The Supreme Court of Georgia granted the appeal of IDFI and ruled that official email correspondence sent or received by official email constitutes open public information and should be accessible to anyone interested. The Supreme Court discussed the topic for the first time and resolved the existing practical dispute on disclosing official email correspondence in favor of freedom of information. Below we provide an overview of the facts of the case, and discuss the rationale of the court judgement.
IDFI referred to the Ministry of Justice with a freedom to information (FOI) request on March 10, 2015, and requested disclosure of official email correspondence on urgent procurements conducted by the head or by a relevant public official of the Ministry of Justice via official email account.
The Ministry of Justice ignored our FOI request as well as the follow-up administrative appeal. IDFI referred the case to Tbilisi City Court with the aim of protecting its right to freedom of information.
On May 11, 2016, Tbilisi City Court denied the appeal of IDFI, after which IDFI appealed the case to Tbilisi Court of Appeals. Tbilisi Court of Appeals based its judgement on the decision of the first instance court and on December 27, 2016 refused to grant the appeal of IDFI.
On March 14, 2017, IDFI submitted an appeal to the Supreme Court of Georgia. The Supreme Court fully granted the request of IDFI (the decision was issued on September 14, 2017, but IDFI did not receive it until December 6, 2017).
The rationale of Tbilisi City Court and Tbilisi Court of Appeals
Discussing IDFI’s FOI request, Tbilisi City Court and Tbilisi Court of Appeals noted that an administrative body has the obligation to disclose information only in cases where the following two criteria are present: 1. Information is received, processed, created or sent by a public institution or public servant in connection with official activities; 2. Information is kept in the form of an official public document. Both courts based their rationale on the definition of public information provided by the General Administrative Code of Georgia, according to which “public information is an official document (including a drawing, model, plan, layout, photograph, electronic information, or video- and audio-recording), i.e. any information stored at a public institution, as well as any information received, processed, created or sent by a public institution or public servant in connection with official activities; also any information proactively published by any public institution.”
Tbilisi City Court and Tbilisi Court of Appeals further reiterated that email by its definition is one of the means of conducting non-official correspondence and constitutes temporary data, which is used for the exchange of internal information. Furthermore, it does not include any final decisions. Information sent or received via email does not confirm a legally significant act and does not constitute an official document.
Tbilisi City Court as well as Tbilisi Court of Appeals linked information on official email correspondence related to urgent procurements conducted by the head or by a relevant public official of the Ministry of Justice via official email account to the principle of privacy enshrined in the Constitution of Georgia (Article 20). According to the paragraph one of Article 20 ‘Every individual's private life, home, personal papers, correspondence, communication by telephone, and by other technical means, including messages received through other technical means, shall be inviolable. The above rights may be restricted only by a court decision, or in absence of a court decision, if urgently necessary, as provided for by law.”
Based on the rationale of the first and second instance courts, electronic information is defined as an official electronic document causing certain legal consequences. Based on the arguments of Tbilisi City Court and Tbilisi Court of Appeals, only the final version of a document, which is included in the electronic system of document circulation can constitute public information (the courts were referring to the electronic system of document circulation developed at the Ministry of Justice).
Judgement of the Supreme Court of Georgia
The Supreme Court of Georgia found that the rationale of the first and the second instance courts, according to which, email is one of the means of conducting non-official correspondence and is used for the exchange of temporary data, is not well substantiated.
According to the Supreme Court, in order for information/an official document to fall within the definition of public information, it is not necessary for it to cause legal consequences or to meet necessary characteristics of a material document.
The Supreme Court stressed that official email correspondence sent or received by official email account, particularly in cases when it is related to urgent procurements, constitutes open public information and should be accessible to anyone interested.
According to the Supreme Court, information sent and received via official email constitutes official electronic document and meets the criteria of public information enshrined by Georgian legislation, similar to the cases of proactively published information or video and audio recordings.
On the subject of linking information requested by IDFI to the principle of privacy, the Supreme Court noted that “official email correspondence conducted via official email account is protected by the principle of privacy in cases when it relates to personal life. In the given case, the email correspondence conducted via official email account relates to simplified procurement which cannot be protected by the principle of privacy”.
The Supreme Court went further than the appeal of IDFI and ruled that any official correspondence conducted via official email account constitutes public information (including information on simplified procurement). The Supreme Court further reiterated that the mentioned does not include internal preparatory communication conducted between civil servants.
The Supreme Court found that the appeal of IDFI was well justified, thus granted the appeal, annulled the decision of Tbilisi City Court and rendered a new decision, according to which, the Ministry of Justice was directed to fully disclose information requested by IDFI.
The Supreme Court ruling on the topic is of precedential importance. The court unambiguously stated that not only information related to simplified procurement but any other official communication conducted via official email account constitutes open public information.
IDFI calls on the Ministry of Justice to execute the ruling of the Supreme Court and disclose official email correspondence on urgent procurements sent or received via official email account by relevant public officials of the Ministry of Justice.
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