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A record in the 23rd year since the adoption of the Access to Public Information Act and the case-law on its implementation. A judgment in favor of the requestor issued on the very day of the court hearing.
On 18 May 2023, the Smolyan Administrative Court heard a case, initiated on a complaint from Anita Cholakova (Actualno.com). The appeal was against a refusal of the Regional Health Inspectorate – Vratsa (RHI – Vratsa) to provide a copy of a statement of findings from an inspection carried out on 19 December 2022 at the Kozloduy NPP in relation to a medical facility for treatment of NPP employees, including within the scope of occupational medicine.
The refusal of the Director of the Health Inspectorate was on the grounds that the statement of findings from the inspection was a preparatory document which is part of an ongoing administrative procedure.
AIP provided support on the case remotely, as the legal team drafted and submitted an appeal, followed by a special request to the court for the case to proceed in the absence of the requestor. RHI – Vratsa also did not have a representative before the court.
With a judgment issued on the same day, Judge Ignat Kolchev repealed the refusal and marked his name in the history records of the case-law on the implementation of the Access to Public Information Act (APIA) as the first judge to decide an access to information dispute on the day of the hearing.
According to Judge Kolchev, it is obvious that the facts and circumstances, as well as the conclusions regarding legal violations, contained in a statement of findings from an inspection, or the conclusion that there were no legal violations, is neither an opinion nor a consultation. Such information has significance of its own and allows legal persons to form an opinion on the activities of an obliged body under that law, in this case related to the effectiveness of the control activities carried out by the body in question, as well as related to the subsequent actions taken by that body and, consequently, related to the effectiveness of the exercise of its powers.
On 26 May, RHI – Vratsa provided a copy of the statement of findings to Anita Cholakova, who covered the development of the case in a publication.
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The Sofia-City Administrative Court repealed the refusal of the University Multiprofile Hospital for Active Treatment "Dr. Georgi Stranski" EAD – Pleven to provide access to information related to the expenditure of the hospital's funds.
With an information request dated 5 January 2023, Desislava Nikolova (Capital newspaper) asked the University Multiprofile Hospital for Active Treatment (UMHAT) "Dr. Georgi Stransky" EAD – Pleven to give her access to the following information:
1. How many clinical pathways, outpatient procedures, examinations, consultations, surgeries, or other types of medical activity paid for by the National Health Insurance Fund (NHIF) has each of the board members and deputy executive directors participated in?
2. How many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activity paid for by the National Health Insurance Fund (NHIF) has the Rector of Medical University – Pleven participated in?
3. The size of the highest and lowest annual remuneration of a doctor with and without additional material incentive (AMI) in 2021 and currently in the medical institution; and
4. The size of the highest and lowest annual remuneration of a nurse with and without additional material incentive (AMI) in 2021 and currently in the medical institution.
With Decision No РД-16-54/19 January 2023, the Executive Director of UMHAT refused to provide the information referred to in items 1, 3 and 4 of the information request with the argument that it constituted personal data, and the third parties to which these personal data relate had expressly disagreed to the disclosure of the information, and there was no overriding public interest in the disclosure.
With the support of Atty. Kashamov, Executive Director of AIP, the partial refusal was appealed before the Sofia-City Administrative Court (SCAC). The AIP legal team represented the requestor at the open hearing before the court.
With Judgment 3177/12 May 2023 of the SCAC (Second Division, panel 72 on administrative case No 1476/2023, Judge Mariya Stoeva), the refusal was repealed and the request was remitted to the defendant for a new ruling, together with instructions on the correct interpretation and application of the law.
