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access to information program
16
JUNE 2004 - UPDATE
CASE STUDY: Bulgaria - The Access to Information
Program Fighting for Transparency During the Democratic Transition
(original post - 19 JULY 2002)
by
Gergana Jouleva, Ph.D.
Executive Director, Access to Information Programme
Until
1989, Bulgaria was held in the tight grip of one of the
most authoritarian regimes in Eastern Europe. For 35 years,
it was ruled by the dictator Todor Zhivkov, the most obedient
and trustworthy of Moscow's allies, who resisted any attempts
at openness and political reform even after perestroika
brought about sweeping changes in the Soviet Union.
Zhivkov
managed to hang on to power despite pressures for liberalization
from Moscow and from reformers within the Bulgarian Communist
Party. He was finally ousted in a "palace coup"
on November 10, 1989, the day after the fall of the Berlin
Wall. He was replaced by Foreign Minister Petar Mladenov,
an advocate of perestroika-style reforms who had
successfully organized the coup by mobilizing the anti-Zhivkov
sentiment within the Communist Party.
Unlike
Poland and Czechoslovakia, regime change in Bulgaria was
the result of fissures within the ruling party rather than
mass demonstrations. Before the fall, however, there was
popular disenchantment with the communist regime, which
was expressed in participation in environmental and anti-assimilation
movements.
Foremost
of these was Ecoglasnost, which traces its roots to the
opposition against a chemical plant that was polluting Russe,
a Bulgarian city on the Danube River in 1988. The following
year, the group contested the Rila-Mesta dam, which would
divert water from the Rila River to Sofia, the capital.
Ecoglasnost said that the project would result in water
shortage and deforestation. Activists gathered more than
11,000 signatures to oppose the project, and were beaten
up and detained by the police in the course of their work.
One week before Zhivkov's ouster, the signatures were presented
to the National Assembly by a 5,000-strong demonstration.
At
about the same time, ethnic Turks were protesting Zhivkov's
forced assimilation policy that compelled them, among other
things, to use Slavic names. Riots broke out in the summer
of 1989. The Communist Party leader responded with a crackdown
on the protesters and the deportation to Turkey of the protest
leaders. In the weeks that followed, more than 300,000 Bulgarian
Turks fled to Turkey, in the largest wave of human emigration
in Eastern Europe since World War II. The debacle stirred
anti-Zhivkov sentiments within the Bulgarian Communist Party
and the Kremlin. Zhivkov's refusal to consult the Politburo
before accelerating assimilation contributed to his eventual
downfall.
The
Zhivkov ouster brought rapid change in some political institutions
but little or no change in others. In 1990, the official
name of the country dropped "people's" to become
simply the Republic of Bulgaria. The communists clung to
power, slowing reform and clinging tenaciously to economic
and political positions gained under Zhivkov. They were,
however, also forced to negotiate with the opposition at
a roundtable discussion on political pluralization and the
rules that would govern subsequent elections.
The
first free parliamentary elections were held in 1990, with
the communists, who had renamed themselves the Bulgarian
Socialist Party (BSP), emerging triumphant. Opposition groups
like Ecoglasnost established political parties and won seats
in Parliament as part of the Union of Democratic Forces
(UDF). One of the decisions of the Bulgarian Round Table
was to adopt a new Constitution, which was ratified by the
Grand National Assembly in July 1991.
Bulgaria's
democratic transition was marked by upheavals. In the 13
years since 1989, the country changed prime ministers and
Cabinets 10 times. The only government that finished its
constitutional mandate was that of 1997-2001. No parliament
before 1997 managed to stay in charge for the elected period.
The
1991 Constitution, which made Bulgaria one of the first
countries in Central and Eastern Europe to have a new charter,
provided a framework for governance and ensured some general
political stability and peaceful power transfers. Frequent
elections, however, made successive governments ineffective
and dependent on the support of interest groups. This made
substantial administrative reforms difficult, if not impossible,
to implement. Civil society therefore had to play the role
of catalyst of reform.
The
Access to Information Movement
The
objective of this essay is to present the experience of
the Access to Information Programme (AIP), a Bulgarian nonprofit
organization founded in 1996 that has launched advocacy
campaigns to adopt a constitutional provision on the right
of access to information and a freedom of information law.
The AIP has monitored the implementation of the law and
pointed out problem areas. It has also helped groups and
individuals assert their right to government information.
The
AIP's work has passed through two clearly distinguishable
stages: before the adoption of the Access to Public Information
Act (APIA) and after it. This essay also covers the time
prior to the launch of the campaign when citizens, journalists
and NGOs exercised their right to information according
to the provisions of Article 41 of the Constitution and
existing legal frameworks. This period laid the groundwork
for the adoption of the law and the preparations for its
enforcement.
The AIP began by attempting to understand how people acquired
the information they needed and to compare their experiences
with those of citizens in other countries. At the same time,
we launched a campaign to have a law on the right to information.
The legislative campaign culminated in 1998 in the publication
of a "Concept Paper on Access to Information Legislation
in Bulgaria," which described how citizens exercised
their right to information. The paper was also informed
by our participation in the public debate on the access
to public information bill.(1)
Our
study of practices related to the exercise of the right
to information was based on the cases of refused access
which have been brought to us for legal consultation since
1997. The records of these cases were stored in a database.
Although the database is not exhaustive, it nonetheless
includes cases that are representative of the way in which
the right to information is exercised. Typically, citizens
approached the AIP when they were refused information by
central and/or local government officials and they believed
that their right to access had been violated and were prepared
to seek remedy. As the campaign for access to information
gained momentum, more and more citizens became emboldened
to exercise their right to information and to demand professional
support to assert this right.
Relic
from the Past
Bulgaria
is very much like the other transition countries of Central
and Eastern Europe in terms of its track record in adopting
freedom of information laws. Like other communist regimes,
the Zhikhov government was extremely secretive. Researchers
could get access to documents only up to a certain level
and only with special authorization.
The
shadow of the past was evident in the 1991 Constitution.
Although it has a provision on information access, it limits
such access only to those who have "a legitimate interest"
in the information they are asking for. As stated in Article
41 (2):
Citizens
shall be entitled to obtain information from state bodies
and agencies on any matter of legitimate interest to them
which is not a state or official secret and does not affect
the rights of others.
