Helsinki Citizens’ Assembly-Vanadzor

The RA Draft Law on making addendum to the RA Law on Freedom of Information was presented to the RA National Assembly by the RA Government in the procedure of legislative initiative.

The Draft envisages to make an addendum to Article 8 of the RA Law on “Freedom of information” in the form of part 4 with the following content, “Provision of information on the environment may be refused if it can adversely affect the environment, including breeding sites of rare species”. 

HCA Vanadzor presents its position on the draft law. 

The position was presented to the RA National Assembly and RA Ministry of Environment.

It is mentioned in the justification of the Draft that  that the need to adopt the legislative act envisaging the addendum stems, inter alia, from the requirement of Article 4 (h) of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matter, “A request for environmental information may be refused if the disclosure would adversely affect: (h) The environment to which the information relates, such as the breeding sites of rare species. The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment”.

In order to assess the legality of the regulations envisaged by the Draft, it is necessary to determine the compliance of the ground for restricting the freedom of information  with the RA Constitution, case law of the European Court of Human Rights, Aarhus Convention, as well as international experience. 

According to Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as ECHR), “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers(...). 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society (...)”.

According to Article 42 of the RA Constitution, “1. Everyone shall have the right to freely express his or her opinion. This right shall include freedom to hold own opinion, as well as to seek, receive and disseminate information and ideas through any media, without the interference of state or local self-government bodies and regardless of state frontiers. 2. The freedom of the press, radio, television and other means of information shall be guaranteed. The State shall guarantee the activities of independent public television and radio offering diversity of informational, educational, cultural and entertainment programmes. 3. Freedom of expression of opinion may be restricted only by law, for the purpose of state security, protecting public order, health and morals or the honour and good reputation of others and other basic rights and freedoms thereof”.

According to Article 51 of the RA Constitution, “1. Everyone shall have the right to receive information and get familiar with documents relating to the activities of state and local self-government bodies and officials. 2. The right to receive information may be restricted only by law, for the purpose of protecting public interests or the basic rights and freedoms of others. 3. The procedure for receiving information, as well as the grounds for liability of officials for concealing information or for unjustified refusal of providing information thereby shall be prescribed by law.

In the presented edition, the Draft contains a danger of manifestation of such an illegal  discretion, which is noncompliant with freedom to seek, receive and disseminate information, which is  a component of freedom of expression enshrined by Article 42 of the RA Constitution; constitutional legal content established by the right to get information under Article 51; as well as the positions of the Constitutional Court and European Court of Human Rights as presented below. 

In DCC-1010 decision, the RA Constitutional Court touched upon the criteria of legal restrictions of the freedom to seek and receive information and expressed a position that first of all, the legal ground of the restriction of that freedom must satisfy the qualities of accessibility and predictability. 

The European Court of Human Rights touched upon Article 10 of the Convention and recorded that though the freedom of expression is one of the essential grounds of a democratic society, it is subject to a number of restrictions, which must be interpreted in a restrictive way and the need for any restriction must be confirmed in a grounded way [2].  Freedom of expression is not an absolute right. However, when public authorities take steps which may interfere with freedom of expression, their actions must fulfil three requirements. These are cumulative, meaning all three must be present for the restriction to be permitted under Article 10. Firstly, there must be a legal basis for their action and the relevant domestic law must be accessible and its effects foreseeable. Secondly, their action must pursue one of the interests set out in Article 10 paragraph 2. Finally, their action must be necessary in a democratic society. This third requirement implies that the means used by the authorities must be proportionate to the interest pursued. The Court has frequently stated that the adjective “necessary” in paragraph 2 implies the existence of a “pressing social need”.146 The level of protection ultimately given to the expression in question will depend on the particular circumstances of the case including the nature of the restriction, the degree of interference and the type of information or opinions concerned. [5]

The restriction of the right to receive and tansfer information by state bodies , including on matters concerning the environment, must be prescribed by law and pursue a legal aim. The interference means must be proportional to the legal aim sought and ensure a fair balance between public and private interests.[6]

The principles of proportionality and legal certainty have also been enshrined in Article 78 and Article 79 of the RA Constitution.

According to Article 78 of the Constitution, “The means chosen for restricting basic rights and freedoms must be suitable and necessary for achievement of the objective prescribed by the Constitution. The means chosen for restriction must be commensurate to the significance of the basic right or freedom being restricted.”

Article 79 of the Constitution, “When restricting basic rights and freedoms, laws must define the grounds and extent of restrictions, be sufficiently certain to enable the holders and addressees of these rights and freedoms to display appropriate conduct”.

A request for environmental information may be refused if the disclosure would adversely affect the interests set out in article 4, paragraph 4.[7] Those interests are exclusion to the general rule that information must be provided as requested by public members. Parties are not required to incorporate all or any of these exceptions into their implementation of the Convention. In practice there is substantial variation among Parties to the Convention as to whether the exceptions contained in this paragraph are included in their national law. For example, in its 2008 National Implementation Report, Armenia reported that its national law does not allow for the exceptions to disclosure found under subparagraphs (a), (b), (g) or (h). This is a good example of the spirit of article 3, paragraph 5, which expressly allows Parties to establish regimes that provide for broader access to information than required under the Convention. In any case, before one of the exceptions can be applied in a particular case, the relevant public authority must make a determination that disclosure will adversely affect the stated interest. Adversely affect means that the disclosure would have a negative impact on the relevant interest. The use of the word “would” instead of “may” requires a greater degree of certainty that the request will have an adverse effect than applies in other provisions of the Convention (e.g., article 6, para. 1 (b)). Parties may wish to provide criteria for the public authorities to apply when deciding whether information requested in a particular case would indeed adversely affect the stated interests.[8]:

