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There is always an overriding public interest in providing access to information related to the implementation of activities financed with funds from the state or municipal budget, or international programs or projects.
This was the conclusion reached by a court panel of the Sofia-City Administrative Court (SCAC) on a case brought by Mariela Petrova against the refusal of the Mayor of Lesichovo to provide information regarding contracts concluded by the Lesichovo Municipality for external services related to controlling the population of stray animals.
The following information was requested with an information request dated 16 March 2024:
- Contract(s) signed with veterinary clinics/shelters/foundations/other organizations for the castration and sheltering of stray dogs and cats;
- Schedule for visits by the aforementioned clinics/shelters/foundations/other organizations to the territory of the Lesichovo Municipality for the purpose of counting/capturing/castrating/vaccinating stray dogs and cats, and any reports drafted during visits and activities performed in the last 12 months; and
- Amount(s) paid to the aforementioned veterinary clinics/shelters/foundations/other organizations in connection with any performed activities related to counting stray dogs, castration, vaccination, sheltering, and a copy of the invoices issued by them.
With a Judgment dated 9 April 2024, the Mayor issued a refusal on the grounds that an affected third party, namely the A. U. Bulgaria Foundation, had explicitly denied consent.
The refusal was appealed before the SCAC with the support of AIP.
With Judgment No. 9603/24 June 2024 of the SCAC, Second Division, panel 41, on administrative case No. 4450/2024, Judge Luiza Hristova repealed the refusal and returned the case to the Mayor for a new ruling on the information request, together with instructions on the interpretation and application of the law.
The court held that the request for access was targeted at information directly related to the Municipality’s activities in connection with the implementation of the National Programme for Controlling the Population of Stray Dogs on the territory of the Republic of Bulgaria, as well as of the respective municipal programme and the action plan of the Municipality, the procedures for their implementation, and the financing and accountability mechanism, i.e., the requested information concerned public life in the Municipality. Therefore, the information constituted administrative public information, as it was collected, created, and kept in connection with the activities of the obliged body.
The court pointed out that an “overriding public interest” within the meaning of § 1, item 6 of the Supplementary Provisions of the APIA (Access to Public Information Act) exists when the information is requested with the aim to uncover corruption and abuse of power, and to promote the transparency and accountability of the bodies specified in Article 3. The overriding public interest in the present case is presumed, as the information is related to the lawful execution of the municipality’s activities in implementing the cited programme, which includes counting stray dogs, castration, marking, vaccination, deworming, and returning treated stray dogs to their locations. Providing this information would always contribute to enhancing transparency and accountability to the public with regards to the municipality’s activities.
Since the defendant is an obliged body under the APIA and the requested information is public, it is required to provide it. The only grounds indicated in the appealed refusal relate to the objection of a third party – a foundation – to the provision of the requested information. The court did not agree with the argument that this constituted grounds for refusal, as according to Article 31, par. 4 of the APIA, in the case of explicit objection by a third party, the relevant public body should provide the requested public information in such a manner and to such an extent so as to avoid revealing information concerning the interests of the third party. In other words, the defendant was obliged to redact the information identifying the third party and provide the remaining information. Moreover, such information is contained only in item 1 of the request. The remaining information concerns documents attesting to visits, counting, capturing, castration, and vaccination, as well as the reports drafted in connection with these activities, and the amounts paid for their execution. This information can be provided by simply redacting the relevant data about the contractor. Furthermore, the grounds under Article 37, par. 1, item 2 of the APIA do not apply when there is an overriding public interest, which is the case here. Given that the implementation of activities under the National Programme for Controlling the Population of Stray Dogs on the territory of the Republic of Bulgaria is financed with funds from the state budget, the municipal budget, and international programmes and projects, the information regarding such implementation would always contribute to increasing the transparency and accountability of the obliged bodies. Therefore, access to the requested information has to be granted, regardless of the disagreement of the third party, unless the information constitutes a protected secret under other legislation.
According to Article 31, par. 5 of the APIA, the consent of a third party is also not required in cases where the third party is an obliged body and the information concerning it is public information within the meaning of the APIA. In this regard, according to Article 3, par. 2, item 2 of the APIA, this legislation also covers access to public information created and stored by natural and legal persons, but only with respect to activities they perform that are funded with resources from the consolidated state budget or from European Union funds or provided by the European Union under specific projects and programmes. Therefore, if the activities in question within the municipality are assigned to a foundation, to the extent that they are financed from the aforementioned sources, the foundation itself is obliged to provide access to information about their execution. This is another justification that the defendant should provide access to the requested public information.
