Public Info But Not Q Gergana
In a secret ballot vote on 9 May 2006 in New York, the General Assembly of the United Nations (UN) elected the members of its new Human Rights Council (HRC). Earlier, at its 16th session held in March, the UN General Assembly had approved Resolution 60/251, which enumerated the guidelines for the make-up of the HRC. The Council is replacing a previous UN body, the Commission on Human Rights. Immediately after the election, the Freedom of Information Advocates Network1 launched an initiative whereby organizations could request information from their governments regarding the criteria used in electing the new council members. The Access to Information Program in Bulgaria participated in the initiative, submitting a request to the Bulgarian Ministry of Foreign Affairs. HISTORY OF THE REQUEST Several articles appeared in the general press as well as human rights publications, primarily written by experts from the Bulgarian Helsinki Committee, in which the authors examined the reasons that had led to the closure of the UN Commission on Human Rights and the creation of a new body, the Human Rights Council. It was deemed unquestionable that this body must henceforth get established and prove its mettle as an institution, in contrast to the Commission on Human Rights, which had also been known as the “Violators’ Club.”2 What had the Bulgarian position been in the preparations for the election of members to the Human Rights Council, and on the basis of what criteria was the Bulgarian vote cast on 9 May?
I sought the answer to this question in the request that I submitted to the Minister of Foreign Affairs, Mr. Ivaylo Kalfin,3 on 17 May 2006, which was registered at the Ministry on 22 May 2006 under number bPR-785. Anticipating that I would not receive real access to copies of documents, but rather a report on the Ministry’s actions with regard to the election, as is typically the case, in my request, I specifically mentioned that I did not need a report, but access to any documents in existence at the Ministry that pertained to the information I sought. Then, I waited for a decision in response to my request.4 The legally-stipulated deadline was approaching, when I decided to call the Ministry and ask about the outcome of my request. An official from the Directorate of Human Rights and International Organizations politely explained to me that my request was still being processed, and that I would receive a response within the period specified by law. A decision did indeed arrive - on 5 June, when the 14-day period had just expired. YOU HAVE BEEN GRANTED PARTIAL ACCESS I received the decision on my request on 5 June 2006. By order of the Ministry’s acting secretary-general, I was to be granted access to the public information in the following documents: “Meeting minutes and other correspondence on the subject indicated by the requester, for the period from 28 January 2006 to 9 May 2006: 73 pages in total.”. I sent the request to the Minister, because I could not find any other official designated on the foreign ministry’s website as being in charge of access to information. This is rather curious, since one would assume that the Ministry of Foreign Affairs would be better-acquainted with international standards regarding access to information, since it has a representative who has participated in the working group on standards regarding access to official Council of Europe documents. 4 To be precise, I must note that requests on this issue were submitted simultaneously in several countries. The ones I know of are the United Kingdom, Canada, Moldova, Peru, Romania, etc. 3
Further information about the network is available online, at www.foiadvocates.net. 2 See the following articles by Krassimir Kanev and Boyko Boev: Krassimir Kanev, “Bulgaria’s Cooperation with the UN is Pathetic”, Obektiv Iss. 132, May 2006, Boyko Boev, “Is the New Human Rights Council Going to Salvage UN’s Reputation?”, Obektiv Iss. 132, May 2006, Boyko Boev, “Do Human Rights Have a Future at the UN?”, Dnevnik newspaper, 5 July 2006, The Miami Herald, “The Human Rights Council”, Kapital weekly newspaper, 8 -14 July 2006. 1
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ormation, Quite So JOULEVA
Thus, on the one hand, the official’s decision did not dispute the fact that the information I sought was public, while on the other hand, the access granted to me was partial, and the form of access was “review of information: access for onsite review of a copy in paper format.” It was provided to me free of charge. Let’s look at what the law says regarding such matters. I was granted partial access to information, which is provided for under the Bulgarian Access to Public Information Act (APIA) in accordance with Art. 37, Para. 2. The decision on my request specified APIA Art. 13, Para. 25 as the legal basis for granting me partial access, but the factual basis for the partial access was not specified. Now let us turn to the documents I was presented with, to see for ourselves what the factual basis might be for the partial access that was granted to me. It was partial with regard to the documents themselves, as well as being partial with regard to the format in which access was granted. The documents to which I received access can be grouped into several categories: Memoranda and minutes of meetings Bulgarian diplomats had with other countries’ diplomats to discuss the Council election: in these minutes, notes verbales and letters, all names and foreign ministry and embassy positions have been expunged. I was astonished by this thorough expunging of the names of those attending the meetings, since neither the simple fact of a government official’s participation in an official meeting, nor the fact that the country represented by a diplomat was a candidate for membership on the Human Rights Council, could possibly be harmful to anyone’s interests. Article 13, Para. 2 of the APIA stipulates: “Access to internal public information may be restricted, when:1. it is involved in the operative planning of official documents of public institutions, and has no independent significance (opinion and recommendation papers compiled by or for the government body, official reports, or consultations); 2. it contains opinions and viewpoints regarding current or upcoming negotiations, conducted by the public institution or on its behalf, as well as information pertaining to such, which has been compiled by the administrative personnel of the institution(s) in question.” 5
