CILA vs. Ministry of Labour and Social Policy

Facts:
On 11 September 2000, the Centre for Independent Life Association served an application to the Minister of Labour and Social Policy, requesting a copy of the Personal Social Worker Programme.On 12 January 2001, CILA re-applied for access to that information, making explicit reference to APIA.

The time limits prescribed by law for response expired on 26 January 2001 and an appeal was served to SAC.Once the appeal had already been served, the Minister sent a letter (dated 12 February 2001) with a brief outline of the Programme. The NGO, however, thought that its right to access to information was not exercised in the requested volume and insisted on its protection.

The case was brought to the 5th Division of SAC. The public session was opened on 9 May 2001.A private case has been brought with a private appeal within the statutory time limits.

The five-member panel of SAC issued Ruling No. 8645 of 16 November 2001 to repeal the Ruling of the three-member panel of 5th Division of SAC and the case was referred to further hearings. The Ruling of the Supreme Justices included for the first time the issue of implied refusals to grant access to public information.

Arguments of the Parties:
The arguments in the appeal were that decisions to refuse access to information had to be given in writing with reasons attached. The failure of the Minister of Labour and Social Policy to issue such a decision was a material breach of the procedural law (Art. 15, para 2 of APIA and Arts. 38 and 39 of APIA) and the substantive law (since the requested information was public within the meaning of Art. 2, para 1 of APIA as it related to public life in the Republic of Bulgaria and, if provided, would enable the applicants to form their own opinion on the performance of the Ministry of Labour and Social Policy).
The objections of the defendant were that the requested information was within the scope of Art. 13 of APIA, that the programme was not finalised as a document yet and that implied refusals were not subject to appeal. There was Ruling No. 5482 of 10 July 2001 to drop the case due to the impossibility for implied refusals to be appealed.

Ruling No. 8645 of 16 November 2001 of the five-member panel of SAC outlined the reasoning of the court with regard to implied refusals under APIA.

Important Issue:
Implied refusal - the Ruling of the five-member panel of SAC gives a positive answer as to the issue whether an implied refusal to grant access to public information can exist.

Conclusions:
The idea that administrative bodies have the obligation to give explicit answers why they would refuse to grant an application permeates not only APIA but the whole national legislation (APA, PAA). Problems arise due to the lack of provisions reproducing Art. 14, para 1 of APA in the special law (APIA), i.e. APIA does not define the failure to give an answer as an implied refusal. But the interpretation in the Ruling of SAC is as follows: "To assume that the lack of explicit legal provisions in the special case on this particular case is tantamount to non-existence of implied refusal would actually lead to denial of justice and failure to protect the rights of citizens". Therefore SAC assumed that the appealed Ruling of the three-member panel of SAC was wrong and repealed it, referring the case back for further hearings on merit. The question is whether this Ruling of SAC will lead to tangible improvement of practices in the implementation of the law or an explicit amendment to APIA would be needed.