Request:
With a request dated March 2016, Tanya Petrova (from the “Sega” newspaper) asked the Ministry of Finance (MoF) to grant her access to copies of the financial feasibility reports and the conducted impact assessment on economic activity and employment, related to three decisions of the Council of Ministers (CoM), as well as access to copies of the financial feasibility reports associated with two decrees of the CoM.
With the three decisions in question, the Council of Ministers approved:
- the Law on Amendments to the Corporate Income Taxation Act, including provisions related to amendments to the Income Taxes on Natural Persons Act, the Local Taxes and Fees Act, the Tax-Insurance Procedure Code, and the Value Added Tax Act;
- the Law on Amendments to the Excise Duties and Tax Warehouses Act (the amendments include an increase in the excise duties on cigarettes and certain excise duties on fuels);
- the Law on Amendments to the Tax-Insurance Procedure Code.
The two CoM decrees in question related to the following:
- approving additional expenditures/transfers of up to 30mln levs in 2015, associated with the construction of temporary obstacles along the Bulgarian border with Turkey;
- approving additional payments from the government budget to the Ministry of Transport, Information Technology, and Communications made in 2015 in connection with the finalization of investment projects of the state-owned Road Infrastructure Agency under Operational Program “Transport” 2007-2013.
Response:
With a decision dated 08.04.2016, the Head of the Human Resources and Administrative Services Directorate (HRASD) at the MoF refused to grant access to the requested information, stating that the latter was of preparatory character and did not have any significance in itself (this is the ground for refusal laid down in Art. 13, par. 2, item 1 of the APIA). The refusal further explained that the requested information related to the issuing of a final document by the CoM approving a draft law and a decree concerning additional expenditures/transfers and additional payments from the government budget – which rendered it devoid of significance in itself.
Complaint to the court:
The Head of HRASD’s refusal was appealed before the Administrative Court - Sofia City. The plaintiff argued that even if the requested information was of preparatory character, the restriction on the access to information under Art. 13, par. 2 of the APIA was still inapplicable, due to the fact that the requirement that the information should have significance in itself was not fulfilled. It was contended that the information requested in this case had significance in itself, since it did not constitute a recommendation, an opinion, a statement, or a consultation, but was instead related to specific facts. It was further noted that financial feasibility reports should form part of the motives behind any draft normative act, which motives are subject to publication under the Law on Normative Acts. The plaintiff also pointed to the existence of an overriding public interest in the disclosure of the requested information.
Development at the first court instance:
The case was examined in open court on 08.06.2016 and the court proceeded to pronounce a decision.
Decision of the first-instance court:
With Decision No 4562 dated 29.06.2016, the Administrative Court - Sofia City repealed the refusal and obliged the Head of HRASD to provide access to the requested information. The court ruled that the requested information was public and constituted documents, created and stored by the MoF. The court further held that the requested information had the status of administrative public information within the meaning of Art. 11 of the APIA, since it concerned the activities of the MoF and its administration. Furthermore, even though the information was indeed of preparatory character and did not have significance in itself within the meaning of Art. 13, par. 2, item 1 of the APIA, the access to it should not have been restricted, as there was an overriding public interest in its disclosure. The court found that the relevant administrative body failed to make an assessment as to whether an overriding public interest existed or not. The court reasoned that such interest did exist, since the disclosure of the requested information would promote the transparency and accountability of the activity of an obliged subject within the meaning of par. 1, item 6 of the Additional Provisions of the APIA.
Complaint to the Supreme Administrative Court (SAC)
The MoF appealed the decision of the Administrative Court - Sofia City before the Supreme Administrative Court (SAC).
Second Instance Court Decision:
By a Decision No. 4393/03.04.2018 (in Bulgarian), the SAC upheld the first court instance decision. The court found the ACSC rightly accepted that according to Art. 13, para. 1 of the APIA the access to administrative public information is unrestricted. However, to the extent that the administrative body points out the grounds of Art. 13, Para. 2, item 1 of the APIA to restrict the access to this information, it should have assessed whether the grounds under Art. 13, Para. 4 § 1, item 6 of the APIA had not applied - the overriding public interest in the disclosure. This was not done by the obliged body. The court found that the administrative body has an obligation to assess the absence and existence of an overriding public interest within the meaning of § 1, item 6 of the APIA, regardless of whether the requestor has referred to the cited text, as far as the provision of Art. 13, para. 4 of the APIA does not limit the assessment to be made only at the reference of the requestor and given the obligation of the body to issue its act in compliance with its obligation under Art. 35 of the Administrative Procedure Code (APC) – after clarification of the facts and circumstances relevant to the case and the principles of legality (Article 4 of the APC), authenticity (Article 7 of the APC) and the administrative beginning of the administrative process (Article 9 of the APC).
The decision is final.
Impact of the case:
Tanya Petrova released a series of publications with the purpose to demonstrate if and how the authorities fulfil the obligation to prove the necessity of laws and regulations which would have an effect on the state budget. For her investigations, Tanya Petrova was recognized with an Honorary Diploma on the 2016 Right to Know Day Awards Ceremony: http://www.righttoknowday.net/en/ceremonies/207141/2016/