Tbilisi 2014
FREEDOM OF INFORMATION AND PROTECTION OF PERSONAL INFORMATION (Analysis of Practice of Common Courts)
Tbilisi 2014
(saerTo sasamarTloebis praqtikis analizi)
informaciis Tavisufleba da personalur monacemTa dacva
kvleva ganxorcielebulia saqarTvelos axalgazrda iuristTa asociaciis mier proeqtis - “angariSvaldebuli da gamWvirvale mmarTvelobis xelSewyoba saqarTveloSi” - farglebSi, “Ria sazogadoebis fondebis” (OSF) - finansuri mxardaWeriT. gamocemaze pasuxismgebelia saqarTvelos axalgazrda iuristTa asociacia da misi Sinaarsi ar gamoxatavs donoris oficialur pozicias.
--------------------------------------------------------------------------------------------------© 2014, Georgian Young Lawyers’ Association Coping and Dissemination of publication for commercial purposes without GYLA’s written permission is prohibited. Was edited and published in the Young Lawyers’ Association 15, J.Kakhidze st. Tbilisi 0102, Georgia (+995 32) 295 23 53, 293 61 01 Web-page: www.gyla.ge E-mail: gyla@gyla.ge Responsible for Publication: TAMAR GVARAMADZE SULKHAN SALADZE Tech. Editor: IRAKLI SVANIDZE Editor: KHATUNA KVIRALASHVILI
avtori: salome saRaraZe
Author: SALOME SAGHARADZE
redaqtori: xaTuna yviralaSvili teq. redaqtori: irakli svaniZe gamocemaze pasuxismgebeli: Tamar gvaramaZe sulxan salaZe
aiwyo da dakabadonda saqarTvelos axalgazrda iuristTa asociaciaSi. j. kaxiZis q.15 Tbilisi 0102 saqarTvelo (+995 32) 295 23 53, 293 61 01 veb-gverdi: www.gyla.ge el-fosta: gyla@gyla.ge
akrZalulia aq moyvanili masalebis gadabeWdva, gamravleba an gavrceleba komerciuli mizniT, asociaciis werilobiTi nebarTvis gareSe --------------------------------------------------------------------------------------------------© 2014, saqarTvelos axalgazrda iuristTa asociacia
Georgian Young Lawyers’ Association is responsible for the Report and it does not necessarily reflect the position of the donor. This Report was published by Georgian Young Lawyers’ Association in the framework of the project “Support to Establish Transparent and Accountable Governance in Georgia” financed by Open Society Foundations (OSF).
CONTENT
Introduction ............................................................................................................................. 3 1.
The Purpose of the Research .............................................................................. 5
3.
Key Findings ............................................................................................................... 6
2. 4. 5.
Research Methodology ........................................................................................... 5 Statistical Data ........................................................................................................... 6
Freedom of Information and Privacy Protection ........................................ 9
5.1. Information related to finances (salaries and bonuses) .......................... 9 5.2. Personal information protected in the National Agency of Public Registry ................................................................................................... 11
5.3. Copies of state procurement agreements and personal information ................................................................................... 12 5.4. Copies of administrative complaints and subsequent decisions ....... 14
5.5. Criminal case materials ....................................................................................... 14
5.5.1. Information about prior record ....................................................................... 14 5.5.2. Copy of a verdict ...................................................................................................... 15
5.5.3. Personal case of a convict ................................................................................... 16 5.5.4. Pardoning documents ........................................................................................... 16 5.6. Telephone number of a public servant .......................................................... 16 5.7. Information about certificate of inheritance .............................................. 17 Conclusion ............................................................................................................................. 17
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Introduction Georgian Young Lawyers’ Association has been working actively on freedom of information and protection of personal information over the years and one of its priorities is to promote and develop protection of these rights by the state.
