Access to public information is one of the main mechanisms to conduct public control over state government in a legal and democratic state and to improve open and effective governance. In this regard journalists’ and media representatives’ access to public information is of particular importance that on the one hand is important for their professional practice and on the other hand strengthens public control over state authorities.
Violation of the procedures established by law by public bodies when issuing public information is not uncommon. In particular, there are frequent cases when public bodies violate terms for issuance of information, stipulated by law, refuse to issue public information without proper legal ground and, moreover leave application regarding public information unanswered.
It should be mentioned that journalists’ access to public information has a significant value for Georgia’s integration in the European Union. For example, in the questionnaire requested by the European Commission to the Government of Georgia for membership of the European Union, question 221 directly concerns journalists’ access to public documents. Also European Parliament’s resolution of 9 June 2022 on violations of media freedom and safety of journalists in Georgia mentions that journalists, media representatives that are critical to the government face difficulties in accessing public information[1].
There is no external administrative mechanism for control [2]. Thereby, control exercised by judiciary, by general courts is of highest importance. Of course the contents of the decisions are important, but no less important is the time frames of such decisions. Namely, the dispute must be resolved in such a way that the requested information does not lose relevance /value.
To assess efficiency of judicial control In terms of procedural time limits, IDFI has studied statistics of court cases in 2010-2020 years regarding public information and most recent cases decided by the Supreme Court of Georgia. Namely, IDFI has studied the Supreme Court’s 24 recently completed cases.
As the research shows, courts of first instance solve disputes in about six and a half months, whereas, according to law court shall resolve a case not later than two months after receiving the application. this time limit may be extended by not more than five months in particularly complex cases [3]. In such cases the court shall deliver a reasoned ruling explaining the complexity of the case. There are no examples of such a ruling in the studied cases. Moreover, in general, public information disputes are less likely to fall into the complex category of cases. In majority of cases regarding public information we are not dealing with particularly complex legal aspects or a large amount of evidence to be investigated.
Regarding courts of appeal, It reviews admissibility of a claim within 10 days [4] and after finding It admissible resolves the case within 2 months. An analysis of the cases revealed that the Court of Appeals takes an average of eight and a half months to reach a decision.
The supreme court takes the most time to reach a decision on cases regarding public information. As the analysis of the recent 24 decisions of the Supreme Court shows, it takes an average of 1 year and 1 month to resolve public information disputes. According to the law, the total time limit for reviewing admissibility of a claim and making a decision on administrative cases should not exceed 6 months [5].
The statistics of applying to the court regarding public information is declining. Namely, we do not take into consideration the year 2016, when there has been an outstandingly high number of cases (330 cases) compared to other years (reasons of which are unknown for us). On average, there are 51 new cases referring to public information each year. According to the statistics of recent years, this number is decreasing even more, in 2020 - 28, and in the first 9 months of 2021 - 10 cases.
The access of the public, especially of the journalists to the official documents is essentially important for creating high-quality media content about the state's activities and therefore for raising the accountability of the government. Proper protection of the right to access public information “helps to raise the accountability of state institutions and improve their efficiency. Under open governance state bodies/officials have an expectation that their activity might be checked by any interested person and in case of detecting wrongdoing they might be subject to both legal and political liability” [6].
The importance of effective legal control over issuing public information is especially high, since there is no other external control mechanism over public information in the legal system of Georgia. Current legislation of Georgia does not recognize a specialized body supervising the issuance of public information, which would be equipped with a special mandate in public information matters. It is worth mentioning that this institution is provided by the draft law on Freedom of Information drafted in 2014, which has been advocated by IDFI for years. The existence of such a body is quite familiar for foreign countries, where it is equipped with administrative powers and exercises rapid control over the issuance of public information.
In the absence of such an external supervision mechanism, The Public Defender of Georgia is the only controlling body besides the court, which, according to Article 35 of the Constitution of Georgia is a constitutional body supervising the protection of human rights on the territory of Georgia. In order to protect human rights guaranteed by Chapter 2 of the Constitution of Georgia, the Public Defender is equipped with competency to examine individual statements and appeals and based on results of an inspection send proposals and recommendations to relevant administrative bodies. The mentioned proposals and recommendations constitute a non-binding legal lever that can be shared by the infringing body or used as evidence in a dispute over the issuance of public information in a common court. This legal mechanism refers to every fundamental right protected by chapter two of the constitution of Georgia, including the right of access to public information, granted by Article 18, paragraph 2 of the Constitution.
Thereby, the Public Defender’s levers of control over public information are quite limited and have only recommendatory nature. Only in cases of discrimination can Public Defender apply to the court. In such a legislative system, the role of the court increases even more, since it is the only body which can decide cases on the merits in the field of public information and is equipped with a compulsory mechanism.
The importance of access to public information is significantly high in the view of European and Euro-Atlantic integration. This can be read in the European Council’s conclusion on Georgia's application for membership of the European Union by which Georgia was denied the candidate status but its European perspective was recognized. More than half of the conditions established by the European Union for granting the candidate status is directly or indirectly related to increasing the accountability and transparency of public institutions and access to public information is recognized as one of the important problems [7].
