Documents from the Archive of the First Bureau (the Intelligence Office) of the former State Security Services from the period 1971-1979
Hristo Hristov vs. The National Intelligence Services
First Instance – administrative court case No. 687/2005, Sofia City Court, Panel ²²²-g
First Instance – administrative court case No. S 31/2005, Sofia City Court, Panel ²²²-g
Second Instance–administrative case No. 3Ñ-321/2006, Supreme Administrative Court, Fifth Division
At the end of 2004, a journalist from Dnevnik newspaper, Hristo Hristov, submitted a request to the Director of the National Intelligence Services (NIS). Mr. Hristov demanded access to documents from the Archive of the First Bureau (the Intelligence Office) of the former State Security Services from the period 1971-1979. He requested the information for the documentary book he was writing about the murder of the dissident writer Georgi Markov in London in 1978.
No response to the request was received within the legally prescribed period of 14 days.
The silent refusal was challenged before the Sofia City Court (SCC). Besides offering arguments about the unlawfulness of the refusal, the complaint stated that the journalist had already obtained access to and studied the archives of the Ministry of Interior, the Ministry of Foreign Affairs, the State Archive, and the Supreme Cassation Court. Furthermore, Mr. Hristov had published on the topic many times before, which justified his request for access.
Developments in the Court of First Instance:
At the first session of the court, the journalist presented a mass of evidence in support of his statement that he had already studied documents on the same topic in other archives. The court stayed the proceedings with the argument that the other party in the process should have an opportunity to get acquainted with the evidence and to present their own as well.
At the second session, the representative of the defendant claimed that he did not know whether the requested information existed in the archive of the National Intelligence Services (NIS), since they could not find it in the files of documents they held. The lawyer of the complainant insisted that Supreme Administrative Court practices had shown that a mere statement unaccompanied by evidence that a certain document cannot be found is not sufficient grounds for a refusal of access to information. In such cases, the respective administrative body should provide evidence that the document has been destroyed after a decision by an expert commission; or that it had been archived and data had been given allowing it to be traced; or that it had been lost and a protocol verifying its loss had been issued.
The case was scheduled for judgment.
With a decision on March 14, 2006, a panel of the Sofia City Court (SCC) repealed as unlawful the silent refusal of the Director of the NIS to provide the requested information and obligated the Director of the NIS to provide access to the requested information after applying the mandatory procedure for declassification of the information under the Protection of Classified Information Act (PCIA). The court found the objection of the defendant that he was not an obliged body under the provision of Art. 3 of the APIA unjustified, citing the provision of Sect.1, Item 1 of the Additional Provisions of the PCIA pursuant to which the NIS is identified as security services. However, in formulating that definition, the law does not exclude the competence of the body as a state body, stipulated by Art. 3 of the APIA, for which the obligation under the APIA was absent.
In relation to the arguments presented during the court proceedings by the representatives of the NIS regarding the reason why they claimed that access to the requested information should not be provided since it had been classified as a state secret, the court stated the following:
It was obvious from the evidence presented at the proceedings that on the first page of each of the requested documents there was a “Top Secret” stamp with dates of classification falling within the period of 1971 – 1979. Given the provisions of Art. 41, Para 4 of the APIA, the court was entitled to exercise control on the security stamp markings. The implementation of that provision had been hampered, since the body which had done the respective classification did not legally exist. The documents were issued by subdivisions of the former State Security Services, which did not fall under the list of security services in Sect. 1, Item 1 of the PCIA. The documents were created and classified as protected information before the PCIA came into effect. Therefore, in the current case the provision of Sect. 9, Item 1 of the Final and Transitional Provisions of the PCIA should be applied, under which the documents created before the law came into effect and marked with a “top secret” stamp were deemed marked with a “secret” classification level. The classification terms were calculated pursuant to Art. 34, Para. 1 of the PCIA and were counted from the creation of the documents. Consequently, all documents requested for the period 1971-1979 should be reviewed for expired terms under the PCIA: 30 years for documents stamped “top secret of particular importance,” and 15 years for “top secret” documents.
The court found that no evidence was presented that the administrative body had fulfilled the requirement of Sect. 9, Para. 2 of the Final and Transitional Provisions, which stipulated that all heads of administrative structures are obliged to bring all documents containing classified information into compliance with the law and the regulations for its implementation within one year after the PCIA came into effect.
The provisions of Art. 34, Para. 3 of the PCIA stipulate that after the expiration of the above-stated terms for protection, the level of classification should be removed and access to the information should be realized under the procedures of the APIA. Art. 33, Para 2 of the PCIA stipulates that within one year after the expiration of the classification term, the information should be sent to the State Archive Fund.
According to the justices, the silent refusal by the Director of the NIS to provide access to public information should be repealed as unlawful and the body should be obligated to provide the requested information on the grounds of Art. 41 of the APIA, following the legally prescribed procedure for declassification.
The decision of the SCC was appealed by the Director of the NIS before the SAC.
Developments in the Court of Second Instance:
In February 2007, the case was heard in a closed session and scheduled for judgment.
In its decision, as of June 11, 2007, the Supreme Administrative Court (SAC) upheld the decision of the Sofia City Court (SCC) which had repealed the tacit refusal of the Director of the National Intelligence Services (NIS) to provide journalist Hristo Hristov access to documents related the murder of the Bulgarian dissident writer Georgi Markov. In its decision, the SAC rejected the arguments stated by the NIS in the court appeal. The justices assumed that the legislator did not exclude the NIS from the bodies obliged to provide information to the citizens under the Access to Public Information Act. The right of access may be subject to restriction if the requested information was classified. Even in those cases, the justices emphasized, citizens had the right to receive the requested information. In cases under Art. 34, Para. 3 of the Protection of Classified Information Act (PCIA), when the time period for the protection of classified information had expired, the status of classification should be removed. According to the justices, the Sofia City Court had rightly raised the question why, considering the existing circumstances, the information had not been submitted to the State Archive pursuant to Art. 33, Para. 2 of the PCIA. The argument of the NIS that the information was not public since foreign persons’ interests were affected had been rejected. According to the court panel, the requested information was public since the requestor may have formed opinion about the activities of the security services during the socialist times. The court decision stated that it was not the obligation of the requestor to prove that the institution held the requested information. Thus, the argument of the NIS that it had not been proved that NIS was the institution holding the documents was ungrounded. Even the contrary, it was the institution which best knew the kind, volume and form of the information which it held and should state that in its response to the requestor under the APIA. The court decision is final.
In 2004, the journalist won a case against the then Minister of Interior, Georgi Petkanov who had refused access to the Ministry of Interior Archive. As a result of the SAC decision, Minister Petkanov provided the requested documents.