In its decision of December 21, 2023, the Supreme Court of Georgia upheld the decision of the Tbilisi Court of Appeals, according to which the legal entity of private law - Media Academy - established by the National Communications Commission was considered an administrative body in a functional sense, and the Media Academy was obliged to provide public information to IDFI.
While discussing the inadmissibility of Media Academy's cassation appeal, the Supreme Court made important clarifications.
We believe that as a result of almost four years of strategic litigation by IDFI, a practice has been established that represents a step forward in terms of ensuring access to public information.
Based on the broadcasting and electronic communications regulatory legislation, in August 2018, the National Communications Commission (hereinafter referred to as ComCom or the Commission) established the NNLE Media Academy to promote the development of media literacy.
IDFI addressed a public information request to the Media Academy on 24 January 2020, requesting various information, including the Media Academy's staff list, as well as information on the Media Academy's platforms "Media Lab", "Media Critic" and "Media School". The Media Academy refused to provide the information indicating that it is not an administrative body and is not obliged by law to provide information.
The Media Academy's written refusal was administratively appealed to the National Communications Commission, but the Communications Commission, to which the Media Academy is accountable, refused to consider the appeal, stating that it was not the superior administrative body of the Media Academy.
In April 2020, IDFI filed a lawsuit against the Media Academy in the Tbilisi City Court, demanding recognition of the Media Academy as an administrative body and the obligation to issue public information to be applied to it. According to the decision of February 25, 2021, the Court shared the IDFI's legal reasoning and considered the Media Academy an administrative body in a functional sense, insofar as "the latter is established on the basis of the delegated authority of the National Communications Commission to exercise authority under public law." The Tbilisi City Court fully satisfied IDFI's claim and ordered the Media Academy to provide the requested information.
Media Academy appealed the decision of the Tbilisi City Court to the Court of Appeals. During the appellate review of the case, the Amicus Curiae-s were presented by the Public Defender of Georgia and Doctor of Law, Professor of Administrative Law of the Faculty of Law of Tbilisi State University Paata Turava.
According to the opinion of Professor Paata Turava, the Media Academy fulfills public legal powers based on administrative legislation, and as a public institution, the obligation to provide access to public information applies to it. "The choice in favor of the private legal form should not become an escape into private law ("Keine Flucht ins Privatrecht"), as a means of avoiding public legal obligations" - stated the opinion.
In the opinion presented by the Public Defender, attention was focused on the special role of the Courts in protecting the right to access public information, considering that the norms regulating the right to access public information are quite outdated and there is no supervisory institution with an effective mandate, which is why public institutions take advantage of the existing legal situation and avoid providing information.
According to the ruling of October 20, 2021, the Tbilisi Court of Appeals shared the position of IDFI, and explained that "as a result of the delegation of authority, the NNLE Media Academy exercises authority under public law and functions as an administrative body within the mentioned framework". The ruling also mentions that "public governance is not limited to the issuance of an individual-legal act, the implementation of an administrative real act, or the conclusion of an administrative contract, but its content is broader than administrative proceedings."
As a result, the Court of Appeals left the Tbilisi City Court's decision unchanged, and the Media Academy filed a cassation appeal to the Supreme Court.
The Chamber of Cassation, by its decision of December 21, 2023, recognized the cassation appeal of the Media Academy of December 27, 2021, as inadmissible, upheld the ruling of the Tbilisi Court of Appeals, and ordered the Media Academy to provide public information.
The Supreme Court, while discussing the inadmissibility of the cassation appeal of the Media Academy, noted that "in order to clarify the issue of considering the Media Academy as a public institution, on the one hand, the funding bases of the Media Academy should be evaluated, and on the other hand, the possibility of considering the Media Academy as an administrative body in the functional sense. In addition, these conditions are not cumulative, but alternative, in case of confirmation of one of them, NNLE Media Academy will be considered a public institution and, accordingly, an entity obliged to provide information."
The source of funding for the Media Academy is the funds allocated by the National Communications Commission. Due to this fact, the Supreme Court started discussing the basis of financing the Media Academy by discussing the issue of financing ComCom itself.