The
list of the categories of information protected as state
secrets was published in 1990 after Zhikhov's ouster.
In
1998, the AIP conducted a survey of the attitudes of lawyers
and journalists toward the fundamental legal principles
underlying freedom of information. The findings revealed
that even these expert groups believed that "legitimate
interest" should exist when seeking information. In
other words, the public and professional attitude was similar
to the wording of the provisions of the Constitution. The
cases referred to the AIP in the years before adoption of
a law showed that it would take a long time to overcome
these attitudes among both government and the public.
In
addition, although the Constitution provided for information
access as early as 1991, the government was slow to implement
procedures that would give meaning to the constitutional
provision. For example, the rules for compiling the government
budget were adopted only in 1996 and applied fully only
in 1998. Public procurement was put in some legal order
only in 1999. Similarly, government debt statistics become
public only in 1999. The first consolidated budget was published
only in 2000. This lack of disclosure hid the fact that
the government was suffering from massive deficits in 1991,
1995 and 1996. It also concealed the redistribution of public
funds via off-budget accounts. The deficits and the off-budget
accounts contributed to hyperinflation, which resulted in
a major economic crisis in 1996 and 1997. Only then did
the public realize the link between lack of information
and the economic crisis.
Environmental
Information
It
is not surprising that the greatest public demand for information
took place in the environmental arena. The lack of information
crucial to people's health and their environment was dramatized
in 1986, in the wake of the Chernobyl nuclear disaster,
when both the Soviet and Bulgarian governments withheld
information on the scale and consequences of the catastrophe.
As a result, Bulgarians followed events through the foreign
media, especially through short-wave radio broadcasts.
The
environmental activism that contributed to the fall of the
communist regime continued into the new regime, with civic
groups and movements calling for information disclosure
on environmental concerns. The 1991 Environmental Protection
Act (EPA) reflected the public demand for information.(2)
The law introduced the principle of access to information
without the need for justifying special legitimate interest.
It also provided for judicial review when authorities refuse
to disclose information.
Articles
8 and 9 of the Environmental Protection Act say that all
persons have the right of access to information about the
state of the environment, which includes:
data
about the result of actions, causing or likely to cause
pollution or damage to the environment, or to its components;
... [and] data about activities and actions, undertaken
with the purpose of protection and restoration of the
environment.
The
law further requires both the government and producers of
goods and services to provide environmental information.
It also makes available environmental impact information
about projects before final operating permits are issued.
The right to disseminate information may be limited by other
provisions of law, such as those relating to trade secrets.
The
law also allows anyone who has been denied access "to
request protection of his rights through administrative
channels or through the court." A claim may be brought
under the Law on Administrative and Legal Services under
certain circumstances. However, the sanction for failure
to provide the information is low (approximately US$10)
and there is no remedy for damages and no possibility of
injunction.
Opening
up other Areas of Public Life
In
1992, a group of legal experts started drafting the first
Access to Information bill. The initiative did not develop
any further beyond the working group level. No program existed
to adopt this kind of legislation or to set the rules and
procedures for disclosure of documents on the operations
of the government apparatus and the secret services of the
old regime. There was no strong public pressure either,
since the idea was not preceded by an attempt to campaign
for the need for an access law. Moreover, Bulgarians were
preoccupied by inflation and other economic and political
emergencies. Even the rights to environmental information
under the Environment Protection Act were rarely used.
Still,
one topic of constant public interest since 1989 was access
to the archives of the Communist Party, the previous governments
and their security services. Communist Party documents,
or at least those involving official decisions and deliberations,
became public in 1991 through a special Decree of the Council
of Ministries on Holding and Using Documents of Political
Parties Established before 10.11.1989 in State Archives.
(The law on state archives has been in force since 1974
and several amendments to it were made after 1989.)
There
is greater reluctance to release documents held by state
security agencies. One version of the Access to Documentary
Information of the Former State Security Service Act was
adopted in 1997 and amended in 1999. But eventually, an
entirely new act was adopted and implemented in 2001.(3)
The Archives Bill, although pending in the legislative program
of several parliaments, has not yet been passed.
The
Constitutional Court issued a series of rulings referring
to Article 41 of the Constitution of the Republic of Bulgaria
but mainly in conjunction with other "information rights"
such as freedom of speech. It was not until 1996 that the
provisions of Article 41 were given detailed interpretation
in a Constitutional Court ruling. But here again, Bulgaria
is not unique. In most countries, the constitutional provisions
on the citizens' right to information are associated with
the enactment of new legislation on the freedom of mass
media or telecommunications laws. Only later do legislatures
recognize the need to enact laws that guarantee the right
of citizens to public information.
In
Bulgaria though the historical development of the right
of access to information took place within a relatively
short time: from the passage of law on access to environment
information in 1991 to the enactment of a general freedom
of information law in 2000. With the return of some measure
of political stability, the UDF government, which was elected
in 1997, included in its program the enactment of the Access
to Public Information Act (APIA) as part of a package of
administrative reforms.(4)
Changes
in Administrative Framework
Since
1995, leading political parties had agreed to implement
comprehensive administrative reforms. The rhetoric was that
these would put an end to administrative uncertainty, incompetence
and frustration, as well as to bureaucratic resistance to
change. Reforms would also give birth to a modern, cohesive,
professional civil service. The various political parties,
however, were slow to act on these reforms.
Eventually,
the UDF government of 1997-2001 took responsibility for
proceeding with the reform of government institutions. After
all, it enjoyed an absolute and united majority in Parliament.
It also had high public approval rates. In addition, it
had secured International Monetary Fund support for its
programs. The World Bank was likewise assisting the Cabinet
in its effort to meet the challenges of European Union membership
and was planning to make available a Government Administration
Modernization Loan in late 1999.(5)
The problem was that in the preparation of these administrative
reform laws, nobody was consulted and there was no public
debate. The administrative reforms in effect politicized
certain segments of the bureaucracy, including the offices
tasked with providing information to the public and processing
requests for information disclosure.
