Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The European Court of Human Rights (ECtHR) ruled the government of Ukraine interfered with the Applicant’s rights to freedom of expression for denying the Applicant access to information requested about the titles, numbers, and dates of Presidential decrees labelled restricted. Yuriy Chumak, a journalist, member of a non-governmental organization and the deputy editor of the organization’s bulletin “Human Rights”, made a written request to the Ukrainian authorities for information about presidential decrees marked as “confidential”. The Ukraine authorities denied the applicant access to the requested information; various domestic courts dismissed his further appeal challenging the denial. In a 5:2 decision, the ECtHR held that the domestic authorities and the various courts failed to demonstrate how the interferences with the Applicant’s rights were necessary and proportionate. The lack of analysis conducted by the national courts revealed a “procedural dysfunction” which precluded further analysis on the lawfulness of the restrictions and the legitimacy of the aims.
The dissenting Judges argued that Yuriy Chumak’s application was manifestly ill-founded.
On 5 May 2005, Yuriy Chumak, a journalist, member of an NGO called Kharkiv Human Rights Protection Group and the deputy editor of its bulletin, Human Rights, requested certain information about some restricted decrees classified as “not for publication” and “not for printing.” In April 2005, an advisor to the Ukraine President stated on national television that presidential decrees classified as restricted would be made available to the public “in the very near future” [para. 5].
The Applicant exercised his civil and professional right to information under the Information Act and sought the titles, numbers, and dates of decrees made by the serving President, which had been restricted, declassified and designated “for official use”. Similarly, he also sought information about decrees of the former President which had been restricted or declassified. He needed this information to request the text of some of those decrees at a later stage.
In the absence of any response from the Ukraine president, Yuriy Chumak approached the Pecherskyy Local Court of Kyiv on 11 July 2005 and asked the Court to declare the denial as unlawful and order for the President to give him a reasonable answer. In addition, he said he submitted the request in his capacity as a member of an NGO and the deputy editor of its bulletin. Failure of the President to provide the information affected the rights of his readers to be informed about public affairs. For want of jurisdiction, the case was transferred to the Chuguyivsky Local Court of Kharkiv Region on 21 December 2005.
The Secretariat of the President of Ukraine replied to Mr Chumak’s request on 1 June 2006, then apologized that technical reasons caused the delay. The Secretariat said the Unified State Register of Legal Acts contains all acts, laws, and other normative legal acts adopted by the Ukrainian President. The Register was created to enable easy access and transparency of legal information. The Ministry of Justice was in charge of ensuring access to the Register. Furthermore, a request should be made to the Register administrator to receive copies of the legal acts [para. 8].
He further submitted that official documents containing information classified as confidential, state secrets, and non-disclosure to the public are not accessible to the public. The State Secret Acts provided the need to obtain formal security clearance before any documents categorized as restrictive can be granted. The Secretariat added that these measures were necessary to prevent/restrict illegal access to the President decrees. At the time, the Cabinet was moving to amend the national law on information to ensure transparency in public affairs.
On 5 June 2006, the Chuguyivsky Local Court taking into account the Government’s response, ruled partly in favour of the Applicant on the issue of the Presidential delay in his response and rejected the rest of the Yuriy Chumak’s application without adducing any reason for the rejection [para. 9].
Relying on legal provisions, Article 10 of the European Convention, and his priority right to receive information as a journalist, Yuriy Chumak filed two applications before the same Chuguyivsky Local Court dated 3 July and 5 September 2006. He asked the Court to declare that the reply by the President of 1 June 2006 amounts to denial to provide him with the information requested and an order to provide the said information sought.
The Applicant argued that the 1 June 2006 response as to whether anyone could access a legal document from the Registry was irrelevant to the request submitted and the Secretariat’s duty to supply the information requested. Also, the letter failed to show how providing the said information would affect/harm any legitimate interests provided under the Constitution. He argued further that he did not ask for any decrees containing state secrets or other information restricted by national laws but rather their titles, dates, and numbers. Furthermore, he stated that the classification labels used by the Government were not prescribed by law and that these laws were unlawfully hidden from the public.
The Applicant noted that the Cabinet had provided another member of the NGO with details of legal acts which had been restricted. The Deputy Minister of Justice’s further response to the request made by that member stated that the Ministry of Justice had suggested to the Cabinet to proscribe further use of any restrictive labels and grant access to any such restrictive documents to the public after an analysis of the restricted documents was issued between 1991 and 2005. The Deputy Minister mentioned that any restrictions on a legal document not provided for by any law violate citizens’ right to access information.
