Giorgi Kldiashvili, director of IDFI prepared article regarding Access to public information in Georgia: achievements and challenges for LIT-EBRD.
According to the Right to Information (RTI) Ratings, access to information legislation in Georgia ranked 32 out of 102 states covered by the rating,1 with a score of 97 out of 150. To date provisions on access to information are included in the Constitution of Georgia, regulated by the General Administrative Code of Georgia, the Law on Personal Data Protection as well as secondary legislation.
Article 24 of the Constitution of Georgia stipulates that everyone is free to receive and disseminate information, to express and disseminate his/her opinion orally, in writing or otherwise. Article 41 of the Constitution furthermore states that every citizen of Georgia shall have the right of access to information as determined by law, as well as to official documents concerning themselves stored in state institutions, unless they contain state, professional or commercial secrets. More detailed provisions on freedom of information are included in the General Administrative Code of Georgia. According to the provision enshrined in the legislation, an official document (including a drawing, model, plan, layout, photograph, electronic information, or video- and audio-recording) that is, “any information stored at a public institution, as well as any information received, processed, created or sent by a public institution or public servant in connection with official activities” constitutes public information. Access to public information can only be restricted if it contains personal data, state or commercial secrets. The provisions in the legislation linked with the timeframes for responding to freedom of information (FOI) requests in Georgia are in line with best international practice. In fact, public entities are obliged to provide applicants with information requested immediately after receiving such requests. The period to respond can be lengthened by up to 10 days only in special circumstances, foreseen by the law, that is if the request for public information requires the retrieval of information from another locality or from another public institution, and its processing; if the request for public information requires the retrieval and processing of single and uncorrelated documents of considerable size; and if consulting with another public institution is needed. Moreover, if a 10-day period is required for issuing public information, a public institution shall be obliged to notify the applicant of such delay on request.
Recent improvements in the legal framework and practice of freedom of information in Georgia
The main legal Act containing detailed provisions on access to information in Georgia – the General Administrative Code, was adopted in 1999. At that time the provisions of the law were seen to be highly progressive; nevertheless over time the need to make amendments to these rules became obvious. Hence in recent years in Georgia significant reforms have been undertaken by the government more broadly in the spheres of anti-corruption, open and good governance, and in particular, in access to information.
Moreover, in 2012 one of the most important amendments in regards to e-governance and transparency was made in the General Administrative Code of Georgia in the framework of the Open Government Partnership (OGP) Action Plan for Georgia (2012-13) whereby public entities are now obliged to proactively disclose public information of high public interest on their web pages.2 In August 2013 the Decree of the Government of Georgia adopting the list of information to be proactively published was ratified.3 The decree was drafted with the active involvement of civil society and international organisations. The list among other things includes data on different administrative expenses, information on the structure and functioning of the entity, and data on procurements conducted through simplified procurement, and so on.
Within the auspices of the Open Government Partnership (OGP) Action Plan for Georgia (2014-15) the government of Georgia has agreed to adopt a new and independent Freedom of Information Act.4 The obligation to adopt an independent legal Act regulating access to information is also included in the Anti-Corruption Action Plan of Georgia approved by the government in 2015.5 No doubt having freedom of information legislation which is in line with the best international standards and meets the requirements of transparency and accountability is essential for every democratic society. Hence acknowledging the need for an independent legal act on freedom of information should indeed be assessed positively.
The amendments made to the legislation in 2012 ensured that all ambiguity surrounding the electronic form of requesting information was extinguished. The law now clearly highlights that FOI requests may be made electronically.
Access to information on the assets of senior public officials was increased after 2012. Based on the amendment, heads of legal entities of public law (LEPLs) as well as state-owned enterprises and state-owned non-commercial entities were added to the list of high officials who are obliged to submit their asset declaration to the Civil Service Bureau and make it available online, reflecting data on their annual income revenue, interests in different companies and other financial information within the timeframes set by Georgian legislation.
