Information regarding decisions and orders for lodging released from the housing department of the Ministry of Interior
Yordan Todorov (168 Hours newspaper) vs. the Minister of Interior
First instance – administrative case No. 818/2007, Supreme Administrative Court (SAC), Fifth Division
Second instance – administrative case No. 9280/2007, in SAC, Five member panel – First Panel
In October 2006, Yordan Todorov, a reporter from “168 chasa” newspaper, filed a request to the Minister of Interior to get access to information regarding a lodging released for rent and then for sale by the housing department of “Material-Technical Insurance and Social Services” Directorate (MTISS) of the Ministry of Interior. The information requested was thoroughly described as follows:
Decision of the housing committee of MTISS to define the priority in distributing the housing between six registered officers, whose applications were viewed by the commission;
Draft decision of the housing commission of MTISS to allocate two lodgings;
The order issued by the Minister of Interior as approval to draft decision for the allocation of the two lodgings;
The order issued by the Minister to accommodate an officers on a rent basis in one of the lodgings;
The order issued by the Minister approving sale of that particular housing.
By a decision as of November 2006, the Minister of Interior had refused to provide access to the requested information. As a ground for the refusal Art. 13, Para. 2 of the Access to Public Information Act (APIA) was referred. According to the provision, access to administrative public information that was of preparatory character and had no significance of its own may be refused. It was also referring to the provision of Art. 37, Para 1, item 2 of the APIA, according to which information which concerned the interests of a third party, and whose consent for disclosure had not been obtained, was not subject to provision. Additionally, the Minister in his decision stated that the requested information was not connected with the public life, but is of a private character, thus access to it shall not be granted.
The refusal was challenged before the Supreme Administrative Court (SAC). The complaint pointed that application of the exemption provided by Art. 13, Para. 2 of the APIA was possible only with regard to the information requested under items 1 and 2. At the moment when the refusal was issued, however, the two year’s term of protection had been expired since under the provision of Art. 13, Para. 3 of the APIA the exemption set by the Para.2 of the same provision shall not be applied after two years from the creation of the information. It was also pointed out that it was improper to apply Art. 37, Para.1, item 2 of the APIA, as in his request the journalist stated that he would like to get partial access to information, specifically the data regarding the personal information on the officers in need of the housing, as well as the data on the officer who got the housing released for rent initially and further on for sale, shall be extracted. It was emphasized that the requested information was certainly related to the public life in the Republic of Bulgaria, under the stipulation of Art. 2 of the APIA, since it was related to the disposition of real estate which was a state property.
Development in the Court of First Instance:
The case was heard at one open session and scheduled for judgment.
Decision of the Court of First Instance:
By a decision No. 7483 as of 11 July 2007, a three member panel of the SAC, Fifth Division repealed the refusal of the Minister and turned the information request back to the administrative body for reconsideration. In their judgment, the magistrates pointed out that in terms of the subject of the request in items 1 and 2, the information fell within the hypothesis of the provision set forth by Art. 13, Para. 1 of the AIPA – the requested documents had a preparatory character, as the documents are compiled within the implementation of the procedure on releasing a lodging from the housing fund of the Ministry of Interior for rent. As for the data included in the orders requested under items 3, 4 and 5 of the request, they possessed the characteristics of official information generated as a result of the activities of the administrative body with regard to the exercise of legally prescribed functions to manage and dispose with the real estates of the same body. However, the obliged body had incorrectly referred to the exemption set by Art. 13, Para.2 of the APIA to refuse access to the acts of the MTISS. The hypothesis of that provision was applicable within the legally prescribed period of two years from the moment of the creation of the preparatory official information – Art. 13, Para. 3 of the APIA. In the particular case, that period had expired before the date of on which the challenged refusal was issued, and consequently the ground for the refusal had dopped out. As to the other requested information, the judges stated that the provision of Art. 31, Para. 2 of the APIA clearly stated that in case when the requested public information concerned a third party, the appropriate body shall request its written consent within 7 days after the request was registered. The requested information undoubtedly contained personal data, those of the officers targeted by the orders. Consequently, without notifying them, the body would not be able to decide whether and in what volume to provide the requested information. However, the file of the case contained no evidence that the responsible body had notified the interested persons about the submitted request, nor had it sought for their written consent to provide the requested information. Thus the refusal grounded on the lack of consent of the third party was unlawful, it should be repealed and the request should be sent back to the administrative body to fulfill its obligation set forth by Art. 31, Para. 2 of the APIA.
The decision of the SAC, Fifth Division was appealed by the Minister of Interior before a five member panel of the same court with the argument that the finding of the court that the procedure of issuing the refusal had been breached was incorrect.
Developments in the Court of Second Instance:
The case was heard within one session and scheduled for judgment.
Decision of the Court of Second Instance:
By a decision No. 11257, as of 15 November 2007, a five member panel of the SAC, First Division, upheld the decision of the preceding instance. In their judgment, the magistrates completely approved of the arguments of the three member panel of the SAC, and also added that Art. 31 of the APIA did not set the ground for refusal of access to public information based on speculations that the third party would not consent of disclosure, but entrusted an obligation for the body to seek for such consent.