Access to Public Information, National Security
Yashwant Sinha v. Central Bureau of Investigation
Closed Contracts Expression
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The Chamber of the European Court of Human Rights (ECtHR), in a majority judgment (four votes to three), found no violation of Article 10 of the European Convention on Human Rights (ECHR) in a case where a journalist was denied access to review classified documents in person. He did, however, receive a summary of requested information from an intelligence service. The ECtHR decided that the right to receive information was not an absolute right and states, in terms of national security, enjoyed a wide margin of appreciation. There were no fundamental flaws in proceedings before domestic authorities and the applicant omitted to elaborate the particular reasons why it was essential for him to get a physical access to see the files. Thus, no violation of Article 10 of the ECHR occurred.
The Applicant Mr. Hans-Wilhelm Saure is a well-known journalist. He requested data from the Foreign Intelligence Service (Bundesnachrichtendienst; BND) on U.B., a former Prime Minister of the Land of Schleswig Holstein who had died in a hotel in Geneva, Switzerland, in 1987. In a letter to BND, he emphasized that the right of the press to receive information may take the form of a right to consult files in person [para. 9]. Due to “the voluminous scope of the files at issue”, access to the information in a complete and appropriate manner could only be ensured by allowing him to consult the files in person [para. 11]. However, the authorities denied the request, arguing that the law on access to information was not applicable since the information did not meet the thirty year threshold, thus it was still classified, i.e. the documents were not at the disposal of a competent body in charge of archives. The applicant filed an administrative appeal, but to no avail. Then, he instituted a process before the Federal Administrative Court. The court denied his claims arguing that there was no right to access the files under Act on the Use and Preservation of Federal Archived Documents since files had not been archived as envisaged by the Act. Regarding Article 5 § 1, first sentence of the Basic Law (German Constitution), “[t]he right to information guaranteed by that provision did not apply, as the files at issue were not ‘publicly available sources’” [para. 13]. Speaking of the same article, second sentence, the Court acknowledged the existence of the right of the press to receive information. Nevertheless, such right did not stipulate a right of a person to consult “in person files held by authorities nor making copies of such files” [para. 14].
In addition to the proceeding before the administrative court, the applicant made another request to the BND – the disclosure of information about the “scope of the Foreign Intelligence Service’s files on U.B., the reason for their creation and their content” [para. 16.]. Vis-à-vis this particular request, the applicant and the BND reached an out of court agreement. German service provided for “a summary of the declassified information of the Foreign Intelligence Service regarding the circumstances surrounding the death of U.B” [para. 16]. These files were used as a basis for two subsequent articles covering the death of U.B. published in German outlet Bild.
As a final stage of domestic procedure, the applicant lodged a constitutional complaint, but “the Federal Constitutional Court declined to consider the applicant’s constitutional complaint for adjudication, without providing reasons” [para. 18]. The applicant lodged the application before the European Court of Human Rights (ECtHR) complaining of violation of Articles 10 and 6 of the European Convention on Human Rights (ECHR).
The Chamber of the ECtHR had to consider the application and decide on the alleged violation of Articles 10 and 6.
The Government denied all of the applicant’s claims on admissibility and merits level. Regarding admissibility, they claimed that the applicant had abused the right to lodge an application since he did not inform the court about the out of court settlement (delivery of summary information). Also, the applicant did not, in the Government’s view, exhaust all domestic remedies, but the ECtHR dismissed such allegation. Concerning the abuse of right, the ECtHR rejected this claim also, arguing that the court could not conclude that the applicant mislead the judges. This was in particular true since the applicant claimed that the information which he had received could not replace “a consultation of the files in person as the two types of access to information did not yield the same information in terms of quality and quantity” [para. 33].
Concerning the merits, the Government invoked the ECtHR’s case-law that states are not oblige to provide information in a particular form. Moreover, the applicant did not elaborate why he had needed information – to satisfy “a subject of general importance or only an audience’s wish for sensationalism or even voyeurism” [para. 28]. The applicant disputed the governmental arguments, arguing that by preventing him from reviewing documents in person, he was not in a position to perform his duty as a public watchdog.
As noted above, the court dismissed all of admissibility objections and moved to examine the merits.
The judges firstly examined allegations about freedom of expression. Four judges (Serghides, Elósegui, Seibert-Fohr and Roosma) found no violation of such freedom. They indicated that Article 10 of the ECHR did not confer, in general and absolute terms, on the individual a right of access to information held by a public authority [para. 50]. Even if one assumed that the denial of physical access to information had constituted an interference into the applicant’s right, such interference was justified under paragraph two of Article 10, reasoned the majority. Namely, the interference satisfied the tripartite test. Firstly, the interference was lawful under domestic law and it had pursued a legitimate aim (protection of national security). As for the final leg of the test (necessity), the majority provided for several reasons as why Article 10 was not breached.
