Kalin Yossifov vs. Municipality of Montana
Facts:
On 6 November 2000, Kalin Yossifov (representative of a group of heirs
to farmland) served an application in writing, requesting copies of documents
related to farmland users (lists by numbers of certificates and transcripts
from alphabetical lists) from the Mayor of the Municipality of Montana.
On 27 November 2000, the Mayor (having decided that the provisions of
Art. 31, para 2 of APIA were applicable) informed Mr. Yossifov that he
had sent notices to the farmland users, requesting the explicit consent
in writing of those "third parties" concerned with the granting
of access to information. Two users of that property refused to agree
with the granting of access to the request photocopies.
On 3 January 2001, Mr. Yossifov sent an objection to the Mayor, explaining
why the provisions of Art. 31, para 2 were inapplicable to that particular
case.On 3 January 2001, Mr. Yossifov received a letter with a decision,
granting him access to information about one of the citizens and refusing
to grant access to information about the rest on grounds of Art. 13, para
1, subpara 3 of APIA because their interests would be infringed upon.
The refusal was appealed before the Regional Court of Montana pursuant
to the provisions of APA. The file was referred to the Regional Court
with attached objections in writing by some users who had been informed
of the appeal by mail.
The case was dropped on 18 June 2001 with a Resolution of the Court on
grounds of non-payment of the government fee.
On 3 July 2001, a request was served to resume the case pursuant to Art.
37 of the Civil Procedure Code.
Arguments of the Parties:
The applicant requested information as to whether properties owned by
the legal predecessor of Mr. Kalin Yossifov had been lawfully handed over
to third parties under an act issued by the Council of Ministers. He needed
that information for the purposes of exercising his rights under para
2 of the Farmland Act. Therefore the provisions of Art. 31, para 2 of
APIA were inapplicable as he did not request access to any information
about certain individuals, much less so personal data protected by the
Constitution of the Republic of Bulgaria. On the other hand, even if one
would assume that the requested information concerned third parties under
Art. 31, para 2 of APIA, the consent of the third party should be sought
only if necessary. This need is prescribed by law and in that particular
case there was no such need (no law obligating the Mayor to seek the consent
of a third party) or at least it was not specified in the decision.
Secondly, the appealed decision failed to specify the actual grounds
for the refusal (Art. 38 of APIA), which was a violation of substantive
law.
Important Issue:
This is a case of misinterpretation of Art. 31, para 1, subpara 2 of APIA,
leading to non-performance on part of the relevant authority, i.e. the
Mayor.
Conclusions:
The grounds for refusal of information under Art. 37, para 1, subpara
2, i.e. the access would affect the interests of a third party, imply
reference to the provisions of Art. 31, para 2, subpara 2 of APIA specifying
the terms and conditions for the person responsible to ensure access to
information to seek the consent of the third party. The wording of this
provision is "his/her consent is needed". Such need may be ascertained
only on legal grounds provided by law. The reason lies in the fact that
the right of access to information is a fundamental right under Art. 41
of the Constitution and any restrictions of this right are to be provided
by law. Otherwise, a constitutional right would be subject to the discretionary
powers of the person responsible for ensuring access to information (in
many cases these are the bodies of executive power) and the will of the
third parties as of the specific time. The need under Art. 31, para 1
of APIA is to be provided by law also in connection with Art. 7, para
1 of A{IA and the principle of protection of the right to information
(Art. 6, subpara 4 of APIA and general grounds under Art. 56 of the Constitution).
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