IV. Governance issues
In 2000, the Access to Public Information Act was adopted in Bulgaria.1 It regulates the right of every individual to obtain access to the information generated and held by the bodies of the executive, legislative, and judicial powers, the local self-government bodies, public-law entities, as well as individuals or legal bodies whose activities are financed with funds from the consolidated state budget, subsidies from the European Union funds or allocated through EU projects and programs.On 5 December 2008, key amendments to the Bulgarian Access to Public Information Act were promulgated. The amendments reflect necessary changes that the Access to Information Programme Foundation formulated and recommended in 2007 and 2008 in its annual reports "Access to Information in Bulgaria". They were introduced through two draft laws that, according to the rules of work of the National Assembly, were combined into a single bill before the Parliamentary vote. The key amendments to the Access to Public Information Act concern: the extension of the scope of the "obliged bodies" by including regional units of the central authorities, natural or legal persons financed under EU funds, projects, or programmess, and companies financed or controlled by the state; the introduction of obligation for proactive publication online by public authorities; the definition of "trade secret" for the purposes of protection against unfair competition and the placing of the burden of proof of infringements on the "obliged bodies"; the introduction of the overriding public interest test in the disclosure of information which might fall within the exemptions; and the changing of the discretional power of "obliged bodies" to provide partial access to information.
In 2008, the Law on Prevention and Exposure of Conflict of Interest was adopted. In Bulgaria, some provisions of the law repeat pre-existing norms, which have not been applied efficiently. A considerable development of the law is the establishment of a wide range of high-level officials who have the obligation to avoid conflict of interests and to declare some information publicly. The law gives a definition of conflict of interests (Art. 2) and describes specific types of conduct and relations which are unacceptable (Artt. 5-11). A mechanism for disclosure and establishing conflict of interests is provided, as well as the possibility of court oversight. Particular circumstances are subject to the declaration requirement, such as the incompatibility of official position and influence, decision making, or participation in public activities with private interests (Chapter III). Four types of declarations shall be submitted by officials and published under the law. In the beginning of January 2009, high number of declarations of obliged public officials were submitted and published online. The question was raised whether some data from these declarations should not be published in the interests of personal data protection.
In this regard, the Commission for Personal Data Protection presented its opinion on 15 January 2009. According to that opinion, besides the name of the declaring person, all other personal data may be published after obtaining the person's consent. The publication shall not contain any image of a signature. It is not clear enough from the opinion which data from the declarations are regarded as personal and which public.
In Access to Information Programme's opinion2 the conditions subject to declaration are public under the explicit legal provisions. This issue has been resolved in a very similar matter by publishing all data contained in the asset declarations of high-ranking officials. The declarations were made accessible online on the National Audit Office Web site. The reopening of this discussion without taking into consideration what has been achieved already is counter-productive with regard to the aim of the law – transparency of public figures and prevention of conflict of interests.
In April 2009, new amendments to the Act on Prevention and Exposure of Conflict of Interests were promulgated. They had been prepared without analyses of the implementation practices. Most of these amendments do not improve the regime. A step backwards with regard to transparency was allowed with the amendment of Art. 2 paragraph 25. Narrowing the obligation for avoiding conflict of interest in the administration to include only officials who perform activities related to management, decision-making, regulation, or control puts a number of officials holding expert positions outside the scope of the law.
After a heated debate, in 2006 the Bulgarian Parliament adopted the Act for Access and Disclosure of Documents and for Revealing Affiliation of Bulgarian Citizens with the State Security and Intelligence Services of the Bulgarian Army.3 Access to Information Programme took an active part in the discussion, submitted an official statement to Parliament, and also offered suggestions for specific changes to the draft law. Finally, after a five-year regulatory vacuum, the law was adopted. For the first time, it established a procedure for passing the archives of the former state security services over to a newly established committee.