Over the recent years important interpretations were made in legal doctrine and court practice about the notion of freedom of information. It was qualified as a fundamental human right in legal theory and practice, and even though it is closely linked to freedom of opinion and expression it is now viewed as an independent right. In addition to formulating the notion of freedom of information, a line was drawn between the legal regimes of information obtained from universally accessible sources and from state and official sources. 1 Article 41 of the Constitution of Georgia protects freedom of information in public agencies and in official sources and imposes positive and negative obligations on the state2 to provide access to the information and not interfere with a person’s right to obtain the information. “Having access to information maintained by state agencies is an important precondition for informational self-determination and free development of an individual.”3 In addition to the Constitution of Georgia, norms regulating freedom of information are also contained in Chapter 3 of the General Administrative Code of Georgia, the Law of Georgia on State Secret, Law of Georgia on the Protection of Personal Information and other legislative acts. However, notably freedom of information is not absolute and can be curtailed in favor of public interests. The foregoing acts regulated individual cases of restricting freedom of information. In particular, para.1 of Article 41 of the Constitution of Georgia limits access to information from official records if they contain state, commercial or professional secret while para.2 of the same Article limits access to information, which relates to an individual’s health, finances or any other private matter. General Administrative Code qualifies information October 30, 2008 decision #2/3/406,408 of the Constitutional Court of Georgia, second board, Public Defender of Georgia and Georgian Young Lawyers’ Association v the Parliament of Georgia 1
Teimuraz Tughushi, Giorgi Burjanadze, Giorgi Mshvenieradze, Giorgi Gotziridze, Vakhushti Menabde, Human Rights and the Practice of the Constitutional Court of Georgia, Tbilisi 2013, p. 573 2
July 14, 2006 decision #2/3/364 of the Constitutional Court of Georgia, second board: Georgian Young Lawyers’ Association and Rusudan Tabatadze v the Parliament of Georgia 3
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maintained by public agencies and information related to official work received, processed, created or sent by a public agency or a public servant, which contains personal information, state or commercial secret as secret information. 4 Even though Article 41 of the Constitution does not contain the term “personal information”, para.2 of the Article protects such information while Article 44 of the General Administrative Code directly prohibits public agencies from disclosing personal information.
The Constitutional Court has linked spheres protected by Articles 41 and 20 of the Constitution to one another, protecting them under the right to privacy: “an individual’s interest to prevent disclosing of information related to private matters and to control dissemination of the information is one of the important aspects of the right to privacy.”5 Therefore, there is a presumption that information classified as personal information has been originally protected against public access. In this regard, the Law on Protecting Personal Information is an important piece of legislation, aimed at protecting human rights and freedoms in the process of processing personal information, including the right to privacy. The law has broadened the scope of personal information to cover any information related to natural persons that are identified or identifiable. The law was adopted by the Parliament of Georgia on December 28, 2011 and enacted on May 1, 2012. 6
Nevertheless, similar to freedom of information, protection of personal information is not absolute but rather, it can be accessible based on one of the following grounds outlined by para.2, Article 41 of the Constitution: 1. When there is a consent of individual concerned; 2. When prescribed by law; 3. When there is an issue of state security or public safety involved, for the protection of health and rights and freedoms of others.7 4
Subparagraph “n”, para.1, Article 2 of the General Administrative Code of Georgia
October 30, 2008 decision #2/3/406,408 of the Constitutional Court of Georgia, second board, Public Defender of Georgia and Georgian Young Lawyers’ Association v the Parliament of Georgia, para.15, p.25. 5
Except for Articles 43-55 enacted on July 1, 2013, while Articles 34, 35 and 39 will come into force for private sector on January 1, 2016 6
Notably, according to the October 30, 2008 decision #2/3/406,408 the Constitutional Court the freedom of information does not fall within the notion of “protection of other’s rights and freedoms”. The court explained that “receiving information related to a private sphere complements to the cause of protecting other constitutional rights and freedoms.” 7
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The Constitutional Court has explained that rights protected by para.1 and para.2 of article 41 of the Constitution are two different rights. The first protects right of an interested person to receive information from official sources8 while the other safeguards personal information.9
In this light, freedom of information and right to privacy are individual rights and which of the two takes precedence over the other should be determined on a case by case basis. Competition between these two rights is even more evident when they are put in practice. In this respect it is quite interesting to generalize court practice and find out the way judges determine comparability of the right to privacy and freedom of information, and decide to favor one over the other. 1. The Purpose of the Research
The purpose of GYLA’s research is to analyze decisions/rulings delivered by the common courts in three key directions: 1) determination of the statistics of disputes in courts concerning freedom of information and personal data protection, 2) standards established by courts about personal data protection laws and 3) analysis of interrelation of the right to freedom of information and privacy right. It shall be noted that the research does not aim assessment of the court decisions.
