On April 24, the Kirovsky district court of St.-Petersburg fully satisfied the claim of a journalist against the refusal of the Territorial Election Commission No.7 to let him attend a meeting of its preceding the Presidential elections in 2012.
On April 18 and 19, the Moscow City Court rejected two applications from Nikita Petrov, a historian from Moscow, to re-examine due to new evidence earlier decisions on the two cases when the applicant had been denied of declassification of documents stored in the FSB Central Archive.
The Moscow City Court Will Decide whether to Re-Examine Their Decisions in Archive Information Access CasesSubmitted by Inna Kremen on 17 April, 2013 - 17:12
On April 18 and 19, the Moscow City Court will review two claims for re-examination of the two decisions denying Nikita Petrov, a historian, of declassification of archive documents stored in the FSB Central Archive. He applied to the Moscow City Court on re-examination after the Constitutional Court of Russia has made its definition interpreting the 30-year maximal declassification term provided by the Law On State Secret in a different way that the Moscow City Court had done earlier.
On March 2, 2013, the official website of the Constitutional Court of Russia published the Court's definition on FIF lawyers' application against the Federal Law On the Procedure for Reviewing Applications from Citizens of the Russian Federation. We contested Article 5, Paragraph 2 of that law since it allows government bodies to deny a citizen of access to materials of inspections held upon his/her request if the materials in question touch rights of third parties.
On February 11, FIF lawyers received a definition by N.A.Morozov, Judge of the Leningrad Oblast Court, refusing review the cassation appeal in the case on denial of access to information on a gardening society's activities.
Totally, FIF lawyers in 2012 participated in 54 court cases: 33 tactical (aimed to defend individual persons' informational demands) and 21 strategic (aimed to defend the wide public's right to information access).
In 2011, there were 15 strategic cases. In 2012, the FIF decided to focus efforts on strategic cases seeking solutions for acute problems in practical interpretation and implementation of legislative provisions addressing information access.
15 cases of 2012 addressed access to archive data; 15 -access to information in the field of housing and municipal utilities; 5 – access to judicial information; 2 – access to environmental and town-planning information, and 2 cases addressed access to information on elections. The rest cases addressed access to various information on government bodies' activities.
Of 39 cases reviewed by courts in 2012, 9 cases were won (including 4 strategic cases).
Also, FIF lawyers rendered 124 legal consultations and submitted more than 194 applications and requests to government bodies and other structures. We should point that in 2012, our lawyers aimed to motivate as many citizens as possible to act by themselves for defense of their rights to information; focusing attention primarily on consulting and explaining basic legal aspects in order to make citizens able to prepare by themselves and to submit information requests and applications to court.
Also, our lawyers prepared 32 legal analytical studies published at our website, analyzing legal novelties and draft legal acts regarding information access.
Applications to the Constitutional Court
As mentioned above, for 2012, the FIF legal team focused their efforts on strategic cases seeking solutions for acute problems in practical interpretation and implementation of legislative provisions addressing information access.
In paricular, FIF lawyers submitted a number of applications to the Constitutional Court of the Russian Federation raising question abou compliance of various federal legislative provisions implemented now fr restricting citizens' access to information.
Totally, we submitted 5 applications to the Constitutional Court:
1. Against Federal Law On Providing Access to Information on the Activities of Government Bodies and Bodies of Local Self-Government Article 1, Paragraph 1 (see the case in the FIF Litigation Register).
The paragraph defines the term "information on the activities of government bodies and bodies of local self-government" often interpreted too narrowly when citizens are denied of access to information "not related to activities of government bodies…"
The Constitutional Court issued a definition confirming that citizens have right to access to any information on government bodies' activities not restricted for access by federal laws. However, no clarifications what information is or is not "information on the activities of government bodies"; the Court has escaped from answering the essence of the question.
2. Against the Federal Law On Horticultural, Market-Gardening and Dacha Non-Commercial Associations of Citizens Article 27, Paragraph 3 (see the case in the FIF Litigation Register)
This law norm fixes right of a gardening society member to access to copies of the society managing bodies' meeting protocols. However, in practice, this norm is considered to fix an exhausting list of information accessible for gardening societies' members. In the opinion of law enforcement, they have no rgiht to access to other information except protocols (despite of absence of any legial prohibition for providing citizens with other information on activities of gardening societies).
The Constitutional Court provided some positive explanations that a non-profit gardening society member has right to get from the society managing bodies not only information listed in the Article 27, but also other information; relevant information categories may be listed in the gardening society statutes.
3. Against the Criminal Code of the Russian Federation, Article 137 (see the case in the FIF Litigation Register)
Thie application resulted from the criminal case against Mikhail Suprun, Professor of History, accused of personal.family secret abuse since he had collected for a Memory Book repression victims' biographical data in a governmental archive (see more detailed information also in the FIF Litigation Register).
The main problem is that the Criminal Code Article 137 defines criminal responsibility for collecting and disseminating information comprising "personal and family secret" while there is no legislative definition of either "personal secret" or "family secret".
The Constitutional Court issued an ambigious definition on the application: on the one hand, it states that the Article 137 does not contain indefinite terms since the sense of "personal/family secret" should be derived from other law norms for each specific case. On the other hand, the Court points that only the person himself/herself has right to define what information on his/her private life should be classified as secret. The court makes also an important remark that information on "personal/family secret" may be collected and disseminated if the person officially entrusted it to somebody or if the information are collected and stored on legal grounds permitting its dissemination.
