Ivailo Hlebarov vs. the Sofia Municipality
First Instance Court - administrative case No. 1003/2008, ACSC, Second Division, 31st panel
Second Instance Court - administrative case No. 11136/2009, SAC, Fifth Division
On December 10, 2008, Ivailo Hlebarov (member of the Environmental Association For theEarth) filed an access to information request to the mayor of Sofia Municipality. The applicant
requested a copy of the contract for Prefeasibility Study and accompanying documents for
the project Waste Management of Sofia Municipality financed by EU funds, signed on
October 24, 2007 between the Sofia Municipality and a consortium of three companies.
The competent authority has not issued a decision upon the request within the 14-days time limit set forth by the APIA.
The silent refusal was challenged before the ACSC. The complaint stated that the APIA requires the competent authority to issue an explicit decision refusing access to the information stating the legal and factual grounds for the refusal. It was pointed out that the information sought relates to the public life and enables the citizens to form their own opinion on the activities of the municipality. Furthermore, none of the restrictions of the right to information was applicable.
Developments in the Court of First Instance:
During the court proceedings, the municipality presented a letter from the consortium explicitly refusing to give its consent to provide the documents as it considered them confidential. At the public court hearing on May 18, 2009, the representative of the municipality argued that access to the documents shall be refused because the third person concerned (the consortium) did not consent to make the information public. The complainant claimed that such consent is not necessary as the activities in performance of the contract were entirely funded by the municipal budget. Therefore, the tax-payers were entitled to access and scrutinize the contract. For that reason, the third party (the consortium) became an obliged body under the APIA within the meaning of Art. 3, Para. 2, Item 2 of the APIA as a legal entity whose activities are financed with funds from the consolidated state budget. Furthermore, in this case there is a clearly overriding public interest in disclosing the information as it would undoubtedly increase transparency and accountability of the municipality in the waste management – a very burning issue for the Sofia residents.
With a decision as of June 8, 2009, a panel of the ACSC repealed the refusal and returned the case to the Sofia Municipality for reconsideration. The court held that the only consistent with the APIA way to proceed with requests is to issue a motivated decision granting or refusing access and the obliged authority is required to notify the requestor about it.
The Sofia Municipality appealed the decision on the grounds that the information sought affects the interest of a third party who did not consent to grant access to it.
Developments in the Court of Second instance:
With an order as of April 29, 2010 the SAC sent back the case to the ACSC to correct an obvious error in fact – the name and the case file were mistaken in the decision. In May 2010 the court of first instance fixed the error. In October 2010 the case was heard in an court session and was scheduled for judgment.
With a decision as of 7 December, 2010, the SAC rejected the appeal of the municipality and upheld the decision of the first instance. The justices grounded their decision on the fact that even in a case where the third party’s interests were affected and it did not consent to provide the information the competent authority should have assessed whether there was an overriding public interest. If such is present – access to the information shall be granted.
In early March 2011, the municipality provided the contract sought. Only the unique identification number of the consortium and its address were blanked out.