Waste management concession contract in the town of Razgrad
The Non-Governmental Organizations Center Razgrad vs. the Municipality of Razgrad (Waste Management Concession)
First Instance – administrative case No. 104/2005 Regional Court of Razgrad
Second instance – administrative case No. 3112/2006, Supreme Administrative Court, Fifth Division
Request:
With a written request as of June 7, 2005, the chairman of the Non-Governmental Organizations Center in the Town of Razgrad demanded that the mayor of the Municipality of Razgrad provide access to the following information:
- Copies of all annexes to the waste management concession contract in the town of Razgrad and all settlements within the territory of the Municipality of Razgrad, which had been signed between the Municipality of Razgrad and Shele Bulgaria Ltd; and
- information about the money paid monthly in the process of contract fulfillment until the present moment.
Refusal:
In a written decision, the mayor of the municipality refused to provide access to the requested information. The mayor assumed that the requested information affected the interests of a third party (the subcontractor) who had not given an explicit written consent for the disclosure of the requested information as provided by Art. 31, Para. 1 of the APIA.
Complaint:
The refusal was challenged before the Regional Court of Razgrad (RCR).
Developments in the Court of First Instance:
The case was heard in an open court session and scheduled for judgment.
Court Decision:
With decision No. 191 of January 10, 2006, a panel of the Regional Court of Razgrad dismissed the complaint concluding that the contractor was not an obliged body under Art. 3, Para. 2 of the APIA, thus the public body had lawfully applied the procedure provided by Art. 31, Para. 1 of the APIA. After the explicit statement of the third party that the requested information was a company secret and that it affected its economic interests, the obliged body had to comply with that dissent to information disclosure.
Court Appeal:
The decision of RCR was appealed before the SAC. The appeal stated that the RCR had to take into consideration the fact that in the particular case there were circumstances that did not require the third party’s consent and in which certain information was public according to a special legal provision. In such cases, the special law derogated the common one (Art. 31 of the APIA). In the current case, the municipal budget was public and its allocation was controlled by the local community according to the Municipal Budget Act (MBA). Pursuant to Art. 30, Para. 4 of the MBA, the annual report on the implementation and conclusion of the municipal budget was not only accessible to everyone, but was also subject to public discussion. Since the submitted request demanded information about money paid from the budget of the Municipality of Razgrad, the information requested was public and thus should be provided without the consent of the third party.
Developments in the Court of Second Instance:
The case was heard in an open court session and scheduled for judgment.
Court Decision:
With decision No. 8190 of July 20, 2006, a panel of the SAC repealed the decision of the RCR and returned the case back for reconsideration in compliance with the instructions given by the court decision. In their judgment, the court panel emphasized that in judging the nature of the information requested, the first instance court had wrongly assumed that it constituted a commercial secret, when in fact it had not applied the relevant legal provisions, which categorized the information as public. Thus, under the Municipal Property Act (MPA) and the Concessions Act, the data about concession contracts and their main characteristics were public, which was why exemptions for commercial secrets and third party’s interests could not be applied to that type of information. It was also emphasized that in the current case priority must be given to the principle of transparency and publicity of activities financed with money from the municipality budget, the former being collected as a garbage tax from citizens. The court panel concluded that the mayor of the municipality had unlawfully taken the requirement for the protection of the company’s interests as the leading principle. He had thus disrespected a legal rule about public accessibility of data related to the waste management in cases in which expenses were covered with municipal budget money collected from taxes on citizens within the territory of the municipality. In considering the request for access to public information about a waste management concession, the mayor should have provided access to the requested data, since they were legally defined as publicly accessible.
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