Access to former state security files

Hristo Stanev Hristov v. Minister of Internal Affairs

Relevant legal issues under APIA:
• Art.33 - Proof of the possession of the requested documents by the relevant public body;
• Art.25 - The requirement that seeker shows the issue of research

Background facts:

1. As active researcher of the facts surrounding the journalist Markov's assassination in London in the 70s of the 20th century Mr. Hristov requested under APIA access to MIA archival documents containing security services' information about the Bulgarian units of BBC, Free Europe and Deusche Welle radiocasts. He had researched volumes of different files in the MIA archives before and published a number of articles on the matter. At the time of filing the above request Hristov was bound to comply with regulations named "instructions" of MIA adopted in 2002, which required that everyone seeking information in the ministry archives had to disclose in his/her request form information about the issue of research. The instructions were put on the website of MIA. He filled in the matter of his research and separately described the requested documents (so called literni dela) which he wanted to inspect and subsequently to copy selected papers.
2. Within the 14-days prescribed under the law there was no response to the request. Hristov had already appealed the tacit refusal when he received a short letter from the Minister telling him that he cannot have access to the requested information as related to his scope of research since there is not such information in the MIA archives.

Procedural history:

1. The Supreme Administrative Court appointed a hearing on 8th of April 2003. The plaintiff appeared with his lawyer Kashumov and presented as evidence several documents already obtained from MIA implying that not only the requested documents exist, but also they expectedly contain also information within the scope of research. The plaintiff's position was that his request was misinterpreted by the respondent, that he was required unlawfully to specify the issue of his research in order to disclose the purpose of the information request. According to him the disputed letter was a sophisticated manner to deny access to information using the showing of the matter of research in the request form improperly. Hristov said that to fulfill APIA obligations, it was enough for the Minister to check the existence of the requested documents and afterwards to let him in the archive library to select the ones he need. The lawyer for the respondent raised some procedural questions and repeated the requested documents are not in MIA possession.
2. On 16th of July the court delivered its decision. It decided that the response of the Minister was lawful and it was not proven MIA possesses the requested information. It refused to rule on the merits on the plaintiff's argument that MIA "instructions" contradict PIA introducing additional and unnecessary data to be disclosed in information requests, saying such a matter was beyond the judicial competence of that panel. Furthermore it concluded that people did not have right to inspect freely institutions' archives with the purpose to check whether an official lied to them or the documents they seek were really not there.
3. The court decision was appealed before a five-member panel. It appointed a hearing on 21st of November 2003. The parties held the same positions. Public prosecutor however strongly supported the plaintiff criticizing the appealed court decision. The final decision is expected.

Outcome:

On May 05 the five-member panel of Supreme Administrative Court reversed the first-instance decision and obliged the respondent to provide access to the requested information. The court believed that the presented evidence on the case proved the existence of the requested information in the MI archives and the journalist had already read some of the related documents of the former security services. Even if part of the documents had not been available, under the procedures of the Access to Public Information Act the Ministry of Interior had to indicate where they could be found. The peremptory judgment of the second-instance court is notable because instead of returning the file to the respondent for reconsideration, it decided the case in substance and obliged the Minister to provide full access to the requested information