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Access to information about the repair works in the Prime Minister's office

Pavlina Trifonova (24 Hours daily) vs. the Government Information Service

First Instance Court – administrative case No. 2977/2007, Administrative Court Sofia City, II Division, 37th Panel
First Instance Court – administrative case No. 10498/2007, SAC, Third Division
Second Instance Court – administrative case No. 1205/2009, SAC,  Five-member Panel – First Panel

Request:
On June 14, 2007, Pavlina Trifonova, a journalist in 24 Hours weekly, submitted a request under the procedure stipulated by the Access to Public Information Act (APIA) to the Government Information Service (GIS). The journalist requested access to information about repair works in the office of the Prime Minister – Sergei Stanishev. More specifically:

  • What was repaired and what was the total cost of the repair works?
  • What had conditioned the repair works?
  • Which were the contracted companies, which were the other bidders in the public procurement tender and why the contractors were selected among others?
  • What were the bids of the other competing companies?
  • What was the price of the new furniture, by listing the price of every item?
  • Who selected the new furniture?
  • What would be done with the old furniture?
  • When was the last time the office of the Prime Minister had been repaired?

Refusal:
On June 28, 2007, the journalist received a letter from the Director of the GIS – Ms. Tania Dzhadzheva. The information provided with the letter was scarce and gave answers to some of the questions that had been set forth. With regard to the rest of the questions, an explicit refusal had been issued. The letter informed that the reparation works had been planned as an activity and included replacement of the floor cover, replacement of the electrical system and internal wiring, wall painting, replacement of furniture in the office, etc. The reparation works were done by “Radina Gesheva” Architecture Atelier which had subcontracted the services of four companies. The answer went that the last reparation works of the cabinet had been done 9 years ago, that the new furniture had been selected by a five-member commission, and that the old furniture would be used in other rooms  and offices of the building of the Council of Ministers (CoM) after a respective reparation (lacquering, reupholstering). With regard to the rest of the questions related to the other bidders in the public procurement, the price they had offered, as well as the price of every item, a refusal was issued on the ground of the provision of Art. 37, Para. 2 of the APIA since the information regarded third parties’ interests and their written consent for the disclosure had not been obtained. Besides, according to the Director of the GIS, the bidders in the tender for that special public procurement had signified that part of the information was confidential.

Complaint:
With the assistance of AIP, the answer of the GIS was appealed in its part which had refused information before the Administrative Court – Sofia City (ACSC). Since the answer had been too broad, while the questions set forth in the request were very specific, a comparison was made in the complaint between the questions and the respective parts of the answer of the GIS. It was apparent from the comparison drawn that a partial refusal had been issued. There was a silent refusal with regard to the information about the overall cost of the reparation works, the grounds for selecting the contracting company, the names of the four subcontracting companies, and the names of the five-member commission which had chosen the furniture. There was an explicit refusal on the ground of the provision of Art. 37, Para. 1, Item 2 of the APIA (information regarding third party’s interests and their written consent for the disclosure had not been obtained)  with regard to  the information about the names of the bidders in the public procurement tender procedure, the price they had offered, and the price of the furniture (by items).

Developments in the Court of First Instance:
The case was heard and twice postponed by the ACSC for the collection of evidence. At the third session, it was scheduled for judgment. Subsequently, the court withdrew its ruling for starting the court proceedings and sent the case to the jurisdiction of the Supreme Administrative Court (SAC). The SAC heard the case in two court sessions, in May and October 2008, and scheduled it for judgment.

Court Decision:
With a Decision No. 13417 as of December 8, 2008, a panel of the SAC, Third Division, dismissed the complaint. The court panel assumed that the refusal of the Director of the GIS had been issued in compliance with the provision of Art. 37, Para. 1, Item 2 of the APIA since the information about the overall costs of the prime minister’s office planned reparation works, the price of the new furniture, and the names of the bidders in the tender for a public procurement for the reparation works affected third party’s interests as under the provision of Art. 31, Para. 1 of the APIA.

Court Appeal:
The decision of the three-member panel of the SAC was appealed before a five-member panel of the same court. It was argued that the appealed administrative decision clearly showed that the Director of the GIS had used the APIA provided exemption, which gave grounds for a refusal of information when it affected the interests of a third party and its consent for the disclosure had not been obtained, without following the procedure of seeking for the third party’s consent. It was also noted that according to the SAC practices, pursuant to the APIA, an assessment should be made in every particular case if any third party rights or legal interests might be affected by a request for access to information. No evidence that the administrative body had made such an assessment in the particular case was traceable in the grounds of the appealed decision. It was not clear why it had been decided that the request for access might affect rights or legal interests of a third party.

Developments in the Court of Second Instance:
The case was heard in an open court session in March 2009 and scheduled for judgment.

Court Decision:
With a Decision No. 4273 as of March 31, 2009, a Five-member Panel – Panel I of the SAC repealed the decision of the three-member panel which had dismissed the complaint, repealed the partial refusal of the Director of the GIS, and turned the request back for reconsideration after the court instructions about the interpretation and application of the law. According to the court, no evidence was found during the proceedings for requesting the written consent of the third party whose interests would have been affected by the provision of information about it.  If the obliged body had quoted the legal exemption, it should have sought the explicit written consent of the third party or parties and if such had been refused, then it should have grounded the refusal in the lack of consent. The court panel also found that the Director of the GIS quoted the provision of Art. 17, Para. 2 of the APIA as a ground for the refusal, without specifying the conditions which would have resulted in unfair competition for the companies. The lack of grounds conditioning the application of the quoted provision determined that part of the refusal as unlawful and necessitated its repealing.

The court decision is final.

 


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