CILA vs. Ministry of Labour and Social Policy
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
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.
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.
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