Access to Public Information
Bubon v. Russia
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Constitutional Court of Georgia ruled that the provisions of the Law of Georgia on Personal Data Protection were unconstitutional as they prohibited access to the full text of court decisions delivered within the scope of a public hearing by Common Courts of Georgia. According to the Constitutional Court, court decisions constitute the type of information kept at a state institution which is subject to high public interest by default. The Court held that the balance established by the law was not in compliance with the right of access to public information guaranteed by the Constitution, because persons requesting public information had to justify that they had special interest in accessing a judgment. In terms of special categories of personal data, the Court held that the law established a blanket prohibition of disclosure of judgments, even in those cases when the public interest in accessing court decisions outweighed the right to personal data protection. According to the Constitutional Court, any decision rendered in the process of adjudication should be open unless there is a substantiated necessity to restrict its accessibility.
This analysis was contributed by the Institute for Development of Freedom of Information (IDFI).
The Institute for Development of Freedom of Information (IDFI) and the Media Development Fund (MDF) lodged separate appeals with the Constitutional Court of Georgia with regard to the provisions of the Law of Georgia on Personal Data Protection and the General Administrative Code of Georgia. Afterwards, the Constitutional Court consolidated these two appeals in one action.
The Plaintiffs challenged the legislative norms applicable to the accessibility of court decisions delivered within the scope of a public hearing. In particular, they challenged the constitutionality of the normative content of the following provisions:
According to the Plaintiffs, the disputed norms prohibited the issuance of judgments in response to public information requests, and permitted their disclosure only in exceptional circumstances determined by the law. As for special categories of personal data, their disclosure was completely prohibited without the consent of the data subject. The plaintiffs argued that such regulations contradicted the right to access public information guaranteed by the Constitution.
The Plaintiffs claimed that the Common Courts refused to disclose court decisions even when the judgments were requested in a redacted form. Moreover, courts refused to disclose judgments regardless of the data subject’s reasonable expectation of protecting their data and the existence of a public interest in accessing the information.
In their Constitutional appeal, the Plaintiffs referred to the Constitution of Georgia, which sets the presumption of publicity for all documents kept at public institutions, and allows limiting access to them only under exceptional circumstances with relevant justification.
IDFI argued that publicity of court proceedings already implied restriction of certain legitimate interests. In particular, all arguments and information upon which a judgment is based are discussed at a public hearing. Against this background, it was arguable why the constitutional standard related to transparency of justice was not applicable to court decisions. Moreover, according to IDFI, the disputed norms had a blanket character and the same level of protection was provided to personal data included in judgments delivered within the scope of both public and closed court proceedings.
The respondent argued that in this particular case, the protection of privacy and personal data constituted a legitimate aim. The respondent further argued that the disputed norms established a proportional and reasonable balance between freedom of information and personal data protection, and therefore, they should not be declared unconstitutional.
 Data processing shall be admissible if:
a) there is a data subject’s consent;
b) data processing is provided for by Law;
c) data processing is necessary for a data controller to perform his/her statutory duties; d) data processing is necessary to protect vital interests of a data subject;
e) data processing is necessary to protect legitimate interests of a data controller or a third person, except when there is a prevalent interest to protect the rights and freedoms of the data subject;
f) according to the Law, data are publicly available or a data subject has made them publicly available; g) data processing is necessary to protect a significant public interest under the Law; h) data processing is necessary to deal with the application of a data subject (to provide services to him/her).
The Constitutional Court reviewed the constitutionality of the disputed norms only in relation to the accessibility of court decisions delivered within the scope of a public hearing by the Common Courts of Georgia and not with regard to any public information in general. The General Administrative Code of Georgia and the Law of Georgia on Personal Data Protection regulate access to public information kept at any public institution. However, since the Constitutional appeal was not related to any type of information falling within the scope of disputed norms, the Constitutional court only considered the issue of accessibility of court decisions.
According to the Constitutional Court, when the data subject has an interest in keeping his/her personal data confidential, it does not automatically provide a ground for restricting their accessibility. Under such circumstances, it is necessary to achieve a reasonable balance between competing interests in accordance with the Constitution. For instance, when an individual’s right to obtain information kept at a public institution is in conflict with another individual’s right to keep information related to him/her confidential, the conflict between these rights should be resolved in accordance with the principle of proportionality in each individual case.
The Constitutional Court held that the high public interest in accessibility of court decisions exists by default regardless of the legal issue concerned, addressee of a judgment or the importance attached to an individual decision at a specific time.
The Court noted that disclosure of special categories of data might have a negative impact upon the right to a private life. However, taking into account the particular context, area and form of dissemination of information and other circumstances, disclosure of such information does not always have a substantive impact upon private life and will not necessarily outweigh the public interest in disclosure of court decisions.
The Court held that Article 6 (special categories of data) of the Law of Georgia on Personal Data Protection did not take into account the potential negative consequences of information disclosure on the right to a private life and contrary to the requirements of the Constitution, prohibited disclosure of particular categories of personal data or judgments containing specified types of data.
