On August 2nd, 2018, the Georgian National Communication Commission (the Commission) established NNLE Media Academy (Media Academy) and granted it the mandate of promoting media literacy in Georgia. Media Academy was founded based on the Law of Georgia on Broadcasting and the Law of Georgia on Electronic Communications. Based on existing legislation the Commission is entitled to carry out research and organize training courses in the area of media literacy by itself, or establish a separate entity with the mandate. Thus by creating Media Academy, the Commission delegated its public capacity in the area of media literacy to Media Academy.
There are several platforms created within Media Academy: Media School - for the training of journalists, producers and media managers; Media Lab - for supporting and funding startups in digital media; and Media Critic - for analyzing and evaluating media products.
The establishment of Media Critic was followed by demonstrated mistrust among a large part of media representatives. They argued that the Commission started to regulate media, exceeded its power, created the risk of censorship and raised doubts of using the platform against the media with demonstrated anti-government narrative. In response to these suspicions, the Media Academy must show a high level of transparency and accountability.
It is noteworthy that Media Academy – a non-entrepreneurial (non-commercial) legal entity exercises public powers provided for by law. In particular, according to the law on Broadcasting the Commission is entitled to facilitate the development of media literacy in Georgia and in doing so is entitled to establish a non-entrepreneurial (non-commercial) legal entity. Thus by establishing Media Academy and delegating public functions of the Commission to it, Media Academy constitutes a public entity in a functional definition. Consequently, the requirements of disclosing public information provided for by the law are fully applicable to it.
The practice of avoiding public scrutiny by establishing a legal entity under private law is unacceptable. Unfortunately, the Commission and Media Academy argue that they are separated in their activities and refer to the private legal personality of Media Academy in order to avoid public scrutiny.
IDFI referred to Media Academy, with a FOI letter requesting various types of public information such as: the staff list of Media Academy, copies of the legal acts defining the mandates of Media Lab, Media Critic and Media School, the activities carried out by them and relevant costs, their budgets, etc. IDFI aimed to receive the information and thus hold Media Academy accountable towards the public. However, the entity refused to disclose public information indicating that it was not a legal entity under public law, neither in an organizational nor in a functional definition and thus refused to abide by existing legislation on freedom of information.
IDFI disagreed with the refusal and submitted an administrative complaint to the Commission. IDFI argued that the Commission was responsible to review the administrative complaint as the founder and supervisory body of Media Academy and as the public entity mandate of which was delegated to Media Academy.
On March 12th, 2020, a hearing was held regarding the admissibility of the administrative complaint. The Commission noted that the mere fact that Academy was established by the Commission did not suffice to conclude that the Commission was a supervisory body of Media Academy. However, the Commission overlooked the main issue – according to the founding documents of Media Academy, it undertakes activities within the public capacity delegated to it by the Commission. The Chairperson of the Commission noted:
‘In order to ensure that the responsibilities of the Commission in the area of media literacy were duly implemented, there was the need of establishing Media Academy. The Commission is entitled to establish legal entities of private law with the aim of carrying out public functions. Thus the commission can delegate the right to carry out certain activities to these entities. However, delegating public functions is impossible and the Commission certainly did not do so when establishing Media Academy.’
Thus the Commission interpreted delegation of public functions as the mere act of delegating the capacity to carry out certain activities. The explanation is highly ambiguous and is not in line with applicable legislation. We find that by referring to the argument the Commission attempts to neglect the legal obligations placed upon public entities under existing legislation.
It should be noted that the argument of IDFI is based on the existing legislation according to which the obligation of disclosing public information is applicable to private entities when they are acting in a public capacity. The issue has also been discussed in the case-law of the Supreme Court of Georgia. Namely, the Court noted that in the case when a private legal entity performs public functions, the legislation of accessing public information is applicable to it, regardless of its legal personality.
During the hearing of the administrative complaint, the Commission further stated that there was no normative act obliging it to review administrative complaints against Media Academy. By declaring the complaint inadmissible, the Commission sidestepped the provisions of the law of Georgia on Broadcasting, which stipulates that the functions of the Commission in the field of broadcasting is to facilitate the improvement of the media literacy within the society. In addition, according to the Charter of Media Academy, the Commission approves its main directions, programs, projects, budget, structure, staff list and remuneration. Moreover, the Director of the Academy is appointed and dismissed by the chairperson of the Commission and is directly accountable towards him/her. Hence, the Commission is not only the founder of the Media Academy but also actively participates in its management and supervises the activities of the entity.
In response to the argument of IDFI, according to which Media Academy was responsible to disclose information since it was acting in the public capacity delegated to it by the Commission, the Chairperson of the Commission stated:
Based on the argument every activity outsourced by the Commission should be considered a delegation of public power. For example, pre-election monitoring is necessary for the Commission in order to exercise its public power; or the Commission needs consulting services for market research, announces tender, hires Ernst & Young for this reason, which is possible only through outsourcing. That is when the Commission announces international tender and hires, for example, Ernst & Young and certain activities are transferred to it by contract to carry out public functions, based on the rationale of IDFI, this is a delegation of public power? This is the same case.
We think that the Commission’s above-mentioned viewpoint is particularly problematic. In the best-case scenario, the given opinion aimed at diverting the attention away from the main factor of the case. After the hearing, IDFI requested the audio/video records of the hearing. The Commission refused to provide us the audio/video recordings. In particular, the Commission indicated that the audio recording is an internal document that is necessary for the preparation of the administrative acts only. As for the video recording, the Commission notified us that the hearings of the Commission are reported only via live stream and they are not archived by the Commission. The commission only agreed to disclose the written minutes of the hearing.
It is highly problematic that the Commission encourages limiting access to public information which also contradicts the publicity principle of regulatory bodies.
With the aim of exercising its right to access public information, IDFI referred the case to Tbilisi City Court. We hope that the court will make a decision based on existing legislation, confirm that Media Academy constitutes an administrative body and oblige it to disclose public information. This will also send the right message to public entities by stating that public scrutiny cannot be avoided by establishing private entities and delegating public functions to them.
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