Access to property declarations, stored in the public register of the National Audit Office

Diana Boncheva vs. the President of the National Audit Office

1st Instance Court – Sofia City Court Administrative Division, Panel 3-b, Case No. 385/2003
2nd Instance Court – Supreme Administrative Court, 5th Division, Case No. 10889/2003

Ms. Diyana Boncheva, editor-in-chief of the Yambol-based newspaper Tundzha, submitted a request for access to public information with the president of the National Audit Office (NAO). She requested access to the property declarations, stored in the public register of the National Audit Office, made by the appellate prosecutor of the city of Burgas in his capacity as a member of the Supreme Judicial Council. She also requested information about any verifications made of the declarations submitted by him, as well as any penalties imposed for failures to meet deadlines for the submission of declarations.

The president of the NAO did not respond to Ms. Boncheva’s request within the period prescribed by the Public Disclosure of Property Owned by High Government Officials Act (PDPOHGOA).

Diyana Boncheva challenged the tacit refusal of the NAO president before the Sofia City Court (SCC).

The SCC’s judgment of July 15, 2003 rejected the complaint. In interpreting the PDPOHGOA, the judges concluded that the president of NAO was only obliged to provide information whether or not the persons required to file declarations had done so, and was not obliged to disclose the content of these declarations. According to the court panel, data declared for entry into a public register were personal data and fell under the scope of the protections of the Personal Data Protection Act (PDPA).

The SCC decision was appealed before the Supreme Administrative Court (SAC), with the argument that under the PDPOHGOA, the public character of the information was to be achieved by the establishment of a public register. In that public register, the declarations by high-level state officials of their property, incomes and expenses were recorded. Assuming that public access to the information from public registers is limited to finding out who had submitted their declaration and who had not would mean make the PDPOHGOA pointless, obviating its purpose: that of fostering greater transparency regarding the officials in high-level state positions.

The SCC decision, as well as the tacit refusal of the NAO President, were appealed before the Supreme Administrative Court (SAC). The SAC’s judgment of April 20, 2004 rejected both the decision of the lower instance court and the tacit refusal by the NAO president and referred the case file back to the respondent for an information access decision based on merit, following the instructions of the court. In the motivations for its decision, the court pointed out that the legislator’s intention expressed in the Public Disclosure of Property Owned by High Government Officials Act, which was explicit in the name of the law, was that the property declared by these officials should be public information. It was an anticorruption measure, which should not be overridden by the Personal Data Protection Act.