Access to a contract between the Bulgarian Government and a foreign company

Kiril Dimitrov Terziisky v. Minister of Finance

Relevant legal issues under APIA:
• Art.37, para.1 item 1 - denial grounded on state secret;
• Art.41, para 3 - in camera inspection of the classified document by the court

Background facts:

In 2002 one of the most influential newspapers in Bulgaria published parts of a Cabinet meeting minutes, showing that the Ministers discussed how to use the ground of national security with the purpose to avoid procurement proceedings for consultancy services in relation to the Bulgarian customs reform. It became clear this was undertaken to ensure that the British company Crown Agents (CA) would take the deal. Later there was a debate in Parliament on the issue where the Minister of Finance confirmed that the signed contract was classified. In autumn 2002 Mr. Kiril Terzijsky, an AIP lawyer, requested a copy of the contract. Within the law-provided terms he received a denial referring to state secret. The denial was appealed before the Supreme Administrative Court.

Procedural history:

1. The Supreme Administrative Court appointed a hearing on 3rd of June 2003. At the hearing the plaintiff requested the court to do "in camera" inspection. On 20th of June 2003 the court did the inspection and found that the document consisting of 110 pages was marked "secret". On 15th of October 2003 the parties presented their positions. On 15th of December 2003 the court decided that the denial was unlawful as the legal ground on which the requested document was classified had not been specified and the case had to be turned back to the MF for new consideration under APIA. In December 2003 MF appealed the decision.

Outcome:

The Decision overrules the bad court practice to interpret APIA in a way that it gives access to documents rather than access to information. As a result of the interpretation, the courts used to find that in cases where the applicant requested simply access to a document instead of describing pieces of information contained in a document he does not have an arguable case. In the present case the five-member panel found that since the applicant requested simply a copy of the contract, he clearly meant its content.

In view of the five-member panel of SAC the cassation appeal of the Minister of Finance was procedurally admissible, but should be rejected on merits. The Access to Public Information Act was amended with the adoption of the Protection of Classified Information Act (PCIA) in April, 2002. The changes in the provision of Art. 41 of APIA gave the court the possibility to review classification decisions. Thus the court was empowered to order public bodies to present classified documents for "in camera" inspection. In this case the court found that the Minister of Finance failed to justify the classification of the contract and consequently the lawfulness of the denial.

The court also required the Minister to specify whether the contract had been classified after the adoption of PCIA or before that, when other other regulations were in force. In either case the Minister of Finance must refer to the relevant state secret category to justify a denial.