Alexander Kashumov, Head of AIP Legal Team

Regulation of limitations of the right of access to public information contained in international standards

The grounds on which is permissible to limit the right of everyone to receive and impart information, including any information held by public bodies are listed in Article 19 of the Universal Declaration of Human Rights[1], Article 19 of the International Covenant on Civil and Political Rights[2], Article 10 of the European Convention on Human Rights (ECHR)[3].


In the field of access to environmental information, which historically preceded that regulation of access to official documents, limitations and the approach to them are listed in the Convention on access to information, public participation in decision-making and access to justice in environmental matters[4]. Directive 2003/4/EC is analogous.


A more detailed regulation of matters relating to limitations of access to information is contained in the Council of Europe Convention on access to official documents. Similarly, Regulation (EC) 1049/2001 applies on the right of access to official documents held by institutions of the European Union.


Applicable to the limitation of access to information regarding the protection of personal data are Convention № 108 of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data, Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data and Regulation (EC) № 45/2001 of the European Parliament and the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by institutions and bodies and on the free movement of such data. Protection of personal data is a fundamental right recognized by the Council of Europe and the European Union. The balance between the two rights is subject to the case law of the Court of Justice of the European Union, as well as to the European Court of Human Rights’ case law.


Contents of the requirements regarding limitations on access to information, in accordance with the international standards 


According to Article 10, par. 2 of the European Convention on Human Rights, limitations on the right of everyone to receive and impart information may be applied only if three conditions are simultaneously present. Restrictions must be:

- expressly provided by law;
- proportionate to the aim of protecting one or more of these interests;
- necessary in a democratic society.

These conditions of applicability of the limitations are termed "triple test", the application of which in the specific cases is detailed in the European Court of Human Rights’ case law.


The regulation of limitations is developed regarding the right of access to official documents in the Convention on Access to Official Documents, which is the most extensive in this respect, international document. According to Art. 3 para. 1 of the Convention:

Each Party may limit the right of access to official documents. Limitations shall be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting[5].

At the same time in addition to the standard "triple test", the Convention also contains additional requirements that lead to more guarantees for the restrictive application of the grounds for refusal of information. The first one is known as "harm test" (Article 3, par.2, item 2, first hypothesis of the Convention). The second is the "balance of interests". It builds on the "harm test" and even in case of harm to the protected interests the information (official documents) is subject to disclosure when there is an overriding public interest in disclosure. The third requirement is for States to fix a maximum period of applicability of the restrictions[6].


Tests for harm and overriding public interest - means of introduction

The Explanatory Report to the Convention offers a detailed presentation regarding the various provisions, including the application of the tests of harm and overriding public interest. They may be applied for each individual case, or may be a enshrined legislatively as presumptions. For example, par. 38 of the Explanatory Report reads:

... Legislation could for example set down varying requirements for carrying out harm tests. These requirements could take the form of a presumption for or against the release of the requested document…[7]

Such an approach is understandable, since such presumptions relate to possible life situations. It is logical not to expect a presumption of openness of an action plan in wartime conditions, as opposed to a contract for consulting the reform in a given sector of government. The legislative introduction of a presumption against granting a requested document could be in the form of a legislative fixing of periods of protection of the information. On this issue the Explanatory Report states:

The outcome of the “harm-test” is closely connected with the lapse of time. For some limitations, certain events inevitably lead to the cessation of that limitation. In other instances, the passage of time may reduce the damage of release of the information[8].

Therefore, determining of the legal periods of applicability of the protection, through limitations of access to information, is based on the assumption that at the time of determining whether the information as restricted for access, it is the most sensitive, while the sensitivity decreases with time, and with it the protection should also be removed.


Limitations on access to information under the Bulgarian legislation

To a certain extent, the said requirements in international standards regarding limitations have been introduced in the Bulgarian legislation on access to public information. By Decision № 7 of 4 June 1996, on constitutional case № 1/1996, the Constitutional Court has adopted the interpretation of Article 41, paragraph 1 of the Constitution, according to which "the right is the principle and its restriction is the exception to the principle" and exceptions are applied "strictly and only for the protection of a competing interest."

The requirement that a restriction of the right of access to public information may be introduced only by a law is a consequence of the said decision of the Constitutional Court and is expressly provided for by Article 7, paragraph 1 of the APIA.


