«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
The Right of Access The Act states its purpose as the regulation of social relations relating to the access of public information.147 Pursuant to Article 4, citizens, as well as foreigners inside the country and legal entities, are entitled to access public information subject to the conditions and procedures set forth, unless another law provides for a special procedure to seek that information. This opens up the possibility of another law providing for less effective, or more expensive, access undermining the freedom of information law.
Article 6 sets out the principles governing access to information, which include ensuring openness and accuracy of information, securing conditions for equal access, protecting the right to access information and guaranteeing the security of society and the State.
Definitions Public information was defined in the original Act as any information relating to social life which gives citizens an opportunity to form opinions about the public bodies which are covered by the Act, irrespective of how 145 Available at: http://www.aip-bg.org/documents/access.htm.
146 Bulgarian Constitution, 1991 Article 41.
147 Article 1.
Freedom of Information: A Comparative Legal Survey it is physically stored.148 This was amended, due to problems with subjective interpretation of this provision and the Act now provides simply that public information is any information "created, received or kept" by the bodies covered by the Act, "which has not been defined as state or another protected secret by law." While this removes the earlier problem, it does introduce a problem of its own, namely the wholesale exclusion from the operation of the Act of any information defined as secret by another law. It would be better to include all information within the ambit of the Act and then to provide for a comprehensive regime of exceptions to protect any legitimate interests.
The Act also excludes certain types of information from its ambit, including information that may be obtained in the course of the provision of administrative services and information which is kept in the State archives. It is not clear why these types of information have been excluded but this is not consistent with the practice in most countries.149 Article 3 defines two sets of public bodies. The first are "State bodies, their territorial units and local self-governance bodies" and the second are bodies which are subject to public law and individuals and legal entities which are funded from the consolidated budget, to the extent of that funding. The difference takes on some relevance in relation to exceptions (see below). The media had previously been included in this definition but were removed as part of the amendment process. This is a broad definition but it is not clear whether private bodies that undertake public functions but without public funding are included.
Process Unusually, requests may be made in either oral or written form, provided that where an oral request is refused, it may be followed-up with a written request. This is presumably to avoid any disadvantage that might otherwise result from making an oral request. The request must contain the name and contact details of the requester, as well as a sufficient description of the information sought and the form in which access is desired. Requests must be registered by the public body in question.150 A requester must be notified in writing of a decision regarding his or her request as quickly as possible but in any case within 14 days, unless 148 Article 2(1).
149 Article 8.
150 Articles 24 and 25.
the application is for a large number of documents and more time is needed to respond, in which case an extension of up to 10 days may be made, provided that the applicant must be notified of this. The notice shall, if access is being granted, state the extent of access, the time within which access may be had, which shall be at least 30 days, the location for access, the form of access and the costs. A refusal to grant access shall state the "legal and factual grounds for the refusal", as well as the date and the right of appeal. In both cases, the notice must either be signed for by the applicant or sent by registered post. The applicant must appear to access the information within the time limit provided.151 It would be preferable if the law also provided for the satisfaction of requests by mail and even email.
Where the information sought is not sufficiently clearly described, the applicant shall be given up to 30 days to rectify the problem, and the 14-day time limit for a response shall start from after the clarification has been made. Where the body to whom the original request was made does not have the information, but knows that it is held by another public body, it shall forward the request to that other body within 14 days.152 The Act sets out different time limits and procedures where the consent of a third party is required. In that case, the time limit may be extended by another 14 days and the third party must be contacted within 7 days. Any disclosure must comply with any conditions imposed by the third party in giving his or her consent. Where a third party refuses to consent to the disclosure of the information, any part of the document which may be provided without affecting that party's interests shall be severed from the rest of the document and disclosed.153 The Act provides for information to be provided in four different forms, namely inspection of the record, a verbal explanation, a paper copy or another type of copy. The information shall be provided in the form requested unless this is not technically feasible, it results in an unjustified increase in costs or it may lead to an infringement of copyright. The first two forms of access shall be provided free of charge, while charges for the latter two forms shall be according to a schedule determined by the Minister of Finance, which shall not exceed the actual costs incurred. A justification must be provided to the requester regarding any fees which are charged. Requesters must be informed on the spot 151 Articles 28, 29, 30, 34, 38 and 39.
152 Articles 29 and 32.
153 Article 31.
Freedom of Information: A Comparative Legal Survey about these forms of access and the charges relating thereto. Persons with disabilities may request access in a form that corresponds to their needs.154 The first set of public bodies, namely State bodies, their territorial units and local self-governance bodies, but apparently not the other set, is required by the amendments to appoint information officers with responsibility for dealing with access requests.155 It is not clear why this obligation has been limited in this way.
Duty to Publish The Bulgarian Act includes strong provisions on the duty to publish.
