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Contract with Microsoft Co for the procurement of software licenses necessary for the Bulgarian state administration

Rosen Bosev (Capital weekly) vs. the Government Information Service

First Instance Court – administrative case No. 3971/2008, Administrative Court – Sofia City, First Division, 7th Panel

Background:
On 7 of April 2006, Rosen Bosev, a journalist from Capital weekly, filed a request for access to information, as under the procedure stipulated by the Access to Public Information Act, to the Minister of State Administration and Administrative Reform (MSAAR). The journalist requested information about the conditions under which the contracts between the Ministry and Microsoft Co for the procurement of software licenses necessary for the state administration had been signed, as well as the copy of the contracts. The MSAAR forwarded the request to the Council of Ministers (CoM) with the argument that the requested contract had been concluded by the ex-minister of state administration who was acting on behalf of the Council of Ministers.
With a letter as of May 8, 2006, the Director of the Government Information Service (GIS) expressed a refusal to provide the requested information on the ground that “…the conditions under which the contract for the procurement of software packages to be used by the state administration was signed with Microsoft, as well as the contract itself, is a matter of commercial secret.” The refusal was repealed with an effective decision as of November 2, 2007 delivered on administrative case No. 03258/2006 by the Sofia City Court and the file was turned back to the CoM for reconsideration of the request.

Request:
On March 17, 2008, Rosen Bosev submitted a new request to the GIS demanding that the initially requested information was provided in compliance with the instructions from the already effective court decision.

Refusal:
With a letter as of April 14, 2008, the Director of the GIS refused to provide the requested information again. The Director of the GIS grounded her decision in the circumstance that in execution of the quoted court decision, they had requested the consent of the CAD Research and Development Center “Progress” Ltd. for the disclosure of the information since they were a party in the contract with Microsoft Co. and as such had expressed explicit dissent for the provision of the requested information.

Complaint:
With the assistance of AIP, the refusal was appealed before the Administrative Court – Sofia City (ACSC). The complaint pointed out that according to the provision of Art. 31, Para. 1 of the APIA, the latter is applicable if the requested information was about a third party.  That conclusion, however, could not be drawn from the fact that the information had been created by that third party. It was logical to suggest in the particular case that the contracts contained data about the conditions under which they had been concluded.  It could not be presumed, however, that the information requested by the journalist contained information that might be classified as a trade secret, administrative and/or other secret, i.e. as classified information. If the information had constituted classified information, its protection should have been grounded in a different provision of the APIA, and not in the provision of Art. 31, Para. 1 which did not give by itself ground for a refusal. Besides, even if the consent of the third party had not been obtained or there had been an explicit refusal by the third party to give its consent, the respective body shall disclose the requested public information in scope and in a manner so as not to disclose the information concerning the third party – Art. 31, Para. 4 of the APIA.

Developments on the Court of First Instance:
As early as the first court session, the following question was raised – why did the GIS requested the consent from the CAD Research and Development Center “Progress” Ltd, but not from Microsoft Co., which is a party in the contract with the Bulgarian government.  Subsequently, three more court sessions were held with delivered instructions to the GIS to present evidence about the authorization of the CAD Research and Development Center “Progress” Ltd to represent Microsoft Co. and also to obtain evidence about the authorization of that company to express consent or to refuse to provide such with regard to the provision of information about the contract for the use of Microsoft Co. software products by the state administration. During the last court session, held on February 29, 2009, the case was scheduled for judgment.

Court Decision:
With a Decision as of March 20, 2009, a panel of the ACSC repealed the refusal of the Director of the GIS and turns the case back for reconsideration in compliance with the instructions given by court. In its judgment, the court stressed out that the Director of the GIS should have requested the consent for the disclosure of the requested information from the contracting party, namely Microsoft Corporation. The court found ungrounded the allegations of the procedural representatives of the defendant that the capacity of the CAD Research and Development Center “Progress” Ltd as a third party under the meaning of Art. 31 and Art. 37, Para. 1, Item 2 of the APIA was apparent from the presented copy of an excerpt from an Agreement between the State Administration and Microsoft Co. and from a legalized translation of an Open License Agreement. The quoted Agreement had been signed by Dimitar Kalchev- Minister of State Administration, and Bill Gates for Microsoft Co. Thus, according to the court, the argument of the defendant had not been proven since the document did not contain a signature of a person representing the CAD Research and Development Center “Progress.” Consequently, it may not be assumed that the company had been provided with any binding capacity of a contracting party in the established trade relations. The court continued that as a matter of fact, in the Agreement, the company had been signified as possessing the capacity of a retailer, i.e. a person which by definition may not possess the respective representative authority. On the base of those conclusions, the court assumed that the challenged refusal was unlawful as far as it was grounded in the dissent of a person which had not been authorized to express it.

 


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