On April 28 at Radisson Blue Iveria Hotel Tbilisi the Georgian Young Lawyers Association (GYLA) organized the presentation of the results of the survey conducted into the practice of common and constitutional courts in regard to freedom of information. The present research contains the analysis of all of the important decisions made from January, 1 2008 to September 1, 2010. The research is aimed to portray the trends observed in the decisions issued by common and constitutional courts in the recent years.
Common courts of all the three instances examined a total of 81 cases on withholding public information. 39 cases out of 81 were examined based on the complaints lodged, 18 of them - based on appeals, 12 of them based on private complaints, and the remaining 12 cases following the cassation complaints. Only five complaints were admitted in favor of citizens, four of them at the court of the first instance and the fifth one at the court of appeals.
35 cases were essentially examined by common courts, while 46 cases were rendered unessential examination.
According to the survey two controversial approaches have been found in the court practice in regard to the secrecy of personal data. According to the first approach personal data is closed until the applicant provides the consent of the subject of personal data on the publication of the requested data. In accordance with the second approach personal data is open until the subject requests its closure to the third party.
The survey has revealed the court decisions according to which the salaries, bonuses and business trip expenses of the staff employed at public institutions are regarded as "personal data."
The GYLA lawyers examined the practices of 15 countries. According to the study the information about bonuses is open and freely accessible. Young lawyers are conducting 2 court disputes over the issue.
None of the instances admitted journalist Vakhtang Komakhidze's complaint regarding the request for public information about Georgian Justice Minister Zurab Adeishvili's bonus citing "personal data" included in the information as a motive. The journalist's complaint is preparing Komakhidze's complaint to be lodged to the European Court of Human Rights.
Tbilisi City Court dismissed journalist Emzar Diasamidze's complaint regarding a right to receive information about MPs' business trip expenses. The court assigned MPs' business trip expenses to the area of private life. On April 28 GYLA appealed the decision at the Court of Appeals.
The list of public institutions is also closed. In this regard 'LEPL Ana Shalamberidze vs Ilia Chavchavadze State University' is the case of high importance. The complainant requested information about staff list including their bonuses and business trip expanses. The case was examined by Tbilisi City Court having separated the staff list from their salaries. The applicant was provided the information about the staff list, but ranked the information about salaries, bonuses and business trip expenses as "personal data."
The December 10 reports (on December 10 a public institution shall provide a report to the President of Georgia and the Parliament on annual basis) were also considered as the information containing "personal data." These reports though contain only statistical type of information.
Tbilisi Curt of Appeals dismissed a high-profile complaint by the Georgian daily Rezonansi vs the Ministry of Energy of Georgia and the Georgian government. The daily requested the information about the Memorandum of Understanding made between Ministry of Energy of Georgia and Russian energy giant Inter RAO on Effective Use of Enguri Hydro Power Station. According to the court ruling the aforementioned Memorandum contains commercial secret.
The GYLA lawyer Vakhushti Menabde discussed the problems encountered in the course of the research. In the main common courts provided the documentation either through the breach of law or didn't provide at all.
"Rather often they answered that the court is busy with the examination into cases, and the information requires processing. Since the first one enjoys higher priority the court cannot waste time on the latter," said Vakhushti Menabde speaking at the presentation.
"We came across a funny case too. Kutaisi Court of Appeals bar-coded its name and made it secret," the GYLA lawyer Tamar Kordzaya said.
Bachana Shengelia, responsible for providing information of the Ministry of Justice attended the meeting. The spokesperson pointed out that it's "embarrassing" to assess court decisions and the reason of the problem is better to be sought within administrative bodies."
"We do understand current problems and try our best to have them addressed," said Bachana Shengelia. The ministry website, he said, is being updated to have more complete information on the court activities published.
In the course of the discussion held following the presentation the criticism against legal bodies developed into the debate of general issues observed in relation to the freedom of information.
Public agencies, Natia Tskepladze of the Supreme Court said, are afraid to provide information.
"I am monitoring the process as a teacher and not as a lawyer. It takes my students months to obtain public information, administrative bodies appear to be having fear for providing public information," she stressed.
Speaking at the presentation MP Chiora Taktakishvili of the majority said the problems do exist but progress has been made in regard to the freedom of public information. He cited the website of public registry as an example.
In addition he notified that a draft is being worked at the parliament to regulate the publication of information on the websites of public agencies.
"I do agree with you that in most cases the information to be posted on the websites depends on the good will of public agencies. According to the new law to be enacted minimal standards will be set for the operation of these web portals," said the majority spokesperson.
The presented survey, the fourth in a row, was carried out within the framework of the Open Society Institute-funded project Accountability and Supporting Transparency in Georgia.