First, states enjoy “a wide margin of appreciation in the area of national security” (Šeks v. Croatia, no. 39325/20, para. 63). “[C]lassified files of an intelligence service may in principle legitimately be subject to additional access restrictions, given that the desired physical access to the files would possibly or even likely also reveal information about the internal functioning and working methods of the intelligence service” [para. 52]. Yet, even in cases of national security protection, the lawfulness principle stands and such legitimate aim should be interpreted narrowly. It is essential that “measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision” [para. 53]. Lack of such proceedings would amount to arbitrariness. Thus, the ECtHR must review the domestic procedure regarding the request for access to information.
The applicant’s claim was considered by domestic administrative authorities and before courts, noted the majority of judges. They emphasized that, generally speaking, “domestic authorities [were] required to assess the proportionality of a refusal of access on the basis of the elements made available to them”, while there was “a corresponding requirement on applicants to substantiate the purpose of their request before the domestic authorities” [para. 55] (Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16, para. 54). Hence, a request for information cannot be made in abstracto “to the effect that certain information should be made accessible as a matter of general principle of openness” [para. 55]. These standards applied in the applicant’s case since he had received some information from the BND on U.B. Thereby, it was up to the applicant to explain “why physical access to the files […] was instrumental for the exercise of his right to freedom of expression under Article 10 of the Convention” [para. 56]. The domestic authorities did acknowledge that, in some cases, “the right of the press to receive information may consolidate to become a right to consult files in person” [para. 56]. Nevertheless, the applicant failed to substantiate his request for accessing the files in person before all municipal bodies, i.e. he did not avail himself of this procedural safeguard. Furthermore, the applicant did not complain that he was unable to file a substantiated submission regarding particular reasons for his in person demand. The applicant made only “a general reference to his watchdog role as a journalist, to the public interest in the circumstances, of U.B.’s death and to the voluminous scope of the files concerned”, thus he “failed to put the domestic authorities in a position to engage in the necessary balancing of the competing interests” [para. 57]. For this reason, it was not the domestic courts’ error “for failing to engage in a balancing exercise whether the applicant’s interests in getting physical access outweighed national security interests in respect of certain documents” [para. 57], argued the majority. Therefore, there were no fundamental flaws before domestic courts. Finally, the applicant did not argue that the information that was provided to him was incorrect in any way. Accordingly, there was no violation of Article 10.
Regarding Article 6, even if the application was ratione materiae compatible with this article, the applicant failed to exhaust domestic remedies regarding the length of proceedings. Therefore, the ECtHR rejected the application under Article 35 (1) and (4).
Judge Serghides added to the judgment his partially dissenting opinion, believing that the application should have been reject as inadmissible under the provision barring an abuse of the right to file an application. Namely, he endorsed the Government’s argument that the applicant had abused his right by failing to provide the information to the ECtHR that the BND had actually given him information on the content of the documents held by that service. Such information was used for the applicant’s article which had been published before filing the application before the ECtHR. Such acts constituted a misleading impression towards the Court. Hence, Judge Serghides concluded that the application should have been declared inadmissible.
Judge Pavli dissented in the terms of freedom of expression and judges Ravarani and Zünd joined his opinion. Pavli offered several arguments in favor of Article 10 violation. Firstly, he found the Government’s argument that the applicant had not contested the accuracy of the provided information unsubstantiated. Namely, the applicant asked for primary sources, i.e. information collected by intelligence service, while he was granted a different type of information – “description of the categories of information that the relevant files contained” [para. 2 of the dissenting opinion]. Still, this was not what the applicant was asking for. In the judge’s opinion, this was “the equivalent of requesting to read a book, and being offered its table of contents as a perfectly good alternative” [para. 2 of the dissenting opinion]. Thus, the majority erred by concluding that the applicant’s request was satisfied, at least in part.
Next, the minority found that the majority erred in holding that the right to receive information did not entail a right to physically access the documents. Pavli mentioned that the ECtHR’s case-law was full of cases on access to information that included the requests to access primary sources of information. There were no issues/discussions whether Article 10 was applicable in such circumstances. Hence, the majority had no basis to even question the compatibility of the application with Article 10.
The main method by which one obtains data “is direct access to primary official documents and sources, irrespective of their format”, argued the judge. He further invoked common sense – “any serious journalist or researcher would want to see the original government data, not merely information about the information” [para. 5 of the dissenting opinion].
Next, Pavli found that the argument that the applicant, by failing to justify his request for in person information observation, had not enabled domestic courts to exercise a balance test was weak. He noted that German law was systematically stricter than the standards of the ECtHR concerning the right to access information (citing to a judgment in Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, 2016), something that the majority did not address at all. He opined that the exemption when one could access documents in person was not clearly defined, making the BND to be basically out of the scope of German law on access of information.
Judge Pavli explained that his opinion was not a call for everyone to be able to access data related to national security. However, “[h]ad the national authorities put forward sound substantive, reasons as to why national security would have been seriously jeopardised by granting the applicant any degree of access to the physical files – and had the national courts scrutinised such arguments in line with Article 10 standards – the refusal of physical access, in whole or in part, might be considered justified” [para. 8 of the dissenting opinion].
In conclusion, the judge characterized the majority’s approach as “strictly procedural” indicating that the ECtHR “missed an opportunity to enrich […] jurisprudence on questions of historical memory in a national security context” [para. 8 of the dissenting opinion].
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