The
key act in initiating the reform was the Administration
Act of 1998. It distinguishes between bureaucratic positions
(civil servants) and political appointees (who include the
Prime Minister, ministers and their deputies). The Act allows
the Prime Minister and the other ministers to establish
their "political Cabinets."
Political
Cabinets have a budget to perform "advisory, info-analytical"
and "PR" functions that would enable them to establish
"links between a given executive body and the public."
They also "assist in the elaboration of concrete policy
solutions" as well as "the presentation of the
policy before the public."
The
Public Service Act (PSA), adopted in 1999, establishes hiring
and firing procedures, unifies career ranks for specialized
public servants, and secures pension contributions and health
care insurance from the state budget.
The
devil, however, is in the details. The AA and PSA leave
a number of important details to minor government acts and
implementation rules. Most of the qualification and other
requirements for civil servants, for example, are left to
the internal rules of line ministries.
Both
these laws contribute to career uncertainty as far as information
and other officers are concerned. Such uncertainty diminishes
their capacity to decide, take responsibility, and risk
outdated instruction in the name of the public good. Also,
the combination of information and PR-roles in the political
Cabinets often means that PR is promoted at the expense
of information disclosure. It helps at the beginning of
administrative reforms to already pay attention to access
to information concerns. Ideally, information officers should
be public servants rather than political appointees. In
this way, they would have clear career options, be difficult
to replace and thus be more likely to accumulate and transfer
specific access to information expertise from one government
to another.
The
Beginnings of the AIP
The
Access to Information Programme (AIP) is a unique organization
in Central and Eastern Europe that has led the public debate
on the importance of freedom of information.
The
organization traces its origins to 1995, when a group of
sociologists, economists and lawyers began studying existing
freedom of information regulations and the practice of access
to information in five municipalities. Their research showed
a need for concerted and specialized professional efforts
to raise the awareness of the right to information and to
help those who are ready to utilize this right.
AIP
members have different backgrounds, expertise and motives
for being part of a freedom of information campaign. They
included:
A
human rights lawyer and a corporate lawyer dealing on
a daily basis with issues of access to public registries
and other government information;
Sociologists
and journalists concerned about the scarcity of information
from government bodies presumed to operate publicly; and
Economists
facing problems of poor statistics, frequent changes of
business regulatory frameworks and official misinterpretation
of available data.
Some
of the members were also part of the environmental and dissident
movements of the 1980s. Their varied backgrounds ensured
that the group had an interdisciplinary view. In their discussions
prior to the official establishment of the AIP, the members
identified the issues that had to be urgently addressed.
These were:
Citizens
and juridical persons do not have experience in requesting
and using government information;
Public
servants and institutions, both central and local, generally
assume that their duties, as defined by the Constitution,
should be legally prescribed;
Public
institutions have internal regulations (in the form of
instructions and rules) which are either outdated or deal
mainly with recording procedures and modes of documentation
rather than procedures for information disclosure;
The
1991 Constitution was enacted in an old-regime environment
of routines and habits of administration. Current practices
of searching and providing information were actually replicating
the ancien regime patterns characterized by dependence
on personal contacts and official discretion.
Those
present in the discussions realized that they needed a special
organization to address these issues. Bulgarian President
Zhelyu Zhelev, a philosopher and ex-dissident, responded
to the advocacy campaign of journalists' associations by
asking the Constitutional Court in 1996 for an interpretation
of three articles of the Constitution, including Article
41.
As
expected, the Court reaffirmed the right of every citizen
to seek and obtain information from government bodies without
having to provide a legitimate interest in the information.
It also stipulated that the government had the duty to provide
information and this obligation had to be stipulated and
enforced by a law. Although it was of great importance,
the Constitutional Court's decision was not popularized
and was hardly comprehensible to the ordinary citizen.
Unfortunately,
1996 was a year of economic hardship. There was double-digit
monthly inflation; major banks collapsed and unprofitable
public enterprises were shutting down. There was a 10-percent
decline in GDP that year and a 40-percent decline in living
standards. Even the organizations that had initiated the
Constitutional Court decision had to refocus their priorities.(6)
On
October 23, 1996, 11 professionals, most of whom had already
been involved in the study on information access, established
the Access to Information Programme as a private, independent,
nonprofit foundation.
AIP's
Mission
AIP's
founders believed that in Bulgaria's transition constitutional
and political system, citizens lacked the avenues for public
participation and did not have the means to make government
accountable. That was why reforms were uneven, their direction
was unclear, and corrupt governments took their turns to
loot the economy. In such a situation, access to information
became a precondition for accountable government and citizen
participation.
The
AIP mission was formulated as follows: "to facilitate
implementation of Article 41 of the new Bulgarian Constitution,
which establishes the right that "everyone is entitled
to seek, receive and impart information."
The
AIP's work focuses on the following:
Monitoring
legislation in the field of access to information;
Monitoring
actual practices in information access in district centers
where the AIP has local coordinators (all of them journalists);
Legal assistance for citizens, journalists and NGOs who
encounter access problems;
Regular
public campaigns on the importance of the right to be
informed in democratic societies;
Civic
education of journalists, officials and NGOs in field
of rights to information.
First
steps
The
AIP began with a small team made up of a young lawyer, two
journalists and the author of this report, a sociologist
by training who is also the chairperson of the AIP Council
of Founders. Two of the AIP founders were part of the working
group on New Communication Politics of the caretaker Cabinet
that existed from February to May 1997. The interim government
took measures to counter hyperinflation, organize elections
and secure international support for the reforms in Bulgaria.
One of the AIP founders was also a member of the newly elected
President's Council on Economic Policies, a volunteer body
that coordinated economic policies and helped build public
consensus on reform.
The
AIP's first activity was a campaign on access to information
based on the 1995 assessment of the situation. The campaign
began by publishing in widely read NGO newsletters articles
on the need for information disclosure.
Going
local: AIP coordinators
In
order to mobilize public interest in information disclosure,
the AIP disseminated through the media a manifesto calling
on citizens who had been refused access to information by
government agencies and other state-funded bodies to come
to the organization for assistance
Twenty-five
journalists from across the country volunteered to be local
coordinators for the AIP. They, of course, had a professional
interest in information access and were willing to support
our efforts toward greater disclosure. For its part, the
AIP needed information on access practices outside Sofia.
