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).