Supreme Court Rules in Favor of IDFI in a Case against the Ministry of Economy and Sustainable Development

News | Rule of Law | IDFI Case Law | Publications | Article 28 February 2017

Author: Nino Merebashvili

 

The Supreme Court of Georgia declared the appeal of the Ministry of Economy and Sustainable Development (MOESD) against the Institute for Development of Freedom of Information (IDFI) inadmissible. The Ministry argued that the decision of Tbilisi City Court, according to which the appeal of IDFI was fully granted and the entity was directed to disclose information on different administrative expenses of 2014, such as bonuses and salary supplements, business trip and roaming expenses, simplified procurements and etc. was in conflict with existing legislation. IDFI referred to MOESD with a freedom of information (FOI) request on March 3, 2015, however, even after two years the Ministry has still not provided us with the information.  

 

In its decision the Supreme Court of Georgia highlights that MOESD has failed to justify that any of the admissibility criteria of the appeal were present. More specifically, the entity could not present arguments proving that the case has been considered by the Court of Appeals with significant procedural violations; that the Appellate Court decision differed from the previous practices of the Supreme Court of Georgia on same category cases; or that the case was important for the development of law and formation of a uniform legal practice. Hence, the Supreme Court of Georgia left the decision of Tbilisi City Court in force and directed MOESD to fully disclose information requested by IDFI.

 

Bellow we present the description of the dispute at the first and the second instance courts.  

 

Tbilisi City Court

 

On June 15, 2015, with the aim of protecting its right IDFI referred to Tbilisi City Court after MOESD ignored our FOI request and the consecutive administrative appeal. The court fully granted the appeal of IDFI and the Ministry was held responsible to provide us with complete information on different administrative expenses. Tbilisi City court stressed a number of important legal issues in the decision, namely:

 

- The court referred to the interest protected under article 10 of the European Convention on Human Rights (ECHR) and highlighted that according to the article everyone has the freedom to hold opinions and to receive and impart information and ideas without interference by public authorities.


 

- The decision emphasizes the principle of freedom of information guaranteed by the Constitution of Georgia and notes that the Constitution enshrines not only negative obligation of the state not to intervene in the process of receiving information but also positive obligation to disclose information held by state entities.  

 

- When discussing the subject of salary supplements and bonuses of high ranking public officials, the court emphasized that the information, including names and surnames of high ranking public officials, has characteristics of open public information and should be disclosed completely upon request and in the form indicated in a FOI letter.

 

- On the topic of salary supplements and bonuses of public officials, representational and roaming expenses, and information on urgent procurements, the court highlighted that MOESD was obliged to disclose information without indicating personal and commercial secrets.

 

MOESD refused to agree with the decision of Tbilisi City Court, which was fully based on existing legislation and practice and appealed the decision at Tbilisi Court of Appeals. 

 

Tbilisi Court of Appeals

 

Tbilisi Court of Appeals did not agree with the arguments of MOESD either and on March 25, 2016, the court left the decision of Tbilisi City Court in force. Tbilisi Court of Appeals stressed a number of important legal issues in its decision:

 

Regarding salary supplements and bonuses of high ranking public officials, the court referred to the decision of the Constitutional Court of Georgia, according to which, “data protection regime of public figures differs from the standards applicable to other persons. Publicity of personal data linked with high ranking public officials serves the purpose of transparency of the data. Information on high ranking public officials is open dwelling from existing high public interest based on article 44 of the General Administrative Code of Georgia.”

 

- Tbilisi Court of Appeals noted that information on salary supplements and bonuses of high ranking public officials, legal acts containing the bases for rewarding them with salary supplements and bonuses, information on their work experience, indicating the personal data of relevant officials have the characteristics of public information and should be disclosed in the form requested by an applicant.

 

- When discussing administrative expenses, such as business trip, roaming and representational expenses, the Court highlighted that one of the milestone principles of the Law on Public Procurement is ensuring transparency of state procurement. According to the Budgetary Code of Georgia, transparency is one of the main principles of the budgetary process, which includes publishing Budget Implementation Reports and accessibility of information on budgetary process to any interested natural or legal person.  The court highlighted that control and reporting is an inseparable part of a budgetary process and everyone has the right to know the results of audit checks and monitoring of the activities implemented by a public institution.

 

MOESD did not agree with the rationale of Tbilisi Court of Appeals and took the case further to the Supreme Court of Georgia. In this way, the entity further delayed the enforcement of the court decision, and, therefore, disclosure of requested information.

 

Now that the decision of the Supreme Court of Georgia is in force, MOESD has exhausted all legal means available to further delay the process. Therefore, we hope that the entity will ensure that the information requested by IDFI concerning its 2014 administrative expenses will be disclosed in the nearest future.

 

MOESD has distinguished itself as a public institution with one of the lowest standards of accountability and disclosure of public information. In 2015, monitoring conducted by IDFI found that MOE was one of the most closed public institutions.  During the monitoring period, MOESD ignored the highest number (44) of freedom of information requests. Unfortunately, during 2014 and 2015 MOESD has been refusing to provide us with information that the entity had no problem disclosing completely in the years of 2012-2013, i.e. in the post-election period.

 

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