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

Bulgarian Helsinki Committee vs. the Ministry of Justice

First Instance Court – administrative case No. 4858/2009, ACSC, First division, 19th panel
Second Instance Court – administrative case No. 3051/2010, SAC, Fifth division

Request:
In June 2009, the Bulgarian Helsinki Committee (BHC) requested the reports of the Inspectorate within the Ministry of Justice (MoJ) on the inspections of prisons which took place in 2007 and 2008. The BHC was particularly interested what was the findings in the reports about the living conditions in prisons, the state of medical care in prisons, and the work conditions of inmates.

Refusal:
The public servant responsible for the provision of access to information asked the director of Execution of Sentences Directorate within the Ministry of Justice, who has not allowed access to the reports. His decision was grounded in the fact that the BHC team had free access to the prisons. Therefore, they could form an opinion of the matters of their interest. Having in mind these considerations, the MoJ decided that the reports of the Inspectorate were for official use only and had recommendatory character and did not constitute public information within the meaning of the Access to Public Information Act (APIA). Therefore, access was denied.

Complaint:
The refusal was challenged before the Administrative Court Sofia City (ACSC). The complainant stated that the reports on the inspections were not internal acts and had independent significance.

Developments in the court of First Instance:
The case was heard in an open court session and was scheduled for judgment.

Court Decision:
With a decision No. 106/24.11.2009 a panel of the ACSC dismissed the complaint. The Court held that the reports had no significance in themselves, and the findings and recommendation therein were the basis to issue a final act of the Minister of Justice, therefore the refusal was correctly grounded in Art. 3, Para. 2, item 1 of the APIA.

Court Appeal:
The decision of the ACSC was appealed by the BHC with the help of Access to Information Programme (AIP) before the Supreme Administrative Court (SAC). In the complaint it was pointed out that the reports compile two parts – findings on a specific problems and recommendations aiming at the adoption of a final act. The exemption under Art. 13, Para. 2, item 1 of the APIA does not cover the factual findings made during the inspection.

Developments in the Court of Second Instance:
The case was heard in an open session on November 10, 2010 and was scheduled for judgment.

Court Decision:
With a decision as of December 10, 2010 a panel of the SAC overrode the decision of the First Instance and repealed the decision of the MoJ. The justices agreed with the complainant that the reports contained not only recommendations to the Minister, but also findings of facts made during the inspections. According to the Court, these findings have an independent significance because they reflect the current situations in the places of deprivation of liberty at the time of the inspection. This situation does not depend on the opinions and the recommendations of the controllers and cannot be changed by subsequent acts. The Court also stressed on the fact that the MoJ never presented the final act adopted on the basis of the reports. According to the Court, the exemption under Art. 13 of the APIA aims to restrict access to official information only in cases where it is connected to the preparation of an act and the public can access the final act itself. On the contrary, when final act, incorporating this internal information has never been adopted, access to it could not be denied on the ground of Art. 13, because it would be absolutely impossible for the public to access the information.