In the course of the research GYLA also analyzed the issues envisaged by the Chapter III of the General Administrative Code of Georgia and the issues incorporated in the law on “Personal Data Protection”. In case of both laws, the subject of the main interest was the issue related to personal data protection. 2. Research Methodology
As for methodology of the research, GYLA studied legislative basis about freedom of information and protection of personal information, afterwards it requested public information from all three instance courts and requested copies of all decisions and rulings which concerned chapter III of the General Administrative Code of Georgia and the Law on Protection of Personal Information. 8
October 30, 2008 decision #2/3/406,408 of the Constitutional Court of Georgia, second board, para.13.
9
October 30, 2008 decision #2/3/406,408 of the Constitutional Court of Georgia, second board, para.14.
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The date of enactment of the Law of Georgia on “Protection of Personal Information” 10 was presumed as the initial point of the research and covers the period from May 1, 2012 until November 1, 2013.11 3. Key Findings
Some key findings were determined in the course of the research, namely: • In the reporting period courts examined on merits 55 cases about freedom of information dispute. Among them in 17 cases the court judged about protection of personal information. • When examining cases about protection of personal information, common courts were mainly governed by the Constitution of Georgia and the General Administrative Code, while in certain cases for interpretation of the notion of “personal information” they used the Law on Protection of Personal Information. • While discussing personal data protection legislation courts prioritized identification criterion and refrained to satisfy the claim on disclosure of public information based on formal interpretation of the concept of personal information. • The court considered benefits and salaries of civil servants (save for high officials) and other individuals as secret information, even when they were funded from the state budget. • According to the court interpretation, legal entity of private law, within the scope of budget funding, is interpreted as public agency; therefore copies of state procurement contracts are public and shall be accessible to any interested individual. However, information about the home address and phone of the director, as well as banking accounts provided for in the state procurement contract shall be treated as private information. • The court found that publicity of the process does not imply unconditional access to information. 4. Statistical Data
Statistical data submitted in the chapter rely on the retrieved information from all three instance courts. Initially we submit the quantity of the 10
On May 1, 2012 the Law of Georgia on Personal Data Protection was enacted
11
The date of sending application by GYLA on request of public information .
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examined freedom of information cases in courts, while afterwards we present statistics of the cases that concern protection of personal information.
As it follows from information acquired by GYLA, in the reporting period freedom of information disputes were examined by the following courts12: • Tbilisi City Court - 23 decisions and 37 rulings; • Kutaisi City Court - 3 decisions and 2 rulings; • Batumi City Court - 10 decisions and 1 rulings; • Rustavi City Court - 1 decisions and 3 rulings; • Tbilisi Appellate Court - 11 rulings; • Kutaisi Appellate Court - 8 rulings; • The Supreme Court - 22 rulings;
Totally, common courts (all three instances) have examined 121 cases. 55 cases were examined on merits and relevant decisions were delivered, while in other 66 cases proceeding was terminated without merit hearing. 37 cases were examined by the first instance court, 14 by the appellate court and 4 by the Supreme Court. According to provided information other city and regional courts have not examined freedom of information disputes in the reporting period. 12
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From the examined 17 cases the court judged about existence of personal information and its disclosure. One case was examined by the Supreme Court, 4 by the Appellate Court and 12 by the first instance courts.
Common Courts have satisfied 1 lawsuit, 2 lawsuit and a cassation were satisfied partially, whi1e 10 lawsuits and 4 cassations were rejected.
