On February 11, 2021, the Public Defender established a violation of the constitutional right - access to public information of the Institute for Development of Freedom of Information by the Ministry of Economy and Sustainable Development of Georgia.
On July 8, 2020, IDFI sent a FOI letter to the Ministry of Economy and Sustainable Development of Georgia requesting biographical data of the persons employed as advisors to the Minister and Deputy Ministers in 2018-2020 as well as copies of the labor contracts concluded with them.
According to the response received from the Ministry of Economy and Sustainable Development of Georgia dated July 16, 2020, the administrative body refused to provide information without any substantiation merely referring to the protection of personal data of people concerned and Article 44 of the General Administrative Code of Georgia.
IDFI considers that the requested information was of high public interest. Respectively, pursuant to the Article 18(3) of the Constitution of Georgia, the Ministry was obliged to release it. Considering the purpose and specifics of their activities biographical data of the advisors, including the contracts concluded with them carry high public interest and they should be subject to the control mechanism exercised by the civil sector using the right of access to information.
In order to examine the issue, on July 27, 2020, IDFI submitted an application to the Public Defender of Georgia.
According to the assessment of the Public Defender, when the administrative body has such wide discretion granted by the legislator – to appoint a person to exercise public powers provided for by law without competition and special qualification requirements as well as in some cases grant him/her salary higher than the set amount from the state budget, the public institution is obliged to provide information related to contracts and biographical data of advisors of state/political officials in order to achieve a legitimate goal, as the public trust in state institutions is determined by the level of transparency of their activities.
The Public Defender considers that the information requested by the Institute for Development of Freedom of Information from the Ministry of Economy and Sustainable Development of Georgia on July 8, 2020, contains personal data, but it is in the public interest, therefore, the administrative body had a positive obligation to release this information.
The ombudsman also drew attention to the fact that the Ministry did not substantiate what was a higher purpose according to which it did not issue information of public interest and why the rights of specific individuals could not be restricted for a legitimate purpose.
The Public Defender fully shared IDFI's position and stated that “the requirements established by the legislation of Georgia on releasing the public information were violated, as the good received from disclosing such information exceeded the expected harm to the personal data, which in turn caused "unjustified restriction of the right of access to public information”.
The Ombudsman addressed the Ministry with a recommendation to oblige the person responsible for ensuring access to and proactive disclosure of information to provide public information requested by the Institute for Development of Freedom of Information by the #FOI0720-03 letter. In addition, according to Article 24 of the Organic Law of Georgia on the Public Defender of Georgia, the Ministry is obliged to consider the above-mentioned recommendation and report in writing regarding the measures taken to the Public Defender within 20 days.
Based on the experience of the IDFI, it can be concluded that the reference to the protection of personal data has become a "universal" basis for refusing to provide information. Administrative bodies do not evaluate public interest related to requested information and refuse to provide it to stakeholders without any argumentative reasoning.
Considering that the precedent of providing information based on public interest is rare and the mentioned legal ground enshrined in Article 18(3) of the Constitution and Article 44 of the General Administrative Code of Georgia, which came into force after the amendment of the Constitution, has been ignored by the administrative bodies, the recommendation and legal substantiation issued by the Public Defender is essential in terms of transforming the wrong practice into a positive one.
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