The relationship turned out to be mutually beneficial. Over
time, the coordinators also disseminated AIP reports and
material and published them in the local press. They also
continued to collect cases of denied access, participate
in surveys, disseminate poll results and undertake activities
on their own with the support of the group in Sofia. Most
of the original 25 volunteers are still the AIP coordinators.
A
journalist at the AIP office in Sofia supervised the effort
by receiving cases submitted by local coordinators or other
citizens. A team of AIP lawyers then reviewed the cases
with the help of volunteer lawyers from outside the organization.
The reviewed cases were sent back to the coordinators and
the affected citizens. The most interesting cases and comments,
including legal advice, were published in the national and
local media.
At
the start, the cases were mainly related to the violation
of the right to seek, receive and disseminate information
(e.g. being present at public meetings of elected bodies,
take pictures, etc.) Relatively few dealt with the right
to access the information collected and held by government
bodies. The situation changed after the information access
law was adopted.
First
publications
The
AIP's first published manuals dealt with the laws and procedures
governing access to information in general or in specialized
fields of public interest. These included We Have the
Right to Know, a brochure that reviewed the constitutional
foundation of the right and referred to the experience of
other countries. One booklet put together all Bulgarian
regulations that contained procedures governing access to
information and related rights.
Special
publications dealt with information access on social security
and unemployment benefits while another looked at laws and
procedures related to information disclosure by local governments
and agencies dealing with the economy. In addition the AIP
published "The Case of the National Electric Company
(NEC)," one of its most popular case studies, which
exposed how the government power monopoly, the country's
biggest employer, was being operated in secrecy. The NEC
provided poor service and had apparently misspent off-budget
funds, but like other public enterprises, it had asked the
Council of Ministers that it would be included in the List
of Documents and Objects Constituting a State Secret.
Public
Responses to AIP Activities
As
the economic and political situation stabilized in 1997,
public interest shifted to information on economic options
and prosperity. AIP services were in high demand from other
NGOs, which commissioned the group to do reports on specific
areas of access to information. The most active users of
AIP services were environmental groups, think tanks advocating
economic freedom and organizations supporting local governments.
Media
interest also grew fast. This was because the issue of access
to information was relatively new. At the same time, the
memories of the total secrecy of the past remained vivid
in people's minds. Readers also saw their own difficulties
reflected in news reports about citizens being refused access.
Moreover, the public demanded to know what caused the recent
crisis and how to make future governments more accountable
in order to ensure the mistakes of the past would not to
be repeated.
Expectations
from the newly elected government were high. The UDF Cabinet
promptly introduced the new positions of speakers and PR-supporters
to different ministers and the Prime Minister.(7)
These bureaucrats needed knowledge and support in their
new profession and they responded to the AIP invitation
to discuss access to information. Citizens, too, were coming
to the AIP with more cases of refusal and with requests
for legal assistance.
By
the end of its first year, the AIP had enough experience
to assess its work and organizes a conference on "Access
to Information: Regulations and Practice." Conference
participants represented the diverse community of AIP customers:
NGOs, journalists, Members of Parliament and representatives
of government bodies.
Cases of Refusal Prior to the Adoption of the Law
From
1997 to August 2000, 746 cases were referred to AIP by journalists
(674), individual citizens (52), NGOs (10) and civil servants
(eight). All these people believed that their right to seek,
receive and impart information was violated and they needed
help to do something about it.
The
most typical reasons to refuse disclosure were as follows:
Refusals
without any specific reasons cited;
Judgment
of the civil servant;
Judgment
or order of the head/supervisor/ higher-standing institution;
or
"The
information sought is not available with us."
The
most numerous group was that of "refusals without any
specific reasons cited," which was indicative of the
arbitrariness with which bureaucrats and officials dealt
with persons seeking information.
The
second most cited reason for refusal was "the judgment
of the civil servant." Judgments were accompanied by
various explanations, e.g., making reference to nonexistent
legislation, fear of critical media coverage, negative attitude
to the media or a particular news medium, etc.
Quite
similar were the cases referring to "the judgments
of superiors," although very often, the reference to
a higher-standing authority or to a mysterious order of
the boss disguised the unwillingness or fear of lower-ranking
civil servants to take responsibility for disclosure.
The
statement, "this information is not available with
us," was a very common reason. During the first two
years, the percentage of those explanations was steady (14
percent). In 1999, it rose substantially to 19 percent and
became the most typical reason cited by government bodies.
In 2000, its share diminished drastically.
The
statement revealed the confusion of citizens and journalists
who did not know where to find the specific information
they needed and also the lack of clarity in the legal framework
regulating the collection and storage of government information.
Those cases showed that bureaucrats often viewed those requesting
information as subordinates or petitioners rather than as
customers.
Court
Rulings prior to the Law
Our
research unearthed at least six cases(8)
in which the courts heard complaints filed by citizens and
NGOs that were refused information by government agencies.
Unfortunately, none of these cases was decided in a way
that allowed the plaintiffs to obtain the information they
needed. Five applications were rejected on the grounds of
inadmissibility and one was rejected on merit.
The
first case, heard on December 15, 1998, was filed by the
Za Zemyata (For the Earth) Environmental Association. It
appealed the refusal of the Chairman of the Energy Committee
to make available the energy bill to the Association as
well as to conduct public debate on the bill.
In
1999, two cases were heard. One involved a citizen seeking
information from the Bulgarian National Bank. His appeal
was rejected because the court ruled that the BNB was not
obligated to disclose information to citizens. The other
case involved a citizen who complained about the mayor of
Alfatar municipality who failed to respond within the prescribed
time to his request for information about farmland within
the boundaries of the local community. The court ruled that
the mayor was not an administrative body obligated to disclose
information.
In
January 2000, the court heard the application of the St.
Basil the Great Association, a group protecting Roma minority
rights, which sought information from the Prime Minister
on the integration of the Roma population, which was contained
in the 2001 Government Programme and the Programme of the
National Council for Ethnic and Demographic Issues. The
court ruled that legal entities were not eligible to exercise
the rights under Article 41 of the Constitution. Furthermore,
it said the Prime Minister had no obligation to disclose
information to citizens in pursuance of the Public Administration
Act.
