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Access to public information cannot be denied on grounds other than those specified in the Access to Public Information Act.
This was the conclusion reached by a panel of the Targovishte Administrative Court in a case brought by the civic association “Water for Omurtag” against the refusal of the Ombudsman of the Republic of Bulgaria to provide a copy of a letter from the Deputy Mayor of the Omurtag Municipality to the Ombudsman related to the water supply issues in the town of Omurtag.
The access to information request dates from January 2024, and the Ombudsman’s refusal was based on the reasoning that the correspondence between the Ombudsman and the persons who appeal to the Ombudsman with complaints is confidential, cannot be subjected to inspection, and cannot be used as evidence in any proceedings, as stipulated in the Rules on the Organization and Activities of the Ombudsman.
The refusal was appealed before the Targovishte Administrative Court with the support of AIP.
With Judgment No. 635/13 May 2024 of the Targovishte Administrative Court, panel II, on administrative case No. 66/2024, Judge Aneta Petrova repealed the refusal and returned the case to the Ombudsman for a new ruling on the information request, together with instructions on the interpretation and application of the law.
The court held that the appealed refusal contained information regarding the date of its issuance and the procedure for appealing it, thus being formally compliant with the general requirements of Art. 59, pars. 1 and 2 of the Administrative Procedure Code (APC). It also indicated legal and factual grounds for the issued refusal, however they were not based on the Access to Public Information Act (APIA), but on the Rules on the Organization and Activities of the Ombudsman. Since the information request had to be considered in accordance with the procedure under the APIA, the absence of specified legal and factual grounds for the refusal under that particular legislation constituted a deviation from the special requirements regarding the form and content of the refusal, as set out in Article 38 of the APIA. This deviation affects the legality of the appealed decision significantly, as it is not possible to assess compliance with the substantive provisions of the APIA in the absence of specified legal and factual grounds under the APIA. The appealed decision does not refer to any of the scenarios set forth in the special provision of Article 37, par. 1, items 1, 2 and 3 of the APIA, which outline the grounds on which access to public information can be denied. Accordingly, there is no justification on the grounds of Article 13, par. 2 of the APIA, nor on the grounds of the scenario under Article 37, par. 1, item 2 of the APIA (when the access concerns the interests of a third party and the latter has explicitly objected to the provision of the requested public information, except in cases of overriding public interest), which itself is semantically similar to the factual ground specified in the appealed decision, but not coinciding with it. In the present case, there is no information indicating the existence of a third party whose interests would be affected by the provision of the requested information, and therefore no action has been taken by the public body to request consent from the third party for granting access. The legal and factual ground referred to in the appealed decision is certainly not among the grounds for refusal specified in the APIA. Instead, it stems from the Rules on the Organization and Activities of the Ombudsman, which, although approved by a decision of the National Assembly, represent a lower-ranking normative act compared to the APIA, and according to the rules of the Law on Normative Acts, a lower-ranking normative act must conform to other higher-ranking normative acts (Article 15, par. 1 of the Law on Normative Acts). Therefore, since the APIA provides for special, exhaustively regulated grounds for refusal of access to public information, referencing a provision from a rulebook cannot constitute a sufficient and independent ground for such a refusal, different from those in the APIA. For this reason, the court held that the appealed decision did not comply with the special requirements for form and content as specified in Article 38 of the APIA, and thus, the annulment ground under Article 146, par. 2 of the APC applied.
The court judgment is final.
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When there is an overriding public interest, the existence of the two cumulative conditions — affecting the interests of a third party and lack of consent from that third party — lose their effect of terminating the right of access to public information, and the public body has an obligation to provide the information.
This was the conclusion reached by a panel of the Plovdiv Administrative Court in a case brought by Slavcho Georgiev (Plovdiv) against the refusal of the Director of the Agency for People with Disabilities (APD) to provide copies of the project proposals received in 2021 and 2022 under the Programme for Start and Development of Self-Employment for People with Disabilities.
The access to information request dates from November 2023, and the refusal of the APD Director was based on the reasoning that the project proposals contained personal data and affected third party interests.
The refusal was appealed before the Plovdiv Administrative Court with the support of AIP.
With Judgment No. 4187/10 May 2024 of the Plovdiv Administrative Court, panel XXVIII, on administrative case No. 49/2024, Judge Vladimir Valchev repealed the refusal and returned the case to the Director of the Agency for People with Disabilities for a new ruling on the information request, together with instructions on the interpretation and application of the law.
The court pointed out that, according to the current wording of Article 31 of the APIA, when the requested public information concerns a third party and its consent is required for its provision, the consent of that party must be obtained. If consent is not received from the third party within the deadline specified in Article 31, par. 2 of the APIA, or in the case of an explicit refusal to grant consent, the relevant public body should provide the requested public information in such a manner and to such an extent that it does not reveal the data related to the third party (par. 4).
The court also pointed out that it could not be established from the case file that such a request for consent has at all been submitted to the individuals about whom the public body claims it cannot provide information because it would affect their interests. There are two scenarios under the APIA when requested information could concern a third party and the latter’s consent would be required for its provision: when the information contains personal data of individuals; or when it constitutes a trade secret, the disclosure or dissemination of which would lead to unfair competition between traders. In the first scenario, if the third party refuses to give consent, the public body, in accordance with Article 31, par. 4 of the APIA, should provide the requested public information in such a manner and to such an extent that it does not reveal the data related to the third party. The appealed decision does not contain any such analysis, nor do the documetns accompanying it. The requested public information can only be refused on the basis of a justification in line with the aforementioned circumstances, except in cases where there is an overriding public interest in its disclosure. When there is an overriding public interest, the existence of the two cumulative conditions — affecting the interests of a third party and lack of consent from that third party — lose their effect of terminating the right of access to public information, and the public body has an obligation to provide the information, and this conclusion is supported by well-established case-law. The public body’s assessment as to whether or not there is an overriding public interest is an element of the factual basis of the scenario in Article 37, par. 1, item 2 of the APIA, and by failing to indicate factual and legal grounds with regards to this relevant legal fact, the authority has not fulfilled its obligation under Article 38 of the APIA. The appealed decision lacks any reasoning as to whether or not there is an overriding public interest. The court held that in this case there was no reasoning concerning the circumstances relating to third party interests, and no reasoning as to whether there was an overriding public interest, which is necessary in order to assess whether the requested information concerning third parties should be provided.
The court judgment is final.
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The publication is part of the project "Legal Help to Strategic Access to Information Cases". This project is funded by the United States Agency for International Development and the German Marshall Fund of the United States. All publications in the frames of the project are funded by the United States Agency for International Development and the German Marshall Fund of the United States. Its contents are the sole responsibility of Access to Information Programme Foundation and do not necessarily reflect the views of USAID or GMF.