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The court once again repealed the refusal of the National Revenue Agency (NRA) to provide information regarding the control proceedings issued against four individuals related to the "Barcelona-gate" case.
The information was requested by Atanas Chobanov (BIRD) back in the summer of 2023. The first refusal of the National Revenue Agency (NRA) was repealed with a judgment of the Sofia-City Administrative Court (SCAC) dated November 2023, which was reflected in the respective AIP newsletter.
In its new ruling on the request, with a response dated 27 November 2023, the Executive Director of the NRA once again refused to provide the requested information on the grounds that it contained protected personal data within the meaning of the General Data Protection Regulation.
The new refusal was appealed before the SCAC with the support of AIP.
With Judgment No. 10945/5 July 2024 of the SCAC, Second Division, panel 40, on administrative case No. 1901/2024, Judge Diliyana Nikolova partially repealed the refusal and returned the case to the NRA for a new ruling on the information request, together with instructions on the interpretation and application of the law.
The court accepted that the requested information regarding the bank accounts, movable and immovable property of the individuals specified in the request, as well as the indication of their location, does not constitute public information as defined in Article 2, par. 1 of the Access to Public Information Act (APIA), since these information will not enable citizens to form their own opinion regarding the activities of the bodies obliged under the law, and the mere fact that the information is considered of interest is not sufficient to define it as public. The objective of the APIA is to promote transparency and to allow for public oversight of the activities of public bodies and local government bodies in relation to the exercise of their powers. Therefore, the characteristics outlined in the specified legal norm, which define information as public, must be present cumulatively. The absence of any of these characteristics excludes the application of the APIA regarding the information, as it is not public.
Furthermore, any information concerning bank accounts and the property of an individual constitutes personal data as defined in Article 4, item 1 of Regulation (EU) 2016/679: “personal data” means any information related to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that person. Additionally, Article 2, par. 5 of the APIA excludes its applicability with regards to access to personal data.
The situation is different regarding the other part of the request, which relates to information concerning the activities of the obliged body. For example, in item 1, a question is raised about the progress of the audit conducted on Lyubena P., to which no answer has been provided. This information does not constitute personal data within the meaning of the above-mentioned definition, to which the APIA does not apply, but qualifies as public information under Article 2, par. 1 in conjunction with Articles 10 and 11 of the APIA. Similarly, public information is requested regarding the stage of audits performed or being performed on the other specified individuals, the extension of the deadlines for conducting them, the results, and whether the final decisions with which they were concluded have been appealed. This information relates to the exercise of powers by the obliged body and can allow citizens to form their own opinion regarding its activities. Therefore, the refusal issued with regards to this part of the request on the grounds of Article 2, par. 5 of the APIA is unlawful, as it followed from an incorrect application of the substantive law.
Furthermore, the requestor has invoked an overriding public interest. The onus to rebut the presumption introduced by the APIA is on the obliged body, and the lack of reasoning in the decision in that regard constitutes an independent ground for its revocation.
In view of the above considerations, the court held that the appealed refusal should be revoked as unlawful in the part where the requested public information was denied due to its incorrect classification by the defendant as personal data within the meaning of Article 4, par. 1 of Regulation (EU) 2016/679. The court returned the case file to the obliged body for a new ruling in the specified part.
The court judgment is final.
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The legislator does not exclude whistleblowers from the scope of persons who are entitled to receive public information under the APIA.
This was the conclusion reached by a panel of the Razgrad Administrative Court in a case brought by Radmila Kovacheva (Isperih) against the refusal of the Sofia-City Regional Food Safety Directorate (SCRFSD).
On 29 May 2024, Radmila Kovacheva submitted a request for access to public information to the Director of the SCRFSD. She requested public information regarding an inspection conducted following a report submitted by her with incoming reg. No. 392/11 January 2024 in the SCRFSD register, and in particular:
1. Was a report of findings drawn up? What is its number and date? I would like a copy of the report of findings related to the inspection;
2. Was a report prepared in connection with the inspection? I would like a copy of the inspection report;
3. Were any instructions issued as a result of the inspection? What are their numbers and dates? I would like copies of all instructions issued in connection with the inspection; and
4. In the last two years, have other inspections been conducted at “Veterinary Center Ugovet” in Sofia, at 1532 Kazichene, 50 Tsar Boris III St.? Please provide any reports of findings, reports, and instructions issued in connection with such inspections.
In the last two years, have other inspections been conducted at “Veterinary Center Ugovet” in Sofia, at 1532 Kazichene, 50 Tsar Boris III St.? Please provide any protocols, reports, and instructions issued from these inspections.
With a decision dated 4 June 2024, the Director of the SCRFSD issued a refusal on the grounds that the requested information was not public within the meaning of the APIA and constituted a professional secret according to Regulation 2017/625 of the European Parliament and of the Council.
The refusal was appealed before the Razgrad Administrative Court with the support of AIP.
With Judgment No. 677/16 September 2024 of the Razgrad Administrative Court, panel I, on administrative case No. 155/2024, Judge Svetla Robeva repealed the refusal and returned the case to the Director of the SCRFSD for a new ruling on the information request, together with instructions on the interpretation and application of the law.
The judge pointed out that since the obliged body considers the requested information to be a professional secret, it was required to provide reasons justifying such a conclusion. However, the body has not specified which part of the requested data and documents fall under the scope of the professional secret, nor how disclosing it would jeopardize the purpose of the control, the protection of any commercial interests, or any legal protection. No reasons were adduced as to why the public body could not provide information regarding the measures taken based on the report with inc. reg. No. 392/11 January 2024, as well as public access to the results of the official control conducted in relation to the “Veterinary Center Ugovet” in Sofia for the period specified in the request. Due to the lack of reasoning, the court was unable to exercise control over the legality of the decision.
Furthermore, the court found that part of the requested information concerned the activities of a third party - “Veterinary Center Ugovet” - but the public body had not fulfilled its obligation under Article 31, par. 2 of the APIA to request the consent of the third party for providing the information. Accordingly, in the event of an explicit refusal from the third party and based on Article 37, par. 1, item 2 of the APIA, the public body is required to assess whether there is an overriding public interest as defined in § 1, item 6 of the Supplementary Provisions of the APIA.
The public incorrectly denied the complainant’s right to receive the requested information. The legislator does not exclude whistleblowers from the scope of persons who are entitled to receive public information under the APIA. According to Article 4, par. 1 of the APIA, every citizen of the Republic of Bulgaria has the right to access public information under the conditions and procedures set forth in this law, unless a special procedure for requesting, receiving, and distributing such information is provided in another legislation. The requested information would allow the requestor to form an opinion on the activities of the SCRFSD related to the implementation of official control; therefore, it is public information within the meaning of Article 2 of the APIA. The right to receive public information guarantees citizens' awareness of ongoing public processes, including the measures that the competent authorities take within the scope of official control concerning healthcare and humane treatment of animals.
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.