, a lawyer working for a consulting company, submitted an application for obtaining access to information, requesting a copy of the letter by the Chief Tax Director (CTD) with interpretation of provisions of the Tax Procedure Code (TPC). The letter was issued in reply to questions raised by an individual or a legal entity, and Mr. Totev learned about its contents from the local Black Sea newspaper.

On 31 July 2000, Mr. Totev requested that information orally from the local tax office but he was refused access.
On 1 August 2000, he submitted an application in writing for obtaining access to public information to CTD, requesting a copy of the letter. He stated explicitly that he did not want disclosure of any personal data of the person to whom CTD sent the letter.

Within the 14-day time limits prescribed by law, CTD sent a letter (dated 1 August 2000) to Mr. Totev, refusing to grant access to the document and stating that the requested information did not constitute public information within the meaning of Art. 2, para 1 of APIA and that the requested information constituted administrative secret within the meaning of 1,subpara1 of the Additional Provisions of TPC.
After he received the refusal, Mr. Totev contacted the AIP team and there was prepared a submitted an appeal to the Sofia City Court against the refusal by CTD. The case was heard at the Sofia City Court in two sessions on 6 March 2001 and 12 June 2001. The court rejected the claim as groundless (judgement dated 23 July 2001)

Court Judgement:
The court considered the claim groundless, stating that the requested information was public within the meaning of APIA but it constituted administrative secret within the meaning of TPC. Besides, the judgement indicated that a third party was affected and its consent was not requested by the application who had the obligation to do so. The judgement was appealed before the Supreme Administrative Court with a request to repeal the wrong judgement and to decide the case on merit.

Arguments of the Parties:
The arguments of the appeal are that the information was public because it concerns all and gives an idea of the way the tax administration applies the existing legislation. The information is not a secret because the citizen has requested that the name of the company mentioned in the letter of CTD be deleted before a copy of the letter is made available. It is a fact that such letters are published in the form of brochures and sold in bookstores. They are also disseminated through legal information software (e.g. Apis).

The objections of the defendant state that since a secret has been invoked, APIA is inapplicable and, besides, the CTD letter contains instructions to grant access to information on the basis of specific request.

Important Issue:
Administrative Secret

Conclusions:
Firstly, it is quite telling that the Chief Tax Director has refused to grant access to the requested information by means of a letter rather than a decision as required under Art. 38 of APIA. Besides, the content of the decision to refuse to grant access does not comply with the requirements of the said Article (more specifically, it is not clear what the actual grounds for the refusal are and what appeal procedure can be applied).
Secondly, as is seen in the above mentioned letter (dated 1 August 2000), the Director has never made the effort to check whether opportunities existed under Art. 37, para 2 for granting partial access.
The case also reveals insufficient knowledge of the obligations under APIA, leading to gross non-performance of duties by the respective government authority.

 


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English Version • Last Update: 25.01.2002• © 1999 Copyright by Interia & AIP