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5. Freedom of Information and Privacy Protection Court practice is decisive for interpretation of the legislative norm, which is especially topical for resolution of the issues such as conflict between freedom of information and privacy protection. As mentioned in the beginning, between these two rights priority should be granted individually in each specific case. Therefore, court interpretation of the issue and its legal assessment is interesting. The Chapter concerns all issues that were examined by the common courts during trials. 5.1. Information related to finances (salaries and bonuses)
Para 2, Article 41 of the Constitution of Georgia provides that official papers pertaining to individual’s finances are confidential and shall be accessible to other individuals only in exceptional cases, while Article 44 of the General Administrative Code of Georgia applies freedom of information principle in terms of public officials’ finances.13 In the reporting period all three instance courts judged on the issue and made greatest number of decisions and rulings on the case, which speak about topically of the issue.
The Supreme Court of Georgia made important interpretation in the case litigated against Rustavi Local Council.14 The applicant sought information about bonuses granted to civil servants of Rustavi Local Council individually. The court judged about legal nature of bonuses as of individual’s personal information and found: “[...] requested information allows identification of the individual, i.e. it is related to personal information. Public information that allows identification constitutes personal data, therefore regime of protection of personal information applies thereto.“ Further, the court paid attention to the Law on Protection of Personal information and explained:“[...] Personal data protection is based on confidentiality of information.[...] Legislation on Protection of Personal Information is constructed on identification criteria providing that unless otherwise prescribed by legislation or released by the individual concerned, personal information is considered closed. [...] Personal information is one of the ways of privacy protection, and in its protection final priority is granted to identification criterion, rather than to sensitivity. “High state official” for the purpose of freedom of information law is “High State Official” provided in Article 2 of the Law of Georgia on “Conflict of Interest and Corruption in Public Service”. 13
14
The ruling of the Supreme Court bs-527-518(k-12) on May 30, 2013.
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It means that information is closed if it allows identification of an individual.“ However, in this ruling the Supreme Court differentiated personal data protection standard of high state officials (including those nominated for such position) and other civil servants. “Publicity of information related to high state officials that contain personal information serves the legitimate aim – to ensure transparency of information about high officials. [...] Therefore, in view of persisting public interest personal data of high state officials are open.“ As for the bonuses of other civil servants, the court introduced different practice and found that information about their bonuses shall not be disclosed without consent of such individuals, since they are not high state officials and therefore information about their financial incomes is confidential. In view of this, the Supreme Court satisfied the claim on disclosure of public information only in the part of high state officials. The disputes on disclosure of financial information were also examined by the first instance court and the Appellate Court. They have applied the same standard in terms of disclosing information about bonuses of civil servants and did not satisfy the applicant’s request. It should be noted that information is considered secret when applicant requests information about amount of bonus received by the concrete individual, while generally public agencies are not hesitant to disclose information about the total sum of bonuses issued by public agencies.
Batumi City Court made important interpretation in the lawsuit against LEPL “Batumi State Musical Center”.15The applicant requested detailed calculations of the performance (including artists’ remuneration and other information) funded from the President’s Reserve Fund. In this case, the administrative agency released information about the total sum, though it refrained from submitting detailed calculation. The court stated that “[...] Individuals name, address and etc. cannot be considered as the only identifying data. Rather, financial incomes of the individual are also implied in identification opportunities, which is personal information. As for financial information [...] it does not imply only information that concern money or financial relationship and which give absolute or general impression about individual’s financial condition. Financial information means data, which directly or indirectly reflect material part of individual’s private sphere, materials grounds for his occupation or existence.“ In all foregoing disputes the court mentioned that, according to identification criterion, information related to individual’s finances was explicitly personal information and paid attention on the importance of confidentiality of 15
Decision of Batumi City Court #3-155/12 June 22, 2012.
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the information, though it fell short to judge about origin of finances and transparency of public finances in general, which if discussed could have become the reason of openness of information in terms of other rights and freedoms. 5.2. Personal information protected in the National Agency of Public Registry
During the reporting period common courts examined disputes involving public access to information maintained by the National Agency of Public Registry.
