Access to Public Information, Privacy, Data Protection and Retention
Roe v. Anderson
Closed Expands Expression
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The Grand Chamber of the European Court of Human Rights, in a majority ruling, held that while Article 10 ECHR does not confer on the individual a general right of access to information held by public authorities, such a right may arise in certain cases. The application before the Grand Chamber arose from the refusal of two police departments to disclose to a Hungarian NGO the names of their appointed public defenders and the number of the public defenders’ respective appointments. The Grand Chamber determined that the access to information that was refused in this case was instrumental for the NGO’s exercise of their right to freedom of expression, and met the threshold criteria that have to be met for a refusal to engage Article 10 ECHR. The Grand Chamber went on to find that the police departments’ refusal to disclose the information was not necessary in a democratic society, and therefore amounted to a violation of the NGO’s right to freedom of expression.
The Hungarian Helsinki Committee (Magyar Helsinki Bizottság) is a non-governmental organization in Hungary that monitors the implementation of international human rights standards in the country. In 2008, in the context of its investigation into the lack of transparency in the police’s appointments of public defence counsel (public defenders), the Hungarian Helsinki Committee requested that police departments in the country provide (i) the names of the public defenders selected by them in that year, and (ii) the number of assignments given to each lawyer. These requests were made pursuant to the Data Act, which provides the Hungarian framework for access to information of public interest. Section 19(4) of the Data Act permitted the disclosure of personal data of “persons performing public duties” that was of public interest. In August 2009, two police departments refused to comply with the NGO’s requests, stating that the names of appointed public defenders did not have to be disclosed under the Data Act because the information was not of public interest and the public defenders were not members of a body performing State, municipal or public duties.
In September 2009, the Hungarian Helsinki Committee brought an action against the police departments arguing that because the public defenders perform a public duty, financed from government funds, the request to seek their names and the total number of their assignments qualified as information that was subject to disclosure in the public interest. The District Court of Debrecen ruled in favor of the NGO, and ordered the police departments to disclose the requested information. On appeal, the Hajdú-Bihar County Regional Court overturned the judgment of the District Court of Debrecen, holding that ex officio public defenders did not exercise public functions regardless of whether they were ultimately financed by the State.
In September 2010, the Supreme Court of Hungary dismissed a petition to review the decision of the Hajdú-Bihar County Regional Court. The Supreme Court observed that the prosecution and investigative authorities perform a public duty by appointing public defenders, but this duty terminates with the appointment of the relevant public defender. Therefore, the Supreme Court concluded that a public defender’s activities constitute private activities, and the police departments are not obliged to surrender their personal data under the Data Act.
Subsequently, the Hungarian Helsinki Committee filed an application to the European Court of Human Rights, alleging that its right to freedom of expression under Article 10 ECHR had been violated by the denial of access to the information sought. In May 2015, the Chamber of the European Court of Human Rights relinquished its jurisdiction in favor of the Grand Chamber of the Court.
In a majority (15-2) decision, the Grand Chamber found a violation of Article 10 ECHR. The Grand Chamber first addressed whether and to what extent the right of access to State-held information is protected under Article 10 ECHR, given that the provision does not make any explicit reference to such a right.
At the outset, the Court acknowledged that the question of whether the denial of access to information can be regarded as falling within the scope of Article 10 ECHR has been the subject of gradual clarification in ECHR case-law. In 1987, the Court grappled with the question for the first time in Leander v. Sweden. In that case, the Court held that the freedom to “receive” information “prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.” (the “Leander Principle”) [para. 127] Therefore, according to that case and the subsequent case-law that followed its approach, the right to freedom of expression under Article 10 ECHR did not impose an obligation on the government to disclose or provide access to such information.
The Court took into account comparative and international law on the issue, and noted that there had been a move towards a consensus among Contracting States that, under certain conditions, the right to access information is “an inherent element of the freedom to receive and impart information enshrined in Article 10 of the Convention.” [para. 151] Despite this consensus, the Court adopted the Leander Principle as the Court’s position on the status of the right to access information under the ECHR. In other words, the Court considered that “Article 10 [ECHR] does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual.” However, the Court, taking into account its own jurisprudence since Leander v. Sweden, found that “such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force […] and, secondly, in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular ‘the freedom to receive and impart information’ and where its denial constitutes an interference with that right.” [para. 156]
The Court then articulated and applied the following threshold criteria to assess whether a denial of access to information engages Article 10 ECHR on the basis that the information is instrumental for the individual’s exercise of their right to freedom of expression.
