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The press and NGOs’ right of access to official documents under strict scrutiny of the European Court of Human Rights

December 3, 2013

By Dirk Voorhoof* and Rónán Ó Fathaigh**, Ghent University

In its judgment of 28 November 2013 in the case of Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt­schaftlichen Grundbesitzes v. Austria (OVESSG) the European Court of Human Rights has further clarified and expanded the scope of application of Article 10 of the Convention with regard to the right of access to public documents.  The judgment is especially supportive for requests by journalists and NGOs to have access to official documents.

The facts

The applicant is the Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes (‘”Austrian association for the preservation, strengthening and creation of an economically sound agricultural and forestry land ownership”). Its aim is to research the impact of transfers of ownership of  agricultural and forest land on society and to give opinions on draft laws. In 2005 the association twice requested the Tyrol Real Property Transaction Commission, which is responsible for approving agricultural and forest land transactions under the Tyrol Real Property Transactions Act, to provide the association with the decisions it had issued over a certain period of time (since January 2005 and since January 2000, respectively) in anonymised form. The association indicated that it would reimburse the resulting costs. The requests were refused on the ground that they did not fall within the scope of the Tyrol Access to Information Act. Moreover, even if the request did fall within its scope, pursuant to the Act an authority did not have the duty to provide the requested information if doing so would require so many resources that its functioning would be affected and would jeopardise the fulfilment of the Commission’s other tasks. The applicant’s complaints to the Administrative Court and the Constitutional Court were rejected.

The OVESSG then complained in Strasbourg that its right to receive information, guaranteed by Article 10 of the Convention, had been violated as it was refused access to the decisions of the Tyrol Real Property Transactions Commission.

The judgment

First the Court argues that Article 10 of the Convention is indeed applicable in this case and the refusal to give OVESSG access to the requested documents was to be considered an interference with their right under that article.

The Austrian authorities had argued that Article 10 did not impose a positive obligation on the State to collect and disseminate information itself and it was not obliged to provide access to confidential information. Furthermore the request concerned decisions in administrative proceedings, while the access to that kind of files was usually given only to parties with a special legal interest in the specific case. The applicant association could not claim to have a special interest in all decisions issued by the Commission over a lengthy period.

The European Court disagrees with the Austrian authorities, emphasising that under Article 10 it “has consistently recognised that the public has a right to receive information of general interest. Its case-law in this field has been developed in relation to press freedom, the purpose of which is to impart information and ideas on such matters. The Court has emphasised that the most careful scrutiny on its part is called for when measures taken by the national authorities may potentially discourage the participation of the press, one of society’s “watchdogs”, in the public debate on matters of legitimate public concern” (§ 33). The Court reiterates that “the function of creating forums for public debate is not limited to the press. That function may also be exercised by non-governmental organisations, the activities of which are an essential element of informed public debate. The Court has therefore accepted that non-governmental organisations, like the press, may be characterised as social “watchdogs”. In that connection their activities warrant similar Convention protection to that afforded to the press” (§ 34)

The Court considered that the refusal to give OVESSG access to the requested documents amounted to an interference with its rights under Article 10 : “The applicant association was (..) involved in the legitimate gathering of information of public interest. Its aim was to carry out research and to submit comments on draft laws, thereby contributing to public debate. Consequently, there has been an interference with the applicant association’s right to receive and to impart information as enshrined in Article 10 § 1 of the Convention” (§ 36).

As it was accepted that the refusal was prescribed by law , – based on the Information Act of 1989-,  and that it pursued the legitimate aim of the protection of the rights of others, next was to decide whether the refusal to give access to the documents was justified, which means in the terms of Article 10 § 2 being necessary in a democratic society.

The Court refers to the development in its case law regarding Article 10 and access to information.
It recalls that it has held that the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion. However, the Court noted that it had recently advanced towards a broader interpretation of the notion of the “freedom to receive information” and thereby towards the recognition of a right of access to information. The Court also refers to its case-law stating that the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog (§ 41) (see Társaság a Szabadságjogokért v. Hungary, also referred to in Youth Initiative for Human Rights v. Serbia, see our post here).

The Court considered in particular the argument that granting the request would have required substantial resources and thus would have jeopardised the Tyrol Real Property Transaction Commission’s work. It noted, however, that the refusal had been unconditional, although the association had proposed to reimburse the costs arising from the production and mailing of the requested copies. Moreover, given that the Commission was a public authority deciding disputes over civil rights, the Court found it striking that none of its decisions were being published, for example in an electronic database. Consequently, much of the difficulty anticipated by the Tyrol Real Property Transaction Commission, which would result from providing the association with copies of numerous decisions, had been caused by its own choice not to publish any of its decisions. The Court further noted that the applicant association received anonymised copies of the equivalent decisions from the Real Property Commissions of all other Austrian regions without any particular difficulties.

