Press release: The Ministry of Foreign Affairs Admits that the Notes between Bulgaria and Spain do not Contain Prime Minister’s Personal Data

In August, 2004, the Ministry of Foreign Affairs conceded to the online newspaper Every Day the two 1970 notes between Bulgaria and Spain, in which the public law status of the current Prime Minister Simeon Sax-Coburgotha was commented. The information was imparted after the Sofia City Court declared null and void the denial of the Director of “Foreign Relations” Department to provide copies of the notes void. The decision was not appealed and was enacted. According to the notes received, Bulgaria asked Spain to declare that it would accept Simeon and to treat him as a private individual during his stay there. He was to be denied the right of representative functions according to the public law, as well as conducting any political activity against the People’s Republic of Bulgaria. Spain, on its side, gave assurance that it would fulfill that declaration1.
The story started in June 2003 when the online newspaper Every Day submitted a request, under the Access to Public Information Act (APIA), for obtaining access to all documents, containing data about the status of Mr. Simeon Sax-Coburgotha during his stay in Spain. All that happened in the context of increasing media interest towards the citizenship of the prime minister and the demonstrated “sensitivity” of the Sofia Regional Prosecutor’s Office, which had started a suit for hooliganism against journalists from Radio Darik. The request was addressed to the Director of the “International Relations” Department of the Ministry of Foreign Affairs (MFA). According to the media publications, the document or documents were specified as notes, written and exchanged between Bulgaria and Spain in 1970. Meanwhile, MFA gave copies of the 1970 agreement about the establishment of consular and diplomatic relations between the two countries to several media, Every Day included. It became clear, however, that along with the agreement there were other documents, defined by the cabinet speaker D. Tzonev as “secret annex.”

After consulting the Access to Information Programme (AIP), the electronic edition demanded that if the documents are withheld due to the Protection of the Classified Information Act (PCIA), it required that the following information about their classification be provided:
- legal grounds for their categorization as state, official, or foreign classified information;
- security stamp, signifying the level of classification, the classification date, and the expiration date of the classification.

On 30 June 2003, in the office of the electronic edition, a denial to the request was received, signed by the Director of the “International Relations” Department. It is remarkable that it lacked reference to state secret. Two other reasons for denial were stated, however:
1. In 1970, in the process of establishing diplomatic and commercial relations between Bulgaria and Spain, the ambassadors of both countries exchanged diplomatic correspondence in the form of notes. The latter refer to the social identity, public and representative functions of the prime minister. The denial continued that other issues, related to the premier’s private life, his citizenship falling in that category, were not discussed. Relying on that argument, the Director of the MFA Department considered the request as one for access to personal data and the Access to Public Information Act not at issue.
2. Second, an element from the above-mentioned agreement was defined as confidential correspondence between two countries.

With the help of AIP, the denial was appealed before the Sofia City Court (SCC). After the lawyer for the MFA did not present evidence that Minister Mr. Passy had authorized the official who signed the denial, the court announced the denial void. The court also held that the lack of such kind of authorization should not impede the starting of a suit. On the contrary, the denial without authorization was considered a serious violation of law. The SCC referred the court file to the minister of foreign affairs for reconsidering the request for access.

In August, the MFA informed Every Day officials that the diplomatic correspondence had been declassified (though it had never been stated that it was secret!) after the Spanish side gave its permission.

In the end, it turns out that the case is interesting mostly due to the validation of the principle that public figures owe to the society and all its members more openness than the ordinary citizens. Moreover, what do protection of private life and intergovernmental correspondence have in common? The case is, however, symptomatic since the arbitrary interpretation of the term “personal data” became possible due to the Personal Data Protection Act (PDPA), according to which such data are those that disclose one’s “social identity.” That misperceived legal norm, which obviously contradicts article 41 of the Bulgarian Constitution and article 10 of the European Convention on Human Rights, together with the transparency principle characteristic for the democratic society, spreads a shield over the public figures given the bad translation of the phrase “social identity.” It is used in the European Directive 95/46, which should bind Bulgaria as a member of the European Union in the near future, and is translated in Bulgarian, as “public” not “social.” The latter should be clear to non-English speakers as well. The norm was criticized by AIP as early as 2001, when the PDPA was still in project. AIP remarks were not considered.
We hope that the working group on the amendments to the PDPA, which is expected to present the results of its activity in the autumn, would put forward a solution to the problem.

The other issue, which naturally emerges from the above case, is how many documents have not been reviewed for possible disclosure according to paragraph 9 of miscellaneous provisions of the Protection of the Classified Information Act. Only the request for access to them would trigger the process of considering: “What is to be done?”