While examining various complaints brought against the Public Registry by different plaintiffs involving access to real estate registration cards, right to property documents as well as documents related to registration of changes in registered right, the court ruled in all of the complaints that the information concerned fell under the category of personal information access to which was regulated by law by means of a special procedure, and that a person requesting access to the information should also follow the procedure. Ruling of Kutaisi Appellate Court16 and decisions of Batumi City Court17 underline the uniform practice of providing access to information maintained by the agency. In these decisions court has explained that “Article 6 of the Law of Georgia on Public Registry allows access to information; in particular, its paragraph 1 stipulates that information maintained by the Public Registry and documents kept in the agency are public and accessible to any individual, except when prohibited by law. […] The General Administrative Code of Georgia envisages cases when information requested by an individual falls under the category of public information with unrestricted access. If the information is classified as personal information, it is subjected to a particular procedure envisaged by applicable legislation that should be abided by […] public agency as well […].”
Consequently, access to public information maintained by public registry can be restricted and provided on the basis of certain grounds only, even though the information is subject to high standards of public access. 16
Verdict of Kutaisi Appellate Court, October 2, 2012, #3/b-445-2012
17
Batumi City Court’s October 14, 2012 verdict #3-387/12 and June 29, 2012 verdict #3-273/12
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5.3. Copies of state procurement agreements and personal information In interpretation of terms in Article 27 of the General Administrative Code of Georgia, for the purposes of freedom of information, a public agency is •
An administrative agency;
•
Legal entity of private law funded from the state or municipal budget, within the frames of such funding
The present subchapter focuses on paragraph 2 and views legal entity of private law as a public agency.
Tbilisi City Court examined the issue in Georgian Young Lawyers’ Association v the Ministry of Defense of Georgia18 in which GYLA sought access to copies of state procurement agreements. The Ministry of Defense of Georgia provided the documents with parts of it encoded. The following parts of the information were encoded: • Information about provider (name of the organization, name of its director); • Cost of the service provided; • Director’s home address and home telephone number; • Bank account information.
As GYLA found the encoded parts unacceptable, it filed in court against the Ministry of Defense. The court examined legal grounds for protecting each piece of information and explained which part of information fell under the category of public or private information in each individual case.
For the purposes of freedom of information, in its decision the court said that within the frames of funding received from a budget legal persons are subject to the same legal regime as public agencies and stated: “access to public information is an expression of perfect functioning of a democratic system - respect to spending of budget funds, public should have access to information maintained by state agencies. Public lacks an opportunity to receive the information about an organization funded by an administrative agency from any other sources. Therefore, within the frames of freedom of information, the Ministry of Defense of Georgia is obligated to provide an interested individual with an access to information that falls within the scope of such regulation.” 18
December 17, 2012 decision of Tbilisi City Court, #3/3856-12
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Consequently, any legal entity of private law funded from the state budget is a public agency in frames of such funding, while its company name should be accessible to everyone. The court explained that otherwise the purpose of providing access to public information would be pointless and it would be impossible to realize freedom of information in practice. The court also found that name of director of company providing the service also constitutes public information, “[…] considering that both company name and name of director (authorized representative) are public, the information is included in the registry of commercial and non-commercial legal entities that can be accessed by all interested individuals.” Court also made the following important interpretation about cost of service: “access to information about spending of state funds by an administrative agency serves the legitimate purpose of protecting rights of other individuals. […] for the protection of public’s right it is the will of a lawmaker to delegate a private person with different functions envisaged for a public agency with respect to funding received from state and subject it to the scope of regulation of the General Administrative Code, in order for an outside individual by having an access to the information requested to be able to analyze spending of funds allocated from the budget, public access to which serves the purpose of keeping public informed to enable it to control that budget funds are spend appropriately.” As to the name of company director, his/her home address and telephone number, the court explained that the information is protected by the right to privacy and even though it has been indicated in an agreement it does not fall under the category of public information, while its disclosure would interfere with reasonable expectation of privacy. Consequently, the court did not uphold plaintiff’s claim. Further, it deemed an individual’s bank accounts as secret information, saying that “[…] a private person’s bank account constitutes information related to monetary relations, which is generally designed for conducting business relationships as opposed to a concrete relationship. Such information is related to financial aspect of the sphere protected by privacy and material aspects of an individual’s activities. Therefore, it falls under the category of information related to an individual’s finances and everyone has a valid Constitutional interest to have it [information related to an individual’s finances] protected.” The foregoing decision clearly illustrates the conflict between freedom of information and the right to privacy. On the one hand, the court determined legal regime that a legal entity of private law is subject to in relations that originate from public law, while on the other hand, it granted precedence to the protection of “other’s rights and freedoms” over the right to privacy,