In regards to public procurement the level of access to information on simplified procurement has increased, as the information on the services and goods purchased via negotiations with one person is now available on the special uniform web page of public procurement.
To summarise the access to public information practice in Georgia: it must be mentioned that during October 2013 to December 2014 the Institute for Development of Freedom of Information (IDFI) had sent out 7,878 requests to 308 public institutions. In 3,628 cases the Institute received complete responses, while in 356 cases information was incomplete. There were 85 cases of refusal, while 1,397 requests were left unanswered. Public institutions claimed that they had not implemented a specific action (requested by the letter) or did not have the requested information in 2,412 cases. Based on the categories of public institutions the highest share of unanswered requests was observed among executive and representative bodies of local self-governmental entities (city halls, municipal boards and municipal councils). The largest number of refusals to disclose public information was observed in cases of state-owned companies (LTDs) and N(N)Les (non-commercial legal entities). The abovementioned institutions were sent a total of 32 requests of which 10 were refused, while in 11 cases questions were left unanswered.
Recent changes in case law
Important improvements have also been observed in legal practice on access to information. During 2014 courts accepted the appeals of IDFI on the issues which have always been previously denied. This was the case in the dispute between IDFI and the Ministry of Finance. The Court granted the appeal of IDFI and made several important rulings. The Court stressed that access to public information does not in itself include the possibility to direct the applicant to the web page, where requested information of the same content can be found. When discussing the issue of disclosing information in the requested form the court emphasised that the applicant is granted the right to choose the way they receive information. In the case of IDFI versus Ministry of Internal Affairs the Tbilisi City Court fully granted the appeal of IDFI and directed the Ministry of Internal Affairs to provide the Institute with complete information on salary supplements and bonuses received by the Minister, Deputy Minister and Department Chairmen by month indicating names and surnames of the officials. The court came to the same decision in the dispute between IDFI and the Penitentiary department, once again ruling that information on salary supplements and bonuses received by senior officials should be open for wider public scrutiny.
While the abovementioned should undoubtedly be assessed as positive steps towards more transparency and accountability many important challenges are still facing the country’s framework of free access to public information. One of the most important problems is the decrease in the level of access to public information in practice in 2014-15 in comparison with 2013.
The decreasing trend of access to public information is particularly obvious when comparing the level of access to information in the period immediately before the 2012 parliamentary elections and later on during 2013-14. After the change of government in the country in October 2012 the new government was more than willing to publicise information on the high administrative costs of the previous ruling party members, such as bonuses and salary supplements received by the previous ministers and deputy ministers, data on high costs of business trips abroad, different information on the procurements conducted and so on. Nevertheless the results of assessing the access to public information rating in different entities conducted by IDFI showed that the new government was reluctant to publicise complete information on different administrative costs of the members of the ruling party in office.
Proactive disclosure of public information
As already mentioned, in mid-2012 amendments were made to legislation thus obliging administrative bodies to proactively publish various information of high public interest. In August 2013 the government of Georgia adopted decree No. 219, which listed precise categories of information to be published on the web pages of the ministries, ministry sub-entities, LEPLs and the Administration of the Government of Georgia. Undertaking the obligation to proactively publish information of high public interest on the web pages of public entities is no doubt a progressive step towards more accountable e-governance. Nevertheless the importance of the amendment can well be undermined by poor implementation of its provisions. In order to ascertain to what extent public entities fulfilled their obligations as a result of the legislation the IDFI conducted monitoring of the official web pages of public entities.
Of the 98 public entities monitored, 78 were assessed to have more than a 50 per cent rating of proactively disclosing information. A 100 per cent rate of proactively publishing information was observed in the case of three entities: the Administration of the Government of Georgia, Ministry of Science and Education of Georgia and the Ministry of Energy. They had the highest scores of the access to public information rating. Unfortunately, during the research period 35 public entities did not have a web page where according to legislation information should have been published; hence no data was proactively disclosed.