With regard to Article 5 (“ordinary” personal data) of the Law of Georgia on Personal Data Protection, the Constitutional Court held that the balance established by this Article did not comply with the right to access public information guaranteed by the Constitution.
The Court ruled that any decision rendered in the process of adjudication should be open unless there is a substantiated necessity to restrict its accessibility. The Court noted that the disputed norms established the opposite balance as the personal data included in court decisions was considered confidential by default unless an interested person proved the existence of a high public interest in its disclosure.
The Constitutional Court also considered that there may be circumstances where the legislature will need to strike a balance in favor of privacy rights, and the personal data included in court decisions will not be disclosed without the consent of the data subject. Legitimate restrictions might be established in cases where due to its content, subject, form, timeframe or method of revelation or other circumstances, disclosure of information will have an intrusive impact upon private life. For example, data regarding juveniles or information about intimate aspects of private life might be included in this category. In such cases, the interest in confidentiality of information might outweigh the public interest in supervision of justice through having access to court decisions.
The Constitutional Court further explained that a range of factors should be taken into consideration when evaluating disclosure such as the public interest value of the information, the category of data under scrutiny, the nature of the parties to the case, or other facts that may outweigh any interest in confidentiality. For example, if a court decision concerns a public official, the public interest in disclosure may take precedence over privacy concerns.
In conclusion, in its decision of 7 June 2019, the Constitutional Court found that the disputed norms violated freedom of information guaranteed by the Constitution of Georgia and declared them unconstitutional. The Court held that the disputed norms would be void from May 2020 and thus gave the Parliament of Georgia time to harmonize existing legislation with the requirement of the Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Access to court decisions in Georgia significantly deteriorated from October 2015. Before this date, the Common Courts of Georgia provided unhindered access to the copies of their decisions, however, in the aftermath they started to refuse disclosing court decisions in the name of personal data protection. The deteriorating situation was the result of decision made by the Personal Data Protection Inspector. In 2015 the Inspector considered an application of a citizen who claimed that information had been disseminated about him which gave the impression that he had a criminal record. A copy of a judgment with redacted personal data was used as a basis for the allegation. The Inspector’s office considered the application and found that judgments related to particular individuals (with reference to their names) had been requested from court and the latter issued them in a redacted form. The Inspector concluded that although the identity of the individuals was obscured, the documents were not effectively anonymized because a person in possession of them could easily link the initials mentioned in the judgment to the individual and therefore, could identify them without any effort. In its decision, the Personal Data Protection Inspector found that special categories of data had been disclosed unlawfully.
In the aftermath, courts did not take into account any possible public interest in relation to specific court cases. The balance between personal data protection and access to public information was disrupted as unconditional priority was given to personal data protection. Even though cases in courts are considered at a public hearing in Georgia, third parties could not obtain court decisions when submitting public information requests. With regard to “ordinary” personal data, interested persons had to justify the existence of a public interest in relation to a particular judgment. Disclosure of court decisions containing special categories of data (such as information about criminal convictions) was completely prohibited without the consent of the data subject.
In the light of the above mentioned disproportionate restriction of access to information and unconditional priority granted to the personal data protection, reversing the balance in favor of freedom of information constitutes a significant achievement in Georgia. Uninterrupted dissemination of information and opinion will ensure the diversity of viewpoints, promote public and informed discussion of important issues for the society, and will contribute to strengthening democratic values in Georgia. Access to court decisions is an essential component of the transparency of the court system and a necessary precondition for society’s trust towards the judiciary. Ensuring access to judgments will enable society to exercise effective external control over the judiciary.
The decision of the Constitutional Court will contribute to aligning Georgian legislation with international standards related to freedom of expression/access to information. According to standards established by the European Court of Human Rights, when the right to privacy comes into conflict with an Article 10 right to freedom of expression – whether of an expressive or right to information nature – courts should engage in a balancing exercise to see which right dominates. Given the social nature of freedom of expression, even a minor public interest in allowing the information to be shared will normally take precedence over the privacy interest. This may be defeated in special cases, most notably where the privacy of children is involved. For example, in court cases where information has been exposed to the public through an open trial (including instances where no publication or reporting limitations have been imposed in relation to that information), obscuring the names of the parties in the published decision of that case could be justified only in highly exceptional circumstances. Given the very robust standards relating to openness of trials, this means that in the vast majority of cases, the names of the parties would be included in the public decision.
In the light of above, harmonizing existing legislation with the requirements of the Constitution in accordance with the decision of the Constitutional Court will be a major step forward in terms of bringing Georgian standards in compliance with the legal regime established by ECHR.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Everyone has the right to be familiarised with information about him/her, or other information, or an official document that exists in public institutions in accordance with the procedures established by law, unless this information or document contains commercial or professional secrets, or is acknowledged as a state secret by law or in accordance with the procedures established by law as necessary in a democratic society to ensure national security or public safety or to protect the interests of legal proceedings.
Grounds for Data Processing
Processing of Special Category Data
Availability of Public Information
Confidentiality of Personal Data
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.