Access to Information Programme | Court cases - Report about Bulgarian citizens and companies who were involved in oil trade with Iraqi companies or their representatives during the Saddam regime

Ivailo Hlebarov vs. Sofia Municipality

First Instance Court – administrative case No. 1648/2009, ACSC, Second Division, 23 panel
Second Instance Court - administrative case No. 13928/2009, SAC, Fifth Division

Request:
In early December 2008 Ivailo Hlebarov (member of the Environmental Association For the Earth) filed an access to information request to the mayor of Sofia Municipality. He requested information relating to the project Waste Management of Sofia Municipality financed by the Operational Programme “Environment” 2007-2013, precisely copies of activities No. 6 and No. 7 under the project and annexes to them.

Refusal:
With a letter as of January 2009, Julia Nenkova, Deputy Mayor of Sofia Municipality, refused to provide access to the requested information on the ground of Art. 13, Para. 2, as it related to the preparatory work of an act and had no significance in itself. The grounds for the refusal also stated that disclosure of the information would harm the interests of third parties, who would eventually participate in public procurement tender procedures.

Complaint:
The refusal was challenged before the ACSC. The complaint stressed out that the requested information is environmental information within the meaning of Art. 19 of the Environmental Protection Act (EPA). Therefore, refusal grounded on Art. 13, Para. 2 of the APIA is unlawful as the only applicable grounds for refusal of access to information, related to the environment are listed under Art. 20, Para. 1 of the EPA, among which there is no ground for refusal, similar to the one under Art. 13, Para. 2 of the APIA. As to the argument of the Municipality, that disclosure of requested information would harm interests of third parties-potential beneficiaries of European funds, the complaint stated that the latter is unfounded and irrelevant to the case. This is so, because the requested information itself is part of application forms (i.e. application form for EU funds and projects). Access to specific filled-in forms was not sought; therefore, interests of potential participants in public procurement tender procedures could not have been harmed.

Developments in the Court of First Instance
The case was heard in an open court session and was scheduled for judgment.

Court Decision:
With a decision as of August 10, 2009 a panel of the ACSC repealed the refusal and returned the case for reconsideration. The court stressed out that undoubtedly the requested information related to the environment, therefore the authority should have applied the procedure for granting access to information set forth under the EPA rather than to rely on the general provision of the APIA, which, indeed, is inapplicable when it comes to environmental information. According to the court the fact that the requested documents are part of an application form for public procurement tender procedure is not in itself a ground for refusal. The protection of hypothetical future interest of third parties, who would eventually participate in the tendering, is even less legitimate restriction of the right of access to information.

Court appeal:
The Sofia Municipality appealed the decision of the ACSC to the SAC. The appeal stated that disclosure of the information would undoubtedly affect interests of third parties despite the fact that tender procedures have not been held yet.

Developments in the Court of Second instance:
A hearing of the case at an open court session is scheduled for June 16, 2010.