On 30 March 2007, the Applicant made a similar application to the Ministry of Justice to provide him with information about Presidential decrees, which had been labelled “not for publication” or were declassified. He made it clear that he sought this information in his professional capacity as a journalist and NGO member. The information would be used in writing an article. In its response of 24 April 2007, the Ministry of justice referred to sections of the Information Act that defined confidential information and prevented the extension of the right to access documents containing confidential information.
It noted that State bodies could limit access to information in their possession by conferring the status of confidential information, and by Decree No. 503 of 10 June 1997, the President had created a procedure whereby documents containing matters not of general concern, without a normative character or having restrictive labels, would be officially published through being sent to the relevant state bodies. Thus, the Ministry did not think there were grounds to provide the Applicant with the list of documents having restrictive labels.
On 9 November 2007, the Court rejected both applicants’ applications noting that the right to information under section 9 part 1 of the Information Act was to implement the rights and interests of the individual seeking the information. The Applicant sought information that did not personally concern him.
The Applicant in his appeal to the Kharkiv Administrative Court of Appeal argued that the Court erroneously interpreted the legal provisions and that the Court placed its focus on whether the Applicant had the right to ask for information that did not concern him personally rather than considering the legality of labeling certain decrees restrictive when there is no legal backing for such. The Court rejected the Applicant’s appeal relying on the same reason as the lower Court.
On further appeal to the Higher Administrative Court of Ukraine, the Applicant contended that the courts had confused different provisions under section 9, which relate the rights to information, the performance of the function of the personal concerns and individual freedoms. However, the Court failed to substantiate why the requested information did not concern him personally. He further argued that the Cabinet had declassified information he had sought and that the Minister of Justice had stated that the restrictive labels were not provided by law. The Applicant argued that the restrictive labels were unlawfully restricted. On 14 October 2009, the Court rejected his application because the lower courts had rightly held the information which he sought was confidential and unrelated to him personally. So non-access was not a breach of his rights and legitimate interests.
Yuriy Chumak applied to the European Court of Human Rights for violations of Articles 10 (Right to freedom of expression) and Article 6(1) (right to a fair hearing).
The main issue before the Court was whether the refusal of the Ukrainian authorities and courts to grant the applicant access to the requested information about the dates, numbers and titles of Presidential decrees unlawfully classified violated Article 10 of the European Convention on Human Rights.
The Applicant argued that he had only requested the numbers, dates, and titles of the documents in question to know issues regulated by the decrees. The Applicant argued further that such information was necessary to scrutinize the conduct of public authorities in restricting information adequately, and it would be impossible to determine the lawfulness of restrictions if the information was not provided about the very existence of the restricted documents. The Applicant also submitted that the Government had admitted that no law provided for such classifications adopted by the President as “not for publication”. He contended that the restrictions on the presidential decrees did not have a basis in law and violated his rights under Article 10.
The Government argued that the Information Act itemized various categories of information not subject to free distribution. They further submitted documents from 1991 to 2006 labelled as “not for publication” and “not for printing”, which were not prescribed by any domestic law. On 19 March 2008 and 4 August 2010, the Cabinet had declassified several of these documents labelled “not for publication” and “not for printing”. The Government noted that the Access to Public Information Act had remedied issues concerning access to public information.
The Court acknowledged that Article 10 does not confer a person with the right of access to information held by a public authority or oblige the Government to impart such information to the individual. However, such a right or obligation may arise where access to the information is instrumental for the individual’s exercise of their right to freedom of expression. Its denial will constitute an interference—Ukraine’s refusal to provide the requested information interferes with the Applicant’s right under Article 10.
The Court had to determine whether the restriction was “prescribed by law”, “pursued any legitimate aims”, and was “necessary in a democratic society” to achieve those aims. In drawing its assessment of whether such restrictions are necessary for a democratic society, the Court relied on the principles stated in Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 156, (8 November 2016), The principles are:
i) The purpose of the information request is to enable the individual’s exercise their freedom to receive and impart information and ideas to others.
ii) The nature of information sought must “generally meet a public-interest test in order to prompt a need for disclosure under the Convention.”
iii) 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.’”
iv) The information requested must be ready and available. It is 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.
