Press release: Requested secret documents will be collected at an open meeting by the court

The court is obliged to collect evidence, no matter whether they contain classified information or not, at open hearings only with the presence of the parties in the case. This is what the five-member panel of the Supreme Administrative Court (SAC) decided. For the first time, it gave interpretation of article 41, paragraph 3 of the Access to Public Information Act, according to which the court is entitled to request and inspect a document, which is allegedly classified. Since the first instance court—a panel of the fifth division of SAC, has inspected secret documents in camera, the case is referred back for consideration.

The lawsuit started on 2nd July 2002, when the Access to Information Programme (AIP) requested from the Council of Ministers (CM) a copy of the “Regulations for the organization of the work on the protection of the state secrets of the People’s Republic of Bulgaria,” enacted, but not published, by the Council of Ministers with Decree # 30, 1980. The existence of the Regulations was revealed accidentally when the mayor of Haskovo referred to it as grounds for denying a particular citizen’s request for information. On 15th July 2002, the CM denied access to the Regulations, stating that it is marked as “classified.”

AIP appealed against the decision for denial before the Supreme Administrative Court. Demanding Decree #30 from 1980 (6 pages) and the Regulations (79 pages), which turned to be appendix #2 to the former, the three-member panel of SAC found a mark “top confidential” on the first document and “confidential” on the second one.
SAC’s decision from 25 November 2002 repealed the denial for access to the Regulations since it was announced illegal.
The court judged that the Access to Information Act provision, which points that a denial should contain a written explanation of the legal and factual reasons for its issuing, should be respected. Violation of that provision is always essential. Practically, the reference to a security mark is not a legal basis for denial. In that case, the court is not supposed to seek for the arguments, which have led to the denial to access to public information, by itself.

The decision was appealed by the Council of Ministers before a five-member panel of the SAC, whose decision was final.

This is the first law suit for access to information, in which the court demanded a secret document, though it did not judge over the legality of its security mark

The significance of the case, however, is even larger. Undoubtedly, it influenced the beginning оf the process of reconsideration of documents, classified before the enactment of the Protection of Classified Information Act (PCIA). On 11th June 2004, the Council of Ministers unclassified 1 484 acts, including the disputed Decree #30 from 1980, under number 904 in the list. Even more important is that the government has been warned to reveal detailed arguments about its legal, as well as factual, reasons for classifying particular documents. This means that in the future, documents could be classified only after preliminary consideration of each step of the three-part test.
a/ determining whether the exemption is included in a law;
b/ determining whether the aim is to protect a constitutionally granted interest;
c/ determining whether the public interest for disclosure overrides the need to protect a constitutionally granted interest.

It is doubtful whether the Minister of Finance Milen Velchev respected the test when he denied providing access to the contract with “Crown Agents.” Did the President George Parvanov respect it when he denied revealing the report of the secret services relating to Bulgarian participation in the oil trade with Iraq? These are questions that will be answered soon. More or less, however, the Access to Public Information Act remains the only means for public control over the legitimacy of information classification.

The next step of Access to Information Programme is to bring to an end its efforts to receive the unclassified Regulations. After it had been unclassified at the end of the last month, the grounds for denial of access sunk. Uncertainty about the pace of receiving the documents, however, remains due to vague statements referring to “necessary technical processings.”