Therefore, the importance of the access to public information is recognized both by national and international documents, as a fundamental element of a democratic state and a necessary value for media activity. When there are no other mechanisms of external supervision over public information, the control exercised by the court gains special importance in terms of the actual exercise of this right and the accountability of public institutions.
Analysis of recent practice shows that requesting public information through the courts is ineffective and the violation of procedural time limits actually obscures the essence of this right and makes it impossible to exercise it effectively. Finally, the average time from applying a complaint and initiating a lawsuit by the interested party to the final settlement of the dispute is 2.5 years. Whereas, according to law the maximum time limit for public information cases to be solved (taking into consideration maximum time limits of filing appeals) must not exceed 11 and a half months. Receiving the requested information after 28 months deprives this information from its value / relevance [8].
Such delays in hearing and resolving public information cases virtually preclude the effectiveness of judicial control over administrative bodies as well. Moreover, a dispute related to public information, due to its specificity, should be resolved even in less time than the maximum time limit established by law. Particular legal complexity, complex factual prerequisites and big amount of evidence to examined is not typical for the Vast majority of such cases and the interest of recovering the violated right and receiving the requested information is instantaneous. Continuation of disputes for 2.5 times longer than stipulated by law, on the one hand, makes it impossible to properly restore the violated legal status of a person, and on the other hand, fails to exercise proper control over public bodies.
For example we can refer to IDFI’s latest case [9], where The National Archives of Georgia was obliged to provide the public information that the organization has been requesting since June 29, 2018. Supreme Court of Georgia made the decision on 13th of may 2022, after about 4 years. Also we can refer to IDFI’s case against Administration of the Government of Georgia. On September 11, 2020, IDFI addressed a statement to the Administration of the Government of Georgia requesting the disclosure of governmental decrees in the form of public information from March 20, 2020 and up to the date of the request. The Georgian government left the request unanswered. On December 18, 2020, IDFI applied to the Tbilisi City Court, but the case is still in the first instance and a substantive hearing has not been scheduled yet [10].
Such timeframes for resolving public information disputes deprive the requested information of its value / relevance, which has a particularly negative impact on the activities of journalists and the media, who typically provide information to the public about real-time problems. For them, going to court is in fact associated with wastage of material resources Because even if the dispute is successfully resolved, the information they receive will most likely no longer be usable. All this finds its reflection in the number of complaints filed in general courts regarding access to public information and the lack of interest of media in applying to the courts.
In order to ensure that public authorities fulfill their legal obligation to properly issue public information, it is essential that judicial oversight to be effective and that public institutions have expectancy that after illegal act the court will restore party’s violated right by them to issue public information. According to above-mentioned Restoring this right through the court is quite ineffective.
The lack of timely justice over the legal obligation of public bodies to provide public information, on the one hand, hinders citizens’ right to be effectively exercised, and on the other hand, encourages the arbitrariness and untransparent activities of public bodies. In the current situation, an administrative body will easily be able to violate the right to access public information.
All of this significantly undermines the possibility to create qualified and evidence-based media products, the implementation of effective public control over public institutions and the accountability of public authorities.
Due to the nature of public information disputes, it is highly important to reduce the timeframes for hearing / resolving such cases, at least this process should be within the time limits provided by law. In addition, due to the nature of judicial control and the administration of justice, reducing timeframes for resolving cases has its own limits. IDFI has been advocating establishment of the institute of Inspector for freedom of information for many years. We must mention that the relevant draft law has been under consideration of the executive power since 2014, but it has not been registered in the Parliament of Georgia so far.
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[1] European Parliament resolution of 9 June 2022 on violations of media freedom and the safety of journalists in Georgia (2022/2702(RSP)). Par. G https://www.europarl.europa.eu/doceo/document/TA-9-2022-0239_EN.html.
[2] For example information freedom commissioner or other body equipped with same authority. The Public Defender of Georgia, under its general mandate of human rights protection is empowered to examine cases of public information but this mechanism does not meet high standard of efficiency because results of such inspection are not mandatory.
[3] CIVIL PROCEDURE CODE OF GEORGIA, article 59, paragraph 3
[4] CIVIL PROCEDURE CODE OF GEORGIA, article 174, paragraph 1
[5] ADMINISTRATIVE PROCEDURE CODE OF GEORGIA, article 34, paragraph 4.
[6] Decision of the Constitutional Court of Georgia of 7th of June 2019, №1/4/693,857 on the case of “Non-entrepreneurial (non-commercial) Legal Entity “Media Development Fund” and Non-entrepreneurial (non-commercial) Legal Entity “Institute for Development of Freedom of Information” v. The Parliament of Georgia” par. 8
[7] European Commission’s Opinion on Georgia's application for membership of the European Union. 17th of June 2022, p.6 https://ec.europa.eu/neighbourhood-enlargement/opinion-georgias-application-membership-european-union_en
[8] It should be noted that the problem of violation of legal time limits and delays in litigation in general courts does not only apply to cases related to public information. This problem applies to virtually all types of disputes in the general courts, and it does not imply that the courts specifically delay the justice in cases only regarding public information.
[9] https://idfi.ge/ge/the_supreme_court_ruled_in_favorof_idfi_and_obliged_the_georgian_national_archives_to_release_public_information
[10] IDFI Access to Public Information in Georgia 2021, p. 49
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