The court judgment is final.
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There is an overriding public interest in providing information regarding the members of the Audit Committee of the Kozloduy NPP and their average salaries for the last 10 years.
This was the conclusion reached by the SCAC in the second case brought by Nikolay Marchenko (“Bivol”) against the refusal of the Director of the Kozloduy NPP.
The first refusal by the Director of the Kozloduy NPP to provide access to information regarding the members of the Audit Committee of the Kozloduy NPP and their average salaries for the last 10 years was on the grounds that the information is not public under the APIA. This refusal was repealed by a SCAC judgment, which is reflected in the February 2024 AIP newsletter.
After the SCAC repealed the refusal by the Kozloduy NPP Director to provide information regarding the identities of the members of the Audit Committee over the past 10 years and their average salaries by year, the director of the Kozloduy NPP once again issued a refusal — with a new decision dated 22 March 2024 — this time on the grounds that affected third parties had explicitly expressed an objection, and that no overriding public interest existed.
Тhe second refusal was also appealed with the support of AIP.
With Judgment No. 8133/10 June 2024 of the SCAC, Second Division, panel 77, on administrative case No. 3834/2024, Judge Evgeniya Baeva repealed the refusal and returned the case to the Kozloduy NPP Director for a new ruling on the information request, together with instructions on the interpretation and application of the law.
The court held that the information regarding the members of the Audit Committee and their average salaries should be provided to the requestor, as there is an overriding public interest, since the requested information aims to increase transparency and accountability of the obliged body under Article 3, par. 2, item 2 of the APIA. The public body’s assessment that there is no such overriding public interest is in contradiction with the legal definition given in § 1, item 6 of the Supplementary Provisions of the APIA. The court pointed out that remunerations paid by entities operating with budgetary funds undoubtedly relate to public life in the country. Therefore, this concerns the requestor’s ability to form an opinion on the activities of the obliged body and specifically on the expenditure of public funds. The court noted that the complainant is a journalist, and the information is necessary for informing the public.
In light of the above, the court held that the appealed refusal was unlawful and should be repealed. The case file was returned to the public body for a new decision on the request. The obliged body is instructed to provide, with the new decision, the requestor with information regarding the members of the Audit Committee and their average salaries for the period from 30 June 2013 to 30 June 2023.
The court judgment is final.
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The Kozloduy Nuclear Power Plant (NPP) EAD is an obliged body under the APIA and is required to issue a decision on a request for information regarding damages to the state budget amounting to BGN 150 million caused by actions and omissions of the the nuclear power plant’s management.
This was the conclusion reached by a panel of the SCAC on a case brought by Nikolay Nedelchev (Sofia) against the refusal of the Executive Director of Kozloduy NPP EAD.
On 12 January 2024, Nikolay Nedelchev submitted a request to the Ministry of Energy, seeking information related to publicly disclosed data about damages to the state budget amounting to over BGN 150 million caused by the actions and omissions of Kozloduy NPP EAD. In particular, the following information was requested:
- Which law firm(s) “advised” Kozloduy NPP EAD to drop the lawsuits filed against companies owned by the individual H. K.? Who exactly were the lawyers (by name) who offered this unfortunate “advice”? Please note that the acting minister H. committed to the following: “We have initiated a full review of the case and will determine all the facts and issue an official position. We have requested reports from Kozloduy NPP NPP and the Bulgarian Energy Holding EAD and will undertake a complete legal analysis of the entire procedural practice, including the choice of law firms, and an analysis of the paid fees,” said the Minister of Energy, R. H., in an interview with Capital. Since there were no further developments on this topic, please disclose the results of this “internal investigation.”
- Were there any sanctioned or dismissed employees (regardless of level and unit)? If yes, please provide their names and positions.
- In case of dismissals or other sanctions, were they contested in court (which court exactly), and did the rulings become final?
- Have there been any inspections from other institutions (the Public Financial Inspection Agency, the National Audit Office) and what were the results of these? and
- Was the case referred to the Prosecutor’s Office on account of large-scale mismanagement of public funds? If yes, please provide the case number at the Prosecutor’s Officer. If no, I am willing to submit a report in my personal capacity.
