Opinion
On the Amending Bill to the Access to Public Information Act

Access to Information Programme

I. Background Notes

The Access to Public Information Act (APIA) has been in force for eighteen months now. A lot of experience has already been gained ion its implementation and in the exercise of the citizens' right of access to information (See the 2001 Annual Report on the Current Situation of the Access to Public Information in Bulgaria published by the Access to Information Programme). A number of other legal instruments concerning the right of access to information have also been adopted . For the purposes of completing the legal framework of the right to freedom of information, it is necessary to have also the laws regulating the restrictions of this right in place. In this connection and with a view to Bulgaria's accession to the European Union and NATO, the two laws on the personal data protection and the protection of classified information respectively are in the pipeline.

Right from the outset APIA was not adjusted to the requirements of all international standards in this sphere and the interpretation of Arts. 39 to 41 of the Constitution given in Constitutional Court Judgement No. 7 on Constitutional Case No. 1 of 1996. It failed to strike a balance of interests in making decisions to grant or to refuse to grant access to information. No independent authority exists to monitor and supervise the implementation of the law.

The data obtained from the application of APIA for the period from its effective date to November 2001 (See the findings of the National Survey of the Fulfilment of the Obligations under APIA of the Executive Power Authorities drawn up by AIP) makes it clear that important steps should be undertaken to prepare the public administration for fulfilment of its obligations under APIA. Furthermore, in its current shape APIA contains some provisions running at variance with its purpose and some ambiguous wording. Certain gaps in the law affect its enforcement, e.g. the lack of opportunities of appeal before a higher-ranking administrative body, or the lack of explicit provisions concerning implied refusals to grant access to information (the data on the practical difficulties resulting from such gaps have been collected through the legal assistance and representation in court provided by the Access to Information Programme).

The proposed amending bill to the Access to Information Act is aimed at adjusting the law to international standards, re-defining ambiguous concepts, and filling in the gaps in the existing legislation.

II. Specific Comments on the Amending Bill to the Access to Public Information Act

1. Proposed Amendment to Art. 2, para 1
The definition given in Art. 22, para 1 of the existing law uses terms like "public life" and "opportunity to form own opinion", etc. This makes the definition rather vague and gives room for judgmental attitudes of the public administration.

The proposed new definition is aimed at achieving the following effects: (i) to avoid any opportunities for the public administration to make judgements on whether to provide access to information or not; (ii) to define public information in accordance with objective criteria rather than subjective ones; and (iii) to substantially facilitate the judicial review.

However, the words "which is not defined as subject to state secret or another secret protected by law" should be deleted. The reason is that, regardless of whether the access to information is free or restricted, information itself is public by force of the fact that it has been generated, received or stored by a person responsible for ensuring access to information. The restrictions on the right of access to information are set out elsewhere, e.g. Art. 7, paras 1 and 2, Art. 37 (grounds for restricting the access to information), etc. The purpose of Art. 2, para 1 is to give the definition of the term "public information" and thus to outline the scope of the law, within which it will be considered whether the access to one or another category of public information is free or not. This meaning of the provision is clearly reflected in the law as a whole and the exclusion of the restricted information will lead to discrepancies among many provisions of APIA (for example, Art. 7, para 1 refers to restricted information as "public").

2. Proposed Amendment to Art. 3, para 1
The list of persons responsible for ensuring access to information under para 1 is supplemented with the regional subdivisions of executive power. This amendment will largely facilitate the access to information at the local level. Current practices come to show that more often than not regional subdivisions do not perceive themselves as entities responsible for ensuring access to information. They tend to refer the applications for granting access to information to their head offices in Sofia. This procedure unduly delays the granting of access to information and the appeals to court are inhibited.

Proposed Amendment to Art. 3, para 2
The existing APIA provides for the obligation of mass media, too, to grant access to information. We find it perfectly appropriate to have mass media removed from the list of persons responsible for ensuring access to information under APIA. Media disseminate information, while exercising their constitutional rights. It is inappropriate to include them on the list of persons responsible for ensuring access to information under a law that is aimed at safeguarding transparency in the activities of government institutions and the public administration.

3. Proposed Amendment to Art. 13
The existing wording of Art. 13 is intended to protect the administration against any attempts at influencing or pressurising it or interfering in the decision-making process. Therefore after the specific decision is made, there is no further need for protection of such information.

4. Proposed Amendment to Art. 14
The proposed amendment to Art. 14, para 2, subpara 3 introduces the principle of balance of interests, which is recognised as an international standard. In accordance with its provisions, the citizens' right of access to information may not be restricted on purely formal grounds, i.e. whenever this is provided by law. The law should enable the administration to disclose certain categories of information where the public interest in disclosing such information prevails over the interest in classifying it.

5. Proposed Repeal of Arts. 18 and 19
The obligation of mass media to ensure access to information under the existing law is in contravention to the purpose of such legislation that is intended to provide transparency of government.

The information which mass media are required to grant access to pursuant to Art. 18 is basically business information and information about their management. Since printed media and private electronic media are registered as businesses under the Commercial Code, the information under Art. 18 is already available in Companies Registers. Pursuant to the Accountancy Act some companies that meet certain requirements have to publish their annual financial reports, and most of the media are included in this group.

Therefore we fully support the proposal to have the mass media removed from the list of persons responsible for ensuring access to information under APIA.

6. Proposed Introduction of Administrative Appeal Procedures
The opportunity for administrative appeal of refusals to grant access to information will largely facilitate the process of seeking information and granting access to it. The amount of litigation will be reduced as well.

7. Proposed Introduction of Explicit Provisions on the Appeal of Implied Refusals
This proposal is the result of the opinion of some courts that, in the absence of explicit provisions in APIA, implied refusals are not subject to judicial review.

8. Proposed Increase of Penalties in the Administrative Penalty Provisions
The more severe penalties under APIA will produce greater disciplining effect for administrative officers to strictly apply the law.

9. Proposed Introduction of the Obligation to Designate Officials Responsible for Ensuring Access to Information in the Transitional and Final Provisions
The pilot survey conducted last spring and the sociological survey conducted in October 2001 have identified the problem that no officials have been specifically designated to ensure access to information under APIA.