The
same year, the Supreme Administrative Court heard the Za
Zemyata Environmental Association's appeal of the refusal
by the deputy mayor of Sofia to disclose environmental information.
The Court said the official had no obligation to disclose
information.
The
last case was filed by a citizen against the tacit denial
by the Director of the Press Center and PR Office of the
Ministry of the Interior (MoI) to release data included
in the MoI information bulletin about seized drug shipments.
The court rejected the application on grounds that the requested
information was generated by another MoI subdivision and
therefore the Press Center and PR Office had no obligation
to disclose it.
Legislative
Advocacy
The
cases of refused access dramatized the need for a freedom
of information law. They clearly demonstrated the problems,
such as the centralization of information, the subjectivism
with which disclosure requests are dealt, the lack of unified
procedures, and the need for public awareness about access
procedures.
The
following sections recount the AIP's two-year experience
in campaigning for access to information legislation in
Bulgaria:
Preparatory
stage: Government and NGO Attempts at dialogue
In
response to the public clamor, the government included an
access to information law in its agenda. The minister of
state administration was given the task of drafting the
law and a working group was formed. The AIP maintained contacts
in the working group that allowed it to keep tab of the
developments. There were times, however, when our only source
of information was the media.
At
this point, it was imperative for the AIP to do a comparative
study on freedom of information legislation and the established
practices in other countries. We also saw the need to survey
jurists and journalists about what principles ought to be
considered in the access to information law. At every stage
of our work, we sent materials to the Council of Ministers.
We also made efforts to meet with government experts and
lawmakers. In the AIP working group, there was a jurist
from the legal department of the Council of Ministers. We
also got in touch with foreign experts.
What
were the intentions of the authorities?
To us, this was the toughest question. In the beginning,
we knew only that there was a certain working group in the
Council of Ministers drafting the law. When we made inquiries
and attempts to contact the experts in the group, we were
told only that the text of the draft would be presented
once it was ready. There was no intention to discuss the
draft publicly.
In
December 1998, together with Article 19 and the Bulgarian
Helsinki Committee, we organized an international conference
on "Access to Information - Bulgarian Legislation and
International Standards." We invited representatives
of the working group in the Council of Ministers to participate
in the conference and in the discussion of the AIP's "Concept
paper on Freedom of Information Legislation in Bulgaria."
The experts came, but as guests rather than participants,
so no discussions were held with them.
Public
discussion of the draft law
In
February 1999, the AIP privately obtained a copy of the
draft bill on access to public information. The press reported
all sorts of things about the "leaked" draft.
The AIP, meanwhile, assumed the copy it received was the
genuine draft and sent its comments and recommendations
to the Council of Ministers. A week later, the minister
of administration told the press that the draft was not
the real and final one. Our inquiries and requests for a
public debate on the bill remained unanswered.
Unexpectedly,
the draft was released at a conference held on April 27,
1999 by the International Press Institute (IPI). The Bulgarian
Media Coalition, of which the AIP is a founding member,
was asked by the IPI to lead a panel discussion on access
to information. The IPI knew that the government would release
a copy of the draft of the information law, but none of
the other Bulgarian participants had been told. The AIP
reacted to the law after it had been presented and commented
on the secrecy surrounding the draft. This prompted the
government to post the bill on its Web page for public discussion.
The
AIP team and other lawyers prepared an opinion on the draft.
We invited the PR expert of the minister of state administration
to discuss the bill at the AIP office. The AIP's views on
the draft law were also made public at a press conference.
Our aim was to act in a constructive way by making helpful
suggestions.
We
also held several meetings with representatives of local
governments, journalists and NGOs. The written statements
that resulted from the meetings were presented to the Council
of Ministers. Several opinions from other organizations
appeared on the government's Web page. The London-based
group Article 19 sent a memorandum on the Bulgarian draft.
The AIP translated and sent it to the Council of Ministers.
Results
of Public Discussions
Those
who took part in the public discussions on the draft law
were pleased that the bill was posted on the government
website and the public was invited to comment on it. They
also agreed with the principle in the bill that said a "legitimate
interest" was not required when requesting information.
Similarly, the public welcomed the introduction of shorter
administrative procedures for requesting information and
for appealing denials.
There
were, however, negative reactions to the lack of clarity
in some of the bill's provisions, including those which
defined the exceptions to disclosure and the types of information
that should be subject to legal regulation.
Five
comments on the bill that were posted on the government's
website, including the AIP's. The government, however, never
bothered to respond to the comments. No real discussion
on the bill actually took place. The government simply collected
different opinions.
In
the end, the draft approved by the Council of Ministers
did not include, except for some insignificant provisions,
the suggestions and recommendations we and other groups
had made.
Access
to Public Information Draft Law in the National Assembly
The
Council of Ministers approved the draft on June 23, 1999
and submitted it to the National Assembly. There were two
committees in charge of the draft. The leading committee
was the Human Rights Committee and the other was the Legal
Committee. In the meantime, we held meetings with journalists,
representatives of the local government and NGOs in different
cities. During those meetings, we presented the draft law
and collected opinions about it, which we sent to the committees
of the National Assembly.
On
September 22, 1999 the AIP and the Bulgarian Media Coalition
organized an international conference in Sofia on "Freedom
of Information in Bulgaria: the Draft Access to Public Information
Law, Results from the Public Debate and Recommendations."
All recommendations of the participants were summarized
in a memorandum that was presented to the heads and members
of the committees in charge. The international experts(9)
participating at the conference prepared their own Memo
on the Access to Information Law and sent this to members
of the National Assembly. The Memo was translated to Bulgarian
and disseminated through the media.(10)
The
first reading of the draft took place in the morning of
September 23, 1999 at the plenary session of the National
Assembly. In the afternoon of the same day, a roundtable
discussion on the draft was held under the chairmanship
of the head of the Human Rights Committee. AIP and BHC lawyers
presented the memorandum and the recommendations to the
draft from the conference. Members of Parliament, international
experts and journalists attended the roundtable.