According to Article 4 point 4 of the Convention, the Parties must take public interest into account in matters of disclosing information. “The public interest served by disclosure” is not clearly defined in the Convention. It is left for Parties to decide how the public interest will be taken into account, in conformity with the principles and objective of the Convention. The Sofia Guidelines on Public Participation in Environmental Decision-making provide Parties with some guidance as to how this might be done. The mentioned Guidelines propose a balancing exercise, stipulating that the “aforementioned grounds for refusal are to be interpreted in a restrictive way with the public interest served by disclosure weighed against the interests of nondisclosure in each case”. Taking interests into account thus requires an active balancing of interests.[9]. In situations where there is a significant public interest in disclosure of certain environmental information and a relatively small amount of harm to the interests involved, the Convention would require disclosure.[10].

According to the Environmental Information Regulations, a public authority may refuse to disclose environmental information requested if, inter alia, in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. For the purposes of the relevant paragraph, a public authority may refuse to disclose information to the extent that its disclosure would adversely affect (g) the protection of the environment to which the information relates.[11]. According to the presented regulations, the United Kingdom established two compulsory conditions for the restriction of the right, 1) if the disclosure of information will adversely affect the protection of the environment to which the information relates and 2) if it does not stem from public interest according to “1” point (b).  

Each Party to Aarhus Convention shall, at regular intervals not exceeding three or four years, publish and disseminate a national report on the state of the environment, including information on the quality of the environment and information on pressures on the environment. The summary report prepared in 2017 based on regular national reports on the implementation of the Convention presents that, “Half of the Parties (mainly from Central Europe), which presented their reports, mentioned the use of social interest test by officials for each case for allowing dissemination of information of limited access in case of a dominant public interest. [12] It should be mentioned that for 2017 summary report the following Parties did not present information: Armenia, Bosnia and Herzegovina, EU, the Netherlands, Republic of Moldova, Sweden, Former Yugoslav Republic of Macedonia, United Kingdom of Great Britain, Northern Ireland and Ukraine[13].

We can conclude that the legislative initiative with the proposed edition can get a negative assessment by the Aarhus Convention Compliance Committee of the UN European Economic Commission, as by envisaging formulations that are not in line with the principle of legal certainty and by not taking into account the compulsory requirement of public interest, it contradicts the Convention aims and the legal practice formed on the implementation of the Convention. 

According to the conclusion of RA National Assembly Expertise and Analysis Department State and Legal Expertise Division on 8 May 2020, the addendum made by Article 1 of the Draft does not comply with the constitutional principle of certainty. 

Agreeing with the conclusion on the Draft by State and Legal Expertise Division, we find it necessary to mention that the regulation enshrined by Article 1 of the Draft does not comply with the legal positions of the Constitutional Court and European Court of Human Rights on legal certainty enshrined in Article 79 of the Constitution, as well as requirements of access to and predictability of legislation with the justification that “may be refused” or “may adversely affect” formulations are not sufficiently clear and are evaluating concepts, while evaluation criteria are not envisaged by the Draft. Besides, the regulation of Article 1 of the Draft allows for broad interpretation and this contradicts the provision of Aarhus Convention stating that grounds for refusal of information requests are subject to restrictive interpretation. Moreover, Article 4 (h) is not fully incorporated in the Draft by defining the formulation “can adversely affect the environment”. 

Based on the aforementioned, it is necessary to make the Draft in compliance with requirements of Aarhus Convention by taking into account the legal practice of the Compliance Committee of Aarhus Convention, as well as case law of the European Court of Human Rights. 

According to the requirements of Recommendation No. R (81) 19 of the Committee of Ministers to member states on the access to information held by public authority, “VII. A public authority refusing access to information shall give the reasons on which the refusal is based, according to law or practice”.

According to Article 51 point 3 of the RA Constitution, “The procedure for receiving information, as well as the grounds for liability of officials for concealing information or for unjustified refusal of providing information thereby shall be prescribed by law”.

According to Article 11 point 3 of the RA Law on Freedom of Information (hereinafter referred to as Law), “In case of declining a written information request, information holder shall inform the applicant about it within 5 days in a written form, by mentioning the ground for the refusal (relevant norm of the law), time frame within which the decision of refusal was made, as well as the relevant appealing procedure”.

Neither the Draft, nor the RA Law on “Freedom of information” envisage an obligation to make a justified decision, which is problematic in terms of constitutional legal perception and protection of the right to receive information.

The Draft envisages a condition for refusing to disclose environmental information and the condition is as follows: if it can adversely affect the environment, including the breeding sites of rare species. However, both the Draft and the RA Law on Freedom of Information lack guarantees of legal implementation of the mentioned condition, i.e. the obligation to make a justified and grounded decision. And this will entail a situation where in case of adopting a Draft with such edition, refusals of information applications will only have a reference to the relevant article of the Law. 

In case of refusing to provide the requested information, the information holder must present the justification of the causal link between the receipt of the requested information and the alleged adverse impact on the environment. Moreover, establishment of the mentioned condition is not an ultimate goal, but rather, it presupposes situations, in which even information on rare species can be provided, such as, for example, conduction of scientific research work. Therefore, giving justifications and grounds for adverse impact on the environment are preconditions to enshrine the mentioned ground of refusal. 

Therefore, based on the aforementioned, we propose to edit Article 1 of the Draft with the following content:

«4․ Provision of environmental information can be refused by a justified and grounded decision, if it adversely affects the environment to which it relates and if refusal of information provision prevails over the public interest in information disclosure”.