Information about the allocation of money for official publications in central and local media
Naroden Glas newspaper vs. the Municipal Council of Lovech
First Instance Court – administrative case No. 23/2007, Regional Court of Lovech
Second Instance Court – administrative case No. 7588/2008, SAC, Third Division
On May 18, 2007, Tsvetan Todorov, editor in chief of Naroden Glas newspaper, Lovech, submitted a request to the Chairperson of the Municipal Council of Lovech to obtain access to the following information:
- Information on the amount of funds spent for publication of regulations and announcement in local and central newspapers for the period 2004 – 2006 out of the municipal budget (Pursuant to the Local Self-Government and Local Administration Act those shall be promulgated in a local newspaper);
- Information on how the funds were allocated among the respective newspapers –numerically;
- Information on who and how identified which newspaper shall print the announcements. What were the selection criteria?
With a decision as of June 1, 2007, the Chairperson of the Municipal Council provided to the requestor information that the total amount of money spent out of the Municipal Council’s budget for publications in central and local newspapers covering the period 2004- 2006 was 853, 00 BGN. The Chairperson refused to provide information about the allocation of the funds among the respective newspapers since that was information that would affect the interests of third parties and may not be disclosed without their explicit consent (Art. 37, Para. 1, Item 2 of the APIA). The Chairperson further informed the requestor that the municipal administration published announcements in different media whose selection was guided by the prices they offered and the audience they covered.
The partial refusal was appealed before the Regional Court of Lovech (RCL). The complaint stated that it was not in the interest of the administration to keep the information on how public funds were spent from the society. The budget and the way it was allocated, including the municipal budget, was a public matter. The law itself provided for a balance in favor of the citizens’ right to know how public funds were spent. It was also stated that according to the Supreme Administrative Court (SAC) practice, the mere allegation that certain information affected the interests of a third party was not sufficient ground for refusal. A particular exemption, for example, trade secret, should be present.
Developments in the Court of First Instance:
After the start of the proceedings in the RCL, two of the media (Duma daily and Lovech Press) which had received funds from the municipality for the publication of regulations and announcements were constituted as interested parties. The case was heard in an open court session in March 2008 and was scheduled for judgment.
With a Decision No. 2 as of March 21, 2008, a panel of the Regional Court of Lovech dismissed the complaint. In their judgment, the justices noted that it had been evidenced that the Municipal Council had requested the consent of Duma daily and Lovech Press and they had explicitly, in a written form, dissented the disclosure of the requested information. It was also pointed out that in such cases, Art. 31, Para. 4 of the APIA provided that the administrative body had the discretion to refuse or to provide access in a manner that did not reveal information about those third parties. That discretion, however, was within the scope of the operational independence of the respective body and provided for a legal opportunity, rather than an obligation, thus was not subject to court oversight. The court judgment ended with the conclusion that the information about the amount of money received by each newspaper for publications constituted trade secret.
The decision of the Regional Court of Lovech was appealed by Tsvetan Todorov with the help of AIP before the SAC. The appeal stated that in the particular case no information that would affect the interests of a third party as under the stipulations of the law had been requested. No information that might have harmed a trade secret as defined by the procedure and pursuant to the provisions of the Fair Competition Act had been requested. The requested information was about the amount of money allocated by the Municipal Council for the publication of regulations and announcements. Spending of public money should be transparent to the highest extent. For that purpose, the least possible to be done was to provide information about the amount of money spent on particular activities. The written dissent of the third parties in the current case was irrelevant. The fact of receiving payments from a public institution could not be a subject of secrecy by itself. That was why the current case was not about the legally protected right of a third party to express dissent which might serve as a ground for refusal. The obliged body under the APIA should have decided by itself that no ground for restriction of the right of access to information had existed and that access should have been provided. Lastly, arguments were set forth that it had not been proven that the requested information constituted trade secret and its disclosure might have resulted in unfair competition.
Developments in the Court of Second Instance:
The case was heard in an open court session on February 16, 2009. Written notes were presented on behalf of the complainant, stating the recently established practices by the SAC on an identical case against the refusal of the mayor of the Municipality of Razgrad. According to that judgment of the SAC, information about money allocated by the municipality to local media for the publication of decisions, orders, announcements, invitations, protocols and other documents of the municipality, were public information under the stipulations of the APIA and should be provided at a request.
With a Decision No. 5121 as of April 16, 2009, a panel of the SAC, Third Division, repealed the decision of the Regional Court of Lovech, repealed the refusal of the Chairperson of the Municipal Council and obligated the latter to provide access to the information requested under point 2 of the request within a 14-days period after the decision came into effect. In its judgment, the court found that no evidence had been presented during the proceedings to prove 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 conditioned the necessity of their explicit consent for the disclosure – trade secret, production secret or other circumstance legally protected from public access. It also found ungrounded the conclusions of the regional court that the information requested under point 2 of the request for access constituted trade secret. Such an argument had not been set forth neither by the administrative body, nor by the interested parties. It was apparent from the explicit dissents of the third parties that they did not contain any statements that might have grounded them in the trade secret exemption. Quite the contrary, blanket statements like “our interests would be harmed” were used which did not correspond in any way to the conclusion that the dissents would protect the trade secrets of third parties. The judgment of the court panel ended with the conclusion that all bodies obliged under the APIA which used the trade secret exemption should state the circumstances relevant for the respective case which conditioned the requested information as protected. The obliged body should state which characteristics of the requested information defined it as a trade secret whose disclosure might harm the interests of the person they concerned. That was why the quotation of a legal text was not enough as a ground, making the refusal ungrounded.