The Supreme Court focused on the legislative changes made in 2017 and the new function given to ComCom to promote media literacy. The Court points out that to fulfill the new function, the need to allocate financial means was determined, "to mobilize them, additional changes were made in the legislation, according to which, over the years, the funds included in the state budget were assigned to the Commission. Thus, the state budget has given up part of its income in favor of the Commission to properly implement the function of promoting the development of media literacy" (p. 21). The Court determined that the realization of the ComCom's legislatively established obligation e. i. implementation of the media literacy development function was "indirectly ensured by the funds of the state budget" (p. 21). the Court explained that "for its part, the National Communications Commission, to fulfill the function assigned to it, to achieve the goals of developing and promoting media literacy in society, founded the NNLE Media Academy and provided it with the funding that the Commission received from the state budget as a result of renouncing its income and directing the funds to the budget of the Commission'' (p. 21). At the same time, in the judgment, the Court drew attention to the fact that ComCom is prohibited from making such expenses from its own budget that are not in line with its functions defined by law.
The Chamber of Cassation pointed out that the General Administrative Code of Georgia (hereinafter referred to as GACoG), particularly, "article 27, paragraph "a" for recognition of the entity as a public institution, refers to the necessity of financing the entity from budgetary funds and not directly from the budget, which additionally confirms the existence of prerequisites for considering the entity as a public body in the case of indirect financing of the entity through financial provision with funds belonging to the budget" (p. 22).
The Chamber of Cassation stated that "if the performance of a specific function is directly or indirectly ensured by means of the state budget, the subject is considered a public institution within the meaning of Article 27, paragraph "a" of the GACoG and there is no need to further discuss the issue of considering it as an administrative body... it is obliged to ensure the openness of information on the actions carried out within this financial framework" (p. 22).
Although the Court considered the funding basis sufficient to apply the public information obligation to the Media Academy, it provided additional clarification on the implementation of the Media Academy's authority under public law to promote media literacy.
The Court stated that to determine the legal nature of the authority, it is necessary to assess "its content and purpose ... only those rights and obligations which are conferred on the body to fulfill its public-law objectives can be regarded as authority under public law " (p. 26). The Court indicated that, when exercising public authority, the body is fulfilling a duty imposed by law and it has not only the power but also the duty to implement the relevant measures. "... the need to fulfill the obligation when the precondition is met is imperative" (p. 26). Unlike a private entity, which retains freedom of will if it does not act within the scope of the delegation of authority.
The Chamber of Cassation did not share the Media Academy's view that, to be considered as an authority under public law, it must meet the criterion of exclusivity. In response to this, the Chamber of Cassation pointed out that, in addition to the exclusive powers, the governing bodies are endowed with the type of public-legal powers that may be exercised by private entities, and this does not deprive these powers of the status of a public law authority. "The main functions of a public institution are derived from the goals of the institution and include, among others, the creation of a sectoral strategy and an action plan... Thus, it is established that promoting the development of media literacy is one of the main functions of the National Communications Commission of Georgia". (pp. 28-29) According to the Supreme Court, the fact that the promotion of the development of media literacy is the main task, goal and main function of ComCom, as defined by the legislation, "clearly confirms the public law nature of the function of promoting the development of media literacy" (p. 29).
The Supreme Court noted that some of ComCom's functions in the field of media literacy had been transferred to the Media Academy, but since the Media Academy is a public institution within the meaning of Article 27(a) of the GACoG the Court of Cassation no longer considered it necessary to assess the forms of activities of a legal entity of private law.
Based on all of the above, the Chamber of Cassation considered that IDFI's claim was correctly satisfied and declared the Media Academy's cassation appeal inadmissible.
The standard established by the decision of the Chamber of Cassation in this case is a step forward in ensuring the openness of public institutions. The practice established by the Supreme Court is particularly important from the point of view that public institutions cannot evade the legislative requirements of transparency and accountability by delegating their powers to private law entities.
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