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and examined freedom of information in conjunction with another right, transparency of public finances. 5.4. Copies of administrative complaints and subsequent decisions
The court validated the refusal to provide copies of administrative complaints and subsequent decisions, stating that under subparagraphs 1b and 1c of Article 181 of the General Administrative Code, an administrative complaint contains information that allows identification of an individual: “[…] identify (or company name) and address, as well as factual circumstances giving rise to a legal interest of plaintiff (natural or legal person) towards the issue to be resolved (the information should be reflected both in administrative complaint and its subsequent decision), which falls under the category of information related to private matters.” 19 It is not clear from the decision as to what form the plaintiff requested the information in. Therefore, it is interesting to know how the case would have been resolved had the plaintiff requested access to the information with encoded name and address of individual concerned, considering that the court qualified not only the name, surname and address but also factual circumstances involved as secret information. Consequently, it is impossible to tell with the decision of court whether the foregoing factual circumstances are qualified as secret in conjunction with information that allows identifying of an individual or whether they must be viewed as secret even without the identifying information. 5.5. Criminal case materials
There were a number of other cases where personal information and public information intersected. During the reporting period court adopted several decisions and rulings in which it addressed the issue of whether information about prior record, copy of verdict, personal case of convict and pardoning documents were protected from public access. 5.5.1. Information about prior record
Subparagraph “b” of Article 2 of the Law of Georgia on Protection of Personal Information provides definition of the notion of information that falls under a special category, which in addition to other special information also includes information about prior record. In one of the disputes the court 19
December 17, 2012 decision of Tbilisi City Court, #3/3856-12
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granted claim based on the foregoing provision and noted that providing access to and disclosing the information “[…] shall be permissible only on the basis of a written consent of individual concerned.”20 The fact that applicant’s prior record could have been related to the prior record of the individual concerned was not considered by court to be sufficient basis for providing access to personal information. Consequently, information about prior record falls under the category of special personal information that can only be obtained pursuant to procedures that protect against disclosure of an individual’s private life without his/her consent. 5.5.2. Copy of a verdict
Copy of verdict delivered in criminal case was classified as personal information by a court. Applicant was requesting access to a copy of a verdict that did not have names and surnames encoded. In court’s opinion “the verdict disclosing names and surnames of defendants together with actions that it described will allow the victim to identify the defendants.”21
Tbilisi appellate Court upheld the interpretation provided by the first instance court about public access to proceedings, saying that “trial falls under the field of legal proceedings as opposed to administration. Therefore, public access to trial and providing access to public information are two different institutes based on similar foundations. […] public access to trial means allowing an individual to attend any trial without any obstacles or restrictions (except when otherwise prescribed by law), while freedom of information is allowing an individual to receive information kept by public agencies without any obstacles.” The court also noted that although based on the principle of public access to information acts of court are declared publicly, declaration of verdict is attended only by certain individuals and the decision made under procedural law is sent only to individuals involved in the case. Consequently, considering that the applicant has not presented consent of an individual concerned to release his personal information, public access may not be provided to copies of a verdict. 20
Tbilisi Appellate Court’s verdict #3b/66-13, dated February 7, 2013
21
Tbilisi Appellate Court’s verdict #3b/785-12, dated August 15, 2012
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5.5.3. Personal case of a convict In a dispute examined by Kutaisi City Court brought against the Penitentiary Department applicant22 sought disclosure of personal case of a convict and access to the file of the case of disciplinary liability.23 Similar to the forgoing cases the court rejected the claim citing protection of personal information as grounds and further noted that “pursuant to para.5, Article 36 of the Code of Imprisonment, a defendant/convict has access to his/ her personal case. Special authorized individuals also have access to a convict’s or a defendant’s personal case. The list of such individuals is approved by the Minister.“24 Consequently, in court’s opinion disclosure of a personal case would have violated convict’s right to privacy. 5.5.4. Pardoning documents
