Freedom of Information: A Comparative Legal Survey - Federation of ...

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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 or moral standards. This is an extremely
broad and vague prohibition which is inconsistent with the practice in other countries and potentially open
to serious abuse, although in practice it has not proven to be an important obstacle to access. It also
appears to be based on a misconception of the difference between access to information held by public
bodies and freedom of expression, and the need for restrictions on the latter which are not necessary in
relation to the former.
Article 13(2) sets out some restrictions on access to administrative public information, including where
it relates to preparatory work on an offi cial document and has no signifi cance in itself (although the
amendments now require such information to be published after the document has been adopted). The
same article also excludes information relating to ongoing negotiations, which seems extremely broad and
unrelated to any specifi c harm. As a result of the 2002 amendments, however, both exceptions are limited
in time to 2 years.
Article 17 provides 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 an exception in cases where the information affects the interests of a third party who has
not given his or her consent (see above for a description of the procedural aspects of this). The scope of the
term ‘affect’ is not defi ned but this could potentially be very broad. In many right to information laws, this
exception is limited to information provided in confi dence, the disclosure of which could harm a legitimate
interest of the concerned third party.
Where information has already been published, the public body is required to direct the applicant to that
information, rather than to provide it themselves (Article 12(4)).
On its face, the regime of exceptions provided for in the Bulgarian RTI Law is extremely broad. For the
most part, it relies on exceptions in other laws, most of which cannot be expected to respect international
standards relating to openness. Furthermore, it adds to these by elaborating a number of further
exceptions, few of which are harm based and many of which are simply too broad to begin with. In some
cases, the courts have narrowed down the scope of exceptions although in others – for example in relation
the protection of third party interests and trade secrets – the law has been interpreted more broadly.
Appeals
The RTI Law does not provide for any internal or administrative appeal. This is a serious shortcoming, as
it means the only option for applicants whose requests have been refused internally is to go to the courts,
which is time consuming and expensive.
The Law 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 (Articles 40
and 41).
Sanctions and Protections
The RTI Law provides 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. The Law provides for various fi nes for these offences, unless
they are already subject to a harsher penalty, presumably under some other law (Article 42).