Market Assessments of Municipal Property Deals
Are Subject to Disclosure Under the APIA

The court practice in favor of transparency should be sustained

 Not only they are subject to disclosure, but in September 2015, the Municipality of Samokov provided access to four market assessments of municipal property subject to municipal deals. The requestor is Alexander Dunchev from the nongovernmental organization “Association of the Parks in Bulgaria” who has won a court case against a refusal of the Mayor of Samokov to provide information.

In the summer of 2015, Alexander Dunchev filed a request to the Mayor of Samokov demanding access to copies of four market assessments of municipal property on the base of which the municipality had performed three sales and one exchange deal in the period 2007 – 2012. The mayor refused to disclose the information on the grounds that it affected the interests of a third party – the independent expert who had made the market assessments, who had expressed written dissent for the disclosure. The Administrative Court – Sofia –region (ACSR) found the refusal lawful, but on different grounds. The court ruled that the market assessments were preparatory documents with no significance of their own (a ground for refusal under Art. 13, Para. 2, item 1 of the APIA).

With the assistance of AIP, the decision of the ACSR was appealed before the Supreme Administrative Court (SAC). The cassation appeal developed the arguments that by upholding the mayor’s refusal but on different legal grounds, the ACSR had replaced the will of the administrative body in an inadmissible way since the provision of Art. 13 of the APIA outlines a legal framework in which the competent public body acts in the conditions of operational independence. By exercising powers entrusted by the legislator to the exclusive discretion of the administrative body, the ACSR had gone beyond the limits of the admissible judicial control. Arguments for the existence of overriding public interest were also presented. The comparison and analysis of the market assessments presented to the mayor by the independent evaluator with the real selling price of the municipal properties could  reveal corruption and misuse of power.

As a result, with a decision as of July 2015, the SAC repealed the decision of the ACSR and the refusal of the mayor, turning the request back for granting access to the requested information. The supreme justices assume that the “market assessments” have significance of their own and their disclosure will allow the requestor the get to know the whole procedure of forming market assessments of municipal properties subject to municipal deals. The court panel points out that the refusal on the grounds stated by the mayor is also ungrounded since the lack of a consent by the expert who had prepared the “market assessments” is not an absolute and sufficient ground for refusing access to the requested information and also depends on the absence of overriding public interest in the disclosure. In the specific case, in view of the essence of the requested information, regardless of the dissent of the third party, the information should be provided in the presence of overriding public interest in the meaning of § 1, item 6 of the Additional Provisions of the APIA since its disclosure aims at the revealing of corruption and misuse of power and would increase the transparency and accountability of the obliged public body. After the SAC decision was delivered, a request for its execution and the provision of the information was sent to the Mayor of Samokov.

In the end of September, the requestor was granted complete access to the requested information – four hard copies of market assessments.

According to Alexander Dunchev, the disclosed information is of high significance. The 2014 copies of expert reports for market assessment for the selling of three municipal properties to private persons and the exchange of a municipal property with a private property allow for analysis of how objective the market assessments for municipal property deals are made by the Municipality of Samokov. The disclosed information shows that the assessment expert had inflated in a manipulative way the market price of the private property of Alexander Metodiev (member of parliament and local Roma leader) with the purpose to favor its selling to the municipality. The same assessment expert had significantly decreased the market price of the municipal properties to be sold to private persons at the expense of the municipal budget.

A curious fact and an example of bad administrative practice is the collection of 1 BGN for a copied page by the municipality which contradicts the Order of the Minister of Finance for determining the fees for disclosure under which the due amount of one page paper copy is 0.09 BGN. Unfortunately, the requestor did not kept the document for overpayment which deprives him of the possibility to undertake actions for compensations.

Another curious fact is that the same requestor is litigating with the help of the AIP against a refusal of the Ministry of Agriculture and Foods (MAF) to provide access to six market assessments of state property. The refusal of the ministry was on the ground that the requested information was not public and that its disclosure would violate the copyright of the assessment experts. The case was won at the first instance court, the administrative court assuming that the copy rights could not restrict the disclosure of the information under the APIA since besides the copy rights, the public interest in the disclosure should be considered. In the specific case, there is a high public interest since the requested information will make visible and transparent the managerial decisions of the obliged body. The decision of the first court decision is appealed by the MAF before the Supreme Administrative Court. A hearing by the second instance court is scheduled for February 2016 when we expect the court practice related to the access to market assessments to be sustained in favor of transparency.

November 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.