It is crucial for every administrative body to have a uniform approach to proactively disclosing public information. Entities covered by government decree should go beyond the requirements of law and in certain cases publish on their web pages information that is of high public interest in the given circumstances. The cases where no official web pages are created for public entities are highly alarming and need to be addressed in the immediate future.
Independent legal act on freedom of information
To date provisions on access to information are included in chapter three of the General Administrative Code of Georgia. Even though during the time of adopting the Code these provisions were indeed seen to be highly progressive, to date there is a common compromise between the government, and international organisations, as well as the civil society in the country on the need for an independent legal act which would include more detailed provisions on the issues of access to information. The draft of the Law on Freedom of Information has already been prepared by a special working group comprised of the representatives of the ministry of justice, civil society organisations, as well as Georgian and international experts. To date the text is under review and is to be presented for further consideration and adoption to the Parliament of Georgia in November 2015.
It should be emphasised that one of the most important changes introduced by the draft Law of Georgia on the Freedom of Information is the introduction of the Office of the Freedom of Information Commissioner (FOI Commissioner), an administrative body which will have the obligation and relevant leverage to supervise the fulfilment of the requirements stipulated by law. In its work the Commissioner will be guided by the Constitution of Georgia, international treaties, the law on Freedom of Information and other normative acts. The Commissioner is suggested by the authors of the draft law to be independent from all branches of government and to be elected by the Parliament of Georgia. The main objectives of the work of the Commissioner will be: oversight of compliance with the law of different administrative bodies; providing advice on access to public information to administrative entities as well as legal or natural persons; reviewing applications and complaints related to access to public information; conducting awareness-raising activities; conducting inspections of public institutions on application or at own initiative; as well as having the binding decisions for the government institutions on access to public information and so on.
The establishment of the Office of FOI Commissioner will ensure that cases involving a dispute over public information which become either overly lengthy or costly will be reduced to a minimum. The Commissioner will review complaints and/or applications within three days from its submission and take decision on the actions to be taken. The Commissioner will have the authority to carry out inspections at public institutions and hence assess whether information is kept at the administrative entity or whether data under dispute constitutes public information or not. Public institutions will be obliged to provide the Commissioner with any information kept at the body immediately after the request. The final decision of the Commissioner should be rendered within 20 days. The decision of the Commissioner will be mandatory for every public entity and may be appealed only in court. Further the Commissioner will be authorised to instruct public institutions to repeal or issue a relevant act or perform an action that leads to the release of public information, direct public institutions to proactively disclose public information, declassify information that has been classified illegally and even publicise secret information of high public interest.
In recent years many important steps have been taken by the government of Georgia which ensure higher access to information and set standards of freedom of information in line with the best international practice. Higher guarantees ensuring that the right to information is well respected are enshrined in the OGP Action Plan for Georgia as well as in the Georgian Anti-Corruption Action Plan. Undertaking the obligation to proactively publish information of high public interest was indeed crucial towards setting higher e-governance standards in the country. Moreover the recent case law of the IDFI clearly suggests improvements in the judicial branch of governance. In March 2015 the World Justice Project (WJP) launched the Open Government Index involving well-known researchers, experts and international organisations. According to the Open Government Index, Georgia scored 0.61 out of 1 and therefore, has been ranked first out of 13 countries in eastern Europe and the Central Asia region and 29th out of 102 countries in the world in terms of open government.
Nevertheless it is crucial for public entities in Georgia to fully internalise that the positive changes which are being introduced by the government can well be undermined if the provisions of the law are not fully implemented. It is essential for public entities to grant anyone that is interested access to public information, without the need for addressing the time-consuming and costly procedures of appeal cases to courts. Moreover the full implementation of the provisions on proactive disclosure of public information is highly important. Public entities should have a uniform approach to disclosing information. Cases where no official web page has been created for an administrative body should be eliminated. Most importantly, a higher standard of access to public information should be guaranteed by adopting the new Law on Access to Public Information and by the establishment of the Office of the FOI Commissioner.
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