Access to Information Programme, Stoicho Katsarov and Ivan Ivanov vs. the Minister of Public Administration

First instance – administrative case №9502/2003 SAC 5th Division
Second instance - administrative case №1286/2005 five-member panel of SAC

Request:
In March 2003, AIP and Ivan Ivanov and Stoicho Katsarov (Members of Parliament) filed a written application to the Minister of Public Administration, requesting access to the following information: the whole content of the contract signed with Microsoft for the supply of 30,000 software packages for the needs of the public administration, and all related documents such as the offer, any additional agreements, and any contract with an intermediary.

Refusal:
No reply was received within the period prescribed by law.

Appeal:
The silent refusal was challenged on grounds that there was a violation of the substantive law since the requested information was public and did not fall within the scope of any restrictions provided for in APIA and that the failure to observe the requirement to have the refusal given in writing was a material breach of the procedural rules. The appeal was sent to Minister of state administration, who was obliged - according to Bulgarian law - to forward it to the Supreme Administrative Court (SAC).

On the following day, the Minister sent a letter to the applicants, providing in the form of a summary in writing only part of the content of the contract and specifying arguments to support the selection of a supplier. The letter indicated that a copy of the contract could not be disclosed, because no consent of the third party – Microsoft- had been received. The Minister also argued, that the software company was not an obliged body in the meaning of art. 3, para. 2, item 2 of APIA, because payments under a contract did not mean “budget financing” in the sense of APIA.

However, the Minister failed to send the appeal and the whole file to the court.

Finding their right of access to information to have been infringed, the appellants sent an application to the court with a copy of the appeal and the court started proceedings by demanding the file from the Minister ex officio.

Developments at the First instance court:
The Minister sent no representative at the first court hearing. It turned out that the Minister failed to fulfil his obligation under Art. 16, para 2 of the Supreme Administrative Court Act (SACA) to send the appeal and the whole file to the court of law. The court panel considered the request of the Minister for dismissal of the appeal. The Minister counsellors argued that since the requested information has already been provided to the applicants, the proceedings should be ceased due to the lack of any legal interest in attacking the refusal. The respondent produced a copy of the answer letter, but did not present to the court any other documents, including the information request.

The representative of the claimants requested the court to demand the file from the Minister because his reply did not provide the requested information.

The court stayed the case and instructed the Minister of Public Administration to put together and submit the whole file.

During the second court hearing in May 2004, it turned out that the Minister of state administration had not been duly summoned. He did neither send a representative to the court, nor followed the February instructions of the court to submit the whole file.

The court stayed the proceedings yet again and appointed a new hearing for October. The Minister of state administration had to be duly summoned and obliged to submit the court file in accordance to the court ruling from February.

Although the Minister had not been duly summoned to the third court hearing, he was represented by two of his legal councelors. They testified that the Ministry possessed no further documents, besides those already presented to the court in February. They didn't even keep a copy of the information request. The representatives of the plaintiff argued that the refusal, contained in the letter of the Minister was unlawful. They believed that under the hypothesis of art. 31, para. 5 of APIA the consent of Microsoft was not required for access to the agreement, because the company is covered by art. 3, para. 2, item 2 of APIA. The plaintiffs argued as well that the term “financing” also means payment to a contractor, as used in the new Public procurements act. After hearing the arguments of the parties the judges adjourned and announced that a decision would be delivered in the law-provided term.

Judgment:
With a Decision № 10168 from Dec. 07, 2004 the three-member panel of SAC reversed the mute refusal and returned the file back to the Minister for reconsideration and decision on substance. The judges held the view that disclosure of the contract would present the public with an opportunity to form its own critical opinion about the actions of the Minister. The court concluded that the requested contract was a document significant on its own and could not be withheld on the grounds of art. 13, para. 2 of APIA.

Cassation appeal:
The Minister, who argued that no mute refusal had been in place, challenged the Decision of the three-member panel. He insisted that a detailed response to the information request had been provided in a letter.

Development before the second instance court:
On 14 April 2005, the case was heard by a five-member panel. Kiril Terziiski and Alexander Kashumov represented the claimants at the court.

Judgment:
With a Decision No 6930 as of 15 July 2005, the Five-member Panel of the Supreme Administrative Court (SAC) of Bulgaria declared the initial complaint inadmissible and dropped the proceedings. According to the SAC judgment, the law provides an opportunity to the responding authority to prolong the 14-day period for response up to 14 more days when a third party is concerned. In this case, Microsoft Corporation interests were concerned. The complainants were obliged to know even if not informed, that a third party would be asked for consent. SAC found that the complainants prematurely challenged a response they deemed refusal instead of waiting for response within the prolonged time period. Consequently their complaint was declared inadmissible