Access to Information Programme | Court cases - Report about Bulgarian citizens and companies who were involved in oil trade with Iraqi companies or their representatives during the Saddam regime

Yuri Ivanov vs. the State Energy and Water Regulatory Commission (SEWRC)

First Instance Court – administrative case No. 5399/2009, ACSC, Second Division 30 panel

Request:
On June 25, 2009 Yuri Ivanov submitted an access to information request to the State Energy and Water Regulatory Commission (SEWRC) for a copy of the approved and applicable business plan of the Water Supply and Sewerage Systems Ltd – Sliven.

Refusal:
With a decision as of July 8, 2009 the chairperson of the SEWRC refused to grant access on the grounds that it constitutes official secret.

Complaint:
The refusal was challenged before the ACSC. The complaint stated that Art. 18, Para. 3 of the Energy Act has not been applied. According to this provision, information may be classified as “official secret” only if it is categorized as “trade secret” and, cumulatively, if unfair competition would result from its disclosure. Since the Water Supply and Sewerage Systems Ltd – Sliven enjoys monopoly and in practice has no other competitor, the “official secret” exemption is not applicable to this case and refusal grounded on it is unlawful.

Development in the Court of First Instance:
The case was heard in an open court session in October and December 2009 and was scheduled for judgment.

Court Decision:
With decision No. 71 as of January 18, 2010 an ACSC panel repealed the refusal and sent the case back to the chairperson of the SEWRC for reconsideration. The court stressed out that mere declaration by the obliged body that given information is classified is not sufficient ground for refusal. It must be classified according to the procedures set forth under the PCIA. The business plan in question was presented to the court for assessment and it was pointed out that the document was not marked “For official use only,” therefore the procedure was not respected. The decision has not come into force yet.