The court pointed out that notwithstanding what is stated under item 1 of the contested decision — namely that information is provided in compliance with Art. 31, par. 4 of the APIA due to an explicit refusal by the relevant third parties, and there are provided links to declarations submitted by the members of the Board of Directors in accordance with the Anti-corruption and the Forfeiture of Illegally Acquired Property Act — in reality the information requested was different: the request was to provide information month-for-month regarding how many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activities paid for by the NHIF has each of the Board Members and each deputy executive director participated in; consequently, there is a refusal to provide the information under item 1 of the information request. The contested decision did not state the legal grounds on which the refusal was based, and the requestor’s objection in that regard was therefore well-founded. The factual grounds for the refusal point to Art. 37, par. 1, item 2 of the APIA, which provides that access to public information can be refused in cases where such access would affect the interests of a third party and the latter has expressly objected to the provision of the information, unless an overriding public interest exists. In the present case, the public body sought the consent of the members of the Board of Directors, who objected to providing access, and, accordingly, the contested decision sets out reasons related to the fact that the information sought affects the interests of third parties. At the same time, the public body did not consider, in accordance with the principles of Art. 31, par. 5 of the APIA, whether there was a statutory exception related to the existence of an overriding public interest within the meaning of § 1, item 6 of the Additional Provisions of the APIA. Pursuant to Art. 31, par. 5 of the APIA, the obliged body under Art. 3 of the APIA is obliged to set out reasons for rebutting the presumption that an overriding public interest exists. Where there is an overriding public interest, the two cumulative prerequisites for restricting the right of access — prejudice to the interests of a third party and lack of the latter’s consent — do not apply and the public body is obliged to provide the requested public information. The existence of an overriding public interest is defined in § 1, item 6 of the Additional Provisions of the APIA: where the requested information is intended to reveal corruption and abuse of power, or to promote the transparency and accountability of the bodies under Art. 3 of the APIA. In the present case, it should be considered that through the requested information the requestor can form an opinion on the activities of the medical institution, which, albeit a business company, spends public funds, since health services are funded by the NHIF budget. Disclosure of the requested information would ensure transparency in the spending of public funds. In this regard, the court considered that there was no issue with the provision of the information referred to in item 1 of the information request in respect of the members of the Board of Directors, insofar as the law aimed to facilitate transparency and accountability of the bodies referred to in Art. 3 of the APIA regarding the decisions taken by them, and to ensure the lawful and expedient performance of the legal obligations of these same bodies.
The court found that the information requested under items 3 and 4 of the information request should also be provided, insofar as no reference was made to the remuneration of specific individuals. While it is true that doctors and nurses are not senior public officials, the request did not seek information about specific individuals, but regarding the size of the highest and lowest remuneration they receive. The size of remunerations in the medical institutions financed from the NHIF budget is undoubtedly connected with the public life of the country. Therefore, in the present case, no personal data are involved, and the requested information is only concerning the expenditure of budgetary funds and will enable the requestor to form an opinion on the activity of the obliged body.
The court judgment is final.
Interview with the Executive Director of AIP, Atty. Alexander Kashumov, in Capital newspaper on the topic of the expenditure of budget funds by hospitals.
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The Sofia-City Administrative Court repealed the refusal of the University Multiprofile Hospital for Active Treatment "Alexandrovska" EAD – Sofia to provide access to information related to the expenditure of the hospital's budget.
On 20 December 2022, Desislava Nikolova (Capital newspaper) submitted an information request to UMHAT “Alexandrovska” EAD (the Aleksandrovska Hospital), with which she requested the following information:
1. Information on what the members of the Board of Directors received monthly remunerations for in 2021;
2. How many clinical pathways, outpatient procedures, examinations, consultations, surgeries, or other types of medical activity paid for by the NHIF has each of the board members and deputy executive directors participated in?
3. How many clinical pathways, outpatient procedures, examinations, consultations, surgeries or other types of medical activity paid for by the NHIF have the Rector of the Medical University and the Dean of the Medical Faculty participated in?
4. The size of the highest and lowest annual remuneration of doctors with and without additional material incentive (AMI) in 2021 and currently in the medical institution; and
5. The size of the highest and lowest annual remuneration of nurses with and without additional material incentive (AMI) in 2021 and currently in the medical institution.
With Decision No 02-197/17 January 2023, the Director of the hospital granted partial access to the requested information – only in terms of amounts and number of doctors, but without names, as the third parties (listed by name) expressly disagreed to the provision of the information.
The refusal was appealed before the SCAC with the support of Atty. Kashumov, Executive Director of AIP. AIP’s legal team provided representation on the case before the court.
With Judgment No 2986/3 May 2023 of the SCAC (Second Division, Panel 50 on administrative case No 1261/2023, Judge Mariya Boykinova), the refusal was repealed and the defendant was obliged to provide access to the requested information.
