The Constitutional Court Confirms the Right to Official Information Access

On December 8, 2011, the Constitutional Court of the Russian Federation issued a definition upon a claim from several citizens against violations of their constitutional rights by provisions of the Russian FOI law. The applicants stated that the law norms in question were misinterpreted in practice leading to denials from government bodies and courts in access to information “not addressing directly activities of government bodies”. The position expressed in the Constitutional Court definition should lead to positive changes.

A Law Itself Is Not Enough

No law, good as it is, can reach positive changes if not implemented in practice, and misinterpretation can strikethrough anything best in any law.

The Russian FOI law (in force since Jan 1, 2010) could become a real leap in the Russian FOI field. It fixes sound warranties of citizens’ right to get information from government bodies. The law has been aimed to establish conditions for governmental openness and accountability.

But in practice, the FOI law norms met difficulties with implementation from the very beginning. Officials rejected information requests inventing such explanations as “provision of the information requested is not supposed by legislation” or considering the information requested “internal”, “not touching the requestor’s rights”, and so on.

To make them observe the new law, citizens applied to courts but met new difficulties: court appeared to be not ready to recognize so wide possibilities for citizens to require information from state bodies.

Courts Do Not Guard Citizens’ Rights

The most common reason for courts to reject citizens’ claims was that the information requested “does not comprise information on activities of a government body” and is therefore not subject to the FOI law.

The information that reason was applied to included: how many vehicles are on the books of a federal executive government body; how much money were spent to repair a government body building; copies of acts issued by a government body and addressing administrative offenses; data from a state register maintained by a government body, and so on.

Courts now interpret “information on activities…” very narrowly considering that this is only information “directly touching a body’s activities, disclosing its structure, competence, formation procedure, and other aspects addressing activities of a government body”.

This merely contradicted the wording of the FOI law Article 1 defining “information on the activities of government bodies and bodies of local self-government” as “information (including documented), created by government bodies, their territorial bodies, bodies of local self-government or organizations subordinate to government bodies, bodies of local self-government (hereinafter referred to as the subordinate organizations), acting within their competence, or received by the above-specified bodies and organizations.”

This long definition really means that the “information on activities…” means any information (either created by the body itself or received from external sources) owned or disposed by a government body within its competence. The law does not say that, for a citizen to get information, it should directly address “structure”, “formation procedure” or any other narrowly defined issues.

Having not got recognition of their FOI rights from general jurisdiction courts, a number of citizens applied to the Constitutional Court.

The Constitutional Court Explains

They submitted a claim stating that the existing practice of implementing the FOI law Article 1 by general jurisdiction courts contradicts the Russian Constitution.

On December 8, 2011, the Constitutional Court decided not to review the claim. In its definition, the Court points that the term “information on the activities of government bodies and bodies of local self-government” neither violates citizens’ constitutional rights not provides obstacles for their implementation. In the same definition, the Court explains the key FOI legislation norms in details and stresses that citizens have rights to obtain any information not restricted for access by federal laws.

Therefore, having refused to review the claim, the Constitutional Court at the same time supported lawfulness of citizens’ demands for information from government bodies. The Court definition confirms once more that courts should change their approach to the FOI rights. We hope that soon it will come true, thanks to the Constitutional Court.

Topical Links:

• The case details and documents (in Russian) in the FIF Litigation Register