According to an explicit provision of the law, information about full-time and part-time agents (collaborators) of the secret services is not personal data. Another provision establishes that the archive of the former security services is not classified information. The newly established committee (to be formed after Parliament votes on committee members nominated from all Parliamentary groups) is responsible for reviewing and publishing documents from the archive. The Committee checks whether those holding the high-level official positions listed in the law, have collaborated with the former state security services. The law regulates the right of everyone to access not only information about themselves and immediate relatives, but also guarantees access to information to those doing scientific research or working for publications. Access to documents from the archive cannot be fully restricted; instead, partial access is provided even where the interests (that is, personal data) of third parties are concerned. There is some concern about the opportunity the law affords the Committee to withhold information in cases when disclosure might harm the interests of the Republic of Bulgaria and its international relations, or when disclosure could put someone's life in danger. The decision about whether to disclose information will be made by the Committee after considering the opinion of the secret services.
Psychological and aptitude tests are regularly taken by individuals when applying and/or re-applying for a post within the Ministry of the Interior. These tests can be only taken at the Institute of Psychology, which turns it into the last and only institution that determines whether a person is psychologically healthy. In September 2001, Mr. Ivan Yonchev, a Bulgarian official, learned that the result of the test he took in order to obtain the post of police observer of the UN mission in Kosovo was negative.4 His attempts to access the results of the psychological expertise were unsuccessful. In October 2002, he was allowed to retake the psychological test, but the results from his psychological test were again negative. As before, all his attempts to receive detailed examination results were unsuccessful. Legally assisted by Access to Information Programme, on 12 February 2003 Mr. Yonchev filed a written request under the Personal Data Protection Act to the Ministry of the Interior for access not only to the test's results, but also to his entire personal file. In response, he received a written refusal signed by the Head of Human Resources of the Ministry and grounded in the provision of Art. 1 paragraph 4 of PDPA, which gives data controllers an opportunity to abide by special regulations when processing and disclosing personal data collected for certain purposes. In this case the "special regulations" that would have been applicable were unpublished 1996 guidelines of the Minster of the Interior, according to which the personal files of all acting and retired officials are highly confidential and restricted from public access.
This refusal was appealed making – among others – the following arguments: every person has the right to access all personal data relating to him under Art. 26 paragraph 1 of the PDPA; the guidelines of the Minister could not be considered "special regulations" in the sense of Art.1 paragraph 4 of the PDPA because they had not been promulgated and thus had not normative status; and information can only be classified as "highly confidential" and constitute state secrets under the provisions of the Protection of Classified Information Act (PCIA). The list of items subject to classification under Art. 25 of PCIA does not include the personal files of Ministry of the Interior officials.
On 16 March 2003, appending the decision for the appointment of the first court hearing on the case, the Minister of Health promulgated Regulation No. 6 for the sites of specialised medical and psychological examinations and the places of periodic health check-ups.5 The entire Section III of the Regulation describes the procedures for conducting medical and psychological check-ups of officials working for the security services, public order services. and other units of the Ministry of Defense, Ministry of the Interior, Ministry of Justice, and Ministry of Transportation. Under the provision of Art. 16 paragraph 6 of the Regulation, access to documents related to check-ups is granted to the medical staff that conducted the examination, the examined person, and authorised officials from the institution that requested it. There is no doubt that Regulation No. 6 is applicable in this case, because it refers to specialised institutions for psychological diagnostics of the listed ministries, which undoubtedly includes the Institute of Psychology of the Ministry of the Interior. In relation to the claims of confidentiality of personal files by the Ministry of Interior, the final provisions of Regulation No. 6 are of special interest. They state that Regulation No. 6 is adopted in line with the PCIA and is co-ordinated with the State Commission of Information Security.
In September 2003, seven months after the personal data request, the Sofia City Court declared the refusal of the Head of Human Resources null and void, and returned the file to the Minister for reconsideration. The ruling of the court held that even before the Minister of the Interior was explicitly defined as a personal data controller by the amendments of the Ministry of the Interior Act (MIA), he acted as such under the Rules for the implementation of MIA, because the procedure for keeping and processing personal files had been determined by him. The lawfulness of the refusal was not reviewed by the court. Instead of deciding on the request, the Minister filed a cassation appeal against the judgement of the Sofia City Court before the Supreme Administrative Court, which led to a further delay of eight months. The SAC confirmed the first-instance decision, declaring the refusal null and void and obliged the minister to reconsider the request of Mr. Ivan Yonchev.
