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

Nikolay Tsvetkov vs. the Municipality of Varna

Court of First Instance – administrative case No. 2917/2008, Administrative court – Varna
Court of Second Instance – administrative case No. 5460/2009, SAC, Third Division

Request:
On September 24, 2008 Nikolay Tsvetkov filed a request to the mayor of Varna. He sought access to the contract between the municipality and the Regional Police Directorate (RPD) for the protection of public order within the municipality, signed in 2000.

Refusal:
With a decision as of September 29, 2008 the secretary general of municipality of Varna refused access to information on ground of Art. 37, Para. 1, item 2 of the APIA. According to the decision, the information affects the interest of a third party (the RDP - Varna) which did not consent to the release of information. It is pointed out that disclosure would jeopardize the well established and effective system of order protection and would create possibilities of abuse with the information contained in the contract.

Complaint:
The refusal was challenged before the Administrative Court - Varna. The complaint stated that Art. 31, para. 5 APIA does not require the explicit consent of the affected third party, when it is obliged body under the APIA itself and when the requested information is public information as defined by the law. In our case both conditions were met. On one hand the RPD-Varna is obliged to provide information body (Art. 3, para 1 APIA). On the other hand, the information sought is undoubtedly public within the meaning of Art. 2, para. 1 as it relates to the public life and gives the requestor an opportunity to make his own opinion on the activities of the municipality and the RDP-Varna in performing their duties to maintain the public order.

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

Court Decision:
With decision No. 111 of February 2, 2009 the Administrative Court-Varna repealed the decision and gave binding instructions to the mayor to grant access to the contract. The Court ruled that both parties – the municipality and the RPD-Varna are obliged bodies within the meaning of Art. 3, Para. 1 of APIA. The case falls under Art. 31, Para. 5 of the APIA, therefore the consent of the third party was not compulsory. Furthermore, even if the information affects third party’s interest the information shall be released if there is overriding public interest in disclosure. In addition, the court states that providing a copy of the contract would not undermine public order, nor would jeopardize the effectiveness of its protection, which depends only on the specific operational activities of the Police in performing the terms of the contract.

Court Appeal:
The decision of the lower court was appealed by the mayor to the SAC. The appeal stated that the first instance court did not consider at all whether the requestor had legal interest to seek the information, consequently to appeal the refusal of access to it.

Development in the Court of Second Instance:
The case was heard in an open court session in December 2009 and scheduled for judgment.

Court Decision:
With decision No. 15919 as of December 22, 2009 the SAC upheld the first instance decision. The Justices stated that the exercise of the right to information in this case cannot harm third party’s interests, nor can be a danger to the public order within the municipality. The decision is