Access to Public Information
Company Doe v. Public Citizen
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The Supreme Administrative Court of Bulgaria held that, when tax data of a third party is sought, the respective authority – and not the person requesting access – must seek consent of the third party to disclose information. The chairman of the Non-Governmental Organizations Center in Rasgrad, Bulgaria had sought information from the National Revenue Agency on the tax history of the Center for Economic Development – Razgrad. After the Agency refused his request he brought an application to the court of first instance and then the Supreme Administrative Court seeking an order that he was entitled to access the documents. The Court remanded the decision back to the Court of first instance for determination.
This case analysis was contributed by Right2Info.org.
Georgi Milkov, chairman of the Non-Governmental Organizations Center Razgrad in Bulgaria, sought information on the tax returns of the Center for Economic Development – Razgrad for the period 2000-2008 from the National Revenue Agency (Agency). The Center for Economic Development – Razgrad is a non-governmental organization (NGO) that at the time was chaired by the former mayor of Razgrad. The requested information related to the NGO’s funds and donations received throughout the period. Suspecting corruption, Milkov wanted to find out if the NGO was engaged in commercial activities and whether and in what amount it declared income and profit from such activities.
The Agency denied the request on the ground that such information fell outside the scope of the Access to Public Information Act (APIA), and constituted “tax and insurance information”. According to article 74 (2)(1) of the Tax-Insurance Procedure Code, such information could only be disclosed where the applicant provides the authority with proof of third party’s consent. Milkov was unsuccessful in challenging the Agency’s denial in the court of first instance, and then appealed to the Supreme Administrative Court.
The Supreme Administrative Court was required to determine whether Milkov’s request fell within the scope of the APIA and whether the Agency was correct in refusing the request.
The Court held that when authorities – such as the Agency – receive a request to access tax information, they have to determine whether a body whose data is being sought is public or private. It commented that access to tax data of a public entity that pursues “purposes of public interest” is partly governed by the Law on Non-profit Organizations, and that, in terms of articles 31(1) and (2) of the APIA, when the information is “a matter of concern to a third party”, the authority is required to seek a written consent of the third party to disclose information. The Court held that the burden to obtain the consent cannot be shifted to the applicant.
The Court concluded that the requested information did fall within the ambit of the APIA, and that the Agency had failed to consider Milkov’s argument (in terms of article 31(5) of the APIA) that the consent of the third party was not required as there was an overriding public interest in the disclosure of the tax returns. The Court reversed the decision and remanded the case back to the lower court.
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