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

Dancho Zaverdjiev vs. the Municipality of Lovech

First Instance Court – administrative case No. 196/2010, Administrative Court – Lovech

Request:
On August 10, 2010, Dancho Zaverdjiev requested a copy of the contract between the Municipality of Lovech and a private company for construction works and maintenance under the project “Improvement of the physical and vital environment in the municipality of Lovech.”

Refusal:
With a decision as of August 16, 2010 the mayor refused access on the ground that the information was protected as trade secret and its disclosure would bring to unfair competition between business persons. Furthermore, the refusal was based on the lack of consent to provide the information of the third person (the company) concerned.

Complaint:
The refusal was challenged before the Administrative Court – Lovech with the AIP help. The complainant stated that the mayor should have considered the arguments of the private company with regard to the existence of a confidentiality clause in the agreement, but he should have carried out a balance of interest test before deciding to deny access to the information.

Developments in the Court of First Instance:
The case was heard in an open court session on January 27, 2011 and was scheduled for judgment.

Court Decision:
With a decision as of February 2011, a panel of the court repealed the refusal and compelled the mayor to provide the information. The court pointed out that the refusal was not grounded in any specific circumstances showing that disclosure of the information would result in unfair competition. The court held that even if disclosure would result in unfair competition the public authority is required to assess the public interest and if such is present – to provide the information because the public interest overrides the trade secret exemption. According to the court in this case there was undoubtedly overriding public interest because the request was for a contract, signed after a public procurement procedure, containing information about the parties, the cost, subcontractors, terms and penalties. The court stated that under Art. 31, Para. 5 of the APIA the consent of the third party to provide the information was not required because there was an overriding public interest in its disclosure. Therefore, the lack of the third party consent was irrelevant to the case and was not a lawful ground for refusal.