No specific information has been provided under this section.
Civil society advocacy work
The Access to Information Programme Foundation (AIP) was established on 23 October 1996 in Sofia, by journalists, lawyers, sociologists, and economists who work in the area of human rights.6 They joined their efforts to promote the right to information and initiate a public debate on relevant issues. The Access to Information Programme Foundation is a founder and member of the international Freedom of Information Advocates Network (FOIA Net). AIP facilitates the exercise of the right to access public information, it encourages individual and public demand for government-held information through civic education in-the-right-to-know area. and it works for government transparency at all levels, advocating for better supply of public information. Although it mainly deals with the right to access information it also considers related privacy issues.7
International obligations and International cooperation
Bulgaria has signed and ratified the 1966 UN International Covenant on Civil and Political Rights (ICCPR) and acceded to its First Optional Protocol that establishes an individual complaint mechanism.8
Bulgaria is a member of the Council of Europe and has signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms.9 It has adopted the CoE's Convention No. 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data10 and its Additional Protocol regarding Supervisory Authorities and Trans-border Data Flows.11 Both conventions are part of the domestic legislation under Article 5 paragraph 4 of the Constitution and take precedence over contravening statutes. Bulgaria signed the Council of Europe Cybercrime Convention (ETS No. 185) in November 2001, but still has not ratified it.12
- 1. Access to Public Information Act,supra.
- 2. Access to Information in Bulgaria 2008 - Annual Report, Published by Access to Information Programme, Sofia, 2009.
- 3. Access to Information in Bulgaria 2006- Annual Report, Published by Access to Information Programme, Sofia, 2007.
- 4. Seehttp://www.aip-bg.org/library/dela/yonchev.htm.
- 5. SG No. 35 of 16 April 2003.
- 6. AIP's official website, at http://www.aip-bg.org/index_eng.htm.
- 7. AIP mainly: sustains a country-wide network of journalists, which collects cases of information refusals in 26 regional centers in Bulgaria; categorises and analyzes cases of illegal information refusal – more than 2200 casesmonitors practices of information provision and gives recommendations for their improvement; provides legal assistance in individual casesgives recommendations to the central and local administration for efficient implementation of the Access to Public Information Act; promotes the right of access to information through the media, expresses expert opinion on issues of present interest, and participates in public debates on the access to information and the misfeasance at all levels; supports the activity of environmental organisations in their search for environmental information; organises workshops, seminars, conferences on freedom of information issues; organises special trainings on the freedom of information for public officials, journalists, and NGOs; publishes and distributes information materials in the local and national media; publishes handbooks for the exercise of the right of access to information, as well as other printing materials that focus on particular aspects of the access to information legislation; publishes and disseminates a monthly electronic newsletter on the current national and international news, problems, and specific cases of access to information implementation; broadcasts weekly radio show on socially sensitive issues; and participates actively in the International Freedom of Information Advocates Network.
- 8. Bulgaria has signed the ICCPR on 8 October 1968 and has ratified it on 21 September 1970. It acceded to and the First Optional Protocol to the ICCPR on 26 March 1992. The texts of the Covenant and of its First Optional Protocol are available at http://www2.ohchr.org/english/law/index.htm.
- 9. Signed 10 May 1992, ratified 7 September 1992, entered into force 7 September 1992. Text and other relevant information concerning all the Conventions adopted within the Council of Europe are available at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG.
- 10. Signed 2 June 1998; ratified 20 May 2002; entered into force 1 January 2003.
- 11. Signed 2 June 2010; ratified 8 July 2010; entered into force 1 November 2010.
- 12. Signed 23 November 2001; ratified 7 April 2005; entered into force 1 August 2005.