Bulgaria

freedom of information: overview

Article 41 of the Bulgarian Constitution of 1991 states:

(1) Everyone shall be entitled to seek, receive and impart information. This right shall not be exercised to the detriment of the rights and reputation of others, or to the detriment of national security, public order, public health and morality.  
(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 other secret prescribed by law and does not affect the rights of others.

In 1996, the Constitutional Court ruled that the Article 41 of the Constitution gives the right to information to any person, however, the right needed to be set out by legislation. There were a number of lower court cases that rejected requests by citizens and NGOs to obtain information.(3)

The Access to Public Information Act (APIA) was enacted in June 2000. The law allows for any person or legal entity to demand access to information in any form held by state institutions and other entities funded by the state budget and exercising public functions. Requests can be verbal or written and must be processed within 14 days.

Information can be withheld if it is personal information about an individual, a state or official secret, a trade secret, or pre-decisional material. Restrictions must be provided for by an Act of Parliament. Information relating to preparatory work, opinions, or statements of ongoing negotiations can be withheld for 2 years.

The last amendments to the APIA (December 5, 2008) extended the scope of the law to cover “obliged” bodies by including the regional offices of central authorities and bodies financed under European Union (EU) programs and funds. The changes also introduced the obligation for the provision of partial access to information, which used to be discretionary; the obligation for proactive publication of information online; and a public interest test. The scope of the trade secret exemption was also limited by unconditionally binding its definition with the possibility for unfair competition. Under the law, the trade secrets exemption does not cover specific information about government contracts, such as the names of parties and subcontractors, the subject, the price, the rights and obligations, conditions, terms, and performance sanctions.
The Bulgarian APIA does not provide for an internal appeals mechanism. There is no independent oversight body either. Pursuant to the Administrative Procedure Code, public bodies may review their initial decisions and either change or repeal it. Experience shows that institutions apply this with regard to some of the already issued denials.
Denials can be appealed to the regional administrative courts or the Supreme Administrative Court. Submitting an administrative court appeal costs 10 BGN (5 Euro) for individuals and 50 BGN (25 Euro) for legal persons. According to Access to Information Programme’s (AIP) calculation, the average time for delivering court decisions by two instances is one year and a half.

There were 225 decisions in the Supreme Administrative Court between 2001 and 2009. Court decisions and rulings have interpreted different exemptions to the right of access to information, and more precisely, to their scope and applicability in specific cases. There is significant case law that limits the trade secrets and preparatory documents exemptions, that limits the application of the Protection of Classified Information Act, and that rules against silent refusals. A persistent problem has been obtaining government contracts with private corporations and the misuse of the trade secrets exemption. AIP, which litigated most of these cases, has recommended necessary legislative amendments to overcome such misuses.

Amendments to the APIA as of December 2008 outline a new phase both in the implementation of the law and in court practice. New amendments oblige the institutions to apply the public interest test but also require the courts to decide cases in which access was denied on the merit by balancing the public interest in disclosure against other protected interests.

Fines can be levied against government officials who do not follow the requirements of the Act or do not execute court decisions.

Government bodies have a duty to publish information about their structures, functions, and acts; a list of acts issued; a list of data volumes and resources; and contact information for access requests. These categories of information should also be available online. Public bodies are also required to publish information to prevent a threat to life, health, or property.

Oversight, Reporting, and Use of the APIA

Under the law, the Minister of State Administration and Administrative Reform must publish a summary of the implementation reports of all administrative structures within the executive power in the annual report on the state of the administration in Bulgaria. Statistics from the 2008 report show that there were 24,372 registered requests, up from 22,482 requests in 2007. As in previous years, a large number of the requests were verbal (9,885). The average number of written requests from 2001 to 2008 is 15,233 per year. Up to 2009, the reports were published on a regular basis. Restructuring of government after the July 2009 parliamentary elections led to the closure of the Ministry of State Administration and Administrative Reform. Legislative amendments are being drafted to reassign the reporting obligation to a department in the Council of Ministers.

