Contract between the Ministry of Finance and the British consultancy Crown Agents

Kiril Terziiski vs. the Ministry of Finance (Crown Agents contract) II

1st Instance Court – Supreme Administrative Court, 5th Division, Case No. 4120/2004
2nd Instance Court – Supreme Administrative Court Five-Member Panel, 2nd Tribunal, Case No. 592/2005
Remitted to 1st Instance Court - Supreme Administrative Court, 5th Division, Case No. 4596/05

In 2003—2004, two successive rulings of the Supreme Administrative Court (SAC) rejected the refusal of the Minister of Finance to provide to Kiril Terziiski a paper copy of the contract between the ministry and the British consulting company Crown Agents. The contract was signed between the government and the consultancy for assistance in the reform of the Bulgarian Customs Services and the Ministry of Finance was to pay around 25 million BNL (8,132 million pounds). The justices found that the lack of any grounds as to why the requested contract constituted a state secret prevented the court from reviewing the lawfulness of the refusal and exercising effective judicial control over the minister’s decision to deny information access. The file was returned to the finance minister for reconsideration of the information request.

In April 2004, the Minister of Finance issued a new written refusal of access to information. It stated that the contract had been classified as a state secret as early as it was signed in December 2001. This classification was noted by the Information Security Department of the ministry and had been based upon the repealed List of Facts, Subjects and Other Information Constituting State Secrets. The minister insisted that the contract still contained information, classified as a state secret, even after the adoption of the Protection of Classified Information Act (PCIA) in 2002. Information contained in the contract fell under the scope of three of the categories from the list appended to the PCIA that stipulated the type of information that was to be classified as a state secret.

Mr. Kiril Terziiski challenged the refusal before the SAC, with the main argument that the minister had not indicated what kind of information was contained in the contract, making it impossible for the court to assess whether it really fell under the scope of exemptions under the PCIA. The plaintiff requested that the court exercise its authority under the Access to Public Information Act (APIA) and request for inspection both the contract and the decision to classify it.

At a court hearing, the justices ordered the finance minister to present the contract for inspection in camera. Furthermore, in order to speed the legal proceedings, the court agreed to hear the case, but assured the parties that a judgment would be delivered only after a review of the documents.

The court reviewed the contract and determined that the first page of the contract had been stamped with a security seal reading secret, and that the stamp was later crossed out and the document stamped with the security seal confidential. An authorized official had signed below the new stamp, also indicating the grounds for classification under the PCIA – overview of documents that had been classified under the repealed statute.

The three-member panel of the SAC rejected Kiril Terziiski’s complaint. The judges stated that the contract had been lawfully classified as a classification stamp had been put on it and the minister had affirmed that the information contained in the contract fell within one of the exempt categories of state secrets listed in the written refusal. The presiding judge, however, delivered a dissenting opinion. He held the opinion that the information in the contract fell outside the scope of either of the quoted categories of exemption.

In the meanwhile, a five-member panel of the SAC repealed completely the decision of the three-member panel. The justices ruled that the three-member panel had not fulfilled its obligation to review the classification decision. Thus, the assumption of the three-member panel that the contract contained classified information was unfounded. Furthermore, the third-member panel had reviewed the contract in chamber after the closure of the pleadings and by this action had violated the right of the claimant to defend since the latter could not have get acquainted with the points of facts that had been established. The case was referred back for judgment to another three-member panel.