Author: Nino Merebashvili
On January 31st, 2017, the Public Defender of Georgia held that the Ministry of Justice (MOJ) and 11 legal entities of public law (LEPL) operating within its system violated the right of N(N)LE Institute for Development of Freedom of Information (IDFI). According to the Public Defender, the state entities failed to fulfil their legal obligation to disclose public information.
In March 2016, IDFI addressed MOJ and its sub-entities with freedom of information (FOI) letters. IDFI requested disclosure of public information such as salary bonuses and supplements of high ranking public officials and employees, number of civil servants, expenses of business trips, procurement expenditures and etc. Unfortunately, all of the state entities failed to fulfil their obligation and ignored the FOI requests. On October 6th, 2016, IDFI appealed to the Public Defender.
For the purpose of ascertaining the facts of the case, the Public Defender requested information from MOJ and its 11 LEPLs. The Public Defender addressed these entities with a question whether they had responded to IDFI’s FOI requests received in March 2016. Instead of answering this question, 4 LEPLs provided the Public Defender with information that was requested by IDFI in March 2016. The remaining 7 entities - LEPL Public Service Development Agency, LEPL Legislative Herald of Georgia, LEPL Public Service Hall, LEPL National Bureau of Enforcement, LEPL Data Exchange Agency, LEPL The National Archives of Georgia, LEPL Training Center of Justice of Georgia ignored the Public Defender’s letter. This constitutes an administrative violation according to Article 173 of the Code of Administrative Violations of Georgia.
After carefully studying the facts of the case, the Public Defender ascertained that the information requested from MOJ and its 11 sub-entities by IDFI in March 2016 was open public information, meaning that the state entities were obligated to disclose it within the timeframe set by law and in the form requested. In his recommendation the Public Defender emphasizes a number of important points:
- The importance of freedom of information - The positive obligation of a state to ensure free access to information when it does not contain state, professional or commercial secrecy, is emphasized in the recommendation. Free access to information constitutes one of the crucial factors for personal development and self-determination in a society. The recommendation refers to the decision of the Constitutional Court of Georgia, according to which, the existence of an active discussion in a democratic society on topics of public importance is impossible without free access to public information.
- The role of IDFI – When discussing the importance of creating the forum of public debate, the recommendation emphasizes the IDFI’s role, as a non-governmental organization (NGO), is to monitor the state of access to information at public institutions. The Public Defender notes that the work of IDFI supports the existence of well-informed democratic debates in Georgia.
- Indirect censorship and intervention in the role of a social socialwatchdog – The Public Defender’s recommendation also discusses the topic of indirect censorship and refers to the interpretation of the European Court of Human Rights (ECHR), according to which, NGO activities warrant similar Convention protection to that afforded to the press. Hence, creating obstacles to access public information is equalled to indirect censorship. ECHR finds that violating the rights to freely access public information of NGOs working in the sphere of human rights constitutes intervention in their role of civil watchdog.
The Public Defender’s recommendation concludes that MOJ and its 11 LEPLs have violated their obligation to disclose public information that is enshrined in the Georgian legislation. This constitutes a violation of IDFI’s right to access public information. According to Article 21 (b) of the Organic Law of Georgia on Public Defender, the Public Defender addresses MOJ and its sub-entities to provide IDFI with the information requested in March 2016.
The system of the Ministry of Justice and its sub-entities were named as the most closed system of Georgian state entities (Access to Public Information Report 2016). All of the above entities failed to respond to any of IDFI’s FOI requests (346 requests in all), resulting in the score of 0% for providing access to public information.
The Public Defender’s recent statement is further evidence that the problem is of a systematic character. The Ministry of Justice is, without a doubt, one of the pivotal institutions for the purpose of establishing free, democratic and open governance in the country. Therefore, it is particularly problematic that MOJ completely ignores the obligation imposed on it by Georgian legislating and fails to internalize the importance of the free flow of information for the development of a democratic society.
IDFI hopes that MOJ and its sub-entities will fully comply with the obligation imposed on them by law, take into consideration the recommendation of the Public Defender and disclose information requested by IDFI in March 2016 in the nearest future.
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