4. Against the Law On the State Secret, Article 13 (see the case in the FIF Litigation Register).
This norm fixes that information could be classified as state secret for maximally 30 years. However, in practice it is interpreted so that the 30-year maximal term concerns only documents classified after the Law On the State Secret enforcement in 1993 since (in general) a law has no retroactive effect. If so, Soviet archive documens may be classified for indefinite time.
The Constitutional Court definition dated Nov 22, 2012 (published in January 2013) supports the FIF arguments.
5. Against the Federal Law On Procedure for Reviewing Application from Citizens of the Russian Federation Article 5, Paragraph 2 (see the case in the FIF Litigation Register)
This norm is often interpreted so that access to materials regarding review of a citizen's application may be restricted (for the applicant too) if the materials (even containing no secrets guarded by law) touch rights of third parties. The FIF legal team believes this is an abuse of the constitutional right to information access.
No decision from the Constitutional Court has been received up to now.
In general, our 2012 applications to the Constitutional Court do not seem to bring really positive changes. Though we have received a number of positive explanations from the Constitutional Court it has appeared rather difficult to implement them in practice: general jurisdiction courts refused to implement the Constitutional Court explanations. However, we have got wide experience for strategic litigation to the Constitutional Court. We intend to continue it in 2013 in order to make the Constitutional Court (as well as general jurisdiction courts) to feel importance of the constitutional right to information access and to realize public demand to it.
Remarkable Cases of 2012
1. The Siversky Forest (see the case in the FIF Litigation Register)
Within the case, we contested refusal of the Gatchina municipal district administration (Leningrad Oblast) to provide a civil activist with a copy of the administration's order on privatisation of a land area covering the Siversky municipal forest, a unique natural object. The new landlords plans to build up the territory while a number of civil activists (who had requested the relevant order by the local administration) resist their plans.
The Gachina town court of the Leningrad Oblast fully satisfied the activist's demands so that the administration provided the information requested. The battle against the forest building-up is going on.
A citizen applied to court against a journalist who had published online data from a court decision on a case the applicant had been a party in. The applicant sought for erasure of his surname (as a unique one allowing to identify him) from the publication. He also applied to the territorial body of the Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications (Roskomnadzor) that took his side and issued an order in favor of the applicant's personal data elimination from the online publication.
The journalist supported by the FIF contested the Roskomnadzor body's order in arbitration court thad decided in the journalist's favor. The 13th Appeal Arbitration Court also recognized that surname and initials of an individual who was a court case party could be openly publicated online and that it was not personal data abuse.
The lawsuit against the journalist also ended not in the applicant's favor. The Smolninsky district court of St.-Petersburg stated that there had been no abuse in publication of a court party's surname and initials.
Both cases are important since they helped to defend principles of judicial information openness.
3. Archive Data Declassification Term Abuse (see the case in the FIF Liigation Register)
Nikita Astashin, a researcher, contested abuse of his application's review term by the Chief Command of the Interior Ministry's internal troops. Upon his request from January 2012 for declassification of some documents, he got an answer that they will be reviewed for possible declassification only in 2013 (instead of three months defined by law).
In October 2012, the Lefortovsky district court of Moscow fully satisfied Astashin's demands and obliged the military body to review his request in three months. In December 2012, Astashin received a reply that the archive documents of interest for him could be declassified.
This is an important court precedent: the court found unlawful the practice of government bodies to review requests for archive data declassification in accordance with their own convenience instead of observing law-defined terms (thus making serious obstacles for work of historians and other researchers that are to wait till their declassification requests are reviewed). This is the first court victory in a case on term abuse; we hope it can change the common red-tapery practice of governmental bodies and their archives.
4. Declassification of CPSU Documents (see the case in the FIF Litigation Register)
Mikhail Zolotonosov, a journalist and a researcher, contested in court a refusal of the St.-Petersburg Central State Archive of Historical and Political Documents to declassify archive excerpts from the Soviet Communist Party's (CPSU's) protocols and to provide them to him. Within the court procedure, the documents in question were declassified though the court refused to find unlawful the initial declassification denial. Now, the documents are available for any interested person.
5. Housing Fees' Calculation (see the case in the FIF Litigation Register)
A citizen contested an unlawful refusal to provide her with calculating fees for housing and municipal utilities in her apartment house. At the very first court hearing, the defendant organization, obviously seeking to avoid fines (introduced in 2012) for violating the Standard for Information Disclosure by House Managing Organizations, promised to provide all the information requested.
This case proves efficiency of a lawsuit for defending citizen's right for access to information in the field of housing and municipal services.
In these two cases, journalists contest prohibitions to attend a territorial election commission's meeting and to watch procedure of vote counting on the Presidential election day.
The cases, now pending review, are rather important court precedents revealing problems with observance of media rights to cover activities of collegial government bodies.
An Extrajudicial Victory
In June 2012, the Supreme Court of the Sakha (Yakutia) Republic supported the FIF's complaints against a refusal of a subordinate district court to publish online a number of its decisions' texts. After that, several court decisions of certain social significance were published at that district court's official website. This is practically the first example of a successful extrajudicial solution of a FOI issue (see details here).
We have reviewed the most significant cases and results of our legal team activities for 2012. However, the review covers only part of the work that has been done. To learn more about legal and other activities of the Freedom of Information Foundation in 2012, see our LiveReport.
On February 4, 2013, the St.-Petersburg City Court satisfied a special appeal from a Grazhdansky Golos (Civil Voice) newspaper journalist, returning to a district court for re-examination the case on the applicant's claim against the Territorial Election Commission #7 of St.-Petersburg and its member Ms Anastasia Shubina who had not let the applicant to attend a commission's meeting.