The second kind of documents were the so-called “Voluntary Pledges and Commitments Based on Resolution A/RES60/251” of several countries running for seats as members of the new body. Most of these candidate pledges could also be accessed on the Human Rights Council’s Internet site; for this reason (at least this is my interpretation), nothing had been expunged from this document. Thus, we might say that the partial access granted to me on the basis of Art. 13, Paragraph 2, was another kind of partial access, since those who responded to my request had expunged the names, but not the “opinions and positions regarding present or forthcoming negotiations,” nor “information regarding them.” The copies presented to me, of documents with the names expunged from them, did not contain any opinions, or any positions of the officials who had participated in each meeting, but rather “information” that the meetings had taken place. The “information” itself, however, was presented to me. If I had not been provided with all of the documents describing the consultative process regarding the Human Rights Council election, then, I should have been informed of that fact. In that case, I could submit a new request for access to those documents in two years’ time, since in accordance with Art. 13 the time limit for restricting access to information must be two years from the date at which the information was generated. There remains, however, the lack of clarity with regard to the partial access. What is it, in fact, that is being protected by granting me only partial access: the opinions and recommendations expressed in the operative preparation for the vote, or opinions and positions related to negotiations conducted in the course of the meetings that were held? And what exactly was the partial nature of the access granted to me? Was it the fact that the names of our ambassadors to Switzerland, Romania, Hungary, etc. had been expunged from the copies of the documents presented to me? Or was it because I had not been presented with all of the documents on the subject? OBEKTIV 27
YOU MAY REVIEW THE COPIES Why was I b1eing granted access in exactly that format, of reviewing copies of documents, selected by officials? Of course, the Foreign Ministry has the right to specify the format in which access is to be granted, but that could only take place under certain conditions, of which I should have been informed. What does the law say regarding this issue? I had requested that I be given the information in the form of copies on paper or an electronic storage medium. This matter is regulated in the part of the APIA entitled “Requirements for Conformity with the Preferred Form of Access,” which goes on to state: Art. 27(1) Officials are obliged to accommodate the requester’s preferred form of access to public information, except in cases when:1. it is technically impossible; 2. it entails an unwarranted increase in the expense of providing access;3. it would lead to a possibility of unlawful manipulation of the information or to the violation of intellectual property rights.(2) In cases under Paragraph 1, access to information shall be granted in a format to be determined by the appropriate government body.6 The first condition was obviously not the case in my situation. There was indeed a technical possibility of providing me with copies, since that was exactly what was presented to me. The second hypothesis was not present either, since the expenditure was even greater than strictly necessary. The official who took the trouble to expunge the names of Bulgarian ambassadors around the world must have spent plenty of work time doing so, in order to implement the technology used to prepare a partial-access document: photocopying once, expunging the names in that copy and photocopying yet again. And all of this was done on at least 50 of the 73 pages provided to me. The presence of the third condition is also questionable, although naturally not as categorically; there was also no way that intellectual property rights could have been violated, although, for example, this is due to the fact that we do not have a queen, who has intellectual property rights over such documents, as they do in the United Kingdom. Only one possibility is left, then: I was not provided with the copies, so that I would not publish them, and perform in this way an unlawful manipulation of the already-manipulated copies of the documents. Why I had to read them and take notes in the reading room of the Ministry’s Chancellery and Archives Department was also unclear to me. The other people reading there were working with archival documents, not with copies that had excerpts expunged from them. What is more, many of the policy pledges of the candidate countries had already been published on the Hu6
APIA.
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man Rights Council’s web page (http://www.ohchr.org/ english/bodies/hrcouncil/membership.htm ), right after the election. The second problematic issue to be highlighted by this incident is the Ministry’s understanding of what constitutes “public information.” My own conviction, reinforced by the review of copies of documents presented to me, was that this information was obviously and unconditionally public, since it could help me form an opinion about the work of the country’s diplomatic institutions in the election of member states to sit on the new United Nations council. When certain information is unconditionally public - and since it was provided for me to read, the Ministry also obviously considered it to be so then it should be accessible to me, as well as to other citizens, and persons without citizenship. The right to information also presupposes the right to dissemination; i.e., since once the information has been provided to me, I could also publish it. INSTEAD OF A CONCLUSION What was the personal opinion that I formed from all this? Even though I did get to see the documents that had to do with the election, or at least some of them, the opinion that I reached about the work of the Bulgarian Foreign Ministry, in the matter of the Human Rights Council election, was that there is no evidence that the Bulgarian Foreign Ministry ever had any clear idea whose candidacy to support and why. Perhaps its support was based upon the criteria set forth in the Resolution. Perhaps ministry officials discussed it amongst themselves, or at internal meetings, but even this fact was not mentioned anywhere in the documents presented to me. Meetings were held with diplomats from countries that were running for seats on the Council. But did they meet with all of them? With Romania, for example? Why wasn’t Bulgaria a candidate, and what was its attitude towards Romania’s candidacy? There are no reports on this, nor record of any meetings. Does this mean that “Bulgaria’s cooperation with the UN is pathetic,” as Krassimir Kanev wrote in his article about the election of 9 May? I could not find answers to any of these questions, but I did see that we clearly need to begin an advocacy campaign for the mandatory documentation of all meetings and discussions held in connection with the decision-making processes of state institutions, and subsequent access to these documents. Otherwise, the question of how Bulgaria’s representative voted in the UN Human Rights Council election will remain unanswered for generations. Even if the ballot was secret, as we know to be the case here, state policy regarding human rights should not be a secret. And that is the true heart of the matter.