ISSN 1313-6496

News from the Court Room

Reports and records of inspections conducted by public bodies do not fall within the scope of the limitation on the right to access information related to preparatory documents that do not have independent significance.

This was the conclusion reached by a panel of the Sofia-City Administrative Court (SCAC) in a case brought by Marina Radkova (Sofia) against the refusal of the Regional Food Safety Directorate – Pleven (RFSD – Pleven).

With a request for information dated 8 April 2024, Marina Radkova requested access to the following information related to an inspection conducted by RFSD – Pleven based on a report submitted by her at the beginning of the year:

-          Copies of all prescriptions and records issued during the inspections based on report with incoming reg. No. 425/17 January 2024 submitted to RFSD – Pleven and outgoing reg. No. 598/25 January 2024 concerning dog breeding, for the period from 15 January 2024 to 30 March 2024.

With a decision dated 24 April 2024, the Director of RFSD – Pleven refused access to the requested information. The refusal stated that the request concerned access to administrative public information contained in two documents: Reports of Findings 003260/24 January 2024 and Prescription 000960/24 January 2024. The grounds for the refusal were that the requested information fell within the scope of the limitation related to preparatory documents without independent significance, as stipulated in Article 13, par. 2, item 1 of the Access to Public Information Act (APIA). It is further pointed out in the refusal that the requested information contained personal data of a third party.

The refusal was appealed with the support of AIP.

With Judgment No. 14058/7 August 2024 of the SCAC, Second Division, panel 82, on administrative case No. 5006/2024, Judge Veneta Kamburova repealed the refusal and returned the case to the Director of RFSD – Pleven for a new ruling on the information request, together with instructions on the interpretation and application of the law.

The court held that the public body incorrectly refused to provide the requested information in the appealed decision citing Article 13, par. 2, item 1 of the APIA. This provision regulates the cases in which the obliged body may refuse to provide administrative information to the extent the latter relates to the preparatory work of an act of the bodies, and has no significance of its own (opinions and recommendations prepared by or for the body, reports and consultations). In this case, the requested information cannot be considered preparatory, nor is it related to the preparation of acts of the Director of RFSD – Pleven, but has independent significance, as it concerns the issued final decisions following an inspection based on a submitted report. Reports and records of inspections conducted by public bodies contain not only opinions and recommendations by the inspectors who performed them, but also findings from the inspection. It is precisely those findings that have independent significance.

The argument that the requested information contains personal data of a third party is also unfounded. First of all, the public body has not specified what personal data is involved. A refusal to provide access to public information cannot be based solely on the right to protect personal data, as there is a technical possibility of redacting such data when providing the information, especially if it concerns a name, address, or personal identification number (PIN). Furthermore, as is evident from the submitted request, the complainant did not ask for the provision of personal data of a specific individual, but rather for information on how the inspection conducted by the public body in response to her submitted report was concluded.

The court judgment is final.

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Legal entities that receive public budget funds are obliged bodies under the APIA, and their consent is not required for the disclosure of information related to them.

This was the conclusion reached by a panel of the SCAC in a case brought by Dimitar Georgiev (Sofia) against a refusal of the Ministry of Regional Development and Public Works (MRDPW).

With a request dated 21 September 2023, Dimitar Georgiev requested information regarding the Project “Water Strategies of Bulgaria for Transition to a Climate-Neutral and Sustainable Society,” funded under the European Union’s LIFE Programme. The following information was requested, in particular:

