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Access to public procurement contracts with construction companies

Association Non-Governmental Organizations Center Razgrad vs. the Mayor of the Municipality of Razgrad

First Instance Court – administrative case No. 211/2007, Administrative Court - Razgrad
Second Instance Court – administrative court No. 2995/2008, Supreme Administrative Court, Third Division

Request:
On October 15, 2007, Georgi Milokov, a Chairperson of the Association Non-Governmental Organizations Center Razgrad submitted a written request to the Mayor of the Municipality of Razgrad under the procedure stipulated by the APIA. He demanded access to information about the name of the company/ies which had performed construction and repair works under the approved projects under the 2007 Public-Private Partnership Program in the Municipality of Razgrad till the moment of the submission of the request. Information about the application forms with the attachments relevant to each project, as well as the decisions of the selection commission with regard to each approved project was also requested.

Refusal:
With a decision as of November 5, 2007, the Mayor of the Municipality refused to provide the requested information on the ground that third parties were involved and their consent for the disclosure was lacking. The refusal stated that such consent had been sought from the three construction companies which had performed the activities under question and they had deposited their dissents for the provision of the information.

Complaint:
The refusal of the Mayor was challenged before the Administrative Court - Razgrad.

Developments in the Court of First Instance:
The three construction companies were constituted as interested parties in the case. The case was heard in an open court session and scheduled for judgment.

Court Decision:
With a Decision No. 94 as of January 4, 2008, the Administrative Court – Razgrad repealed the refusal of the Mayor in its part where the provision of access to information about the name of the company/ies which had performed construction and repair works under the approved projects had been refused. The court dismissed the complaint in the part regarding the information about the “application forms with the relevant attachments to each project” and the “decisions of the selection commission regarding all approved projects.” In the current case, the court assumed that the application forms, as well as the relevant attachments, may contain information about the applicant (a legal person in this case) which was not public, i.e. information related to particular elements from the capital status of the company (for example, monthly turnover, subcontracting parties under similar contracts, etc.). Such kind of information constituted trade secret and in that case, the Mayor had rightly decided that it might have harmed rights or legal interests of third parties and had applied the hypothesis provided by Art. 37, Para. 1, Item 2 of the APIA, refusing access after the explicit written dissent of the third parties. The same type of information might be contained in the decisions of the selection commission as far as those decisions should be grounded and the grounds might contain information that constituted trade secret for the applicants.

Court Appeal:
The decision of the Administrative Court – Razgrad was appealed before the Supreme Administrative Court in its part where it dismissed the complaint.

Developments in the Court of Second Instance:
The case was heard in an open court session and scheduled for judgment. Written notes, prepared by Alexander Kashumov, a lawyer at AIP, were presented on behalf of the association-complainant. It was argued that even the challenged refusal did not contain evidential facts for the presence of monthly turnovers, the subcontracting parties under similar contracts, etc. in the requested application forms and the attachments to them. Furthermore, the presence of such facts had not been proven before the first instance court. As it was clear from its judgment, the lower instance court had grounded its decision in propositions about what was possible to be contained in the requested information under the APIA instead of what was actually contained. Thus, the case was decided without sufficient clarification about the legally relevant circumstances.

Court Decision:
With a Decision No. 12621 as of November 24, 2008, a panel of the SAC repealed the decision of the Administrative Court - Razgrad, as well as the refusal of the Mayor, obligating the latter to provide access to the requested information within a 14-days period to the Association Non-Governmental Organizations Center Razgrad. In their judgment, the justices found that no evidence had been presented that would have conditioned the conclusion that the provision of the requested public information related to third parties would have harmed their interests in a way that would have justified the necessity for their explicit consent – like the existence of a trade secret, production secret or other circumstance legally protected from public access. The judges held that taking into consideration the above, the conclusions of the lower instance court that the Mayor had lawfully applied the provisions of Art. 37, Para. 1, Item 2 of the APIA did not find any ground in the facts established during the proceedings.

The court decision is final.


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English Version • Last Update: 08.06.2009 • © 1999 Copyright by Interia & AIP