Balkans - Wildlife Association vs. Roads Executive Agency

Facts:
Balkans - Wildlife Association served three applications in writing to the Executive Director of the Roads Executive Agency at the Ministry of Regional Development and Public Works on 23 January 2000, 24 January 2000 and 22 February 2000. The NGO requested to be granted access to information related to the design of Strouma Highway kept by the Roads Executive Agency (copies of EIA reports and related letters and documents, answers of the Ministry, minutes from meetings between presenters and representatives of the Ministry).

On 13 April 2000, the Association, together with the Environmental Information and Training Centre and Eco-Club 2000, served an application in writing for obtaining access to information on seven specific issues (answers and copies of documents).
On 3 August 2000, the Association served another application for obtaining copies of the maps related to the preliminary design of the relevant section of Strouma Highway. On 17 August 2000, another application in writing requested a copy of the introductory report of the Italian contractor, which a representative of the Agency promised at a meeting with the local public held in Kresna earlier in the same month.The implied refusal was appealed before the Sofia City Court.

Attorney-at-law Kashamov, when checking the progress of the case on 25 October 2001, found in the file a reply letter by the project manager from the Roads Executive Agency, stating that access to information was refused for the only reason that "our contractual relations are confidential and this prevents the access of third parties to these documents".

The NGO, with the assistance of AIP, appealed against the refusal of the Executive Director of the Roads Executive Agency to grant access to copies of the contracts with companies for the design of Strouma Highway and all related documents.

The case was heard at the Sofia City Court at 2 p.m. on 29 October 2001. The court allowed specification of the appeal pursuant to Art. 14, para 2 of the Administrative Procedure Act, requesting the court to rule on the explicit refusal that followed the implied one. The defence in writing was served within seven days and the court judgement is expected.

Arguments of the Parties:
The arguments in the appeal were that the decision on the refusal to grant access to information was unlawful due to contravention to substantive law and material violation of procedural rules. In the first place, the law required the decision to be given in writing with reasons attached (pursuant to Art. 15, para 2 of APA and Arts. 38 and 39 of APIA). Besides, it was clear that since the letter by the Executive Director (the appealed decision) was not brought to the knowledge of the applicant until it was found out on 25 October 2001 when checking the progress of the case, that letter followed the appeal against the implied refusal.

Secondly, the appeal substantiated the irrelevance of the arguments spelled out in the decision, claiming that information about legal entities would be granted access to only insofar as it related to their activities funded through the consolidated state budget or that interests of third parties were affected and their consent was needed. The assertions that the appealed decision would violate Art. 17, para 2 of APIA should be supported by facts to prove that the specific information requested fell within the scope of the definition of "business secret" within the meaning of the Protection of Competition Act.
Finally, it remained unclear why the person responsible for ensuring access to information (the Executive Director of the Roads Executive Agency) admitted that some of the requested documents had been subject of public debate under EPA and freely accessible and still refused to grant access to them. Therefore the claims of the defendant were inrrelevant and lacking proof.

The arguments of the defendant were that the requested information was restricted, that the procedure for seeking the consent of the affected third party was applied, and that the access to the requested information would violate Art. 17, para 2 of APIA.

Issue of Interest:
Intetrpretation of Art. 17, para 2 of APIA

Conclusions:
The letter with the refusal signed by the project manager at the Roads Executive Agency is a case of gross non-performance on part of a government institution.

The Executive Director of the Roads Executive Agency is a body of executive power (Art. 19 of PAA) and a person responsible for ensuring access to information within the meaning of Art. 3, para 1 of APIA. Nevertheless, he failed to perform his duties prescribed by law. The implied refusal in this particular case is a violation of the requirement for giving decisions in writing and the legal and factual grounds for refusal (Arts. 38 and 39 and Art. 34, para 3 of APIA). Furthermore, the Executive Director neglected his obligation to examine separately each document mentioned in the application for granting access to information (an obligation ensuing from Art. 7, para 2 of APIA, i.e. the right of partial access to information, and the interpretation of the Constitutional Court - CCJ No. 7 on Constitutional Case No. 9 of 1995 that any restrictions of the right of every citizen to information had to be interpreted restrictively) and hence he based his claims on the existence of statutory grounds for restriction of the right of access only on subjective judgements. His claims were irrelevant and lacking proof.

Finally, the fact that a company is a contractor in connection with the project of national importance assigned by the Bulgarian State in the person of the Executive Director of the Roads Executive Agency and funded through the EC PHARE Programme (i.e. public resources) cannot possible be argued to constitute any secret protected by law. The way, in which the Executive Director fulfilled his obligations under APIA, came to testify whether the actual reasons for the refusal were associated with the protection of the rights of other persons or rather with an attempt at hiding information for subjective reasons.

As far as implied refusals are concerned, there is already a ruling of a five-member panel of SAC on a case, in which the defence was represented by Alexander Kashamov, AIP lawyer (Case 7, CILA v.s MLSP), i.e. Ruling No. 8645 of 16 November 2001. The ruling gives a positive answer as to the issue whether an implied refusal to grant access to public information can exist.