Report about Bulgarian citizens and companies who were involved in oil trade with Iraqi companies or their representatives during the Saddam regime

Zoya Dimitrova vs. the President

First Instance – administrative court case No 1380/2004 Sofia City Court
Second Instance – administrative court case No 4596/2005 SAC, Fifth Division

Request:
In February 2004, Zoya Dimitrova, a journalist from “Monitor” newspaper, had filed an information request for a report by the National Security Services and the National Investigation Services prepared by demand of the President. The report contained data about Bulgarian citizens and companies who were involved in oil trade with Iraqi companies or their representatives during the Saddam regime.

Refusal:
The information request was dismissed by the Administration of the President. The refusal referred to the Access to Public Information Act simply stating that the information had been classified.

Complaint:
The refusal was appealed before the Sofia City Court.

Development at a First Instance Court:
Zoya Dimitrova was represented at the court by Alexander Kashumov from AIP. The case was heard on 27 January 2005 and scheduled for judgment.

Court Decision:
On February 28, 2005, the Sofia City Court (PDF 112Kb) reversed as illegal the refusal of the Head of the President administration to disclose the requested information. The Sofia City Court returned the file to the Head of the President administration for reconsideration, complying with the arguments of the court decision. The Sofia City Court sentenced the president administration to pay the court fees of 10 Leva (5 Euro) to the appellant, Zoya Dimitrova. The court found that the appeal against the information refusal was legally acceptable: it had been filed in a timely manner against a decision, which was subject to judicial review by a plaintiff, who has the legal right of appeal.

The court also found that the appeal was justified on merits. The decision quoted Recommendation (2002)2 of the Committee of Ministers to the Member states, which it encouraged broad access to official documents, allowed the public to have an adequate view of, and to form a critical opinion on, the state of the society in which they lived and on the authorities that governed them. The Recommendation also encouraged informed participation of the public on matters of common interest. The Judgement of the Sofia City Court also referred to a decision of the Constitutional Court of Bulgaria from 1996. It elaborated the right of every citizen under Art. 41 of the Constitution to seek and obtain information “guaranteed by the obligation of public authorities to impart it”.

The court pointed out that the information request of Zoya Dimitrova met the requirements of Art. 24 and Art. 25 of APIA: it was filed in written and contained all necessary requisites. Besides, when filing the request, the plaintiff had explicitly mentioned, that if the report had contained any legally classified parts, she would have liked to receive partial access.

The refusal letter of the Head of the President administration was a legal statement and should comply with some requirement of the Administrative procedures act. The Act determines some requisites of the refusal, without which it should be considered unlawful.

The letter of the President administration lacked any proof why the requested information was secret, nor did it refer to any legal grounds for its classification. The refusal did not even specify whether the requested information was classified as state or official secret under the Protection of Classified Information Act (PCIA). The preparation of the report by the National Investigation Services in cooperation with the National Security Services did not automatically make the information confidential, nor did it remove the obligation of the public authority (Head of the President administration) to provide criteria and reasons for classifying the requested information.

The refusal appealed by Zoya Dimitrova lacked even a statement that the requested information was a state secret. This fact obstructed the court from exercising effective judicial control over the lawfulness of the refusal and the implementation of APIA. The refusal did not refer to the provisions of PCIA.

In view of the above arguments, the Sofia City Court rules that the appealed refusal should be reversed, because it has been issued in breach of the administrative provisions of APIA.

Cassation Appeal:
The President Administration appealed the judgement of the Sofia City Court (SCC) before the Supreme Administrative Court within fourteen days of notification of the litigants.

Developments at a Second Instance Court:
The case was heard in a single session and the court adjourned. On January 3, 2006 the court delivered a decision (PDF 94Kb)with which the case was returned to the Sofia Coty Court. Several important issues were settled by the Supreme Court's decision:

First, access to information refusals of the Head of President's Administration are liable to appeal.
Second, simply stating that the requested information is state or other legally protected secret, does not exclude the refusal from appeal liability.
Third, the court should request and inspect the report of the special services in order to judge on the lawfulness decision to classify it as a state secret.
Fourth, the fact that the information relates to the work of the security services does not automatically classifiy it as secret. What was requested was not an operational report on the work of the services, but a report presenting the results from the operational work.
Fifth, even if there is a possibility of harm from disclosure, it could be eliminated by granting partial access to the requested information.