Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Contracts Expression
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The European Court of Human Rights found that the Russian authorities had not violated Article 10 of the European Convention on Human Rights by refusing to provide statistics related to the crimes of prostitution and sexual exploitation. The case was brought by a lawyer, Mr Bubon, who wanted to write about the fight against prostitution in a region of Russia. To assist with his research, Mr Bubon requested specific statistical data from local authorities. After the authorities refused to collect and provide the statistics to Mr Bubon, he took a case to the European Court of Human Rights. The European Court of Human Rights held that most of the statistics requested were not “ready and available” and did not exist in the form sought, while the other statistical data was not held by the authorities to whom the request was made. As a result, the European Court of Human Rights concluded that Mr Bubon’s right to “receive and impart information” had not been violated.
Konstantin Vladimirovich Bubon was a Russian lawyer who also wrote extensively-researched articles about law enforcement in the Khabarovsk Region. When he was researching for an article about the fight against prostitution, he wrote a letter to the head of the Khabarovsk Regional Police Department asking for the following statistics for the period between 2000 and 2009:
Mr. Bubon did not receive any reply to his letter within the thirty day period prescribed by Russian law and, therefore, filed a claim with the Tsentralniy District Court (District Court). Relying on the Russian Information Act and Article 10 of the European Convention on Human Rights, he complained to the District Court that the implied refusal by police to provide the statistics was “unlawful”. He argued that his request regarded only statistical data of a general nature, which had been collected by the Information Centre of the Khabarovsk Regional Police Department (Information Centre).
In July 2009, Mr. Bubon received a letter from the head of the Information Centre stating that the information requested was too specific and could only be collected upon a written order issued by a deputy Minister of Internal Affairs, the head of a regional or municipal police department or their divisions or, alternatively, a prosecutor or investigator from a prosecutor’s office. Therefore, the Information Centre could not comply with a request received from a private individual. The Information Centre indicated that statistical data summarised by the Information Centre was provided to the Service of State Statistics for the Khabarovsk Region (Statistics Service). Mr. Bubon sent a request to the Statistics Service, but received a letter in response stating that statistical information on the fight against prostitution had never been provided by the Khabarovsk Regional Police Department. Copies of these letters were filed with the District Court.
In August 2009, the District Court dismissed Mr. Bubon’s claim on the grounds that the Information Centre was not authorized to process data requests from private individuals, and the information requested did not touch upon the applicant’s rights and legitimate interests. Accordingly, the denial of access to the information was lawful and well-founded under the Information Act. On appeal, the Khabarovsk Regional Court upheld the judgment of the lower court because the authorities were not obliged to provide information to Mr. Bubon that did not touch upon his rights and legitimate interests.
Relying on Article 10 (the right to freedom of expression) of the European Convention on Human Rights, Mr Bubon alleged that the State authorities had violated his rights by refusing to provide him access to the information necessary for his research. The Helsinki Foundation for Human Rights and the Open Society Justice Initiative (OSJI) intervened as third parties, arguing (among other things) that the right to provide access to State-held information had been recognized by international and regional law.
The European Court of Human Rights (Court) began by indicating that the “general principles” relevant to the case were set out in the Grand Chamber judgment of Magyar Helsinki Bizottsag v. Hungary.
The Court approached the case by examining the first to third parts of Mr Bubon’s request separately from his fourth request.
With regard to the first to third parts of his request (i.e. a specific breakdown of the number of people found administratively liable for prostitution, the number of criminal cases instituted related to sexual exploitation, and the number of people found liable for crimes related to sexual exploitation), the Court found that there had been no interference with Mr. Bubon’s right to receive information. The Court reiterated that the fact that information requested is “ready and available” constituted an “important criterion” to assess whether the refusal amounted to an interference with the right to “receive and impart information” under Article 10 of the European Convention on Human Rights (Convention). The Court noted that, in the present case, Mr. Bubon did not seek access to information that was “ready and available”. Instead, the request essentially asked the domestic authorities to process and summarize information using specific parameters. Furthermore, the relevant authorities stated that they did not have information as specific as that requested. The Court, therefore, found that the information did not even exist in the form the applicant was looking for. The Court concluded that it “does not impose an obligation to collect information upon […] request, particularly when, as in the present case, a considerable amount of work is involved”. [para. 45].
The Court lastly examined Mr. Bubon’s fourth request (i.e. for information on sentences imposed on individuals found liable for crimes related to sexual exploitation). The Government did not deny that it had the information sought. Instead, the Government submitted that it was held by the Judicial Department of the Supreme Court (not the police). The Court concluded that “there was an avenue available to the applicant to access the information, which he failed to use. In these circumstances, it cannot be said that the State interfered with or unduly restricted his right to receive information.” [para. 47]
In light of the above, the Court found no violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts freedom of expression since the European Court of Human Rights (Court) applied a very restrictive and narrow approach to the right of access to information under Article 10 of the European Convention on Human Rights (Convention). In its judgment, the Court made brief reference to the “general principles” in the Grand Chamber judgment in Magyar Helsinki Bizottsag v. Hungary. Instead of applying all the criteria set out in that judgment for the purpose of assessing whether there has been an interference with Article 10 of the Convention in access to information cases, the Court focussed on whether the information was “ready and available”. As a result, this approach effectively excluded considerations such as the purpose of the information requested, the public interest nature of the information, and whether the applicant was performing a “public watchdog” role in requesting the information. This would, therefore, suggest that in all cases where State-held information has not been provided upon request because it is not “ready and available” will not amount to an interference with the right to freedom of expression under Article 10 of the Convention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The ECtHR noted that the convention had not yet entered into force and Russia had not signed or ratified it.
Case significance refers to how influential the case is and how its significance changes over time.
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