The Exchange of Forests – Corruption Practices
Or Protected Third Party’s Information?

To administer justice means to attribute rights, not to read the letters

Access to Information Programme

The court decision subject to the current commentary was delivered after the appeal of the Association “Green Balkans” against a refusal of the Minister of Agriculture and Forestry. The final decision (No. 39994/2007 on administrative case No. 11152/2006), a Five-member panel of the Supreme administrative court (SAC) ruled that the civil association had no right to read the documents justifying the transfer of forest lands at the Black sea coast to private companies by the minister. The suspicions of the NGOs, triggering the interest towards that information, were based on data that the minister had permitted private companies to gain such lands in the Black sea resorts in return of same size but much cheaper forest-lands within the country. If we use more simple words, the court decision says that citizens do not have the right to “poke their noses in other people’s business” even in cases when public goods pass into private hands and there is alleged corruption.

According to the court, the Constitution does not establish a right of access to information related to third parties, nor does it create an obligation for the state bodies to disclose such information.

We need to make it clear that even at the time of socialism, the information that was contained in public registers was publicly accessible, regardless of the fact that there was not an effective Access to Public Information Act.

We cannot leave without objection, the assumption of the court that information once announced as public could still be subject to protection and thus the third party consent for its disclosure should be sought. It turns out that if the information had been requested from the Registry Service, it might have been publicly accessible because it was a public register. Yet, it was requested from the Minister of Agriculture and Forestry, which resulted in an assumed change of the regime of access. In that case, the third party consent should be sought and access should be denied if such consent was not obtained.

What is the point of all that?
Thus stated circumstances are still a small issue. The real bewilderment comes from the statement that the Access to Public Information Act was not applicable in the case because “a special procedure for seeking and obtaining information was provided, meaning from the Property Register, which is public, and the purpose of the registration was to announce and provide information about the acts that are subject to registration.”

Now, it is even more perplexing why do they deny the right of the requestor to information. He wanted to receive access to the information, not the name of the law under which it was subject to disclosure. He might not even care about the law. It is as if you are leaving a person to sink because instead of shouting “Help” he is shouting “I’m sinking.”

And like moral virtue requires to save one’s life instead of listening to the cries of the drowning man, the justice should be administered by attributing rights not reading the letters. This is at least how we think it should be.

We think that enabling citizens to participate in the decision making, which is “the main purpose of laws on freedom of information,” allows to personally get to know if there are wrongdoings in public goods distribution. We also think that the favored ones have no legitimate claim that their interest should be protected and keep secret a deal that is subject to registration in a Public Register.

What do you think?

This commentary does not aim to underestimate the significant fact that the access to information implementation practices in Bulgaria are progressing due to the key role of the courts and especially the supreme instance court. It is the importance of the Supreme Administrative Court practices for the development of the right to information and the corresponding duty and its achievements that provokes us to openly and honestly comment on problematic and ungrounded in view of the national and international standards decisions.

April 2007

This case is part of the book "Civil Participation and Access to Information (15 Years of the APIA, 37 stories of NGOs)" published by AIP within the implementation of the project “Enhancing the Capacity of Nongovernmental Organizations to Seek Public Information” supported with a grant under the NGO Programme in Bulgaria under the Financial Mechanism of the European Economic Area 2009 – 2014 (www.ngogrants.bg).

The whole responsibility for the content shall be taken by the Access to Information Programme Foundaiton and it cannot be assumed under any circumstances that the document reflects the official stance of the  Financial Mechanism of the European Economic Area and the Operator of the Programme for NGO support in Bulgaria.