With a letter dated 29 January 2024, the Head of the Cabinet of the Minister of Energy forwarded the request to Kozloduy NPP EAD for their response on items 2-5 on the grounds that the Ministry of Energy did not possess that information.
With a decision dated 13 February 2024, the Executive Director of the Kozloduy NPP refused access, notifying the requestor that, as evident from the content of the request, the requested information did not fall within the scope of the Access to Public Information Act (APIA). Kozloduy NPP EAD was not among the bodies obliged under Article 3, par. 2 of the APIA, and the submitted request was not subject to review in accordance with Article 25, par. 2 of the APIA, as it did not meet the requirements of Article 25, par. 1, tem 1 of the APIA.
The refusal was appealed before the SCAC with the support of AIP.
With Judgment No. 9158/19 June 2024 of the SCAC, Second Division, panel 27, on administrative case No. 3356/2024, Judge Dimitar Petrov repealed the refusal and returned the case to the Kozloduy NPP Director for a new ruling on the information request.
According to the court, the appealed decision indicates a single ground for leaving the request without consideration – Article 25, par. 1, item 1 of the APIA, as well as two grounds for issuing a refusal on the request – Kozloduy NPP EAD is not an obliged body under the APIA and the requested information does not fall within the scope of the APIA.
As regards the decision to leave the request without consideration, the court pointed out that the provisions of Article 25, par. 1, items 1 and 2 of the APIA require the request for access to public information to include: the full name of the requestor, or the entity name and legal address of the requestor, as well as a description of the requested information. If it is not clear exactly what information is being requested, or if the request is formulated too broadly, the requestor is notified accordingly, and pursuant to Article 29, par. 1 of the APIA, the requestor is instructed to clarify the subject of the request. In accordance with the provisions of Article 29, par. 2 of the APIA, if the requestor does not clarify the subject of the request within 30 days, the latter is left without consideration. It is clear that the addressed body is obliged under Article 29, par. 1 of the APIA to give specific instructions to the requestor and provide them with an opportunity to clarify the request. Only if the requestor fails to comply with these instructions can the request be left without consideration under par. 2 of the cited provision. The same obligation for the addressed body arises from the general provision of Article 30, par. 2 of the Administrative Procedure Code, which requires it, in the case of an irregular request, to give clear and specific instructions to the person who made the request to rectify the irregularities, along with a warning that if the instructions are not followed, the proceedings will be terminated.
In this particular case, if the addressed body considers that the request does not meet one of the requirements under Article 25, par. 1 of the APIA, it must provide clear and specific instructions to the requestor regarding the nature of the irregularities, while also giving a deadline for correcting the irregularities. Only if the instructions are not followed can the request be left without consideration. It is evident that the requestor has only provided two names, which constitutes an irregularity under Article 25, par. 1, item 1 of the APIA. Additionally, considering the forwarded questions – from Item 2 to Item 5 inclusive – it is also clear that in this part, the requested information is not sufficiently described and specified. The questions are formulated in a very general manner, and therefore, the requestor should be given instructions under Article 29, par. 1 of the APIA to clarify the subject of the request, so that the addressed body can subsequently assess whether access should be granted or if there are grounds for refusal.
On the other hand, the grounds stated in the appealed decision for refusing access to information in the request – that Kozloduy NPP EAD is not an obliged body under the APIA – are in contravention of the substantive legal provisions. The capital of Kozloduy NPP EAD is owned by Bulgarian Energy Holding EAD. In turn, the capital of Bulgarian Energy Holding EAD is 100% state-owned. In this regard, and according to the legal definition of the term “organization governed by public law” provided in § 1, item 4(g) of the Supplementary Provisions of the APIA, Bulgarian Energy Holding EAD is an organization governed by public law under the APIA, as its capital is state-owned, and Kozloduy NPP EAD is an organization governed by public law under the APIA, as its capital is owned by another organization governed by public law – in this case, Bulgarian Energy Holding EAD. Based on these considerations and pursuant to Article 3, par. 2, item 1 of the APIA, in connection with § 1, Item 4(g) of the Supplementary Provisions of the APIA, the addressed body – the Executive Director of the Kozloduy NPP – is a body obliged to provide access to public 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.