The lack of an oversight institution in Bulgaria has created a great necessity for independent civil control over the implementation of the law. AIP has performed several monitoring surveys on the implementation of the law using a number of methodologies. In the first few years after the adoption of the law, monitoring focused on how public institutions implemented their obligations to publish information and whether the necessary infrastructure was in place, such as information officials, reading rooms, request registers, training sessions, and reports on the implementation of the law. Next, evaluations were made on whether the authorities followed the procedures and also on the quality of the information provided.

The results of these monitoring surveys have been part of AIP annual reports on access to information in Bulgaria. Each report contains a thorough review of FOI legislation, implementation practices, cases of information seeking, and a systematic overview of court practices. The most important part consists of the recommendations for changes in legislation, policies, and administrative practices in the field of freedom of information.

The December 2008 amendments to the APIA were based on consultations with AIP and were in line with the analyses presented in several successive years of AIP’s annual reports Access to Information in Bulgaria. The amendments were introduced as a response to practical problems with the application of the law and were in compliance with international standards in the area.

The results from a September 2008 national representative public opinion poll show that awareness about the right of access to public information is 38% compared to 15.5% in 2006. The awareness about the legislation is 31%, compared to 10.1% in 2006.

However, only 17% consider that the right of access to public information is respected. Almost 61% consider that the right is not respected. Seven percent have already used this right, compared to 6% in 2006, and almost 63% are willing to use their right to information.

Other Laws Affecting Disclosure

The Parliament approved the Classified Information Protection Act in April 2002 as part of Bulgaria’s efforts to join NATO. It created a State Commission on Information Security appointed by the Prime Minister and four levels of security designations for classified information. The law provides a very broad definition of classification authority, allowing everyone who is empowered to sign a document to classify it. There are requirements to show harm for some provisions, but there are no overriding public interest tests. The law revoked the 1997 Access to Documents of the Former State Security Service Act and Former Intelligence Service of the General Staff Act which regulated access to, and provided procedures for, the disclosure and use of documents stored in the former State Security Service, including files on government officials. It also eliminated the Commission on State Security Records set up under the 1997 Act.

The Constitutional Court upheld the provisions that abolished the law on access to former state security files and created a register of classified documents in 2002.(9) Persistent problems with the access to all of the files of the former security services and the lack of regulation with regard to the check for affiliation to the former security services of high government officials triggered heated public debate on the adoption of a special law. The Access and Disclosure of Documents and Announcing Affiliation of Bulgarian Citizens to the State Security and the Intelligence Services of the Bulgarian National Armed Services Act was adopted on December 19, 2006. It established the Committee on Disclosing of Documents and Announcing Affiliation of Bulgarian Citizens to the State Security and the Intelligence Services of the Bulgarian National Army. The Committee is elected by the National Assembly for a period of five years and is responsible for the disclosure, announcement, and storage of documents of the former security services. The law provides that everybody shall have access to their own files or those of relatives, may request examination for affiliation, and have access to the documents with regard to research, journalistic, and investigative activity pursuant to the provisions of the APIA. The first decision of the Commission was delivered on April 24, 2007. It has issued 110 decisions since then.

Under the Administration Act, the Council of Ministers must publish a register of administrative structures and their acts which is defined as “all normative, individual and common administrative acts.” The register must be on the Internet. In 2002, the regulation was amended to limit the Acts published to only those relating to exercising government control.

Bulgaria signed the Aarhus Treaty in 1998 and ratified it in December 2003. A new Environmental Protection Act was approved in 2002. The new act provides for less automatic disclosure and more exemptions than the previous law from 1991. The Personal Data Protection Act (PDPA), which came into force in January 2002, gives individuals the right to access and correct information held about them by public and private bodies. The Commission for the Protection of Personal Data was created in 2003 to oversee the act. The Commission is elected by the National Assembly.

