Secrets and Vagueness in the Ministries

| Alexander Kashumov,

The Access to Information Program’s (AIP) annual report published in May on the state of access to information during 2010 shows that in many respects, state institutions have not made progress in this sphere. For example, the number of silent refusals has remained more or less the same. According to the AIP’s statistics, this is the largest group of refusals for which legal assistance was sought from the organization throughout the year. One of the likely reasons for the continuing high number of refusals is the lack of effective sanctions for failure to comply with the Access to Public Information Act (APIA). On the one hand, violations of the law must be established and sanctions must be imposed by… those very same institutions obliged under the law. That is, a mayor or minister who has violated the law by not issuing a reply within the stipulated deadline (a silent refusal), for example, is expected to punish himself. Given this state of affairs, it is hardly surprising that we know of no such sanctions being levied since the adoption of the law in the year 2000 until the present day. 

Indeed, the amendment and expansion of the APIA in 2007 created the requirement for institutes to designate an employee who was responsible for implementing the law. Many institutions (but far from all of them) have fulfilled this requirement, yet despite the fact that in this way the case of a government body having to punish itself is avoided, there is still a lack of any activeness whatsoever in the realization of responsibility for silent refusals to requests. One of the reasons is the lack of action on the part of the ministries’ inspectorates in this regard. They do not check – or at least there is no public information indicating that they check – administrations for violations of the APIA.

On the other hand, if we examine the explicit refusals, despite the fact that according to the government report on the state of the administration (previously – the report of the minister of state administration and administrative reform) such refusals constitute approximately one percent of the responses to the nearly 25,000 annual requests for information, many problems from previous years remain. This is the case because the level of access or non-access to information must be judged not from the number of refusals, but by the nature of the information being refused.

Thus, for example, when it is a question of the activity or inactivity of the inspectorates within the ministries, this controlling function is traditionally kept in a veiled state. Reports on such checks are rarely made public, more often statistics are given (when that is even done at all). During the transition years, the Bulgarian Helsinki Committee was forced to bring a court case against a refusal by the Ministry of Justice to reveal a report by its inspectorate on the state of the prisons. The information was refused on the grounds that it was preparatory and in its essence made recommendations about what should be done, while any decisions fell under the competence of the minister. In the Supreme Administrative Court’s 2010 decision on the case, which was supported by AIP, a narrow interpretation of the restriction [on access to preparatory documents] was reached, according to which factual findings cannot qualify as preparatory information, since they have independent significance. The position by the court is crucial for subsequent practices with this restriction, which concerns preparatory documents, but the question remains as to why the inspectorates are so afraid of publicity. A journalist from Kapital newspaper, Asen Georgiev, waged a court battle against a refusal by the Ministry of Transport, Information Technology and Communications to provide a report by its inspectorate, which was compiled during an investigation of the closed-down State Agency for Information Technology and Communications (SAITC). Why the scandalous former agency, which in 2007 also became the initiator of the most serious attempt to destroy the APIA since 2000, was being investigated and what the inspection had established remain a secret, since the information was supposedly an “investigative secret.” Well, it turns out that the ministry doesn’t even know whether criminal charges have been brought in the case, yet they have made use of a convenient refusal. Why should there be transparency instead of secrets and vagueness about which sorts of irregularities had been established (which were of the sort that, according to the inspectors themselves, should be sent straight to the prosecutor, no less!)?

Also, information about expenditures of public funds on contracts between state institutions and private companies continues to be provided to an unsatisfactory extent or is refused. The amendment of the APIA in 2008 introduced the obligation for the administration to consider the presence of a prevailing public interest in providing the information, even when it falls within the legal limits for access. According to the government report about the state of the government administration in 2009, 3.1 percent of decisions on requests were issued in cases of prevailing public interest. Information subject to such interest includes data about the parties, sub-contractors, rights and obligations, subject of the contracts, the price, the conditions and sanctions in contracts made by public institutions with private companies. Regardless of this, large contracts signed between the government and Microsoft concerning software packets remain a secret, despite unending court cases that have dragged on for years, challenging such refusals. In 2010, the mayor of Pazardzhik silently refused to provide the local newspaper Videlina access not to some sensitive information, but merely to the number of contracts the municipality had made and the amount of unpaid sums owned on them since 2007.

Nevertheless, after the amendment of the law in 2008 and the introduction of the clause about “prevailing public interest,” some institutions have begun to provide access to their contracts. In 2010, the bTV journalist Genka Shikerova received a copy of a contract between the Ministry of the Interior and Siemens regarding the new personal identity cards; other institutions, including the Council of Ministers, have also provided contracts in response to requests.

Despite this tendency towards more openness, however, the administration has been developing new “tactics” to limit access to information. For example, after the Supreme Administrative Court’s decision, the Ministry of Justice was obliged to provide the citizen William Popov nearly 60 consulting contracts signed during the period of 2003-2008. The court’s decision was fulfilled, but the curious thing is that the names of all the consultants had been removed from the documents. No less original was the partial access provided by the mayor of Smolyan in 2011, in response to a request for access to two of the municipality’s contracts for waste treatment signed in 2006 and 2008. Copies of the documents were provided to the requester – the local newspaper Otzvuk – but with the price of the deals erased. I wonder what information the mayor thought could be more important to the public such that he would provide all the other content from the contracts, but keep secret just how much of taxpayers’ money was being paid out in the public tender?

AIP’s study of institutions’ websites found that an extremely small percentage of contracts were published on the Internet (2.4 percent in 2010 and 2.42 percent in 2011) [1]. A list of public tenders in a register specially created for the purposes of transparency shows that there, too, information abut the amount of the deals was “omitted.” For example, in the abovementioned two contracts by the Smolyan Municipality, according to the data in the register, the offeror was to pay the offeree “0” lev.

The effective resolution of the problems noted above must come about through the creation of a legal obligation to publish the full contracts in the online register of public tenders. Otherwise, halfway measures and “trade secrets” will continue to take precedence over society’s right to know. The other necessary change which must be made to the APIA concerns the questions of who should impose sanctions for failures to implement the law and which sorts of failures are subject to punishment. The current regulation is inadequate, for which reason even the modest fine of 50-100 leva stipulated in the law is not being imposed. It is another question entirely that sanctions and the disciplinary actions to impose them have no way of being carried out unless the competent structures – the inspectorates – include questions about the precise and timely implementation of the APIA within the scope of their inspections. In order to have coordination and unity within the practices of the inspectorates, there must be a clearly defined institution responsible for monitoring and coordinating the implementation of the law.

These would be steps in the right direction: institutions should create a better-functioning access to information law, since according to citizens, NGOs and journalists, this is one of the most useful and necessary laws we have.

 


 

[1] The State of Access to Information in Bulgaria during 2010, Annual Report, published by AIP, Sofia 2011, 71 pp., available online at the address: 
http://store.aip-bg.org/publications/ann_rep_bg/report10.pdf