Request:
In April 2016, the website for investigative journalism “Bivol” filed a request to the “Customs” Agency demanding access to provide information whether cigarettes produced in Bulgaria have been exported to the United Arab Emirates, through which border crossings, with what kind of transportation, and what is their total quantity.
Response:
The Director of the “Customs” Agency refused to provide access on the ground that the information sought was statistical and tax data, which constituted administrative and trade secret.
Complaint:
The refusal of the Director of the “Customs” Agency was appealed at the Administrative Court Sofia – City (ACSC) .
First Instance Court Decision:
By a Decision No. 6342/19.10.2016, the Administrative Court Sofia – City (ACSC) repealed the refusal. The court held that no secrets were concerned since what was sought was information whether cigarettes were exported and what their total amount is. These data are aggregated and do not aim at individualizing the specific exporter of Bulgarian cigarettes, but just informing the requesters whether cigarettes have been exported to certain contractors registered outside Bulgaria, through which border crossings, and in what amount. The court noted that the information sought is not statistical, since it was not created under the Statistics Act. With this regard, the refusal did not contain arguments about classifying it as such. The information sought is not tax or trade secret either, since its disclosure would not reveal data from the commercial activity of a specific company, as far as no information is requested on which are the specific exporting companies or who is the Bulgarian cigarette manufacturer. On another hand, the court found that there is an overriding public interest in the disclosure of the information, since it undoubtedly aims at increasing the transparency and accountability of the “Customs” Agency in the customs control which it carries out, including on the excise goods such as cigarettes. The information would provide the opportunity to assess whether the Agency implements lawfully and appropriately its legal obligations on customs control.
Complaint at the second instance court:
The decision was appealed by the “Customs Agency” at the Supreme Administrative Court (SAC).
Second Instance Court Decision:
By a Decision No № 4001/28.03.2018 of the SAC (in Bulgarian), the Supreme Administrative Court upheld the decision of the first instance court. The judges agree that the Agency's arguments for the existence of tax and statistical secrets are unfounded. The nature of the information sought - whether Bulgarian cigarettes are exported, when and in what amount, of two companies registered in the UAE - is undoubtedly not protected by the Tax-Insurance Procedure Code because it does not reveal facts about tax and insurance information of liable persons and entities; nor the value and type of individual assets and liabilities; nor other data such as bank accounts, income amount, taxes paid, etc. Apparently, the public information sought by the requestors is not a statistical secret, as it is not information obtained as a result of a statistical survey.
The court decision is final.
Impact of the case:
The journalists from the website "Bivol" prepared a series of publications on the topic: https://bivol.bg/category/b-files/bulgartabac-bg.