The Right of Access to Information in the Case-Law of the European Court of Human Rights

Author: Ketevan Kukava

Article 10 of the European Convention on Human Rights guarantees 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.” It does not specify, unlike comparable provisions in other international instruments (see, for example, Article 19 of the International Covenant on Civil and Political Rights), that it encompasses the freedom to seek information.

It is clear that Article 10 of the Convention does not envisage a self-standing right of access to information held by public authority, and it does not impose a corresponding obligation on a State to impart such information to the individual. However, according to the case-law of the European Court of Human Rights, such a right or obligation may arise in two categories of cases:

1)   where disclosure of the information has been imposed by a judicial order which has gained legal force, and

2)    in circumstances where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular, “the freedom to receive and impart information” and where its denial constitutes an interference with that right (see Magyar Helsinki Bizottság v. Hungary, § 156).

Moreover, the Court has determined the threshold criteria to assess whether the denial of access to State-held information constitutes an interference with an applicant’s freedom-of-expression rights (see Magyar Helsinki Bizottság v. Hungary, §§ 158, 162; 168, 170):

a)   The purpose of the information request - First, it must be a prerequisite that the purpose of the person in requesting access to the information held by a public authority is to enable his or her exercise of the freedom to “receive and impart information and ideas” to others. Thus, the Court has emphasized whether gathering the information is a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate.

b)  The nature of the information sought - The Court considers that the information, data or documents to which access is sought must generally meet a public-interest test in order to prompt a need for disclosure under the Convention. Such a need may exist where, inter alia, the disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole, allowing public participation in public governance by the public at large. The public interest cannot be reduced to the public’s thirst for information about the private life of others, or to an audience’s wish for sensationalism or even voyeurism. In order to ascertain whether a publication relates to a subject of general importance, it is necessary to assess the publication as a whole, having regard to the context in which it appears.

c)  The role of the applicant - The Court considers that an important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public “watchdog”. This does not mean, however, that a right of access to information ought to apply exclusively to NGOs and the press. It reiterates that a high level of protection also extends to academic researchers and authors of literature on matters of public concern. The Court also notes that given the important role played by the Internet in enhancing the public’s access to news and facilitating the dissemination of information, the function of bloggers and popular users of social media may be also assimilated to that of “public watchdogs” in so far as the protection afforded by Article 10 is concerned.

d)  Ready and available information - The Court is of the view that the fact that the information requested is ready and available ought to constitute an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an “interference” with the freedom to “receive and impart information” as protected by that provision.

The cases discussed below illustrate how the European Court of Human Rights has advanced towards a broader interpretation of the notion of the “freedom to receive information” and the recognition of a right of access to information.

The case of Youth Initiative for Human Rights v. Serbia concerned the refusal by the Serbian intelligence agency to disclose information about the number of people subjected to electronic surveillance by that agency in 2005. Relying on the Freedom of Information Act 2004 the agency refused. The applicant complained to the Information Commissioner, who found that the agency had breached the law and ordered it to make the requested information available to the applicant within three days. The agency’s appeal was dismissed. In 2008 the agency notified the applicant that it did not hold the information requested.

The European Court of Human Rights determined that as the applicant had obviously been involved in the legitimate gathering of information of public interest with the intention of imparting it to the public and thereby contributing to the public debate, there had been an interference with the applicant’s right to freedom of expression. The exercise of freedom of expression could be subject to restrictions, but any such restrictions have to be in accordance with domestic law. The restrictions imposed by the intelligence agency in the present case had not met that criterion. Although the intelligence agency had eventually responded that it did not hold the information, that response was unpersuasive in view of the nature of the information and the agency’s initial response. The obstinate reluctance of the Serbian intelligence agency to comply with the order of the Information Commissioner had thus been in defiance of domestic law and was tantamount to arbitrariness. Therefore, in its 2013 judgment, the Court ruled that there has been a violation of Article 10 of the Convention.

In the case of Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria the applicant, whose aims were to research the impact of transfers of ownership of agricultural and forest land on society and to give opinions on relevant draft legislation, asked the Tyrol Real Property Transactions Commission, a regional authority whose approval was required for certain agricultural and forest land transactions, to provide it with copies of all decisions it had issued since the beginning of the year. It accepted that details of the parties and other sensitive information could be deleted and offered to reimburse the costs this entailed. The Commission refused citing a lack of time and personnel. Its decision was upheld by the domestic courts.

In its 2013 judgment, the European Court of Human Rights held that the reasons relied on by the domestic authorities for refusing the association’s request for access to the Commission’s decisions were “relevant”, but not “sufficient”. While it was not for the Court to establish in which manner the Commission could and should have granted the applicant access to its decisions, it found that a complete refusal to give it access to any of its decisions was disproportionate. 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 and to participate in a meaningful manner in the legislative process concerning amendments to real property transaction law in Tyrol. The Court, therefore, concluded that the interference with the applicant’s right to freedom of expression could not be regarded as having been necessary in a democratic society. There has accordingly been a violation of Article 10 of the Convention.

The case of Magyar Helsinki Bizottság v. Hungary concerned the refusal by two police stations to disclose the names of defence counsel appointed in the police department’s area of jurisdiction and the number of appointments given to each defence counsel. The applicant NGO, Magyar Helsinki Bizottság requested this information to assess whether “there existed discrepancies in police departments’ practice in appointing defence counsel from the lists provided by the bar associations”. The police department stated that “defence counsel are not members of a body performing State, municipal or public duties. Thus, their names constitute private data, which are not to be disclosed under the law”.

In its 2016 judgment, the Grand Chamber determined that the access to information that was refused in this case was instrumental for the NGO’s exercise of their right to freedom of expression, and met the threshold criteria that have to be met for a refusal to engage Article 10 of the ECHR.  Although the information request admittedly concerned personal data, it did not involve information outside the public domain. The Grand Chamber went on to find that the police departments’ refusal to disclose the information was not necessary in a democratic society, therefore, there has been a violation of Article 10.

The case of Center for Democracy and the Rule of Law v. Ukraine concerned the refusal by the Central Election Commission of Ukraine to provide the applicant NGO with copies of full biographies of the heads of political parties running in parliamentary elections, stating that the requested information was confidential in nature and could be fully disclosed only with the consent of the persons concerned. The applicant was provided only with certain data from the requested biographies, which had been published on the CEC website. It appealed unsuccessfully against the refusal.

In its 2020 judgment, the European Court of Human Rights noted that the individuals concerned were public figures of particular prominence. They submitted their CVs in the context of putting their candidacies forward in a national parliamentary election, thus inevitably exposing their qualifications and record to close public scrutiny. The Court found that the domestic courts failed to conduct an adequate balancing exercise, comparing the harm any potential disclosure could do to the politicians’ interest in non-disclosure of this information with the consequences for the effective exercise of the applicant’s freedom of expression. Therefore, the decision to deny the applicant access to the information about the education and work history of the political leaders contained in their CVs they had filed with the CEC in the context of the parliamentary election campaign was not “necessary in a democratic society”. There has, accordingly, been a violation of Article 10 of the Convention.

In conclusion, the case-law of the European Court of Human Rights underlines that the Convention is a living instrument that should be interpreted in the light of present-day conditions, which empowered the Court to adopt a broader interpretation of the notion of the “freedom to receive information” encompassing recognition of a right of access to information. It has also been pointed out that  “the Court seems to keep the door open for other circumstances that might warrant access to information under Article 10.”