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

Foundation Hope Against AIDS vs. the Ministry of Health

First Instance Court – administrative case No. 6496/2009, SAC, Third Division
Second Instance Court – administrative case No. 761/2010, SAC, Five Member Panel

Request:
On February 8, 2009 the Chairman of the foundation “Hope Against AIDS” Milen Chavrov submitted a request to the Ministry of Health. He demanded information related to an independent external assessment of the work of NGOs financed by the Program Prevention and monitoring of HIV/AIDS. It is curious to know that the organizations funded by the Ministry trough the above-mentioned program are the foundation-requestor and two more NGOs.

Refusal:
On March 16, 2009 the requestor received copy of a letter from the Ministry of Health, dated March 9, 2009 addressed to foundation Kasper Houser and foundation I, seeking their consent for disclosure as the requested information related to them as well in their capacity as recipients of funds under the Program. The letter was considered by the requestor as notification for prolongation of the time period for consideration of the request for the protection of third parties’ interests within the meaning of Art. 31 of the APIA. Afterwards, the requestor was never given any notice by the Ministry of Health.

Complaint:
The silent refusal of the Minister of Health was challenged before the SAC. The complaint set out several arguments for the unlawfulness of the tacit refusal. It was pointed out that the requestor was aware of the explicit consent of the chairperson of foundation I for the provision of information in his/her answer to the letter of the Ministry.

Development in the Court of First Instance:
The case was heard in an open court session on November 23, 2009 and was scheduled for judgment.

Court Decision:
With a Decision No. 15581 as of December 17, 2009 a panel of the SAC, Third Division repealed the silent refusal and returned the case for reconsideration with instruction for an explicit decision on the access to information request. The court noted that the obliged body shall consider every regular request and assess whether the information is public within the meaning of the APIA. Depending on the assertion, the obliged body shall grant or refuse access by motivated written decision.

Court Appeal:
The first instance decision was appealed by the Ministry of Health to a Five-member panel of the SAC. The appellant argued that the complaint of Milen Chavrov was not filed within the one month period to appeal silent refusals under the Administrative Procedure Code.

Developments in the Court of Second Instance:
The case was heard in an open court session on February 11, 2010 and was scheduled for judgment. Written notes, prepared by AIP were presented on behalf of the foundation-requestor. It was argued that the assessment whether the complaint was filed within time depends solely on whether the letter received by the requestor on March 16 has the nature of notification pursuant to Ar . 31 of the APIA or not. Arguments are set forth that it undoubtedly constitutes such notification, therefore, after its receipt a new time period for consideration of the request, respectively for appealing the decision has commenced.