Access to court decisions in Georgia significantly deteriorated from October 2015. Before this date, the common court of Georgia provided unhindered access to the copies of their decisions, however, in the aftermath they started to refuse disclosing court decisions based on the argument of personal data protection. Courts employed a broad interpretation of the concept of personal data. They did not take into account any possible public interest in relation to specific court cases. The balance between personal data protection and access to public information was disrupted as unconditional priority was given to personal data protection.
IDFI started to take active steps with the aim of increasing access to court decisions in 2016, within the auspices of the project Increasing Access to Court Decisions in Georgia. The project was implemented with the support of the East-West Management Institute (EWMI) under the Promoting Rule of Law in Georgia (PROLoG) Program, funded by the USAID.
IDFI found that existing regulation on access to court decisions violated the Constitution of Georgia. Thus, on November 22, 2016, IDFI filed an appeal at the Constitutional Court of Georgia. The appeal was merged with the one filed by MDF on the same topic.
On June 7, 2019 the Constitutional Court of Georgia granted the appeals of IDFI and MDF on the subject of access to court decisions.
The Subject of the Dispute
In its constitutional appeal, IDFI referred to the Constitution of Georgia (Article 41), which sets the presumption of publicity for all documents kept at public institutions, and allows limiting access to them only under exceptional circumstances with relevant substantiation.
Articles of the General Administrative Code and the Law on Personal Data Protection disputed by IDFI set non-provisional limitations to accessing court decisions, i.e. refused to disclose full texts of court decisions without the possibility of any deliberation on individual circumstances of each request. Based on the disputed articles court decisions could not be disclosed even when they referred to cases of former/acting high-ranking public officials. In addition, the articles did not allow to disclose court decisions in cases of high public interest.
Considering the fact that all court decisions contain personal data, the disputed norms effectively allowed for non-disclosure of any court decision, in this way denying the wider public the opportunity to study and review court decisions on specific cases.
IDFI believed that access to court decisions was an essential component of the transparency of and trust in the judiciary. For this purpose, the public had to be granted access not only to the general court practice but also to the full deliberation used by a judge when rendering a decision on any specific case.
The Rationale of the Constitutional Court Decision
According to the Constitutional Court of Georgia, court decisions constitute the type of information kept at a state institution which is subject to high public interest by default. The court further deliberated that access to court decisions is crucial for ensuring public control of and trust towards the judicial system and protecting the right to a fair trial.
In addition, the court stressed that under exceptional circumstances, taking into consideration sensitivity of information included in court decisions, redacting personal data might be necessary, however, this should not have a universal character. In each individual case when discussing the topic of access to a court decision, the effect of personal data disclosure on the privacy of an individual concerned must be considered and evaluated whether it outweighs the high public interest of accessing court decisions.
The Constitutional Court found that the disputed norms violated freedom of information ensured by the Constitution of Georgia (Article 18.2) and declared them unconstitutional.
The court held that the disputed norms would be void from May 2020 and thus gave the Parliament time to harmonize existing legislation with the requirement of the Constitution.
Reference to the Parliament of Georgia
For years IDFI has been reporting on the disrupted balance between personal data protection and freedom of information in favor of the former. The problem was emphasized in the reports of the Ombudsman of Georgia multiple times. Malpractice regarding access to court decisions was also discussed in the academic paper of Toby Mendel, the Director of the Center for Law and Democracy (Canada). The paper presents the case law of the European Court of Human Rights on the subject of balancing the interests of freedom of information and privacy. The document is based on the challenges faced by Georgia in relation to access to court decisions, which has become the subject of active international discussion as a result of advocacy conducted by IDFI.
In May 2019, the Personal Data Protection Inspector submitted a legislative proposal to the Parliament of Georgia, which includes a new draft law on Personal Data Protection. According to the explanatory note, the new draft law was elaborated in order to harmonize Georgian legislation with the EU standards and meet obligations undertaken by Georgia under a number of international agreements. On May 22nd, the legislative proposal was registered as a legislative initiative by the following MPs: Sofio Kiladze, Rati Ionatamishvili, Tsotne Zurabiani, Vano Zardiashvili, Irakli Beraia and Anri Okhanashvili.
To-date when parliamentary discussions regarding the new draft law on Personal Data Protection are underway IDFI calls on the Parliament of Georgia to take into consideration the standards set by the Constitutional Court Decision of June 7, 2019, and reflect them in relevant legal acts.
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