Public bodies must "promulgate" official information contained in their official documents, as well as other categories of information required to be published by law.156 Public bodies must also disseminate information about their activities, either in published form or through announcements.
Article 14(2) requires public bodies to disseminate information which may prevent a threat to life, health, security or property, which corrects previously disseminate information that was inaccurate, or which is required by another law to be disseminated. It also calls for the dissemination of information that could be of public interest, even if it is otherwise confidential, where the public interest in receiving it outweighs the risk of harm to the protected interest. This public interest override in relation to the duty to publish is an interesting innovation not found in most other laws. Interestingly, no public interest override applies to requests for information.
The Act also provides for the publication, on a regular basis, of information about the public body, including a description of its powers, structure, functions and responsibilities, a list of formal documents issued within the scope of its powers, and the name, contact details and working hours of the office authorised to receive requests for information.157 The Minister of the State Administration is required to publish, on an annual basis, a summary of this information, which "shall be made available in every administration for review by the citizens."158 154 Articles 20, 21, 26 and 27.
155 Transitional and final provisions of the amendments.
156 Article 12.
157 Article 15.
158 Article 16.
The precise scope of these obligations to publish is unclear.
Information of 'public interest' could be a very, even excessively, broad term, depending on how it is interpreted in practice.
Exceptions The Act does not, unlike most freedom of information acts, include a comprehensive list of exceptions. Instead, information classified as secret by other laws is excluded from the definition of public information and the Act also specifically states that such information shall not be disclosed.159 This is unfortunate and contrary to the international standards noted above. Although a number of laws from other countries do leave secrecy laws in place, most at least include their own set of exceptions.
The Act also includes a number of further exceptions scattered throughout its provisions. In general, these are not subject to harm tests and none of them are subject to a public interest override. Article 2(3) provides that the Act does not apply to personal data. This is unfortunate, particularly in the absence of a public interest override.
Public bodies hold a wide range of personal data and it would be preferable if the law restricted any exception to information the disclosure of which would actually harm a legitimate privacy interest.
Article 5 provides that the right of access may not be exercised in a manner which undermines others' rights or reputation, national security, public order, national health and moral standards. It is not clear whether this operates to restrict the use of public information, in which case it is probably redundant given the existence of numerous laws on this, or to restrict access to information. In the latter case, this is an extremely broad and vague prohibition which is very likely to be abused.
Article 13(2) sets out some restrictions on access to administrative public information, including where it relates to preparatory work on an official document and has no significance in itself (although the amendments now require it to be published after the document has been adopted). The same article also excludes information relating to ongoing negotiations. Both exceptions are limited in time to 20 years, but this is the only such time limit in the Act itself.160 159 See Articles 2(1) and 7(1). See also Article 9(2).
160 Section 37 of the Law on the Protection of Classified Information also provides for time limits to the classification of information.
Freedom of Information: A Comparative Legal Survey Article 17 provide that access to information held by bodies subject to public law and private bodies funded through the consolidated budget shall be unrestricted, subject to Article 17(2), which allows for restrictions for commercial secrets whose disclosure would be likely to lead to unfair competition. Article 37 adds to these exceptions where the information affects the interests of a third party who has not given his or her consent. The scope of the term 'affect' is not defined but this could potentially be very broad. In other cases, this exception is normally limited to information provided in confidence, the disclosure of which could harm the third party concerned.
The Act provides for severability of exempt information, stating that access may either be full or partial.161 Where information has already been published, the public body is required to direct the requester to that information, rather than to provide it themselves.162 Appeals The 2002 amendments have added an administrative level of appeal to the "higher ranking administrative body under the Administrative Procedure Act."163 It would appear, however, that there is still no right of appeal to a specialised, independent administrative body.
The Act also provides for appeals to the courts, which have the power to repeal or amend the original decision and, where they do so, access shall be provided according to the court ruling. Where it so requests, the court may examine all evidence, including the information in question, in camera if necessary.164 Promotional Measures The Act provides for few promotional measures. It does, however, provide for sanctions whenever a civil servant fails to respond within the applicable time limits, fails to respect a court order granting access, does not respect conditions in a third party consent or, in the case of bodies subject to public law and private bodies funded through the consolidated budget, fails to provide access to public information.
161 Article 7(2). See also Article 37(1).
162 Article 12(4).
163 Article 39a.
164 Articles 40 and 41.
India Introduction The Indian Freedom of Information Bill, 2002,165 was finally passed into law in December 2002, after many years of public debate and after freedom of information laws had been passed in a number of Indian States. Official recognition of the right to information in India finds its genesis in Supreme Court decisions holding that it is included in the constitutional guarantees of freedom of speech and expression.166 This being the case, it was almost impossible for the government to resist passing a freedom of information law, although it took rather longer than human rights activists would have expected or wanted.