1. A copy of the signed funding contract for the Project, along with the attachments thereto;
2. A copy of the signed partnership agreement for the implementation of the Project or an equivalent agreement between MRDPW and the Club “Ekonomika 2000” Association;
3. A copy of the approved project proposal, if not included in the attachments under item 1 of this request;
4. A copy of the project management organigram, if not included in the attachments under item 1 of this request;
5. A copy of the appointment order or equivalent document for the designation of the project management team, if not included in the attachments under item 1 of this request, containing: name and surname, position, department and directorate in MRDPW; position in the project team; responsibilities in the project team;
6. The LIFE programme website indicates that the total budget for the project is €2,100,084, with the EU contributing €1,260,048. The difference of €840,035 (eight hundred forty thousand and thirty-five euros) is co-financed by the Project Beneficiaries, namely: MRDPW, the Ministry of Environment and Water, and the Club “Ekonomika 2000” Association. Please provide information, if not included in the attachments under items 1, 2, and/or 3 of this request, on how this co-financing has been split among the above-mentioned Project Beneficiaries, including a document signed by the Beneficiaries where this split is agreed upon as a total amount and by year for each Beneficiary;
7. Please provide information on how much of the co-financing for the Project, which is covered by MRDPW, has already been approved in the Ministry’s budget for 2023, and in which MRDPW directorate’s budget has this amount been allocated;
8. Please provide copies of the textual and financial Project reports, including the attachments thereto, that have been prepared and approved by the funding programme from the Project’s start date to the date of this request.
9. Please provide details of the contact person for the Project, including: name, position, phone number, and email address.

With a decision dated 18 October 2023, the Director of the Legal Directorate at the MRDPW provided a small part of the requested information and refused the information specified in items 1 – 6 and 8 on the grounds that the Club “Ekonomika 2000” Association (beneficiary of the Project) explicitly objected to the provision of the information under these items.

The refusal was appealed with the support of AIP.

With Judgment No. 14893/16 August 2024 of the SCAC, Second Division, panel 38, on administrative case No. 10514/2023, Judge Tatyana Zhilova repealed the refusal and obliged the Director of the Legal Directorate at the MRDPW to provide the requested information.

The court held that since the Club “Ekonomika 2000” Association is a beneficiary of a project funded by the EU, it is obligated to provide access to public information regarding its activities, as it falls under the definition of obliged bodies in Article 3, par. 2, item 2 of the APIA: natural and legal entities are required to provide information regarding their activities funded by the consolidated state budget, EU funds, or funds provided by the EU under projects and programmes. Therefore, the Association is not a third party in the APIA proceedings and does not need to give consent for the disclosure of information related to it, as it is a body obliged under the law, and the provision of access to information cannot be conditioned upon its consent.

The court noted that there is a presumption of an overriding public interest in the requested information, which has not been rebutted by the defendant.

The court judgment is final.

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Any tacit refusal to a request for access to public information is unlawful. The only legally recognized option for processing a request is for the obliged body to issue an explicit decision, either granting or refusing access to the requested information.

This was the conclusion reached by a panel of the SCAC in a case brought by Mirela Veselinova (from the newspaper Capital) against the tacit refusal of the Commission for Anti- Corruption and the Forfeiture of Illegally Acquired Property (CAFIAP).

With a request submitted on 29 March 2024, Mirela Veselinova requested the following information:

1. What was the amount of the basic and gross remunerations of the chairperson and the members of CAFIAP (separately) before the coming into effect of the legal amendments that split the Commission into two separate legal entities? What was the basis for determining these salaries?;
2. What is the amount of the basic and gross remunerations of the chairperson and the members of the Commission for the Forfeiture of Illegally Acquired Property (CFIAP) (separately) from October 6 to date, and what is the basis for the payment of these remunerations?;
3. What is the amount of the basic and gross remunerations of the chairperson and the members of the Anti-Corruption Commission (AC) from October 6 to date, and what is the basis for the payment of these remunerations? and
4. Is there any duplication of remuneration for functions performed in the two commissions, or not?

No response was received in the legally prescribed 14-day period, and the tacit refusal was appealed with the support of AIP.

With Judgment No. 13787/2 August 2024 of the SCAC, Second Division, panel 32, on administrative case No. 4872/2023, Judge Krasimira Milachkova repealed the tacit refusal and returned the case to the AC for an explicit decision on the request.

The court held that the tacit refusal to a request for access to public information is unlawful. The only legally recognized option for processing a request is for the obliged body to issue an explicit decision within the time frame set in Article 28, par. 1 of the APIA, either granting or refusing access to the requested information.

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.