In conclusion, the Court found that the reasons on which the Austrian authorities had based their refusal of the association’s request had been relevant but not sufficient. It found that a complete refusal had been disproportionate to the legitimate aim pursued. The Court stated : “ The Commission, which, by its own choice, held an information monopoly in respect of its decisions, thus made it impossible for the applicant association to carry out its research in respect of one of the nine Austrian Länder, namely Tyrol, and to participate in a meaningful manner in the legislative process concerning amendments of real property transaction law in Tyrol. The Court therefore concludes that the interference with the applicant association’s right to freedom of expression cannot be regarded as having been necessary in a democratic society” (§ 47). There had accordingly been a violation of Article 10.

Comment

First, this judgment continues in the post-2005 direction of the Court’s case law (see also here) towards recognising a right of access to information under Article 10, building upon cases such as Matky v. Czech Republic, TASZ v. Hungary, Kenedi v. Hungary, and Youth Initiative for Human Rights v. Serbia, which all concerned contributions on issues of public/societal  interest, and media or NGOs as public watchdog. The Court now expressed the opinion that it found it “striking that none of the Commission’s decisions was published, whether in an electronic database or in any other form. Consequently, much of the anticipated difficulty referred to by the Commission as a reason for its refusal to provide the applicant association with copies of numerous decisions given over a lengthy period was generated by its own choice not to publish any of its decisions” (§ 46).  There has thus been a gradual chiselling away of the narrow approach exemplified in the Grand Chamber’s 2005 judgment in Roche v. United Kingdom, where the Court reiterated that Article 10 could not be construed as imposing a positive obligation on a State to “disseminate information of its own motion”.

Second, the Court applied “the most careful scrutiny” as its standard of review. This explains how the Court was able to effectively reassess factual assertions made in the case.  The Court’s judgment demonstrates that national authorities applying limitations or restrictions on the right of access to official documents as provided for in their national access to information law, need to apply the national law in accordance with Article 10 of the Convention, only refusing access to public documents for justified, pertinent reasons when “necessary in a democratic society”. Whether this justification is pertinent and sufficient is under the (strict) scrutiny of the European Court. The case also shows, once again, that NGO’s, and also (investigative) journalists after being refused access to public documents in their country for sometimes very doubtful reasons, still can rely on the Strasbourg Court for a final and close scrutiny. The case law of the Strasbourg Court should stimulate from now on the national authorities, on their own initiative, to apply their access to information laws in the light of Article 10 of the European Convention, preventing more cases of this kind being brought to the Strasbourg Court.

Third, the Court refers explicitly to the fact that in all other Länder in Austria similar information was accessible, while only the Tyrol Real Property Transaction Commission had created a kind of information monopoly regarding its own files or decisions. This is indeed a relevant argument, making it difficult to justify the necessity in a democratic society to refuse access to the requested documents.  On the other hand, if the same type of documents would not have been accessible in the other Länder in Austria for similar reasons as the refusal by the Tyrol Real Property Transaction Commission was based on, that would not have been a justification, or not even an additional argument, to legitimise the refusal  to give access to the requested documents in an anonymised form.

Fourth, with this judgment the Court provides an incentive for public authorities to make information (including anonymised) available online. The more the authorities create an information monopoly, the less they can rely on arguments of work load jeopardising the fulfilment of their task as an acceptable argument to refuse requests for access to documents, even if this indeed concerns large amounts of documents requiring selection, monitoring, anonymising and sending the compiled series of documents within a certain time limit to the applicant.  It is notable that the Court expresses the expectation that this kind of information should be made publicly available because the Tyrol Real Property Transaction” is a public authority deciding disputes over “civil rights” within the meaning of Article 6 of the Convention  … which are, moreover, of considerable public interest” (§ 46). As a consequence, the right of access to public documents under Article 10 of the Convention also has an impact on (anonymised) “judicial” decisions by administrative authorities.

Finally, the Court’s judgment and recognition of the right of access to official documents is to be considered itself as a new incentive for the European States to sign and ratify the Council of Europe Convention on Access to Official Documents (CETS No. 205, Tromsø 18 June 2009) (here). Until now, only six states have ratified the Convention, while 10 ratifications are needed before the Convention enters into force. So far Bosnia & Herzegovina, Hungary, Lithuania, Montenegro, Norway and Sweden have ratified the Convention. Amongst others, Belgium, Finland, Slovenia and Estonia have signed the Convention already in 2009. May the Court’s judgment of 28 November 2013 in Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt­schaftlichen Grundbesitzes v. Austria be a wake-up call for these countries to proceed with the ratification procedure. Also for countries with a tradition of access to information, such as Denmark, the Netherlands, France, Iceland and … Austria, it is time now to help give a push to the process of transparency and access to public documents in Europe, to make it a “right of everyone, without discrimination on any ground, to have access, on request, to official documents held by public authorities” (art. 2, 1 of the Convention No. 205).

The concurring opinion in Youth Initiative for Human Rights deserves therefore once more to be repeated : “There can be no robust democracy without transparency, which should be served and used by all citizens”.

 

* Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre at Ghent University. More information on Dirk can be found on the website of the Faculty of Political and Social Sciences, here.

** Rónán Ó Fathaigh is a PhD researcher at the Human Rights Centre of Ghent University. More information on Rónán can be found on the website of the Center for Journalism Studies of Ghent University, here

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