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A contract between the State Tourism Agency and a company for an exhibition stand at the World Travel Market 2007 held in London

Zornitsa Markova (Dnevnik newspaper) vs. the State Tourism Agency

First Instance Court - administrative case No. 79/2008, Administrative Court-Sofia City, 2nd Division, 37th Panel
Second Instance Court – administrative case No. 9503/2008, Supreme Administrative Court, Third Division

Request:
With a written request under the APIA as of November 2007, Zornitsa Markova, a reporter from Dnevnik newspaper, requested the Chairperson of the State Tourism Agency (STA) to provide a copy of the contract signed between the Agency and the “R.O.K.” Ltd. for the exploitation of an exhibition stand where Bulgaria was presented as an attractive destination at the global exhibition World Travel Market 2007 held in London.

Refusal:
With a decision as of December 2007, the Chairperson of the STA refused to provide a copy of the contract on the ground that the contract contained clauses which constituted trade secret and that the company’s consent for disclosure – as a party of the contract – had not been obtained. The refusal also stated that it was not clear for what purpose the reporter would further use the copy of the contract.

Complaint:
With the assistance of AIP, the refusal was appealed before the Administrative Court – Sofia City (ACSC). The complaint stated that the requested information was not only public but was of high public interest as it was about a contract which had not been implemented appropriately, including sanctions imposed in that regard according to statements made by the STA itself. Cancelation, termination, and suspension of the contract were announced. Simultaneously, a new public procurement tender procedure was announced for the exhibition which would take place in 2008 in Berlin, Moscow and Kiev.

Developments in the Court of First Instance:
The case was heard in an open session and scheduled for judgment.

Court Decision:
With a Decision as of June 11, 2008, the ACSC repealed the refusal of the Chairperson of the STA and turned the request back to him with the instruction to provide the requested information, or, if a refusal was to be issued, it should contain arguments on why the requested information was regarded as trade secret whose disclosure might bring to unfair competition between companies. The court assumed that the information about the contract signed between the State Tourism Agency and the company “R.O.K” Ltd for the provision and exploitation of an exhibition stand at the global exhibition of travel agencies World Travel Market 2007 held in London was public. The judgment stressed out that the information about the presentation of Bulgaria as an attractive destination and the advertisement of tourism in the country was of particular importance for the majority of citizens. It was noted in the judgment that the public interest was determined not only by the existence of sea and mountain resorts whose inhabitants relied on tourism for their means of living, but also by the fact that a number of less developed and rural regions had started the development of rural and alternative forms of tourism and the good presentation of the country would help the development of those regions.

It was also noted that excerpts from the contract containing confidentiality clauses were presented as evidence during the proceedings. Nevertheless, at the time of the request, the contract had been terminated and not effective between the parties which unbound them from its clauses. In that regard, the court panel found that the Chairman of the STA had not been bound with the clauses of confidentiality and should have provided the requested information. Besides, the administrative body should have determined and justified the conditions of the contract which constituted trade secret in relation to the publicity provided by the Public Procurement Act under which a number of elements of the contract should be public.

Court Appeal:
The decision of the ACSC was appealed by the STA before the Supreme Administrative Court. The appeal stated that the clauses of the contract related to commercial law relations and were of private character as a result of which access to the contract was not due.

Developments in the Court of Second Instance:
The case was heard at an open court session in May 11, 2009.

Court Decision:
With a decision as of June 1, 2009, a panel of the Supreme Administrative Court upheld the decision of the lower instance court. In their judgment the justices noted that no evidence was deposited in the course of the court proceedings that would substantiate the conclusion that the disclosure of the requested information related to a third party would have affected its interests in such a way that would have necessitated its explicit consent for the disclosure (to protect trade or production secret), as well as no proof that the third party had ever refused to disclose the requested contract.

The decision is final.

 


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English Version • Last Update: 05.06.2009 • © 1999 Copyright by Interia & AIP