The Newspaper 168 Hours v. the Ministry of Education and Sciences
Court of First Instance – Administrative Case No. 3621/2005, SAC, Fifth Division
Court of Second Instance – Administrative Case No. 3505/2006, SAC Five-Member Panel - Collegium II
Request:
In February 2005 Nikolay Penchev, editor in chief of the newspaper 168 Hours, submitted a request for access to information to the minister of education and sciences. In practice, the seeker wanted the administrative body provide in written form the names, education and qualification levels of each of the members of a ministerial team led by the minister, of all the heads of departments, all governmental experts, as well as of all people hired by civil contracts.
Refusal:
in response to the request was not received within the 14 day time limit established by law.
Appeal:
The silent refusal was appealed before the Supreme Administrative Court (SAC). The appeal pointed out a decision by the SAC which contained a summary of court practice on the question of silent refusal, in which it was held that "lawmakers did not explicitly create a fiction called silent refusals in the Access to Public Information Act (APIA) because they did not presume that, given the imposed obligation for the production of a motivated decision, subjects obliged under this law would display unlawful and immoral inaction." In the same decision of silent refusal under the APIA is defined as "a legally intolerable phenomenon."
Development in the Court of First Instance:
The case was examined in a court sitting and scheduled for a ruling.
Decision in the Court of First Instance:
In Decision No. 11422 of 19 December 2005 the SAC panel, Fifth Division, (PDF 81Kb) rejected the appeal as unfounded. The judges' reasoning was that the requested information was not "public" in the sense of the APIA. The court found that the information requested in that way did not concern the data about the public life of the country, nor data about the activities of a subject or the individuals obliged under the law; rather, it concerns the personal data of individuals characterized by the posts held by them. Because of this, according to the court panel, the silent refusal by the administrative body was lawful.
Cassation appeal:
The decision was appealed before a SAC five-member panel. In the cassation appeal it was noted, that it was absurd to hold that information about who is the deputy minister, who is the state expert and so on in the Ministry of Education and Sciences could be personal data. On the contrary, such information is necessarily public, especially in light of the transparency of the entire activity of the public institution. State policy cannot be prepared and implemented by anonymous individuals. It was also pointed out that the educational and qualification levels of the ministry's leading team, which prepares the minister's most important acts and which advises him in the decision-making process, reflects on their quality to a significant extent; this is grounds for the public interest in the information requested. In the cassation appeal arguments were also developed that professional activities of people, especially of state employees, and even more so of those from a leading team of a body of the executive power, not fall in the sphere of the personal intimate life of that individual. On the contrary, the professional experience and abilities of individuals filling leading positions in the administration is the object of appropriate transparency and accountability to the society, whose condition and life they affect.
Development in the Court of Second Instance:
The case was examined in a court sitting and scheduled for a ruling.
Decision in the Court of First Instance:
In Decision No. 9486 of 4 October 2006 the SAC (82Kb) five-member panel overturned a decision of the previous court instance, reversed the minister's silent refusal and required him to provide the newspaper 168 Hours with the names, education and qualification levels of the deputy ministers and head secretary of the Ministry of Education and Sciences, as well as the names, education and qualification levels of members of its political cabinet. According to the judges, the decision in the court of first instance was incorrect in the section that rejected the appeal against the refusal to be provided information about the names, education and qualification levels of deputy ministers, the head secretary and members of the political cabinet of the Minister of Education and Sciences, since they all belong to the public register under the Public Disclosure of Property Owned by High Government Officials Act (PDPOHGOA); their names are publicly accessible via this register. The judicial panel noted that the remaining data - education and qualification level - are not included in the public register, but are necessary for the formation of an independent opinion on the question of whether the leading political executive team in the sphere of education and sciences in Bulgaria has the necessary scientific and professional qualifications for high-quality and effective fulfillment of its state duties in the sphere of public life.
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