Triumph for the “Friends of the Railway Transport”

Why and how after two years and three court instances the contract between the state and the national railway transport company was disclosed

Kiril Terziiski

Look at you, one could say. What a success is that – after two years of waiting and litigating, a contract was disclosed.

Surprising or not, the success is really big because the contract “sell-by date” is 2025. This is a contract signed by “their majesty” the government with the “BDZ – Passenger Services” EOOD (the national railway transport company) for the provision of the public service rail transport of passenger. This is a contract under which the only possible provider of such services within the borders of the country receives millions of Bulgarian levs. A contract with a preamble stating the provision of efficient, attractive and customer tailored railway transport to the population at an acceptable price. 

The population is in the case in a double capacity – of a passenger in the train and the taxpayer who provides the money for the treasury of the national railway transport provider which had promised such miraculous services. It is the same population which is deprived of the possibility to see the clauses of such an important contract. Thus it cannot form its own opinion in some interesting questions like to what extent is the BDZ keeping its promises for innovation or what sanctions are provided for the contractor in case of failure to fulfil its responsibilities to provide transportation to passengers according to the enforced timetables and the requirements for duration, regularity and capacity.

The population does not want too much. It only wants to know what it does not know.

Because no matter if it is under a public or a secret contract, the population knows that it happens that the trains are late, that the passengers have to wait for hours, stuck in the middle of nowhere, wondering why and how long they stay there and if anyone will be merciful to bring some water and food. 
The population also knows that there is not an adequate mechanism for a compensation of caused damages by such railway transportation failures. It is not impossible, but professional legal help is needed and a lot of patience in the course of numerous court instances.

Two years ago, the one who dared to inquire about the railway transport services was Varuzhyan Apelyan – a proud citizen of Plovdiv and a true admirer of the magic of the “Iron Horse,” no matter if the horse is racing in the prairie, or is walking slowly in a beautiful gorge. 

In his capacity of chairperson of the nongovernmental organization Association “Friends of Railway Transport,” Varuzhan filed a request to the Ministry of Transport (MT) which had signed the contract. He requested a copy of the contract, the contract annexes and the reports on the execution of the contracts for the past four years prepared by the ministry.

The Chief Secretary of the ministry refused access to the information on the grounds that the Access to Public Information Act (APIA) was not applicable in the case, as the contract had been signed under the Public Procurements Act (PPA) and the information that the population could get is already published in the Public Procurements Register.

As a safeguard against any idea for the disclosure of the requested information, the Chief Secretary also set forth the argument that even if the APIA was applicable, it provides for access to information and to specific documents what the requestor had signified.

The poor admirer of locomotives and train compositions was shocked by the response. He was, however, relieved by understanding that there is a nongovernmental organization like the AIP which would assist him in what had turned from a wish to a fight against a powerful enemy.

Appealing the refusal of the Chief Secretary before the Administrative Court – Sofia City (ACSC), the AIP attorneys have used all possible armory to break the front of the ministry. The wave of counterarguments drowned the refusal of the Chief Secretary like a tsunami. The victory was complete!

By a decision as of March 2013, the ACSC repealed the refusal and obligated the Chief Secretary to issue a new decision on the request in compliance with the instructions of the court related to the interpretation and application of the law. The court found that the provisions of the PPA related to the announcement of information about signed contracts in a public register did not exclude the scope of the APIA in terms of access to specific documents. At that time, the institutions are obliged to publish in the public procurement register only some of the contract elements, and the ministry had not fulfilled even that humble obligation for openness. 

The ministry, of course, summoned its defence and tried to counter attack by appealing the ACSC decision before the Supreme Administrative Court (SAC). The result of the counterattack was a dismal failure compared only to the loss of Brasilia from Germany at the semi-finals at the 2014 FIFA World Cup.

Instead of reaching a tie, there was utter defeat. The victory was for the access to information and transparency. The counterattack was so chaotic and poorly constructed that it was initially stopped by the referees since the leader of the action was not even among the leaders on the ground, but an unknown reserve from the ranks of junior ministerial experts. The appeal was not submitted by an authorized legal officer. That resulted in the ceasing of the procedure, followed by a repeal of the dismissal and granting of possibility to the chief secretary to correct the deficiencies in the appeal.

Only after that procedural gymnastics which postponed the counterattack in the time, the appeal of the ministry was admitted by its merits by the SAC.

As it has become clear, the result was negative for the counterattacking team. The SAC found the appeal of the ministry ungrounded and upheld the decision of the first court instance repealing the refusal. The SAC decision is of May 25, 2015 and is final.

The following attitude of the ministerial beaten team is admirable. The AIP lawyers sent a request to the Chief Secretary, demanding the execution of the court decision that had come into force.
And he said: “Let there be light.” With an order as of June 12, 2015, he granted complete access to the requested information in the form it was requested – copies of the documents on an technical carrier. On June 18, the cherished CD, containing the contract, its annexes, and the reports of the ministry on it implementation to the Council of Ministers was given to the requestor. The act of giving was accompanied by the extreme kindness of the presscenter officials at the ministry, a lot of apologies and even refusal to accept the due fee for the information provision – 0.5 BGN.

The final result is more than satisfying for the requestor. You are remembering him – Varuzhan, the friend of the “Iron Horse.” He finds the information found in the documents as extremely valuable for the activities of the Association “Friends of the Railway Transport,” whose goals are coinciding with the ones described in the preamble of the contract - efficient, attractive and customer tailored railway transport at an acceptable price. 

Already analyzing some of the information, the friends of the railways are already confused by their findings – for instance, the disproportionate sanctions for non-compliance with the obligations for innovations by the BDZ. According to them, this results in the lack of any motivation for the BDZ to introduce innovations. It is easier to pay the laughably low penalties. They are also worried that the number of passengers in the trains does not reflect on the payments from the state budget. Crowded or empty trains, the money are flowing….
This is probably not surprising to the population – that same population that is travelling with the train, and also giving money to the state treasury. I any case, the right way of having a constructive dialogue between citizens and government is when citizens also know. Only that who knows what he wants may receive it, while that who does not know, will receive whatever is given.

June 2015

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.