Kiril Karaivanov vs. Ministry of Economic Affairs
Kiril Karaivanov served an application in writing on 8 December 2000,
requesting a copy of the minutes from a meeting of the Liquidation and
Bankruptcy Commission (LBC) at the Ministry of Economic Affairs, as well
as two other documents (Order ¹ ÐÄ-26-111 of 4 August 2000 of the Minister
of Economic Affairs and an Insolvency Petition served by the Managing
Director of a privatised single-member limited liability company) from
the same Ministry.
Within the time limits prescribed by law (on 19 December 2000), he received
a letter from the Ministry of Economic Affairs with copies of the two
documents attached and a refusal to grant access to the minutes from the
LBC meeting. Although with a different name, the notice constituted a
refusal to grant access to information within the meaning of Art. 40,
para 1 of APIA, barring that individual from access to public information.
The refusal was on grounds of the provisions of Art. 13, para 2 of APIA
(restricted information on grounds of administrative secret).
Having received the refusal, Mr. Karaivanov requested assistance from
the AIP lawyers. An appeal was prepared and served to SAC (pursuant to
Art. 40, para 1 of APIA in conjunction with Art. 33, para 1 of APA) against
the refusal of the LBD Director. Upon consultation with lawyer A. Kashamov
the case against the refusal of the Ministry was brought before SAC. The
case was heard on 2 May 2001.
The 5th Division of SAC issued a Ruling of 23 May 2001, stating that
it was a case of refusal on part of the Director and proceedings were
discontinued, while the case was referred to the Sofia City Court was
the competent jurisdiction for such cases. The Minister had referred the
file to the Director.
The Ruling was appealed privately within seven days. A private case was
started and heard in camera.
Arguments of the Parties:
The arguments in the appeal were that the minutes contained a decision
and a decision is an instrument constituting official information within
the meaning of APIA (Art. 10) and hence it could not be claimed to have
"no meaning of its own". On the other hand, the restriction
under Art. 13, para 2 of APIA refers only to administrative information
rather than official information. Furthermore, even if the information
contained in the decision included in the above mentioned minutes was
administrative, again it would not fall within the purview of Art. 13,
para 2, subpara 1 of APIA because the latter gives an exhaustive list
that does not include decisions. The decision included in the minutes
is obviously no case of declaration of will in writing, the existence
of which is not a condition precedent for the issuance of the respective
The objections of the defendant were that implied refusals were not subject
to appeal and that the Minister had not ruled so it was only the explicit
refusal of the Director of the Liquidation and Bankruptcy Department that
could be subject to appeal.
Information that has "no meaning of its own" - Art. 13, para
2, subpara 1
The refusal of the LBD Director violated the substantive law (misinterpretation
of Art. 13, para 2, subpara 1 of APIA) and the procedural law concerning
the format (Art. 15, para 2 of APA and Arts. 38 and 39 of APIA - a decision
given in writing with legal and factual reasons attached thereto) and
the deviation from the purpose of the law (Art. 6, subpara 1, Arts. 5
and 7 and Art. 13, para 1 of APIA). The Director failed to check whether
it was necessary at all to restrict the access to information in the specific
context and he merely observed that the requested information was within
the scope of Art. 13, para 2, subpara 1 of APIA. The reasons for the refusal
are indicative of wrong application of the law, as well as pursuit of
another objective (rather than public interests), thus constituting a
material violation of the applicant's right of access to public information.