(Un) Grounded Suspicions of Two NGOs

How greater transparency of competitions is in the benefit of both the organizers and the participants

Darina Palova

The participation of citizens and nongovernmental organizations in a number of competitions (for positions in the public administration, funding of projects, etc) often becomes a reason for a lot of question regarding the competition process: how fair and impartial has the decision been made, had the procedure been transparent enough, etc. It is clear that not everyone will be happy with the final results because the applicants are many and the selected are few. The question is, however, is it possible that both winners and losers come out of the completion with a considerable amount of satisfaction and good feelings.

For the winners it is as if easier, but the rest are sometimes suspicious of being underestimated, of something “rotten” in the whole thing. If we exclude the subjective part, the question remains: is more transparency in the competition process going to be beneficial for both the organizers, and the applicants.

The position of the losing

The reason for this text are two cases of nongovernmental organizations (NGO) which turned to the AIP for legal advice. The two organizations have applied at the Ministry of Justice for funding under the Law on Protection Against Domestic Violence and have not been approved. According to the representatives of the two NGOs, there were rumors among the applicants that the selection had been predetermined and the approved organization had been working with the ministry for quite a time.

That is why they wanted to learn more about the competition process by requesting the protocols from all sessions of the evaluation committee established with an order of the Minister of Justice.

The position of the Ministry

What happened after the submission of the requests
Despite the fact that the two requests with similar content were filed in a comparatively close period of time, the responses of the ministry were not so synchronized. One of the organizations received a letter for the extension of the period for response with 12 days on the ground of Art. 31, Para. 1 of the APIA – applicable in cases when the requested information involves a third party and their consent is required for the disclosure. The decision of the ministry is strange. We can assume that it would seek the consent of the commission members .
No response was given to the other request and since the organization was determined to defend its right to information, we prepared a complaint against a silent refusal. As a result, when the executive director of the NGO went to the ministry to file the complaint, it turned out that the deadline had been extended on the same grounds. Moreover, an explicit refusal had been also issued. For unknown reasons the two documents had not reached the organization. At the ministry, the decision for the explicit refusal was given to the NGO representative. A little later, the other organization received an explicit refusal on the same grounds.

Why did the Ministry refused to provide the information?
The decision was signed by the senior legal officer of the ministry and said that the request complied with the APIA requirements and had been filed to an obliged body, but was ungrounded on the base of the following:

The APIA was not applicable in the case, as the requestor was an applicant in the competition and under that condition they had the right of access to the respective information under a special procedure as a party in an administrative procedure.
The specific ground for the refusal stated in the decision was the provision of Art. 13, Para. 2, item 2 of the APIA. Pursuant to this provision, access to administrative public information may be restricted if it contains opinions and statements related to on-going or prospective negotiations led by the body or on its behalf, as well as related data.

Despite the extended deadline on the ground of seeking the consent of the third party, the decision for refusal did not state anything about such a consent, or a dissent.

Legal commentary on the grounds stated in the refusal

The requested information about the protocols from the sessions of the commission at the Ministry of Justice is public under the purview of the APIA, i.e. the law is applicable. The information has been requested by the representatives of the NGOs not in their capacity of applicants in the closed competition who intend to challenge the competition results, but in their capacity of citizens, who want to form an opinion about the work of the evaluation committee in the already closed competition.
The use of the Art. 13, Para. 2, item 2 of the APIA is inapplicable ground for refusal since the provision relates to information about ongoing or prospective negotiations led by the public body, and the specific case is undoubtedly not falling into that hypothesis.

Nonlegal commentary

On one hand, the decision claims that the APIA is not applicable to the requested information, and at the same time the provision of Art. 13, Para. 2, item 2 of the APIA is stated as the legal grounds for the refusal.

The inconsistency of the statements presented in the decision is an indication of the subjective unwillingness for the disclosure of the information when there are no factual and legal grounds for such a refusal.

The same conclusion can be drawn on the base of the actions taken by the ministry regarding the two requests: slow reaction, unclear/ nonprecise grounds for the deadline extension and as a result – meaninglessly long procedure that took a month and a half and ended with a refusal for the provision of the information.

Development of the case

The case has not been closed and most probably its development will take much time. During that time the losers will continue to feel insulted and their doubts and suspicions of “something wrong” will deepen in a natural way.
The point of such commentaries is not to point a finger to the bad guys showing how wrong they are, but to describe the mechanism of triggering doubts and suspicions and show how dark the path may look sometimes.

It seems it could have been in a different way.

February 2013

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.