Access to Information Programme | Information newsletter issue 4(16) April 2005

Information newsletter
Issue 4(16), April 2005

Access to Information is in the essence of public society, the Supreme Administrative Court of Bulgaria held

Yesterday, 13 April 2005, the Bulgarian Supreme Administrative Court affirmed that the right to information is a fundamental civil right. In particular, it stated that everyone, even non-formal organizations, is entitled to that right and that no public institution is allowed to meet FOI request with silence.

An NGO acting in the town of Razgrad asked the mayor for access to all the regulations related to public registers. The mayor did not respond to the FOI request at all, instead requiring that the NGO produce documentation of its court registration. The NGO complained to the court arguing that the mayor did not have the right to require such a document. The District Court at Razgrad did not accept this argument and denied justice, saying that failing to comply with the mayor’s requirements, the NGO had neither the right to information nor the right for a complaint.

With the help of Access to Information Programme, the NGO appealed the District Court decision before the Supreme Administrative Court (SAC). The higher court reversed the decision and disagreed with all of the earlier court’s reasoning, ruling that:

The access to public information is a phenomenon belonging (inherently) to the very essence of civil society. That is why Article 41 of the Constitution of Bulgaria, which is consecrated to the right of information, states that: “Everyone has the right.” This means that even civic organizations without any legal status are entitled to seek and have the right to obtain any public information they want. That is the reason why the Access to Public Information Act (APIA) lacks any requirement that an organization, seeking access to public information, needs to prove its legal status. Such a requirement could be senseless since everyone is entitled to seek and receive information. Every organization is constituted of members by definition and each member as a natural person has the right to access public information.

Beyond any doubt, the mayor is expected to have regulated the regime of access to public registers. It is in public interest to publicize all of his regulations on that matter. If he did not do this and one requested access to these regulations, is the mayor allowed to remain silent being subjected to APIA? All state and local authorities are appointed and elected to fulfill the tasks as entitled by the law, and not to be silent.

The case was sent back to the District Court for a new consideration in the lights of SAC findings.

The ruling of the Bulgarian Supreme Administrative Court has been commented by Mr. Prakash Kardaley, editor in chief of the electronic media “Indian Express Group”. This media has been a tribune for establishing and popularizing the right of information in Maharashtra, India, which has a FOI law since 2002.

The ruling of the Bulgarian Supreme Administrative Court discusses the question whether someone seeking information has to be a `legal' (if not a natural) person.

The Supreme Court of Bulgaria has been very eloquent on the first point in ruling:
"That is the reason why the Access to Public Information Act (APIA) lacks any requirement that an organization, seeking access to public information, needs to prove its legal status. Such a requirement could be senseless since everyone is entitled to seek and receive information. Every organization is constituted of members by definition and each member as a natural person has the right to access public information.''

That is an excellent argument. If members of an organisation (even if not registered and therefore not a legal person) are "natural" persons and if the right is applicable to "everyone", then it is senseless asking for the proof of the organisation being a "legal person".

In india, it is applicable to "citizens" and and not to any person. Even the parliamentary committee has maintained this with the argument that the constitutional fundamental right (including RTI) has been explicitly bestowed upon a citizen and not extended to any person (that is a person who is not a citizen).

The Bulgarian constitution in its artcle 41 says "everyone" has a right. What exactly is the meaning of "everyone"? Does it mean "every citizen" or "any person"? Some may say that it obviously means "every citizen" because the Constitution applies to the citizens of Bulgaria and no one else.

My salutations to the Bulgarian SAC for its ruling:

"All the state and local authorities are appointed and elected to fulfill the tasks as entitled by the law, but not to be silent. ''

In a similar case, Justice K K Mathew, Supreme Court of India, has ruled:

"In a government…where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people…have a right to know every public act, everything that is done in a public way, by their public functionaries…The responsibility of officials to explain or to justify their acts is the chief safeguard against oppression and corruption."