An
MP from the majority coalition introduced the NGO recommendations
in the Legal Committee. Two other MPs from the minority
and majority also introduced their suggestions and recommendations
to the draft.
In
January 2000, the draft was included in the agenda of the
Legal Committee. Representatives of the AIP were invited
to the working group meeting of the committee. On February
2, 2000, the MP who had introduced to the Legal Committee
the proposals from the public discussions withdrew them
from the committee. He did not explain why. This forced
the legislators to decide on their own what amendments should
be introduced between the two plenary hearings while there
was no draft submitted by an elected representative. The
MPs obviously did not want to decide on anything about the
draft. They did not want to accept the government version;
neither did they want to take into consideration the proposals
made during public discussions. Instead, they pointed to
the procedural obstacle - there was no proposal from a Member
of Parliament.
In
its next session, the members of the Legal Committee decided
to forward the draft law to the newly established committee
called the Council for European Issues, which was asked
to make an opinion on the bill. The request for comment
was turned down on the ground that the bill had nothing
to do with European issues. The Council was set up to harmonize
legislation with the requirements of the European Union.
In the end, the Legal Committee had no choice but to make
the decision.
In
June 2000, the Legal Committee approved the draft in the
Second Reading. The same month, the Bulgarian Parliament
adopted the law without including most of the recommendations.
The Access to Public Information Act was published in the
State Gazette on July 7, 2000.
A
week after the adoption of the law, the AIP was ready. It
launched an information campaign on the law through its
coordinators' network. In the first week alone, the AIP
commented on the new law in 20 radio talk shows.
Summary
of the AIP's first three years
From
1997 to 2000, the AIP organized and participated in more
than 100 seminars, roundtable discussions and workshops
on access to information. It published 334 articles in the
media. It also issued 18 books and brochures.
The
AIP's main achievement for this period was the initiation
of public debate on access to information. We started our
campaign in the summer of 1997 and by the end of the same
year, the government had paid attention. It quickly changed
its rhetoric and began talking about information access
rather than the regulation of state secrets.
The
AIP's advocacy also led to public discussion of the draft
information access law and set a precedent by compelling
the government to make the draft public, a practice that
now applies to at least all draft regulations in the field
of information.(11) In addition, the AIP's
civic education work led to an increased and informed demand
for information from government authorities, both in the
capital city of Sofia and elsewhere. Even the practices
of administrative authorities changed, as the AIP cited
concrete instances when citizens were denied information.
On
its own, the AIP conducted 58 workshops, meetings and seminars.
AIP representatives participated in 50 other public events
and activities organized by other NGOs and organizations.
We also conducted two international conferences on access
to information issues. All these resulted in the dissemination
of expert knowledge and of international legal standards
on access to public information. This made possible a more
informed and sophisticated debate on the draft law.
Finally,
AIP lawyers provided legal comments on more than 746 cases
of information refusals. This service is provided free of
charge and contributed to the filing of cases in court and
to better-informed citizens who knew how to assert their
right to public documents. The AIP's legal work also emboldened
citizens to use their rights and defend their interests.
Some
pros and cons of the Access to Public Information Act (APIA)
During
the first week after the law was adopted, there were three
registered cases of application for information according
to the procedures of the law.
The
key positive features of the Bulgarian act are:
It
defines the agencies obliged to deliver requested information;
It
lists those who have the right to ask for information;
It
establishes the procedure for applying for information;
and
It
lists the grounds for refusing access to information.
At
the same time, the law has a number of unsatisfactory provisions
that created practical difficulties in implementation. These
were pointed out during the public debate on the draft bill,
but were not included in the law. These include:
The
very definition of "public information" is not
clear, mixing "public" and "social"
aspects;
There
is no independent body to oversee the procedures of the
law. This could lead to unnecessary delays and those who
have been denied access have no resort but to go to court,
which is a costly procedure;
There
is no description of what state bodies should do to ensure
the effective implementation of the law, for instance,
through training public servants, providing reading rooms,
etc.;
Despite
the law and subsequent measures such as the Electronic
Registry of Executive Institutions and Acts and the Law
for Personal Data Protection, information disclosure practices
are still marked by centralized decision making, administrative
discretion, poorly organized information retrieval systems,
etc.; and
The
bureaucracy in general is not prepared to implement the
law.
AIP
Activities after the Adoption of the Law
It
was therefore clear that the AIP had to continue in its
efforts toward greater information disclosure. After the
law was passed, AIP activities focused on:
Monitoring
the implementation of the law;
Providing
legal assistance to those seeking information or those
who had been denied the information they needed;
Public
education on the law; and
Continuing
advocacy on freedom of information
Advocacy
for implementation
Although
imperfect, the law stipulated the rights of citizens and
defined the duties of public officials to provide information.
It was a necessary step. On the other hand, the restrictions
on access to information related to national security and
protection of privacy were contained in various minor government
acts and were improperly regulated.
After
the passage of APIA, the AIP received 726 cases of refusals,
528 of them related to the violation of the right to access
information.
The
legal assistance that the AIP provided to NGOs and citizens
became more structured after the adoption of the law. The
AIP has so far appealed 28 cases in court (see the AIP website,
www.aip-bg.org, for
more information).
Better
information access requires that people know their rights
and how to exercise them, that the public administration
is aware of its duties and that lawyers and magistrates
are properly informed. To ensure this, the AIP organized
seminars, workshops and discussions and disseminated manuals
on how to use the law.
Two
manuals have so far been published: How to Use APIA
(for citizens and NGOs) and How to Apply APIA (for
bureaucrats).(12) These manuals are also
available on the website of the AIP and four other NGOs.
The AIP printed 10,000 copies of the citizen's guide to
APIA, a number that is considered big in Bulgaria. The handbook
is also available in CD-ROM format. A Handbook on APIA
Litigation will be ready as soon as the court practice
allows for a concise overview.
In
addition, every year, the AIP summarizes its experiences
in Annual Reports of The Current Situation on the Access
to Public Information in Bulgaria.(13)
Survey
on the Implementation of APIA
The
AIP has tried to add up the number of information requests
made to the executive bodies of the government.(14)
We asked the administration minister, then the Prime Minister,
but did not get an answer. Without such information, it
would be impossible to assess how the law is being implemented.