One of the cases tried during the reporting period involved pardoning documents.25 President’s Administration refused to provide copies of corresponding executive orders as they contained personal information. However, the court did not examine whether pardoning documents constituted secret information or not as the applicant did not impugn it. 5.6. Telephone number of a public servant
Court stated that public servant’s telephone number falls under the category of public information and explained that “[…] information about official telephone number of a public servant does not fall under the category of personal information. Refusal to provide the information requested by applicant may not be assessed or viewed as interference in privacy of the public official concerned. The information partly falls under the private sphere; however, ensuring fulfillment of official functions and duties of a public official, related to protection of citizens’ rights and freedoms and realization of the right to access public information trumps the interest of protecting similar information about public official that falls under the private sphere The applicant was a convict requesting access to the case file of another convict. He explained that disciplinary measures taken against him in penitentiary facility was related to the information that he was requesting access to 22
23
March 14, 2013 decision of Kutaisi City Court, #3/26-2013
The list indicated by court was adopted by the Minister of Corrections and Probation on May 25, 2011, under the Order N90, stipulating that only employees of the Ministry of Corrections and Probation have access to personal case file of a defendant/a convict 24
25
January 3, 2013 decision of Tbilisi City Court #3/1570-12
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from disclosure.”26 Furthermore, the court highlighted that communication with a public official over a telephone may in no way be prohibited unless otherwise prescribed by law. Consequently, information about public official is open for any interested individual. 5.7. Information about certificate of inheritance
In a dispute brought against the legal entity of public law Chamber of Notaries, applicant sought access to information about certificate of inheritance issued for the property left by a deceased person, without providing identity of heirs. Notably, notary acts are provided to individuals concerned or their representatives while in the present case the applicant was neither. The Law of Georgia on Notary allows public access to certain information, including certificate of receiving inheritance. Court stated that “in absence of the information [about heirs that received the inheritance], the certificate shall be provided to any individual. When information about heirs receiving the inheritance is available, the certificate shall be provided without disclosing their identity.”27 Consequently, the right to privacy will be protected by not disclosing the identity of heirs and any individual can receive information about certificate of inheritance. Conclusion
The research demonstrated once again the judiciary’s decisive role in interpretation of legislative norms and practical realization. In decision making, the court was governed by Article 41 of the Constitution, Chapter 3 of the General Administrative Code of Georgia, provisions of the Law on Protection of Personal Information and the legislative acts and bylaws which regulated the issue specifically. Important interpretations were made about transparency of public finances. Court viewed information about a legal entity of private law within the frames of budget funding as public information and rejected the idea of providing the information in an encoded form. In this respect, it also 26
April 16, 2013 decision #3-8/13 of Batumi City Court
27
August 5, 2013 decision #3/421-13 of Tbilisi City Court
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addressed the issue of financial income of public servants but suggested that the foregoing principle covers public officials only, based on Article 44 of the General Administrative Code. In other cases courts did not pay attention to public access of financial information and refused to provide public access stating that the information fell under the category of personal information. Information about other private spheres of public officials was also the subject to more transparency. Information about prior convictions was also qualified as private information, including copy of a verdict, convict’s case file, administrative complaint and subsequent decision, home address, telephone number and bank account details.
Notably, such practice is based on the identification criteria from legislation for safeguarding personal information; the latter constitutes secret information without consent of the individual concerned. In court’s decision identification criterion takes precedence over the criterion of sensitivity, suggesting absence of test of proportionality. In its judgments court does not examine the ratio of interest in the information concerned, explaining that information that allows identification of an individual is secret and its disclosure is prohibited. The introduction of the present research notes that freedom of information and right to privacy are individual rights and which of the two takes precedence over the other should be determined on a case by case basis. However, considering the absence of public interest test, proportionality between the two rights is most often decided with a rigid attitude displayed by court in all of the foregoing cases. Consequently, in majority of the cases court restricted freedom of information suggesting that personal information is subject to a high degree of protection.
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