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Kiril Karaivanov vs. Ministry of Economic Affairs

Facts:
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 -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 administrative act.

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.

Important Issue:
Information that has "no meaning of its own" - Art. 13, para 2, subpara 1

Conclusions:
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.

 


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English Version • Last Update: 25.01.2002• © 1999 Copyright by Interia & AIP