Information newsletter
Issue 6(18), June 2005

From the Court Room: Access to Information Litigation during the first half of 2005
Alexander Kashumov

A quick review of the Supreme Administrative Court (SAC) web site (still the only institution whose acts are accessible online) would show that citizens and organizations continue to seek protection of their right to information in court. During the first half of the year, SAC has delivered at least twenty judgments concerning access to information, half of which were started with no assistance from Access to Information Programme (AIP). Such civil activity indicates the motivation of citizens to seek protection of their constitutional right to information before the independent court.

The Old Secrecy

In February, the court ruled that the Government should compensate AIP for the legal expenses on the proceedings contesting the government refusal to give access to the Instructions for Protecting the State Secret in the People’s Republic of Bulgaria, 1980. The document that had expired long ago was ardently kept away from public view from the time of its request under the Access to Public Information Act in July 2002 till June 2004, when the Instructions were declassified together with 1,483 other documents of the Council of Ministers. The Cabinet did not recognize the positive incentive given by AIP for reconsideration of the old secret documents and persistently refused a copy of the declassified Instructions.

In August 2004, access to another secret instruction from pre-1989 was denied. The document concerns the abating activities of the region around the village of Belene and has significance for the debate over the project for construction of a new Nuclear Power Plant. With the assistance of AIP, the NGO “Environment Information and Learning Center” appealed the access denial in court. Not long ago, the case was classified because of the presentation of secret documents during the sessions. A judgment would be delivered in the autumn at the soonest.

The New Secrecy

Five-member Panel of SAC repealed the ruling of a Three-member Panel which disregarded the appeal of our colleague Kiril Terziiski of the refusal of the government to give access to the contract with the British Consultancy “Crown Agents.” The lawyer Terziiski asked the Finance Minister Milen Velchev to provide access to the contract, which concerned the reforms in the Bulgarian Customs. The application for information was filed after the publication of the Trud Daily from the spring of 2002, which unveiled a scandalous Cabinet meeting at which a decision was made to sign the contract in violation with the Public Procurement Act. Access to the contract was denied, the refusal was appealed at the court, and in the spring of 2004, a Five-member Panel of SAC peremptorily repealed the refusal as unlawful. With precise arguments, the Minister refused access again, stating that the documents had been security marked. A Three-member Panel of SAC reviewed the contract in camera and disregarded the appeal against the refusal. The Chairman of the Panel, Judge Alexander Elenkov, opposed the decision of the majority arguing that the classification of the contract was ungrounded. In April 2005, a Five-member Panel turned the case back to the three judges with the prescription that the court was obliged to inspect the legality of the classification itself.

The Sofia City Court (SCC) found ungrounded the refusal of the Head of the President’s Administration, Krassimir Stoyanov, to provide access to the Secret Services report on the “Iraqgate” case. Journalist Zoya Dimitrowa (then from Monitor daily newspaper) demanded to know what was found true from the allegations that companies close to the Bulgarian Socialist Party had violated the embargo restrictions in Iraq. Again, falling back upon the Protection of Classified Information Act and the exploitation of the “state secret” were not convincing enough to provide grounds for legal refusal of information.

Suspicious enough was the classification of a document demanded by Mr. Kiril Karaivanov from the State National and Wartimes Reserves Agency. The citizen conducted investigation on his own about the reasons that had led the company “Briliant” Ltd., located in the village of Krusheto, to bankruptcy. It is most impressive that after SAC had reviewed Mr. Karaivanov’s two appeals against the refusal of the Agency to provide the document, it had been security marked in February 2005, not earlier.

Journalists’ Litigation

Journalists have initiated interesting court proceedings during 2005. Some judgments have already been delivered. In two cases, the court has accepted the appeals against refusals. The first is the above-described case of Zoya Dimitrova. The other is the case of journalist Pavlina Trifonova from the national daily newspaper"24 Chassa" against the refusal of the Government Information Service (GIS) at the Council of Ministers to give information about the official trips of the ministers and the conditions in the vacation centers belonging to the CM. In August 2004, the Sofia City Court ruled that GIS should provide access to the demanded information. The judgment was appealed before the Supreme Administrative Court on the grounds that the requested information did not yet existed. The Three-member Panel of SAC stated that refusal due to the inexistence of the information at the time of the request was ungrounded and obligated GIS to provide the demanded information.

The appeals of journalists Vassil Chobanov from Radio New Europe and Hristo Hristov from Dnevnik daily newspaper were dismissed. Regarding the first case, the judges defended the position that the minutes of the Cabinet could be refused as being "preparatory documents" to a given decision (pursuant to Art.13, Para.2, Item1 of the Access to Public Information Act). Concerning the second case, Five-member Panel of SAC upheld the position of the Supreme Judicial Court that the court was not obliged to keep the annual reports of the Prosecutor's Office or to give access to them. The question remained, however, whether the SJC really disposed of the reports, since its refusal left the impression that it did.

At the Starting Line

The final judgment on the case of journalist Hristo Hristov from Dnevnik daily newspaper against the refusal of the National Investigation Services (NIS) is forthcoming. The journalist demanded access to documents related to the work of the former State Security Services in the course of his investigation of the death of the dissident writer Georgi Markov. The file of the case had been classified at the request of the Director of NIS, General Kirov.

Journalist Silvya Yotova appealed the refusal of the Minister of Public Works Tserowski to provide access to the concession contract for the construction of "Trakia" highway. According to the Minister, the contract and the assessments that preceded the decision of the government to sign the contract were official secret.

The results from the general elections established conditions under which the project of the construction of Nuclear Power Plant Belene will be developed. In spite of the Instructions, the declarations of lack of conflict of interests signed by the experts who work on the environmental impact assessment of the NPP Belene were made inaccessible. Vice-chairman of the National Movement Ecoglasnost, Petar Penchev, appealed the refusal of the Ministry of Environment and Water to provide access to the documents. Sofia City Court is to deliver the judgment.