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Concession contract signed between the Ministry of Regional Development and Public Works and Highway Trakia JSC

Silvya Yotova (Novinar Newspaper) vs. the Ministry of Regional Development and Public Works

First Instance – administrative court case No. 6363/2005, Supreme Administrative Court, Fifth Division
Second Instance – administrative case No. 7669/2006, Supreme Administrative Court, Five-member panel of SAC

Request:
In May 2005, the journalist Silvya Yotova from Novinar Newspaper submitted a written request for access to information to the Minister of Regional Development and Public Works. She demanded a copy of the concession contract signed between the Ministry of Regional Development and Public Works (MRDPW) and Highway Trakia JSC, as well as copies of the legal analyses of the concession, which were prepared under the provisions of the Concession Act.

Refusal:
The Minister refused access to the requested contract since it contained data that due to its content constituted classified information, namely an administrative secret according to the Protection of Classified Information Act (PCIA). Access to this type of information would negatively affect the interests of the state and would harm other legitimate interests.

Complaint:
The refusal was challenged before the court with the argument that the grounds claimed under the PCIA were not sufficient to justify the refusal. The law under which the requested information had been classified as an administrative secret should have been indicated as well. More importantly, pursuant to the Concessions Act, the Minister was obliged to submit the information requested to the Council of Ministers' Public Register of Concessions. This Register was supposed to be accessible via the Internet.

Developments in the Court of First Instance:
Meanwhile, the concession contract was provided to the Access to Information Programme (AIP) by the new Minister of Regional Development and Public Works. The journalist's right of access to information, however, has yet to be respected, since the analyses done under the Concessions Act were not made available publicly.

In February 2006, the case was heard at a single session and scheduled for judgment.

Court Decision:
With decision No. 5451 of May 22, 2006, a panel of the Supreme Administrative Court repealed the refusal of the minister and sent the case file back to him for a decision based on the case’s merit. In their judgment, the court panel stated that access to information that could be defined as public under the provision of Art. 2, Para. 1 of the APIA had been demanded with the request. The requested concession contract contained information about the conditions under which the state had established the right of exploitation of an object that was exclusive state property. That information was related to public life, thus its provision would allow citizens (in this case through the mass media) to form their own opinions about the way the state body authorized to sign contracts had fulfilled its assigned tasks. In deciding that the public information requested had to be protected since it constituted an administrative secret, the minister had not founded that decision on a law that would define the information as such, nor on a personally approved list of categories of information subject to classification as administrative secrets within the structure of the Ministry of Regional Development and Public Works. The grounds stated by the Minister of Regional Development and Public Works were too broad and could not be defined as justifiable grounds for the issuing of the administrative act.

Court Appeal:
The decision of the SAC was appealed by the Minister of Regional Development and Public Works before a five-member panel of the same court.

Developments in the Court of Second Instance:
The case was heard in a single court session and scheduled for judgment.

Court Decision:
With decision No 10731 of November 1, 2006, a five-member panel dismissed the Minister’s appeal and upheld the decision of the lower instance court. Given the absence of data in support of the minister’s statement that the information was classified under the provision of Art. 26 of the Protection of Classified Information Act (PCIA), the court did not have the opportunity to check its validity. The mere statement that the information contained in the concession contract signed between the Minister of Regional Development and Public Works and Highway Trakia JSC and the analyses under the provision of Art. 6, Para. 2 of the Concessions Act (repealed) fell under a category that constituted administrative secret was not sufficient to identify the information as such. The refusal by the body obliged under Art. 3, Para. 1 of the APIA stated only that the information belonged to a particular category pursuant to Art. 26 of the PCIA, but did not state the criteria and the grounds on the basis of which the requested public information had been identified as an administrative secret. That fact did not allow the court to exercise efficient control on the lawfulness of the refusal for the provision of that information.


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English Version • Last Update: 22.03.2007 • © 1999 Copyright by Interia & AIP