The protected interests are listed both in Article 41, paragraph 1, phrase 2 of the Constitution and in Article 5 of the APIA. These provisions follow the enumeration in Article 19 of the ICCPR and are therefore worded in very general terms. A more specific enumeration of the grounds for restricting the right of access to public information is listed in Article 37, paragraph 1 of the APIA. However, they are not specified in detail. For example, Article 37, paragraph 1, item 2 refers to the situation in which "access affects the interests of a third party" and Article 37, paragraph 1, item 1 - "classified or other secret protected by law". The hypothesis "protection of the interests of a third party" actually covers two separate grounds for limitation of the right of access to information – protection of the personal sphere and the protection of trade secrets. This understanding has been adopted in the case law, but is not distinct and clear enough in the wording of the legal provision.


In the Convention on access to official documents, the Convention on access to information, public participation in decision-making and access to justice in environmental matters, and Regulation № 1049/2001, and Directive 2003/4/EC trade secret and the protection of the personal sphere are listed separately as restrictions on the right of access to information. The question arises whether it is not preferable that they be listed separately in Article 37 of the APIA.


Applicability of the "balance of interests" to individual restrictions

The balance of interests test was introduced in the APIA through the legal form of the so-called "overriding public interest". It applies to various restrictions – "trade secret" – Article 17, paragraph 2 in fine of the APIA, "opinions, advice and recommendations prepared by or for the body" – Article 13, Paragraph 2, Item 1 of the APIA, "ongoing negotiations" – Article 13, Paragraph 2, Item 1 of the APIA, "affecting the interests of physical persons (individuals)" – Article 31, paragraph 5 and 37, paragraph 1, item 2 of APIA.


A question arises – is the "overriding public interest" check applicable regarding restrictions that are not explicitly mentioned in the APIA, like the so-called "professional secret."[9] It is referred to in the phrase "other protected secret in cases provided for by law" as used in Article 37, par. 1, item 1, second hypothesis of the APIA. If we accept that it was introduced in order to protect third parties concerned, then the test is applicable. A similar question is raised in the case of the so called "official secret." This is a type of classified information and is provided for as a restriction in Article 37, par. 1, item 1, first hypothesis. At the same time, as defined in its Article 26, paragraph 1 of the Protection of Classified Information Act this is information the unauthorized access to which would harm a state or other legally protected interest. Insofar as this may be the interest of a third party concerned, the issue of the applicability of the "overriding public interest" is present.


Concerning the tax and social security secret, the case law interprets the law thus – the existence of special rules on "tax and social security secret" in the Tax and Social Security Procedure Code (TSSPC) does not exclude the application of the APIA and the need to assess the existence of overriding public interest under Article 31, par. 5 of the APIA. This is, because under Article 74, paragraph 2 of TSSPC, data constituting tax and social security information shall be provided with the written consent of the person, which is corresponding to the rule of Article 31, par. 1 and 2 of the APIA, which provides that when the requested information is affecting a third party, its consent is necessary for the provision of the information. In this situation, the issue is present for the cases where consent is not required, such as these covering the "overriding public interest" according to Article 31, paragraph 5 of APIA[10].


In the interest of uniformity and predictability in the implementation of the Act, it is appropriate to address these questions through legislation or in case law.


Degree of applicability of the "balance of interests" to the individual restrictions

In §1 of the Additional Provisions (AP) of the APIA are formulated two large groups of categories of cases in which there is an overriding public interest. One is regulated in § 6 of the AP of the APIA and these categories of cases are applicable to restrictions relating to the protection of opinions, statements and proposals[11] on an issue, as well as to the protection of negotiations[12] and the interests of a third party, other than trader[13]. This provision is establishing four categories, where the overriding public interest test is applicable. Whereas, the norm of § 5 of the AP of the APIA applies only to cases of commercial secret, but lists more categories of cases.


It turns out that the scope of the overriding public interest test applied on commercial secret cases is broader than that on other restrictions. This difference, however, is not due to legislative intent or the nature of the restrictions. For example, there is hardly a good reason that preparatory documents not be disclosed under overriding public interest in the case of an ongoing discussion. The existence of such a discussion, however, is grounds for the application of overriding public interest to commercial secret, but not to preparatory documents, since in § 6 of the AP of the APIA does not provide for it. At the same time, it is the statements and advice in the course of an ongoing discussion on a bill, draft regulation or general administrative act, that have to have the utmost publicity.


The legislation under which classified information is not subject to assessment for overriding public interest is clearly incompatible with the international standards. The provision in question is Article 37, par. 1, item 1 of the APIA. In the case of state secret the protection covers an interest other than the affecting of a third party, and therefore item 2 of the same provision, which provides for assessment of overriding public interest, is not applicable. The international standards, however, do not provide for exemptions from the application of the overriding public interest test.


