Access to Public Information, Defamation / Reputation
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The European Court of Human Rights held that the refusal by an Austrian public entity to provide information on transfers of agricultural land was an infringement of article 10 of the European Convention on Human Rights. The matter had been brought by an organization after it had been refused access to the documents by the entity on the grounds that the request did not fall within the scope of the Austrian Information Act, and that, even if it did, the entity would have to anonymise all the documents which would impact negatively on their own functioning. The Court noted that the entity had a monopoly on the information contained in the documents and their refusal made it impossible for the organization to perform its own functions. and was thus not justified as being “necessary in a democratic society”. The Court held that although their reasons given for the refusal were “relevant”, they were not “sufficient” and so the interference with the right was not justified.
This case analysis was contributed by Right2Info.org.
In 2005, the Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes (the organization), an organization based in Vienna, Austria which researches transfers of land ownership of agricultural and forest land, sought information about such transfers from the Tyrol Real Property Transactions Commission (the Commission). [paras. 5-8]
The Commission refused the request “holding that the transmission of anonymised copies of its decisions did not constitute information within the meaning of section 1(2) of the Information Act” (para. 9). The Commission added that, even if the information sought did meet the legislative definition, section 3(1)(c) of the Act also stated that there was no duty to provide the information if doing so would require so many resources that the functioning of the authority would be affected. [para. 9]
The organization approached the Austrian Administrative Court and then, when that Court held that it lacked competence to decide the matter, it approached the Constitutional Court. Before both Courts the organization argued that the refusal to provide the information infringed article 10 of the European Convention on Human Rights. The Constitutional Court held that article 10 did not impose a “positive obligation on States to collect and disseminate information of their own motion” and that the Commission had therefore not infringed the organization’s rights under article 10 by refusing to provide the documents within a specified period of time (para. 16). The Constitutional Court emphasized that the organization’s request would have required the Commission to compile the information sought, and so did not fall within the Information Act. [para. 17]
The organization then approached the European Court of Human Rights.
The central issue before the European Court of Human Rights was whether the refusal to provide the documents to the organization was an infringement of the right to receive information under article 10 of the European Convention on Human Rights.
The organization argued that article 10 “required States, to a certain extent, to make information available to the public”, and that it was not unreasonable to expect the Commission to create an electronic database of their decisions. [para. 28]. In addition, the organization argued that if an electronic system was not in place, the Commission should be able to provide paper copies of its decisions. The organization argued that the Commission’s refusal could not be justified because “interests in the rule of law and due process argued in favour of making decisions by judicial authorities available to the public, while the interests of confidentiality could be protected by anonymising them.” [para. 29]. The organization disputed the Commission’s argument that providing the documents would be too onerous on the grounds that the Commission had not provided it with any information as to the scope of the task.
The Austrian government argued that the failure to provide the documents was not a violation of article 10. It submitted that there was no positive obligation on the State “to collect and disseminate information itself”. [para. 30] The government argued that access to documents from administrative proceedings was generally reserved for parties to the proceedings, and that the organization “could not claim to have a special interest in all decisions issued by the Commission over a lengthy period”. [para. 30] In the alternative, the government argued that, if there was an infringement of article 10, that infringement was justified because without anonymising the documents access would infringe the confidentiality of the parties and anonymising the documents would have required significant resources. [para. 32]
The Court reiterated its position expressed in Társaság a Szabadságjogokért v. Hungary App No. 37374/05, that NGOs “may be characterized as social ‘watchdogs’ enjoying similar protection to that afforded to the press” (para. 33). With reference to its decision in Dammann v. Switzerland App No. 77551/01 the Court held that “the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom”, and noted that “nongovernmental organisations, like the press, may be characterised as social ‘watchdogs’”. [para. 34]
The Court stated that the organization, by seeking to obtain access to the decisions of the Commission, was involved in the “legitimate gathering of information of public interest”. [para. 36] Thus, the denial of access interfered with the right to receive and impart information enshrined under article 10 (1) of the Convention. [para. 36]
The Court then examined whether the interference of the right was justified. Applying the three-part test set out in article 10(2) the Court was persuaded that the decision was “prescribed by law” and served the legitimate purpose of protecting the rights of others. [para. 38-39] While assessing the “necessity” element, the Court referred to its judgment in the Társaság a Szabadságjogokért case and said that that judgment had marked a shift towards a “broader interpretation of the notion of the ‘freedom to receive information’ and thereby towards the recognition of a right of access to information”. [para. 41] In that case, the Court had drawn a parallel to the level of scrutiny used to assess whether “authorities enjoying information monopoly interfered with the exercise of the function of a social watchdog”. [para. 41]
The Court noted that, in the present case, article 10 did not confer a general obligation on the State to provide an electronic database or paper copies of the documents sought, but held that it was tasked with determining whether the authorities’ reasons given were “relevant and sufficient”. [para. 42]
The Court recognized that the organization had accepted that their request would have required the Commission to remove all references to personal data and that it would involve a cost. However, the Court noted that the organization had offered to reimburse the Commission for the costs incurred. [para. 45]
The Court criticized the unconditional refusal that the Commission provided in response to the organization’s request. According to the Court, the Commission is a public authority “deciding disputes over civil rights”, which is subject to considerable public interest and the Court noted that it found it “striking that none of the Commission’s decisions was published, whether in an electronic database or in any other form”. [para 46] It commented that, because of this, the anticipated difficulty in providing the organization with the requested information “was generated by its own choice not to publish any of its decisions”. [para. 46]
Accordingly, the Court held that the reasons given by the Commission to refuse the organization’s request were relevant but not sufficient. [para. 47] The Court stated that because the Commission had a monopoly over the information contained in its decisions a refusal to provide the organization with information pertaining to those decisions made it impossible for the organization to research the issue and to “participate in a meaningful manner in the legislative process concerning amendments of real property transaction law in Tyrol”. [para. 47] The Commission’s refusal therefore constituted a violation of article 10. [para. 48]
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