Anton Gerdjikov vs. the Ministry of Foreign Affairs
First Instance—administrative court case No. 7088/2004, SAC, Fifth Division
Second Instance—administrative case No. 10940/2005, SAC, Five member panel
In 2002, during the Second Meeting of Bulgarians who live in the Ukraine, held in the town of Zaporojie, the participants mounted a statue of Khan Asparuh, the founder of the Bulgarian state in the 7th century. The local authorities, however, dismantled the statue during the night and brought it to the historical museum of the town of Zaporojie for storage.
A year and a half after the event, in June 2004, the citizen Anton Gerdjikov—a participant in the Second Meeting of Bulgarians who live in the Ukraine—submitted a written request for access to information to the Ministry of Foreign Affairs (MFA). In his request, Gerdjikov stated that the mounting of the statue was desired by all Bulgarians who knew about its dismantling and demanded that the MFA provide all available information about the mounting and the removing of the statue. In particular, the requestor demanded documents, pointed out in five detailed points of the request—all related to the position and the measures taken by the Bulgarian state bodies in terms of the event.
The Minister of Foreign Affairs did not respond to the request within the legally prescribed 14 days period.
The silent refusal of the Minister was challenged before the Supreme Administrative Court (SAC).
Developments in the Court of First Instance:
In the course of the proceedings, the representative of the MFA presented a file with correspondence—letters and documents—concerning the issue. The hearing of the case was postponed at the first session in order for the complainant to get acquainted with the presented documents. It turned out that these documents contained part of the requested information, though some questions, raised in the request, still remained unanswered.
At the second session, the MFA submitted a written defence which presented two alternative statements. According to the first one, there was no silent refusal since the information about the mounting and removal of the statue was not related to the public life of the Republic of Bulgaria and did not concern events from the public life of the Republic of Bulgaria. Consequently, the information was not public pursuant to Art. 2, Para. 1 of the APIA. According to the second statement, the requested information was official information pursuant to Art. 11 of the APIA and contained documents with no significance of their own, thus access to these was exempted under Art. 13 of the APIA.
Decision No. 7836 as of August 29, 2005 of the SAC(PDF 71Kb), Fifth Division repealed the silent refusal of the Minister and sent the request back to the body, obliging it to provide all of the information that Anton Gerdjikov had requested. In their judgment, the justices pointed out that the Minister should provide access to the documents listed in the request since the complainant would only find an answer to the question that concerned him after getting acquainted with their content—the official position of the Republic of Bulgaria with regard to a demand of the Bulgarians residing in the Ukraine to mount a statue of Khan Asparuh in the town of Zaporojie. According to the justices, the access to these documents should not be restricted on the grounds of Art. 13 of the APIA since there was no final act of the Minister, whose preparation may have required the collection of the particular documents, whose content may have given an answer to the questions of the requestor.
The MFA appealed the court decision with the argument that the Access to Public Information Act (APIA) did not stipulate that administrative information was information that may only be generated in the process of a final act preparation, thus the exemption under Art. 13 of the APIA may not be applied.
Developments in the Court of Second Instance:
The case was heard at a single court session and and scheduled for judgment.
The Supreme Administrative Court found the appeal inadmissible in its decision No. 2308 (PDF 84Kb) as of the beginning of 2006 and upheld the decision of the lower instance court. In their judgment, the justices elaborated on the argument that access to the requested documents may not be restricted under Art. 13 of the APIA since the information they contained was not directly related to the preparation of a final act and their content may not give an answer to the questions of the requestor.