The PDPA was amended in 2004, 2005, 2006, 2007, and 2009. The law was amended in 2004 to include an absolute exemption on individuals accessing their own records if officials find that it might harm national security or reveal classified information. The 2005 amendments to the PDPA introduced more precise definitions of personal data and clarified the functions of the Commission. Amendments in 2006, 2007, and 2009 were not substantial.


freedom of information: further reading

Access to Information Litigation in Bulgaria book series

  • Access to Information Programme published volume 4 of the book Access to Information Litigation in Bulgaria 2005-2008: Selected Cases. It contains analytical part, which reviews the main problems related to the court practice with regard to the Bulgarian Access to Public Information Act during the last years. The analysis encompasses the development of both cases related to the exercise of the right of access to public information and to the implementation of the exemptions to the right of access to information. Summaries and twenty-seven decisions on 14 court cases in which AIP legal team has provided legal help, including court representation, were included as appendices to the book. The authors of the analytical part are Mr. Alexander Kashumov, head of AIP legal team, and Mr. Kiril Terziyski, a lawyer from the AIP legal team. Access to Information Programme has been providing legal help, including representation in court in access to information cases for more than twelve years. Acrobat PDF (824Kb)
  • Access to Information Litigation in Bulgaria: Selected Cases, volume 3: This book was published in 2005. It contains analyses of questions that have arisen during court practices and all the documents filed in ten FOI cases between 2003 and 2004. The publication of as many court documents as possible (including written defenses, court session minutes, etc.) is aimed at presenting the positions of the parties and the judgments that have led to the final court decisions. Acrobat PDF (2,6Mb)
  • Access to Information Litigation in Bulgaria: Selected Cases, volume 2: The book presents important Supreme Administrative Court decisions on the Access to Public Information Act (APIA) from the end of 2002 until March 2004. The authors comment on problems related to the admissability of complaints against silent refusals, the definition of the term „public information,” the formulation of requests and the exceptions from the right of access to information. The practices of refusal on the grounds of state, administrative, and commercial secrets are analyzed, as well as the exemption related to documents with no significance of their own. Ten court decisions on FOI cases of public interest were published, which are important regarding the interpretation of certain provisions of the APIA. Acrobat PDF (658Kb)
  • Access to Information Litigation in Bulgaria: Selected Cases, 2002: This book presents some of the most significant access to information cases heard by the Bulgarian Supreme Administrative Court and includes full documentation on 11 cases. The introduction reviews the most important problems emerging from access to information litigation during the first years after the adoption of the Access to Public Information Act and outlines some of the obstacles to freedom of information in Bulgaria. The introduction to the book was written by Alexander Kashumov, head of AIP legal team, and edited by Gergana Jouleva, AIP executive director. Acrobat PDF (732Kb)

All books Access to Information Litigation in Bulgaria are available at: http://www.aip-bg.org/books.htm

Reports on access to information in Bulgaria, prepared by AIP

All reports contain recommendations for improving the freedom of
information legislation, the connected legislation and the practices
within the Bulgarian public institutions and are available at: http://www.aip-bg.org/l_reports.htm

All AIP publications are available at: http://www.aip-bg.org/library.htm

Other Resources

  • A second wave of the national representative public opinion poll on public attitudes regarding the right of access to information which was performed by Market LINKS at the demand of AIP in February 2010. Results are available here (PDF 177Kb).
  • The first wave of the national representative public opinion poll was carried out in September 2008 among adult Bulgarian population, as well as among Bulgarian journalists from electronic and printed media. Main results (PDF 152 Kb) show that 38% of respondent citizens are aware of their right of access to information. However, summary of results and main recommendations (87Kb) include wide public awareness campaign on the right of information and continuing trainings and legal consultations for journalists in cases of information refusals.
  • AIP produced a documentary “Media and Access to Information – Five Investigative Reporter Stories.” The movie is available online, was shown at workshops and trainings, and at the 2008 RKD Awards ceremony, and broadcast by 30 local TV stations. The movie is accessible with subtitles in English and in Russian.
  • In 2009, AIP produced a thirty-minute documentary Right to Know Day. The movie is available online with subtitles in English as well.
  • AIP launched a special web site Access to Information and Investigative Journalism containing specific cases, court cases, and publications of journalists who have used Bulgarian Access to Public Information Act, training materials and videos. The site is in Bulgarian only.

freedom of information: excerpt from Global Survey

Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated July 2006)

Article 41 of the Bulgarian Constitution of 1991 states:

(1) Everyone shall be entitled to seek, receive and impart information. This right shall not be exercised to the detriment of the rights and reputation of others, or to the detriment of national security, public order, public health and morality.
(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 other secret prescribed by law and does not affect the rights of others.(1)

In 1996, the Constitutional Court ruled that the Article 41 of the Constitution gives a right to information to any person, however, the right needed to be set out by legislation.(2) There were a number of lower court cases that rejected requests by citizens and NGOs to obtain information.(3)

The Access to Public Information Act was enacted in June 2000.(4) The law allows for any person or legal entity to demand access to information in any form held by state institutions and other entities funded by the state budget and exercising public functions. Requests can be verbal or written and must be processed within 14 days.