First, it is a prerequisite that the purpose of the information request is to enable the individual’s exercise of their freedom to receive and impart information and ideas to others. In other words, it must be shown that the information requested from the public authority was “necessary” to the exercise of the right to freedom of expression. In the present case, the information was “necessary” because the Hungarian Helsinki Committee was unable to draw on a complete survey of the entire country on the appointment of public defenders, which was subject to a public debate.
Second, the nature of information sought must “generally meet a public-interest test in order to prompt a need for disclosure under the Convention.” [para. 161] The Court, in this case, agreed that such a test was met by the nature of the information sought by the Hungarian Helsinki Committee.
Third, it is an important consideration whether “the person seeking access to the information in question does so with a view to informing the public in the capacity of a public ‘watchdog.’” [para. 168] The Court reiterated that this function is not exclusive to the press or NGOs, and may also include bloggers and social media users. As a well-established public-interest organisation, there was little difficulty in finding the Hungarian Helsinki Committee to be a social “watchdog”.
Lastly, the fact that the information requested is ready and available should be an important criterion for assessing whether a denial of access to state-held information can be regarded as an “interference” with the freedom to receive and impart information. However, the Court implied that this criterion would still be met where the domestic authority’s difficulty in gathering information is generated by their own practice. Based on available evidence in the present case, the Court concluded that the information sought by the Hungarian Helsinki Committee was ready and available for the government to disclose.
In light of the above, the Court concluded that there had been an “interference” with the Hungarian Helsinki Committee’s right to freedom of expression under Article 10 ECHR. It was, therefore, left for the Court to examine whether the “interference” was justified under Article 10(2) ECHR which requires that the government show that the interference was “prescribed by law”, pursued a “legitimate aim” and was “necessary in a democratic society”. The Court had little difficulty in finding that the first two requirements had been met, because the denial of access was pursuant to the Data Act and it was for the purpose of protecting the public defenders’ private interests.
The Court went on to find that the interference was not “necessary in a democratic society”. In reaching its conclusion, the Court observed that Hungary had failed to show that the disclosure of the information sought would have affected the public defenders’ enjoyment of the right to a private life within the meaning of Article 8 ECHR. The Court noted that this information related to the conduct of public activities, that public defenders would anticipate the level of exposure that the relevant request would bring about, and that the information sought was already in the public domain. The Court was also critical of the fact that application of the Data Act, in this case, excluded any meaningful assessment of the Hungarian Helsinki Committee’s right to freedom of expression.
Based on the foregoing, the Grand Chamber found a violation of Article 10 ECHR.
Judges Nussberger and Keller agreed with the finding of the majority that there was a violation of Article 10 ECHR, but disagreed with the majority’s approach to data protection under the Article 8 ECHR right to a private life.
Judge Raimondi analysed the existing approaches to interpreting the ECHR, namely the travaux préparatoires (strict constructionism or textualism) and liberal interpretation (living instrument doctrine). Judge Raimondi concluded that, although it looks like an “evolutive interpretation” of the ECHR, the majority’s interpretation does not amount to real innovation.
In their dissenting opinion, Judges Spano and Kjølbro reasoned that a literal reading of Article 10 ECHR leads to the only conclusion that the provision provides for the right to “receive and impart information” and not the right to “seek” information. They went on to explain that freedom to “receive” information under Article 10 ECHR, in accordance with its ordinary meaning, is “a passive right, triggered by the positive action of a willing provider of information and ideas, unlike the right to seek guaranteed [under the] ICCPR and the Universal Declaration of Human Rights, which is manifested by the positive actions of the person or entity requesting information.” [p. 81] The judges also took into account the object and purpose of the ECHR, the previous case law from the Court, and the practical consequences of the majority judgment to conclude that the Hungarian Helsinki Committee’s complaint was incompatible with the ECHR’s jurisdiction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment of the Grand Chamber is an important judicial step towards recognizing and clarifying the existence of the right to access information held by public authorities as a component of the right to freedom of expression under Article 10 ECHR.
However, it is important to bear in mind that the Court was explicit in its position that Article 10 ECHR does not confer an individual right of access to state-held information, nor does it impose positive obligations on Contracting States to disclose such information. Nonetheless, the Court accepted that, in certain circumstances, the denial of access to state-held information (i) where one arm of the State has recognized a right to receive information but another arm of the State has frustrated or failed to give effect to that right, and (ii) where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression.
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.
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