Contract with Microsoft Co for the procurement of software licenses necessary for the Bulgarian state administration

Rosen Bosev from Capital Weekly versus the Director of the Government Information Service

First instance – administrative case. № 03528/2006 Sofia City Court, Panel III-B

Request:
On 5 of April 2006, Rosen Bosev, a journalist from Capital weekly, filed a request to get information from the Ministry of State Administration and Administrative Reform (MSAAR) on the contract concluded between the Ministry, by the former minister Dimitar Kalchev, and Microsoft Co for the procurement of software licenses necessary for the state administration. The journalist was seeking information on the conditions of the above-mentioned contract and he wanted to get a copy of the contract.

In ten days the head of administration at the MSAAR sent a response to Mr. Bosev, informing the latter that the contract under request was concluded by the ex-minister of state administration Mr. Kalchev, who was acting on behalf of the Council of Ministers, thus MSAAR was not a party to the given contract and did not have it. For this reason MSAAR forwarded the request to the Council of Ministers.
On 28 of April 2006, the Director of the Government Information Service (GIS) , Ms. Tanya Geneva, sent a letter to the journalist, saying that he would receive the requested information, but its preparation needed some time, and for that reason and in accordance with Art. 30, Para. 1 of the Access to Public Information Act (APIA) the term for providing the information would be increased to ten days.

Refusal:
In ten days, on 8 May 2006, Mr. Rosen Bosev did not receive the requested information, but a letter with a refusal, that was signed by Ms. Tanya Geneva. The refusal letter indicated “…the conditions under which the contract for the procurement of software packages to be used by the state administration was signed with Microsoft is a matter of commercial secret. Thus the disclosure of the provisions of the contract will lead to unfair competition between the traders, as the conditions of the contract envisage the requirements of the state administration, including the clauses on providing free of charge training to the employees of the state administration system as well as other specific conditions.”

Complaint:
The refusal was challenged before the Sofia City Court (SCC). The complaint pointed out that according to the Fair Competition Act (FCA), the definition of the commercial secret was as follows: the facts, connected with implementing business activities, disclosure of which contradicts to the best business practices and causes or may cause harm to the relations between the competing parties or between them and the customers. The unfair competition was used as a ground for the refusal to provide information. However, it was unclear how the disclosure of the requested information might have affected the private firm.

First instance court proceedings:
On 19 of March 2007, the case was reviewed by the SCC, that however noted that the competence of the Director of the GIS to issue the refusal was unclear. (To clarify, the APIA prescribes that the refusal to grant information should be issued by the head of the corresponding institution. If issued by another person, they shall be specifically authorized to do that. In the particular case, the Director of the GIS was authorized with an order by a former Prime Minister, namely Ivan Kostov, to decide on requests for information. The court, however, is not obliged to know that, while the GIS shall present the order as evidence in every court case against its refusal to grant information.) For that reason, the case was to be reviewed in June and the GIS was instructed to provide the court with the relevant data. Among other reasons to delay the case was the absence of the GIS representative.

On 25 of June 2007, the case was again heard by the SCC. The court panel found that not only the GIS did not send their representative, but also the previous prescriptions of the court were not carried out. That was the reason to another adjournment of the case till October 2007. The panel of judges refused to impose a fine on the GIS for non fulfillment of court prescriptions, but ruled that the GIS shall provide all necessary documents within an appointed term. During the court session on 3 of October 2007, the representative of the GIS was present and provided the court with requested evidence, namely a copy of the order of the Prime Minister, that empowered the Director of the GIS to decide on requests for information. The case was heard and scheduled for judgment.

Decision of the first instance court:
With a Decision as of 2 November 2007 on administrative case No. 03528/2006, the Sofia City Court repealed the refusal of the Director of the GIS declaring it unlawful, and returned the information request for reconsideration. The court ruled that the administrative act should be cancelled as it breaks the existing law and contradicts the letter of the law. The provision of article 17, para. 2 of the APIA, that was regarded to by the administrative body, which exempted access to public information that comprises commercial secret and might cause unfair competition, is part of Chapter 2, Section ІІІ of the APIA . Its content and location within the purview of the law implies that it was connected with access to the so-called “other” type of public information - on the activity of obliged bodies under the article 3, para. 2 of the APIA. The information, requested by the applicant, cannot be viewed as falling within the scope of that provision. The requested information is connected with the conditions of the contract concluded between the obliged under article 3 para. 1 of the APIA public body , and third parties, public-law entities, thus constituting administrative public information as stipulated by article 11 of the APIA.

Besides, according to the judges, the protection of the commercial secret and prevention of the unfair competition would be a sufficient reason to ground the refusal on granting administrative public information under the provision of article 37, paras 1, 2 of the APIA. That might serve as a legal ground only if the procedure set forth by article 31 was applied and no consent for disclosure of the requested information was obtained from the third party. Thus, not requesting the consent of the third party concerned, the Microsoft Company in this case, grounded the illegality of the refusal due to violations of the administrative procedural rules for issuing the refusal. Nevertheless, explicit dissent or lack of consent of the third party cannot bind the administrative body to automatically withhold public information. On the contrary, the administrative body in charge shall provide the information in the scope and mode that would not cause harm to the third party concerned. As concluded by the panel of judges, the functional independence provided to the administrative body to apply the law and which embodied the purpose of the law itself – to ensure access to information connected with public life in the country which provides citizens with the opportunity to form their own opinion regarding the activity of responsible bodies – was violated in this case.

The decision was not appealed and became effective.