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National Committee for Improvement of Water Supply in Bulgaria vs. Sofia Municipality

Court of First Instance – administrative case No. 1884/2009, ACSC, Second Division, 33 panel
Court of Second Instance – administrative case No. 10514/2009, SAC, Fifth Division

Request:
On December 23, 2008 Gancho Hitrov, chairperson of the National Committee for improvement of water supply in Bulgaria, filed a request of access to information for a copy of the legal analysis of the performance of the concession contract between the Sofia Municipality and Sofia Water JSC for the period 2000-2007, drafted by a law firm in late 2008 on the Municipality request.

Refusal:
With a decision as of February 2, 2009 the mayor refused access because the legal analysis was drafted by a law firm and it fails under the duty of confidentiality of lawyers and counselors.

Complaint:
The refusal was challenged before the ACSC. The complaint stresses out that the duty of confidentiality is not an exemption under the APIA, nor under any special law regulating access to information and its restrictions. Pursuant to Art. 7, Para. 1 the free access of information may be limited only if exemption is provided for by law. Second of all, subject to the duty of confidentiality is the attorney at law – he is not entitled to disclose information related to his/her client. It would be unreasonable the obligation of confidentiality to be a burden to the client.

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

Court Decision:
With a decision No. 31 as of June 16, 2009 a panel of the ACSC repealed the mayor’s refusal and returned the case for reconsideration. The court emphasized that the subject of the duty of confidentiality as defined by the law is only a person having legal capacity and quality as counselor. Whatever profession the mayor may have, as an obliged body under the APIA he is not a lawyer. Therefore, there is no legal requirement for the mayor to protect the information on grounds of duty of confidentiality of lawyers and cannot rely on it this ground to refuse access to public information.

Court appeal:
The ACSC decision was appealed by the mayor before the SAC. The appeal stated that the requested information was not public as defined under the APIA.

Developments in the Court of Second Instance:
The case was heard in an open court session on February 24, 2010 and was scheduled for judgment.

Court Decision:
With its decision No. 4195 as of March 30, 2010 the SAC upheld the first instance decision. The court did not consider the argument that the information was not public as defined by the APIA because the refusal was not based on that ground and such objection was not raised before the first instance.