Information can be withheld if it is personal information about an individual, a state or official secret, business secret, or pre-decisional material. Restrictions must be provided for in an Act of Parliament. Information relating to preparatory work or opinions or statements of ongoing negotiations can be withheld for 2 years. Partial access is required but has not been widely adopted.

Unusually, there is no internal appeals mechanism. There is no also independent oversight body. Denials can be appealed to the regional court or the Supreme Administrative Court. There were 123 decisions in the Supreme Administrative Court between 2001 and 2005. In 2004, the court ruled in several significant cases limiting the trade secrets and preparatory documents exemptions, the application of the Classified Information Act, mute refusals, and began requiring that documents be released following a decision, rather than referring the case back to the public body for reconsideration. One problem has been obtaining contracts with private corporations. In 2005, the SAC ruled that requestors had no right to a contract between the state and Microsoft. The Access to Information Programme (AIP), which litigated many of these cases, reported that these resolved some of the existing weaknesses with the text of the Act.

Minor fines can be levied against government officials who do not follow the requirements of the Act.

Government bodies have a duty to publish information about their structures, functions and acts; a list of acts issued; a list of data volumes and resources; and contact information for access requests. The Minister of State Administration must publish an annual summary of the reports. Bodies are also required to publish information to prevent a threat to life, health or property.

There were 49,653 registered requests in 2004, down from 67,712 requests in 2003.(5) As in previous years, a large number of the requests were verbal (over 38,000).

A 2004 monitoring project by AIP found improvements over previous years. Overall, they received information in 60 percent of the cases, up from 38 percent in 2003. The number of tacit denials declined from 21 percent down to 12 percent and there were only two cases where they were not able to submit oral requests. They also found that awareness of the law was improved and that all the institutions had appointed officials and adopted internal rules and most had created registers.(6)

The AIP recommended a number of changes to the Act and government policies including requiring open meetings of collective bodies, obliging institutions to make drafts of regulations publicly available, apply the APIA to monopolies, establish a public interest test, conform the exemptions of other legislation in line with the APIA, protect whistleblowers, and establish effective penalties for violations of the APIA.

The Parliament approved the Law for the Protection of Classified Information in April 2002 as part of Bulgaria’s efforts to join NATO.(7) It created a Commission on Classified Information appointed by the Prime Minister and four levels of security for classified information. The law provides a very broad scope of classification authority, allowing everyone who is empowered to sign a document to classify it. There are requirements to show harm for some provisions but there are no overriding public interest tests. The law revoked the 1997 Access to Documents of the Former State Security Service Act and Former Intelligence Service of the General Staff Act which regulated access to, and provided procedures for, the disclosure and use of documents stored in the former State Security Service, including files on government officials.(8) It also eliminated the Commission on State Security Records set up under the 1997 Act. A regulation now establishes access and the right of individuals to access their files created by the former security police is currently unclear. The Constitutional Court upheld the provisions that abolished the law on access to former state security files and created a register of classified documents in 2002.(9) There are also ongoing problems with the access to all of the files of the former security services. Few have been turned over to the National Archives. In January 2005, the government proposed to amend the act to make it easier to destroy documents including the files of the former secret police without declassifying or releasing them and giving the public bodies more control over documents. The provisions were withdrawn following public criticism that it would allow the mass destruction of important files about Bulgarian history.(10)

Under the Administration Act, the Council of Ministers must publish a register of administrative structures and their acts which is defined as “all normative, individual and common administrative acts.” The register must be on the Internet. In 2002, the regulation was amended to limit the Acts published to only those relating to exercising government control.(11)

Bulgaria signed the Aarhus Treaty in 1998 and ratified it in December 2003. A new Environmental Protection Act was approved in 2002.(12) The new act provides for less automatic disclosure and more exemptions than the previous law from 1991.(13)

