Request:
In September 2016, Bulgaria Without Smoke Association filed a request to the Ministry of Healthcare (MH) demanding access to information on the composition and the sessions of a working group preparing amendments to the Health Act to improve the control on the compliance with the ban on indoor smoking and some open public places.
Response:
The refusal of the Chief Secretary of the MH was motivated by the fact that this information is related to the operational preparation of the acts of the body and has no significance of its own – a ground for refusal under Art. 13, Para. 2, item 1 of the APIA.
Complaint:
The refusal was appealed before the Administrative Court Sofia City (ACSC). In the complaint, it is argued that the information requested has significance of its own and there is overriding public interest in its disclosure.
First Instance Court Decision:
With a Decision No. 1988/24.03.2017 (in Bulgarian), the Administrative Court Sofia City (ACSC) repealed a refusal by the Ministry of Healthcare (MH). The court found that the information was requested with the purpose of forming an opinion on the work of an already established inter-institutional working group, which was made public by the Minister of Health. The task of the working group was to gather opinions and recommendations from a variety of interested groups, including from outside the government, such as associations and business representatives, to make the most beneficial changes to the Health Act in the section on the control of the smoking ban. Therefore, the result of the actions of this group, the data of which and whose work so far has been requested, will be the draft law for amendments to the Health Act. The draft amendments would be submitted to the National Assembly and then would be subject to subsequent voting and eventual approval by the competent body. Therefore, the court panel accepts that the final act, which will end the work of the committee at the level of the Ministry of Healthcare, is the draft proposal for amendments to the law and not the amendment itself, as long as the latter is not within its competence. That is, the information on the participants in this inter-institutional working group has a significance of its own because the structure of its composition will help to form an opinion on the representation of the various interested groups - public and private, respectively the performance of its activities. The criteria for the selection of the participants are also information which has significance of its own. The decision also states that the minutes from the working group's work also contain information with significance of its own on both the subject matter of the working group, and on the degree of completion of its work. The court therefore considers that there are not any prerequisites for imposing the restriction under Art. 13, Para 2, items 1 and 2 of the APIA, which was grounds for the MH refusal.
Complaint at the second instance court:
A cassation appeal was filed against the court decision by the Ministry of Health.
Second Instance Court Decision:
With a Decision No. 11625/02.10.2018 of the SAC (in Bulgarian), the Supreme Administrative Court (SAC) upheld the Decision of the first instance court. The justices assumed as correct the conclusions of the first instance that the requested information constituted official public information with a significance of its won and the refusal grounded on the exemption of Art. 13, Para. 2, item 1 of the APIA is groundless. The court also assumed that the administrative body should have done an assessment of the overriding public interest in the disclosure. The decision is final.