The court found that the decision was issued in violation of administrative procedure and substantive law, and was inconsistent with the aim of the law, for the following reasons:
„With regard to the refusal to provide the information requested under items 1 and 2 of the information request, which concerns the other members of the Board
of Directors of UMHAT "Alexandrovska" EAD, the present court panel finds that the public body owes answers to the questions thus raised.“
The factual grounds, on which the refusal under items 1 and 2 of the request was based, were that the information concerned third parties who had not given their express consent to the provision of the information. The contested decision did not state the legal grounds on which the refusal was based, and the requestor’s objection in that regard was therefore well-founded. The factual grounds for the refusal point to Art. 37, par. 1, item 2 of the APIA, which provides that access to public information can be refused in cases where such access would affect the interests of a third party and the latter has expressly objected to the provision of the information, unless an overriding public interest exists. In the present case, the public body sought the consent of the members of the Board of Directors, who objected to providing access, but did not consider whether an overriding public interest exists. The contested decision contains arguments that the requested information affected the interests of third parties, however there was no discussion — in accordance with Art. 17, par. 2 and Art. 31, par. 5 of the APIA — as to the application of the statutory exception related to the existence of an overriding public interest within the meaning of § 1, item 6 of the Additional Provisions of the APIA, pursuant to which the obliged body under Art. 3 of the APIA is obliged to set out reasons for rebutting the presumption that an overriding public interest exists, with the burden of proof lying with the public body. Where there is an overriding public interest, the two cumulative prerequisites for restricting the right of access — prejudice to the interests of a third party and lack of the latter’s consent — do not apply and the public body is obliged to provide the requested public information. The existence of an overriding public interest is defined in § 1, item 6 of the Additional Provisions of the APIA: where the requested information is intended to reveal corruption and abuse of power, or to promote the transparency and accountability of the bodies under Art. 3 of the APIA. In the present case, it should be considered that through the requested information the requestor can form an opinion on the activities of the medical institution, which, albeit a business company, spends public funds, since health services are funded by the NHIF budget. Disclosure of the requested information would ensure transparency in the spending of public funds. In this regard, the court considered that in the interest of transparency and prevention of corruption, there was no issue with the provision of the information related to the monthly remunerations of the members of the Board of Directors, as the law aimed to facilitate transparency and accountability of the bodies referred to in Art. 3 of the APIA regarding the decisions taken by them, and to ensure the lawful and expedient performance of the legal obligations of these bodies.
The court found that the information requested under items 4 and 5 of the information request should also be provided, insofar as no reference was made to the remuneration of specific individuals. While it is true that doctors and nurses are not senior public officials, the request did not seek information about specific individuals, but regarding the size of the highest and lowest remuneration they receive. The size of remunerations in the medical institutions financed from the NHIF budget is undoubtedly connected with the public life of the country. Therefore, the requested information only concerns the expenditure of budgetary funds and will enable the requestor to form an opinion on the activity of the obliged body.
The court judgment is final.
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Information concerning the procedures for selection/competition and appointment of a director of a territorial unit (regional directorate) of the State Fund Agriculture is public and should be provided under the Access to Public Information Act.
On 7 December 2022, the Bulgarian Institute for Legal Initiatives (BILI) submitted an information request to the State Fund Agriculture (SFA) requesting information concerning the procedures for selection/competition and appointment of a director of the Regional Directorate of Agriculture – Stara Zagora in the period 2021 – 2022, as follows:
1. The notices for the conducted competitions;
2. The CVs of candidates for the post, and in particular the sections demonstrating the candidate's professional experience and education, subject to the requirements of the applicable data protection legislation;
3. Documentation revealing the formation and work of the selection committees (formation orders, minutes of meetings, etc.);
4. Order for appointment and dismissal of the person appointed to/dismissed from the post of director of a regional directorate of the SFA.
The regional directorate of the SFA did not respond within the relevant time-limit, which resulted in the filing of an appeal against a tacit refusal before the SCAC with the support of Atty. Anguelov, AIP. AIP’s legal team provided representation on the case before the court.
With Judgment No 3003/4 May 2023 of the SCAC (Second Division, Panel 50 on administrative case No 1064/2023, Judge Mariya Boykinova), the refusal was repealed and the defendant was obliged to provide access to the requested information.
The court found that the contested decision did not set out any reasons for the refusal on items 1 to 4 of the information request. It merely stated that the SFA did not possess the requested information in a systematized form in line with the requestor’s criteria. With regard to the statement in the decision that no information was held which in a systematized form in line with the criteria set out by the requestor, the court found that the questions were clearly formulated and the public body was able to provide an answer without the need to make further enquiries. The requested information concerning the notices and the documentation relating to the formation of the committees, minutes of meetings, etc., should be kept on file and should be available.
In its reasoning, the court set out reasons why it considered that the information under each of the items in the information request should be available to the SFA, and concluded by noting that the requested information enabled the requestor to form an opinion on the activities of the public bodies and, in particular, on the competence and qualifications of the persons applying for the post. In the event that the SFA did not have the information in the requested form, as described by the requestor, the SFA should have provided the information as it is available and not refused it on that ground alone. The public body should not be bound by the provision of the information in a particular form, but by the provision of its content.
The court judgment is final.
The case is reflected in a publication on a special website created by BILI – "Civic monitoring of public appointments – a strategic tool for good governance."
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The publication is part of the project "Legal Help to Access to Information Cases", implemented by the Access to Information Programme, supported by a grant from the German Marshall Fund of the Unted States (GMF). The views expressed here do not necessarily represent the views of the German Marshall Fund or their partners.