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16
JUNE 2004 - UPDATE by
Gergana Jouleva, Ph.D.
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. 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):
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:
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 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:
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:
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:
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. 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:
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? 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:
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:
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:
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. Number of Applications under APIA 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. The public has shown particular interest in obtaining financial information. As reported in the AIP 2001 Annual Report,(23) there were a great deal of requests for information on government spending, the operations of enterprises that had state or municipal participation, and financial wrongdoing in government. Public Internal Financial Control Agency (PIFCA) PIFCA audits government expenditures. Typically, those seeking information would direct their applications to PIFCA's regional subdivision in their locality. The AIP did not register a single case of information provided by the PIFCA authorities throughout 2001. The most frequent answer to applications for access to copies of audit reports is: "We are not entitled to provide copies of audit statements or reports. Please call the head office in Sofia." Although APIA provides that a state agency should refer an application for information to a competent authority, the directors of the regional PIFCA subdivisions failed to do so. In May 2001, the PIFCA director sent out a circular to all regional directors that laid out the rules for granting access to information about financial audits and inspections to the media. The circular said that summaries of audit findings rather than the full documents should be made available. It also specifies a PR expert at the PIFCA office in Sofia as the official in charge of providing information. National Audit Office The National Audit Office does the external audit of the budget and other public resources. Article 2, paragraph 2 of the National Audit Office Act reads explicitly that its operations are based on the principles of openness and transparency. In 2001, the AIP database registered four applications for information related to financial audits. The National Audit Office did not answer any of them. The National Audit Office also collects information on the assets of public officials in accordance with the Public Register of the Property of Senior Government Officials Act. Although the law refers to this register as "public," access to it is granted only to the editors in chief of media agencies. In the beginning of 2001, the AIP applied for information in the public register but received no response. At the end of the same year, a similar application by the editor in chief of a Varna newspaper was not answered either. The case was appealed in court. Tax administration The most frequently sought information from the tax administration relates to the consolidated statements on the amount of collected or uncollected taxes, information related to tax offenses and information about big tax debtors. The cases registered in the AIP database make it clear that the local tax administration usually does not provide access to such information, although the provisions of the Tax Procedure Code do not categorize consolidated statements on collected taxes as administrative secrets.(24) In May 20001, however, the tax administration published on its website the names of individuals with unpaid taxes of more than BGN 3,000, even if the rules say that information on unpaid taxes is secret. Yet, although the information was already online, some local tax offices refused to provide the same information. Privatization Privatization deals always generate keen interest. Journalists and citizens seek information on the terms of privatization agreements and the fulfillment of the contractual obligations. Central and local government institutions began providing copies of documents on completed p |