The Personal Data Protection Act, which came into force in January 2002, gives individuals the right to access and correct information held about them by public and private bodies.(14) The Commission for the Protection of Personal Data was created in 2003 to oversee the act. The law was amended in 2004 to include an absolute exemption on individuals accessing their own records if officials find that it might harm national security or reveal classified information.(15)

2004 freedominfo.org Global Survey Results – Bulgaria

NOTES

1. Constitution of the Republic of Bulgaria of 13 July 1991. http://www.parliament.bg/?page=const&lng=en

2. Judgment No. 7, Case No. 1 of 1996. http://www.aip-bg.org/documents/ruling.htm

3. See Gergana Jouleva, Bulgaria- The Access to Information Programme: Fighting for Transparency During the Democratic Transition, July 2002. Available at http://www.freedominfo.org/case/bulgaria1.htm

4. Access to Public Information Act, http://www.aip-bg.org/library/laws/apia.htm. Amended by Personal Data Protection Act and Protection of Classified Information Act. See the Access to Information Programme Homepage for detailed studies and reports on freedom of information in Bulgaria. http://www.aip-bg.org/index_eng.htm

5. 2004 Annual Report for the Public Administration.

6. Access to Information Programme, Access to Information in Bulgaria 2004 Report, 2005.

7. Law for the Protection of Classified Information, Prom. SG. 45/30 Apr 2002, corr. SG. 5/17 Jan 2003. For a review, see Alexander Kashumov, National Security and the Right to Information, 2003. Available at http://www.freedominfo.org

8. Access to Documents of the Former State Security Service Act and Former Intelligence Service of the General Staff Act, 1997. http://www.infotel.bg/juen/klasific_informacia/ezd.htm

9. Decision No. 11 of 2002.

10. Hristo Hristov, Instead of Epilogue – the Battle for Access to Information in Kill the Tramp, 2006. http://www.aip-bg.org/hristov/text.htm See AIP,Report on Access to Public Information in Bulgaria 2002. Available at http://sadocs.government.bg

11. Environmental Protection Act. State Gazette No 91, 25 September 2002. http://www2.moew.government.bg/recent_doc/legislation/EPA_En.working%20version.doc

12. See Access to Information Programme, The Current Situation of the Access to Public Information in Bulgaria 2002; How to Get Access to Environmental Information – Handbook http://www.aip-bg.org/pdf/env_hndbk_eng.pdf

13. Personal Data Protection Act. http://www.aip-bg.org/pdf/pdpa.pdf

14. See AIP Report 2004.

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links

LEGAL DOCUMENTS

Constitution of the Republic of Bulgaria of 13 July 1991

 

Access to Public Information Act

 

Law for the Protection of Classified Information

 

Personal Data Protection Act

 

Environmental Protection Act

 

Access and Disclosure of Documents and Announcing Affiliation of Bulgarian Citizens to the State Security and the Intelligence Services of the Bulgarian National Arm?d Services Act

 

GOVERNMENT

State Commission on Information Security

 

Commission for Personal Data Protection

 

Committee on Disclosing of Documents and Announcing Affiliation of Bulgarian Citizens to the State Security and the Intelligence Services of the Bulgarian National Army

 

ORGANIZATIONS

Access to Information Programme

 

Bulgarian Lawyers for Human Rights

 

Bulgarian Helsinki Committee

 

Bulgaria Open Government Initiative Project

 

Open Society Institute - Sofia

 

Transparency International Bulgaria

 

OTHER RESOURCES

How to Use the Access to Public Information Law - Citizen's Guide

 

Access to Information in Bulgaria 2009 Report

 

Case Study: Bulgaria - The Access to Information Program: Fighting for Transparency during the Democratic Transition


contributors

Gergana Jouleva, PhD
Executive Director of Access to Information Programme

Diana Bancheva
Communication Officer at Access to Information Programme

 

 

Measuring Openness

Global Right to Information Rating
A country-by-country rating of laws by the Centre for Democracy and Law and Access Info.

Freedom House
The Freedom in the World report.

World Bank
Worldwide Governance Indicators

Transparency International, Corruption Perceptions Index
Measures perceptions of the degree of corruption.

Reporters Without Borders
The Press Freedom Index.