Access to personal prison record of a deceased dissident

Todor Yanakiev vs. Director of the "Prison Governance" Department of the
Ministry of Justice

1st Instance Court – Sofia City Court Administrative Division, Panel 3-g, Case No. 3167/03
2nd Instance Court– Supreme Administrative Court, 5th Division, Case No. 3378/04 г.
Remitted 1st Instance Court – Sofia City Court Administrative Division, Panel 3-e, Case No. 3997/04

In the beginning of 2002, the journalist Todor Yanakiev requested from the Director of the Prison Governance Department of the Ministry of Justice (PGDMJ) access to the personal prison record of the deceased dissident Ilia Minev. The journalist wished to examine the records in order to publish a monograph of Ilia Minev. Access was granted and the requestor had the opportunity to examine in-house the file of the dissident several times.

In 2003 Todor Yanakiev requested to receive copies of the records of the two personal files, but it turned out that this was impossible, because the initial request for access had been lost by the PGDMJ. The journalist had to file another request, which was turned down with a by the Director of PGDMJ. The refusal was not grounded in any law provisions, but it indicated that the Director was reluctant to disclose information, which could harm the interests of a third party.

Mr. Yanakiev challenged the refusal before the Sofia City Court (SCC). In his complaint, the journalist argued that the refusal he had received was not under the provisions of the Access to Public Information Act (APIA). He had been actually given access to the requested information, though not in the requested form—since he was refused to copy the documents. Under the APIA, however, the obliged bodies should grant access to information in the indicated by the requestor form. Furthermore, the authorities could refuse information according to an exhaustive list of legal grounds.

The SCC’s judgment as of January 21, 2004 rejected the complaint of Mr. Yanakiev. The judges assumed that the requested prison files contained information that could harm third party’s interests by uncontrollable publicity of facts related to one’s personal life and official activities. According to the court panel, such an assumption was unacceptable in regards to the APIA provision that the right of access to information could not override the protection of other rights and reputation of third parties.

In the meantime, the Supreme Administrative Court (SAC) rejected the decision of the lower instance court and referred the case file for reconsideration by another panel of the Sofia City Court. The SCC’s argument regarding the protection of a third party’s interests was regarded unconvincing. The higher instance court pointed out that in its reconsideration the first instance court should define the legal status of the prison file and should also inquire why the Director of the PGDMJ had not submitted the files to the National Archive as stipulated under the National Archive Act since the documents had already fallen under the scope of the law. Furthermore, the SAC found it necessary that the SCC discuss in depth the nature and the essence of the problem related to the so called prison files, namely: do the society and all its members have the right of access to these files, under what conditions, and along what procedure.