General Comment of the United Nations Human Rights Committee: The Right of Access to Public Information

News | Rule of Law | Good Governance | Publications | Article 7 March 2013

 

Author: Nino Tsukhishvili

 

International Covenant on Civil and Political Rights, which was adopted on December 16, 1966 by the United Nations General Assembly, guarantees the right of access to public information in all States parties. Georgia ratified the International Covenant on Civil and Political Rights on May 3, 1994 and took obligations under the Covenant, including providing the right of access to public information. The implementation of the Covenant by States parties is monitored by the Human Rights Committee, which is an independent expert’s body. The Human Rights Committee is entitled to consider inter-state and individual complaints with regard to alleged violations of the Covenant by States parties as well as to examine state reports concerning the implementation of the Covenant on a national level. The Human Rights Committee also prepares and publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues, which presents essential guidelines for States parties on the implementation process.

The Human Rights Committee interpreted that State Parties should exercise the following activities for effective implementation of the Covenant:

  • Creating an effective mechanism of access to public information;
  • Ensuring easy, prompt, effective and practical access to public information;
  • Enacting procedural guarantees for access to public information by means of freedom of information legislation;
  • Defining reasonable fees for requested information which do not constitute an impediment to access to information;
  • Providing well-founded reasons for refusal of access to information;
  • Ensuring an effective appeal mechanism in the court system.

Georgia, as one of the States parties of the International Covenant on Civil and Political Rights, should ensure that the national legislation, administrative practice and courts’ decisions should be in compliance to the standards established by Article 19. The problems of Georgia regarding the access to public information first of all relates to access to information stored in agencies which are not public organs, but delegated public functions and/or finances  by public authorities. In most cases, access to this information is restricted on the ground of protection of a commercial secret, which is not in compliance with the established standards of the Human Rights Committee. Georgian legislation that regulates state and commercial secrets needs improvements, namely implementing the public interest test and providing a proper balance between the restrictions and protection of the right. Furthermore, Georgian legislation does not define any exceptions for paying fees for requested information, such as little number of copies or special groups that may receive requested information free of charge based on their professional activities (journalists, NGOs) or financial conditions.

The practice established by state organs does not comply with the requirement of easy, prompt, effective and practical access to public information, because state organs usually used the 10 days period for delivering information in spite of its necessity; furthermore, public organs do not present well-founded grounds in cases of a refusal of access to information and only indicate legislative provisions, which do not describe the administrative organ’s position clearly. It should be considered that state excise for administrative complaints creates an unreasonable impediment in the process of protection of the right through the court.

In conclusion, analysis of the Georgian legislation and its implementation in compliance with the standards of the Human Rights Committee shows that Georgia should improve legislative framework as well as administrative and court practices to provide transparency of public authorities and to be evaluated positively by the Human Rights Committee in the process of exercising obligations under the International Covenant on Civil and Political Rights.

 

The presented article was prepared in the framework of the Open Society Human Rights Internship Grant 2013.

 

IDFI (Institute for Development of Freedom of Information) is responsible for the ideas given in the article and they should not necessarily reflect the position of the Open Society Foundations (OSF).

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 General Comment of the United Nations Human Rights Committee: The Right of Access to Public Information

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