In addition, the court noted that the non-existence of an “effective judicial review” could be evidence of Article 10 violation (Baka v. Hungary [GC], no. 20261/12).
In the first instance, the Court noted that the Government expressly denied the Applicant’s request and redirected him to the Unified State Register of Legal Acts with a caution that access was restricted for state secrets, confidential information, and other types with limited access. Subsequently, the Ministry of Justice cited laws affecting confidential information and noted no legal basis for why the Applicant should be provided with the requested information.
The national courts stated that the information requested by the Applicant could not be provided to him as it did not concern him personally, while, the Higher Administrative Court momentarily point out that the information in question was confidential; none of the domestic Courts elaborated on any of these reasons.
The Court concluded there was a “procedural dysfunction” or fault on the part of Ukrainian authorities and courts because a lack of analysis by the domestic authorities precluded the Court from assessing the “lawfulness and legitimate aim” of the domestic authorities’ decision. The Court noted that the inquiries were tied to the necessity as well as proportionality of the actions of the domestic authorities, and the necessity could not be examined because the domestic authorities had not addressed all the Applicant’s arguments and none of the laws cited by them directly addressed the Applicant’s main claim “that restrictive labels like ‘not for publication’ and ‘not for printing’ were unlawful” [para. 48].
The Court noted that the domestic authorities had also failed to elaborate on the conditions and procedures involved in classifying information. However, they admitted that national legislation did not support its use of labels. Furthermore, the domestic courts had failed to apply the standard of proportionality in their decisions and did not adduce relevant and sufficient reasons for their interference [para. 48]. Thus, there was such a “procedural dysfunction” and a violation under Article 10 of the Convention.
The Applicant justified the satisfaction under article 41 of the Convention in terms of a declaration that a violation had occurred and rejected claims for non-pecuniary damages. This was in line with the Court’s approach in other cases such as Társaság a Szabadságjogokért v. Hungary, no. 37374/05 as well as Centre for Democracy and the Rule of Law v. Ukraine, no. 10090/16.
In a 5:2 decision, the Court held that there had been a violation of Article 10 of the Convention. The Court awarded the cost of EUR 1,638 (one thousand six hundred and thirty-eight euros) payable within three months from when the judgment becomes final.
Dissenting Opinion of Judges O’leary and Bardsen
Judges O’leary and Bardsen found the application manifestly ill-founded and therefore inadmissible under the Convention. They noted that the “key precedent” for the majority’s decision was the Court’s Grand Chamber Judgement of Magyar Helsinki Bizottság v. Hungary, which introduced the right of access to information held by the public authorities. A right that the Court had not yet recognized at the material time.
The judges argued that the Magyar Helsinki Bizottság v. Hungary case was decided in 2016. The material facts of this instant case occurred between May 2005 and October 2009; the right to access information had not been recognized yet by the Convention. They noted that the Applicant had failed to demonstrate how the access to the information he sought was “necessary, i.e., instrumental, as opposed to convenient, interesting or useful – for the exercise of his freedom of expression” [para. 7].
The dissent noted that in Magyar Helsinki Bizottság, the factum of the information sought to be “ready and available” was essential to the overall assessment of a refusal as an interference. In this case, neither party had provided information as to whether the information sought was ready and available. Such assumptions could not be made that the requested information was ready and available.
Even if there was interference, the judges noted no way to say a violation had occurred. The domestic authorities rejected the Applicant’s request because it was classified information; the Applicant challenged such classifications because it was not provided by law.
The judges opined that the majority did not focus on the Applicant’s argument but instead chose to examine the rejection’s necessity and proportionality and held that there had been a “procedural dysfunction.” The judges further noted that the dissenting opinion in Magyar Helsinki Bizottság cautioned against enabling an enforceable right to access information under Article 10 without any specific measures, controlling qualifications, and limitations – of which the present case was a prime example.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression because it recognized deficiencies and inadequacies in the reasons proffered by domestic courts and authorities when restricting rights that constituted a ‘procedural dysfunction’. While this is not in accord with the requirements of necessity and proportionality, it also made it impossible for the Court to examine the criteria of lawfulness and legitimacy of the restrictions. The decision thus sets the bar high for domestic courts and authorities to offer reasons when refusing access to information. Failure to provide such explanations while upholding the denial will constitute unjustified interferences.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 9, 28, 29, 35, 37, and 45.
Case significance refers to how influential the case is and how its significance changes over time.
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