Access to Public Information, Privacy, Data Protection and Retention
Fernández v. Costa Rican Social Security Fund
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As a member of the Animal Protection Society in Vidin, Bulgaria, Lyubov Viktorovna Guseva requested access to information held by the office of the mayor of Vidin related to an agreement to collect stray animals, statistics on a local animal shelter, and a public procurement procedure aimed at reducing the number of stray dogs. After the mayor’s refusal to disclose the requested information on three separate occasions, the Vidin Regional Court held in favor of Guseva pursuant to the Access to Public Information Act of 2000. On three separate appeals, the Supreme Administrative Court upheld the lower court’s decisions, with the exception of the last decision, which was partially quashed. But despite the Supreme Administrative Court’s rulings, the mayor refused to provide the information.
In 2007, Guseva lodged an application with the European Court of Human Rights alleging that the mayor’s refusal to provide the requested information violated her right to receive and impart information under Article 10 of the European Convention on Human Rights. Notwithstanding the fact the Supreme Administrative Court had upheld Guseva’s right to receive her request information, which concerned a matter of public interest, the Court found a violation of Article 10, reasoning that the Bulgarian law on the enforcement of court judgments lacked the requisite foreseeability as it did not provide a clear timeframe during which an administrative body had to comply with final judgments.
In April 2002, Guseva made her first access information request to the mayor of Vidin pursuant to the Access to Public Information Act of 2000 (the Act). In that request, she sought information on an agreement made between the city and a municipal company on the collecting of stray animals. In response, the mayor sought the consent of the company to release details of the agreement, citing Section 37(1)(2) of the Act which provides that the absence of an interested party’s explicit written consent can be a ground for refusal to disclose publicly held information. As the company later did not provide its written consent, the mayor refused to comply with Guseva’s request.
In June 2003, the Vidin Regional Court sided with Guseva, finding that the requested information did not affect the rights of the company involved and therefore, Section 37(1)(2) of the Act was not a justifiable ground for the mayor’s refusal. On appeal, the Supreme Administrative Court of Bulgaria upheld the lower court’s decision.
Guseva’s second request concerned the 2001 and 2002 annual statistics on animals held in a local shelter. Similar to the first request, the mayor of Vidin sought explicit consent from the head of a public utilities company related to that shelter. As the company declined to provide written consent, the mayor refused to provide the requested information. In June 2003, the Regional Court ordered the mayor to disclose the information requested except for the parts related to the objecting company. The Supreme Administrative Court upheld this decision.
The third request concerned a public procurement procedure which was organized by the mayor to reduce the number of stray dogs in Vidin. Guseva requested the names of organizations that had tendered for contracts with the city under the measure. She also requested information on the pre-selected organizations’ infrastructure and facilities to ensure humane catching and transportation of dogs. In July 2003, the mayor refused to provide this information, reasoning that the requested information solely concerned the participating organizations and their bids and that it was related to administrative actions of the mayor’s office with respect to the procurement procedure. The Regional Court again sided with Guseva, finding that the information about the participating organizations was not classified. On appeal, the Supreme Administrative Court reversed this judgment in part, holding that except for the information about the organization that had won the municipal contract, the mayor was required to disclose the requested information.
As the mayor continued its refusal in complying with the judgments, Guseva lodged an application with the European Court of Human Rights in January 2007. She argued that the continuing refusal to disclose the information amounted to a violation of Article 10 of the European Court of Human Rights.
The European Court of Human Rights first held that Article 10 was applicable. Recalling its judgments in Shapovalov v. Ukraine and Dammann v. Switzerland, the Court held that “the gathering of information is an essential preparatory step in journalism and is an inherent, protected part of press freedom … [O]bstacles created in order to hinder access to information which is of public interest may discourage those working in the media, or related fields, from pursuing such matters. As a result, they may no longer be able to play their vital role as “public watchdogs” and their ability to provide accurate and reliable information may be adversely affected.” [para. 37]
Next, the Court recalled its jurisprudence on the right to impart and receive information within the meaning of Article 10. As a general principle, it recalled that “the public has a right to receive information of general interest”. [para. 53] Relevant to this case, the Court in Bladet Tromsø v. Norway held that “the vital public interest in ensuring an informed public debate on the question of animal treatment outweighed the fishermen’s interest.” [para. 53] The Court further noted that like the press, non-governmental organizations, whose activities concern public interest, are social “watchdogs,” which warrant “similar protection under the Convention to that afforded to the press.” [para. 54]
The European Court of Human Rights then considered whether the mayor’s refusal to comply with the judgments to disclose the requested information amounted to a violation of Article 10. The Court reiterated the three-pronged test of Article 10(2), under which it is required to scrutinize “whether the interference was prescribed by law; whether it pursued one or more legitimate aims set out in that paragraph; and whether it was ‘necessary in a democratic society’ in order to achieve those aims.” [para. 57]
With respect to the first question, whether the interference was ‘prescribed by law’, the Court noted that the provisions of a law restricting freedom of expression “should be clear and accessible, and the consequences of its application foreseeable.” [para. 57] The Court observed that the relevant Bulgarian law on the enforcement of final court judgments did not provide any specific time frame within which an administrative body had to comply with final judgments. Notwithstanding the fact the mayor in this case had violated the law by refusing to comply with the final judgments, the Court held that the Bulgarian law in question did not comply with the requirements of Article 10(2). Noting that the law “created unpredictability as to the likely time of enforcement, which, in the event, never materialized” [para 59], the Court held the refusal to provide the information could not be considered to have been ‘prescribed by law’ and therefore violated Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment holds that the right of access to publicly held information is protected under Article 10 of the European Convention on Human Rights, and that legislation providing for the right of access to information should provide clear time frames within which information is to be provided.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is binding on the State party to the case – Bulgaria – and provides an authoritative interpretation of the meaning of Article 10 in cases such as this for other European countries. The Court’s ruling that the right of access to information is protected under Article 10 is part of an emerging line of jurisprudence in the Court’s case law and goes against earlier authority, as the dissenting judges point out.
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