Yuri Ivanov vs. State Internal Financial Control Agency, Sliven

Facts:
In March 2001, Mr. Yuri Ivanov, Chairman of the Public Barometer Association served an application in writing to the State Internal Financial Control Agency to obtain access to copies of two audit statements on the findings of the audits at the College and Engineering Teaching Faculty at the Technical University, Sofia in 1999.

On 5 June 2001, Mr. Ivanov received a letter from the SIFCA Director with a decision to refuse to grant access.
On 16 July 2001, he served another application for obtaining access to the same information.

He received a refusal to grant access to the requested information with detailed arguments attached thereof.
After consultation with AIP, Mr. Ivanov appealed against the refusal given in writing by the SIFCA Director.
The case was brought before the Sofia City Court. Latest check of its current status - 17 September 2001.
The court session is scheduled for 1.30 p.m. on 12 February 2002.

Arguments of the Parties:
The arguments in the appeal were as follows:
Concerning the claim that "the application contained no specific issues" - the existing legislation enables individuals and legal entities to give more detailed description of the requested information and this is a guarantee of their right of access to public information even when they cannot identify the relevant document precisely. The burden of identification of the relevant document is vested with the persons responsible for ensuring access to information who, unlike applicants, have access to the relevant information and they can easily identify it. In this specific case, however, the application contained clear and unambiguous reference to the relevant information contained in the requested audit reports.

Concerning the claim on the lack of provisions in the State Internal Financial Control Act to regulate the mechanisms for granting access to originals or copies of audit statements to individual citizens - this is not the only legal instrument that the SIFCA authorities have to observe. APIA recognizes the right of all individuals and legal entities of access to public information and creates obligations for each person responsible for ensuring access to information to grant access in the form requested by the applicant, including copies of documents. APIA regulates also the procedural rules applicable to all cases of granting of access to information, unless provided otherwise by law. Since the State Internal Financial Control Act does not provide for a special procedure related to the granting of access to information, the latter should be provided under APIA. The obligation for drawing up the audit statement in quadruple cannot possibly be perceived as a restriction to the copying or any other disclosure of the statement (act). The intention of this statutory provision is entirely different, i.e. to submit the statement to the persons and institutions concerned forthwith without any need for special request.

Concerning the claims that there existed prohibition on the access to the requested information - since audit statements are acts issued by a competent authority in the course of exercising its duties, they contain official information within the meaning of Art. 10 of APIA.

Issue of Interest:
Administrative tax secret

Conclusions:
The decision of the SIFCA Director to refuse to grant access to the requested information is a case of material breach of the procedural and substantive law and divergence from the purposes of the law.

An important issue is the interpretation of Art. 3, para 4 of the SIFC Act. Obviously, tax authorities resort to excessive discretionary action in the interpretation of these provisions.

The SIFC Act does not say that audit statements constitute administrative secret. Pursuant to Art. 3, para 4 of the Act, SIFC authorities are required not to disclose any administrative secret that has become known to them in connection or on the occasion of the discharge of their duties. Hence, information should, first and foremost, constitute administrative secret and, secondly, it should have become known in connection or on the occasion of the discharge of duties. The cases of information constituting administrative secret are to be provided by law pursuant to the explicit provision of Art. 7, para 1 of APIA. Although the term "administrative secret" is used, the SIFC Act does not envisage any specific cases of information constituting administrative secret. Hence the contents of the administrative secret within the meaning of Art. 3, subpara 4 of the SIFC Act are to be defined in the laws regulating the protection of the rights and interests laid down in Art. 41, para 1 of the Constitution (Art. 5 of APIA respectively). The interpretation of Art. 3, subpara 4 in conjunction with Art. 11 of the SIFC Act and the nature of the activities of SIFC authorities reveal that the non-disclosure obligation exists with a view to protecting the rights and lgitimate interests of third parties rather than SIFC authorities themselves. These rights and legitimate interests and protected by law through the "commercial secret" under PCA, the secret under TPC, the secret of know-how and patents, etc. There is no evidence that the requested audit statement contained such specific categories of information that constituted secret. The opposite, however, is true, i.e. it surely contained a number of categories of information that constituted no secret at all, e.g. an audit was conducted, the audit had its legal grounds, it was performed by the competent authorities, the authorities gave their findings (e.g. missing items, evidence of offence, etc.). These categories of information are of greatest interest to the public and this is, in fact, the purpose of APIA - to enable citizens to form an informed opinion on issues related to public life and the performance of persons responsible for ensuring access to information as laid down in Art. 2, para 1 of APIA.

The same interpretation can be derived from the comparison between SFCA (repealed) and SIFCA. The repealed law provided for non-disclosure of administrative secret, while the explicit provision of Art. 15, para 2 envisaged the opportunity for granting access to the information included in the audit statement after the end of the audit. At the time of adoption of SFCA (repealed), APIA was not adopted yet. Its adoption eliminated the need for reproducing the provision of Art. 15, para 2 of SFCA into the new SIFC Act because APIA proclaims the principle of accessibility of public information, i.e. the information created by government institutions, especially official public information (Art. 10 of APIA), and audit statement constitute cases of such information.