For this reason, the AIP launched its own survey.(15)
The
objective of the survey, Fulfillment of the Obligations
under APIA of the Bodies of Executive Power, was to
generate information on the implementation of APIA.
The
survey covered all central bodies of executive power and
their regional subdivisions, as set out in the Public Administration
Act and enumerated in the register of administrative structures.
The survey also covered the 100 largest among Bulgaria's
262 municipalities. The reason for this is that access to
public information is more actively sought in relatively
larger communities. Still, 50 of the 100 selected municipalities
have a population of less than 32,000, so the survey can
provide information on relative smaller communities as well.
We
approached 363 institutions for interview requests. Altogether,
303 interviews were conducted.
The
pollsters were assigned to interview the officials designated
to provide information by the heads of the institutions
that were required by APIA to disclose information. Respondents
in various positions were interviewed. Most typically, they
were directors of institutions (28 percent), PR officers
(26.9 percent), general secretaries (15.9 percent), other
experts (10.3 percent) and legal counsels (5.3 percent).
One
of the obligations of the bodies under Article 15 of APIA
is to indicate the name, address, telephone number and working
hours of the unit in charge of receiving information requests.
But the efforts of our interviewers to identify the unit
or officials responsible under APIA seemed more like an
"investigation" rather than receiving information
that executive bodies are required to publish.
In
46.1 percent of the institutions, interviewers identified
the person responsible under APIA without any special consultations
with other administrative officers. The regional administrations
were the most forthcoming in terms of identifying the officials
responsible for information matters. Getting similar information
from central government institutions and executive agencies,
on the other hand, required more sleuthing. In nearly 26
percent of the cases, it took more than a day to identify
the official responsible for information.
In
60 percent of the cases, respondents did not fill in the
questionnaire in the presence of the interviewer. Still,
the interviewers said most officials responded positively
to the interview. Only a little over five percent of the
interviewers stated that the officials had treated them
badly.
APIA
requires the heads of administrative structures of the executive
power to publish up-to-date information on a regular basis,
including the powers and functions of the administration,
a list of the acts issued by the body, and a description
of documents and resources.
Information
under Article 15
APIA
should be viewed in the overall context of administrative
reform in Bulgaria. One of the legal instruments creating
conditions for the implementation of APIA and other reform-related
laws is the Regulation on the Terms and Conditions for Keeping
the Register of Administrative Structures and Acts of Executive
Power Bodies.(16) The Regulation determines
the content of the register of administrative structures
and acts of executive power bodies, the terms and conditions
for maintaining the register, and access to the information
contained in them. It also provides information about all
bodies of executive power and administrative structures
as well as the statutory, general and individual administrative
acts.(17)
As
is seen in Table 2, institutions published mostly descriptions
of their structure and functions rather than a listing of
documents available. Generally speaking, central government
institutions and municipal administrations tended to publish
information under Article 15 more often than other institutions.
Particularly rare were cases of executive agencies publishing
lists of documents available and details of contact persons
under APIA. Regional administrations, however, lagged behind
in publishing the lists of their acts.
These
statistics reflect the overall condition and competence
of institutions. Those that had undergone some training
in the field of APIA had designated an official responsible
for information requests, and maintained registers of applications
tended to publish information under Article 15 more often
than the others.
Officials
designated under APIA
Just
over 60 percent of the institutions surveyed had designated
an official to deal with information requests. The designated
officials were mostly at regional administrations (70.4
percent) and least frequently at ministries (41.2 percent).
Officials also tended to be designated in institutions receiving
a greater number of information applications.
In
most cases, officials responsible for the implementation
of APIA were designated by a written order (53.4 percent).
Some, however, were named by an oral order (26.4 percent),
especially in regional administrations. "Oral"
appointments generally imply a lower level of organization
of activities under APIA. For example, institutions that
kept computer registers of applications often had information
officials designated by a written order.
Only
11.4 percent of the institutions appointed officials specifically
for processing APIA applications. Naturally, there were
fewer especially designated officials in agencies where
no APIA applications had been served (three percent). Officials
named specifically for APIA applications were mostly appointed
by ministries (16.7 percent) rather than municipal administrations
(6.1 percent). This could be because central government
bodies have more financial resources, although they did
not necessarily process more applications.
It
seems that officials designated under APIA had a lot of
other duties and they are not overburdened with applications.
This, however, does not imply that these officials themselves
decided on information requests. That decision was made
most frequently by the head of the institution (83.6 percent
of all institutions polled). The extent to which designated
officials are in a position to make decisions on their own
can be interpreted as a sign of internal democracy. The
highest level of discretion was in municipal administrations,
where designated officials made decisions to grant information
in 13.8 percent of the cases.
We
found that the survey responses varied depending on the
position of the official responding to the questions. For
example, 56 percent of interviewed directors believed that
a question about the reasons for the dismissal of an official
falls within the scope of APIA as compared to only 32.5
percent of interviewed legal counsels/experts. Such substantial
discrepancies existed with regard to almost all questions,
including the questions about the number and nature of applications
or the revenues from applications to the institutions. The
reason for these discrepancies could be that the respondents
occupied different hierarchical positions in their institutions
and therefore interpreted the law differently.
Registers
of Applications under APIA
Although
APIA does not explicitly require that a register of applications
for granting access to information should be kept, applications
are always registered in a manner prescribed by law.
As
mentioned earlier, institutions keeping registers of APIA
applications gave more positive interpretations of the law
and were organizationally better equipped to implement the
law. Nearly 62 percent of interviewed institutions said
that they kept such registers. Most of these were ministries
and government commissions. As a whole, registers were more
frequently maintained in Sofia and regional centers than
in smaller towns.
The
quality of the information in these registers was uneven.
While most institutions said they entered details about
the type of information requested and kept track of decisions,
27.6 percent could not specify the number of applications
they had received. Only 24.2 percent of the institutions
kept electronic registers.
Officials
find it most difficult to answer the seemingly simple question
of the number of APIA applications they had received from
July 2000 to September 2001. Even when respondents asked
for some more time to re-read the law in order to fill in
the questionnaire, they said they were not sure whether
the number of applications had to include practices related
to the provision of administrative services, complaints,
requests, proposals, etc.