In international standards and legislation in the democratic systems the inclusion of an express provision, according to which classification of information revealing violations of human rights, humanitarian law, crimes[14] is not allowed, is a common place. Assessment of the balance of interests should also be provided for, when the information is of importance to public debate, increases accountability on public spending, is of significance for public health and safety[15].


When carrying a balance of interests test involving the protection of the private sphere of citizens, a contradictory interpretation as to which is the most appropriate method occurs in practice. The issue is settled on constitutional level by Decision № 4 of 26 March 2012 on constitutional case № 14/2011. The Constitutional Court ruled that the protection of personal data of persons holding public office or carrying out public activities, is inherently much more reduced compared with the protection of other citizens. In the reasons the Constitutional Court refers to its Decision № 7 of 4 June 1996 on constitutional case № 1/1996. According to which state authority as a whole, as well as political figures and public officials may be subject to public scrutiny at a level higher than that to which are subject individuals. This view has been adopted by the Supreme Administrative Court in decisions on disputes under the APIA.


Other legislations have adopted an approach where the Access to information act provides a list of the persons holding public positions. In Bulgaria such a listing is provided in at least three laws with different scopes of officials – the Prevention and Ascertainment of Conflict of Interest Act, the Access and Disclosure of Documents and Announcing Affiliation of Bulgarian Citizens to State Security and the Intelligence Services of the Bulgarian People’s Army Act and the Public Disclosure of Property of Persons Occupying High State and Other Positions Act. In the APIA there is no express reference to the scope of these persons, which leaves to the courts the opportunities for development of case law according to the specifics of the cases.


Applicability of the harm test and deadlines for the different limitations

In the APIA there is no general provision on the applicability of the harm test or a provision detailing to which restrictions it applies. The analysis of the various rules governing certain restrictions shows that the test is applied to classified as state or official secret information[16], commercial secret, protection of opinions, statements and recommendations from or for the body, negotiations, as well as protection of the interests the third party. This practically means that the harm tests is applicable to all restrictions.

The questions of the time at which the harm test is to be applied is very important. According to some legislative solutions, it should be applied at the time of creation of the information / document, according to others – at the time of receipt of the request for access to information, and according to still others – at both times. In this respect, according to the APIA assessment must be made regarding all restrictions except those related to the protection of state or official secret, at the moment when a request is received. It is appropriate to discuss the issue of the need to introduce an obligation for carrying out a harm test at the time of consideration of the request for access.


There is also the question on introduction of a period of protection of the particular interest. Deadlines for the existence of the restriction are provided for state secrets, official secrets, the protection of opinions, statements and proposals from or to the body, as well as for negotiations. A term of protection of the information under the restrictions relating to the protection of commercial secret and personal data in documents containing public information is not set. It is worth discussing whether, and under what circumstances, it is appropriate to provide for such a period in respect of them.

[1] Adopted by the United Nations General Assembly on 10 December 1948.

[2] Adopted on 16 December 1966, in force since 23 May 1976, promulgated in the State Gazette, Issue 43 of 28 May 1976 (обнародван в ДВ, бр. 43 от 28 май 1976 г.).

[3] Concerning the European Convention on Human Rights this could be concluded on the basis of two decisions of the European Court on Human Rights from 2008.

[4] Adopted in 1998 in Aarhus, Denmark, also known as Aarhus Convention.

[5] The triple test is enshrined in the Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, as well as in the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.

[6] The harm test and the balance of interest test are both enshrined also in the Aarhus Convention, as well as in Regulation (EC) No 1049/2001

[7] Explanatory Report to the Council of Europe Convention on Access to Official Documents.

[8] Ibid, par. 39.

[9] The issue arose in 2014 when the Bulgarian National Bank used the “professional secret” concept in order to argue that its protection is absolute and that the information sought could not be disclosed under any circumstances.

[10] Decision № 2045/16.02.2010 on administrative case № 9995/2009 of the SAC, Fifth Division.

[11] Article13, par.2, item.1 of the APIA

[12] Article 13, par.2, item.2 of the APIA.

[13] Article 37, par.1, item.2 of the APIA.

[14] See Resolution 1954 (2013) of the Parliamentary Assembly of the Council of Europe, par. 9.6.

[15] Ibid, par. 9.5.

[16] The test is carried out at the moment of classifying the information according to Article 25 and Article 26 of the PCIA.

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