Journalists and lawyers share concern regarding the access to public information in Georgia. As it is stated in the OSGF shadow report on the ENP action plan, “organizations often do not provide the name of the person responsible for public information. Often, journalists do not receive the information they have requested or are only provided with partial reports.”
The inquiries show that Georgian state agencies often fail to meet the terms of public information issuance. According to paragraph I of Article 40 of the Administrative Code of Georgia, public agencies are obliged to issue the requested public data immediately or no later than 10 days after the request has been made. The refusal of this issuance must be made in written form within three days. In this case, the rights of the applicant including the right of the one making the appeal shall be clarified.
According to IDFI records, out of 539 requests for public information, 178 have been responded to comprehensively. 73 requests have been responded to – non-comprehensively (the response did not meet the content of request) and the other 261 requests have been left unanswered. The written refusal has been made in only 27 cases. Out of 278 responses, only 119 were issued on time, and 159 were recorded as delayed responses. Only four state agencies met the terms of issuance when 23 were referred. Rarely was the information issued immediately.
According to GYLA research, the following Georgian state agencies left the information requests unanswered: the President’s Administration, the Ministry of Refugee and Accommodation, the Supreme Council of Justice and the Ministry of Internal Affairs.
These refusals and incomplete responses to public information requests hinder the work of Georgian lawyers and journalists alike. Manana Kobakhidze, a lawyer from the NGO Article 42 of the Constitution states that she often comes across problems while requesting the verdicts of the courts. “I’m talking about the verdicts that do not contain any secret material. I need such verdicts to study judicial practices and to defend the interests of my clients. Unfortunately, when I request the records of such verdicts, the courts often issue them with undefined codes and concealed names, thus making the content incomprehensible. This comes in contradiction with the freedom of information and publicity.”
Eka Kobesashvili, a lawyer from the NGO Human Rights Center, reaffirms this illegitimate denial of public information by stating, “Our organization has often addressed the state bodies with the request for public information. Unfortunately, they often leave our requests unanswered or release information belatedly.”
Article 44 of the General Administrative Code of Georgia ensures that the personal data of government officials is accessible to the public. However, public agencies within Georgia have repeatedly refused to release such information. According to the Institute for the Development of Freedom of Information (IDFI), the following Georgian state agencies refused to release data pertaining to the bonus pay of government officials throughout the months of October 2010 – February 2011: The Ministries of Justice, Finance, Regional Development and Infrastructure; the Ministry of Culture and Monument Protection, The State Minister’s Office for Georgia’s Integration into European and Euro-Atlantic Structures, the Ministry of Sports and Youth Affairs and the Georgian Parliament.
According to IDFI, the aforementioned administrative bodies applied the standard argumentation contained found in part I, paragraph II of Article 41 of the Constitution:
“Information existing on official papers pertaining to an individual’s finances or other private matters shall not be accessible to anyone without the consent of the individual in question.”
Apparently, state agencies neglect part II of this Article:
“…except in the cases determined by law, [or] when it is necessary for ensuring the state security or public safety, for the protection of health, rights and freedoms of others.”
The law, namely the General Administrative Code of Georgia, determines such a case in Article 44, establishing that the personal data of government officials shall be accessible. Thus, when the freedom of information and inviolability of private life are at loggerheads regarding the accessibility of the personal data of government officials, Georgian law gives supremacy to the freedom of information.
The Georgian Young Lawyers Association (GYLA) Research Transparency of Budget Sums in Georgia recalls an instance where the Ministry of Justice refused to release the financial data of government officials. The Ministry’s refusal was based on the grounds that the requested information represented personal data according to paragraph II of Article 42 of the Constitution. Thus, it had no right to issue it without the consent of the individual in question. The GYLA opposes this interpretation stating that “Article 44 of the Administrative Code of Georgia clearly establishes that the conflict between the freedom of information and the personal data of government officials must be decided for the benefit of freedom of information.”
As for the wages of public employees, according to the GYLA, the following Georgian Ministries: the Ministry of Economics and Sustainable Development, the Ministry of Foreign Affairs and the Central Election Commission – presented information on the salaries and business trip expenses of public officials but refused to disclose information regarding their bonus pay, stating that such information represent personal data.
“This distinction made by public agencies concerning what is deemed public information (salaries and business trip expenses) and private information (bonus sums), lacks argumentation. According to Article 37 of the Law on Public Service, ‘wages’ are specified as and include salary, bonus pay and other additions envisaged by the law. Thus, according to the Law on Public Service, both bonus pay and salary are part of the wages scheme and are consequently under the same legal regime according to Georgian legislation. Hence, public agencies should disclose the bonus pay of its employees considering that they have already disclosed their salary information,” – states GYLA.
Some legislative provisions also illustrate some disturbing trends with regard to public data accessibility. The GYLA Review of the Legislative Amendments Regarding Freedom of Information examined the problematic norms in the sphere of public data regulation. One of such provisions is the amendments made to the Georgian Tax Code on December 29th of 2006, according to which, the obligation of tax departments to annually report on their work has been abolished. The annual report includes information regarding the sums collected by the tax departments. Such information is no longer available for the public.
The GYLA also expresses concern with regard to the amendments made to the Administrative Procedures Code of Georgia on December 28, 2007. The new amendments oblige individuals to appeal to the administrative organ before appealing to the court. According to the GYLA, this will protract the terms of the disputes on information requests and information issued belatedly might no longer have any value for the interested party.
Another problem that can hinder the work of professionals interested in public data is the obligation to pay a 100 GEL tax when appealing against the decision of the administrative body. Considering that state bodies often illegitimately refuse to release public data, journalists face the frequent need to appeal against their decisions. However, because of the high tax, they cannot always use this option.
Tatuli Todua, a lawyer from the GYLA and author of the Review of the Legislative Amendments Regarding Freedom of Information, critically evaluated the overall situation regarding the freedom of information in Georgia by stating that, “factors such as a widening list of closed information, protracted terms, the increased price of legal proceedings and the diminished responsibility of government officials in cases of law violations, hinder the full enjoyment of the freedom of information and enable public bodies to perform duties without the public’s control.”
Bachana Shengelia, the Head of the Legal Provision Department of the Ministry of Justice expressed an optimistic view regarding the accessibility of public data in an interview with radio Liberty. “The problem of meeting the terms remains. But progress regarding the issuance of public data is apparent. There are positive moves in this direction in all structures,” – he states.
However, while presenting its 2010 report on public data, the GYLA presented the same list of problems as were observed in 2009, stating that no progress had been made on the key issues of public data regulation.
In conclusion, recent inquiries show that Georgian state agencies often violate the legislation ensuring the access of Georgian civil society to public data; and some agencies do not respond to requests for information at all. Contrary to statements made by Ministry spokespersons claiming to have improved the process for obtaining public information issuances, it should be noted that the current state affairs with regard to this process remains critical and far from progressive.
Nino Tsagareishvili