The
number of institutions which received applications under
APIA was not very clear either. As is seen in Table 4, 38.1
percent had not received any APIA applications at all, while
those that were sure they had received such applications
are only 25.4 percent. One can only guess what happened
to the other 36.5 percent.
There
is no way to know the exact number of APIA applications.
For example, in municipal administrations, reported figures
ranged from two or three (in most cases) to 21,000. Similarly,
most central government institutions reported that they
had received either no applications or only one or two,
while a government commission reported 4,664 applications.
Equally substantial discrepancies existed in the countryside.
The number of information requests to Regional Health Insurance
Funds, for example, varied from zero to 1,200. Most employment
offices reported no APIA applications, while those that
did reported numbers that ranged from 70 to 11,507.
This
idiosyncratic monitoring was due to the simple reason that
most applications were not served at all. In addition, in
most cases, the requests for information were filed together
with complaints and other requests for administrative services.
For the most part, information requests under APIA were
not filed separately from requests under other laws. The
rare applications that were responded to did not involve
any special efforts to systematize disclosure. In part,
this was due to a serious lack of preparedness. Respondents
said they needed special training on the law.
Still,
the available data provides some insight into the applications.
As is seen in Table 5, registered applications were most
frequently given in writing and were mostly submitted to
either regional administrations or central government bodies.
About
a third of the institutions polled had received applications
in either written, oral or electronic form. At the same
time, when responding to other questions in the poll, a
smaller number of institutions, just over 22 percent, said
they had received such applications. Again, this is an indication
of the confusion in categorizing APIA applications
Decisions
on the applications and grounds for refusal
Bureaucrats
are mandated by the law to reply in writing to information
requests within 14 days.
The
poll showed that 41 percent of the decisions on information
applications were sent within 14 days. Executive agencies
and regional administrations claimed most frequently that
they made decisions immediately. Municipal administrations
seemed slower. It should be noted, however, that the great
number of applications that had not been responded to were
accounted for by just one municipality, which reported over
21,000 applications.
There
were more substantial discrepancies between the number of
applications and the number of decisions related to them.
Respondents said that 43,399 applications had been received
of which 19,334 or 44 percent were decided.
Only
2.4 percent of the institutions had imposed penalties for
delaying access. Regional administrations were not only
faster but also more rigid in imposing penalties for delay.
Of the polled institutions,(19) 6.6 percent
refused to grant access to information on at least one of
the specified grounds. Central government institutions were
the ones which most frequently refused access, making reference
primarily to Article 13, paragraph 2 of APIA. The small
number of central government institutions makes the share
of these grounds insignificant - just 1.3 percent of the
total.
Municipal
and regional administration frequently denied access on
the ground that the information requested "affect the
interests of third parties." Central government bodies,
on the other hand, usually refused disclosure by saying
that the information being applied for is an "administrative
secret."
So
far, the 502 cases of refusal collected by the AIP do not
include any refusal to grant access on grounds that the
information constitutes a "state secret." To begin
with, Parliament enacted in 1990 a List of the Categories
of Information Constituting State Secrets.(21)
This law limited disclosure in the following spheres: defense,
public order, the public sector of the economy, foreign
policy and aeronautic safety. These areas are governed by
a small number of institutions whose activities are almost
entirely classified, i.e., the Ministries Defense, Interior
and Foreign Affairs.
The
general lack of public knowledge about these few "secret"
institutions discourages public inquiry into them. These
agencies rarely work with citizens and have little contact
with the public, making it difficult to generate public
interest in them.(22)
Another
problem is that the number and type of specific secret documents
were never made public. Citizens, therefore, had no way
of knowing what types of information existed. In countries
with developed practices for granting access to public information,
the list of classified documents includes such information
as the title of the documents as well as the grounds and
time frame for their classification.
Both
APIA and the state secrets law recognize the right of partial
access, meaning that some parts of sensitive documents may
be excised before they are released. The AIP study showed
that the right to public access is not generally known to
bureaucrats.
Places
for review/reading of information
Some
63 percent of the institutions had designated a special
place/desk for receiving information application. This is
most typically the case at regional administrations and
RSEPs. Such places are most uncommon at central government
institutions. In almost all cases, however, the same place
is used for receiving other applications as well.
Nearly
65 percent of the institutions had designated a special
place for the public to review or read information. Again,
the correlations are obvious. Special reading places are
most likely to have been designated in agencies where APIA
applications had been made.
It
is interesting to note that different institutions have
found different solutions for providing public reading rooms.
For instance, ministries and government commissions found
space at their information departments, while municipal
administrations and RSEPs provided special premises.
Training
and advice
The
findings of the survey reveal that only 16.7 percent of
the respondents had undergone some training in the field
of APIA. The largest percentage was observed in regional
(25.9 percent) and municipal administrations (24.5 percent).
This is an indication of the competence and openness of
municipal administrations. Only less than six percent of
the information officials in central government institutions
had been trained.
The
training of officials correlates with better information
access. For instance, institutions with trained officials
more often designated a person responsible for the implementation
of APIA and they kept a register of applications. Institutions
with trained officials had also received more applications
for granting access to information (which even at this point
suggests that the number of applications is an "interpreted"
rather than a mathematical quantity).
What
do officials do when they encounter difficulties in the
application of APIA? Almost half of those polled said they
would seek advice, mainly from the legal counsel of the
institution. In some cases, they would go to the head of
the institution for advice. Those who sought advice were
mainly from central government institutions. Municipal administrations
tended to use written instructions more often than central
government institutions.
Unintended
consequences
The
survey generated unexpected results. Some respondents told
the AIP that the interviews motivated them to study the
law and the AIP handbooks. The handbook as well as publication
of the survey results generated a lot of bureaucratic interest
and prompted various agencies to ask the AIP for training
on the law.
In
2001 and 2002, the AIP on its own or in cooperation with
international NGOs conducted 11 courses for representatives
of central and local government.
Information
Disclosure in Selected Agencies
After
the passage of the law, the AIP continued to provide legal
assistance to citizens and journalists who had been denied
access. From August 2000 to March 2002, there were 726 cases
of refusals under APIA.
