In a judgment handed down by the First Section on 28 November 2013 in the case of Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirtschaftlichen Grundbesitzes v. Austria (application no. 39534/07), the Court of Human Rights has found a breach of an NGO’s Article 10 right to obtain information from a public authority.
Background
The applicant was the “Austrian Association for the preservation, strengthening and creation of an economically sound agricultural and forestry land ownership”. It is an NGO which researches 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 Tyrol Real Property Transactions Act to provide it with the decisions it had issued over various periods of time in anonymised form. The association indicated that it would reimburse the resulting costs. Both requests were refused.
The Commission’s decision, of October 2005, stated that the transmission of anonymised copies of its decisions did not constitute information within the meaning of the Information Act. In any event, if the request were to fall within the scope of that provision, there was no duty to provide the information if doing so would require so many resources that the functioning of the authority would be affected. The applicant’s complaints to the Constitutional Court and the Administrative Court were rejected.
Judgment
The Court noted that its case law on the public right to receive information had been developed in the context of press freedom. It said 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 (see Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 26, 14 April 2009)”. [33]
The gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom but this function of creating forums for public debate is not limited to the press. It could also be exercised by non-governmental organisations, the activities of which are an essential element of informed public debate. NGOs were social “watchdogs” whose activities warranted similar Convention protection to that afforded to the press [34].
The applicant was therefore involved in the legitimate gathering of information of public interest. As a result
“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 (see Társaság a Szabadságjogokért, [37374/05] § 28; see also Kenedi v. Hungary, no. 31475/05, § 43, 26 May 2009)“.
The Court held that the Commission’s refusal to provide the applicant association with the decisions had been “prescribed by law” and pursued the legitimate aim of the protection of the rights of others. The question was whether the refusal was “necessary” under Article 10(2).
The Court noted that the request had been refused on the basis that granting it would have required substantial resources and thus would have jeopardised the Commission’s work.However, the association had proposed to reimburse the costs arising from the production and mailing of the requested copies. The Court noted with surprise that a public authority deciding disputes over civil rights did not publish its decisions, for example in an electronic database.
As a result, the Court found that the reasons on which the Austrian authorities had based its refusal of the association’s request had been relevant but not sufficient. A complete refusal had been disproportionate to the legitimate aim pursued. As a result, there had been a violation of Article 10.
Comment
The decision is unsurprising on the facts. It is, as the Court said, difficult to understand why a tribunal which decides disputes over civil rights does not make its decisions available on a database. The “resources” argument was unsustainable in the light of the offer to pay the costs of supplying the documents. It was noteworthy that all the other Regional Property Commissions in Austria were able to provide decisions to the applicant without difficulty.
But this decision is important as another stage in the slow development of an Article 10 right to freedom of information. This right was partially recognised in the well known Társaság and Kenedi cases referred to in the judgment. The Court relates the right to the freedom of the press to obtain information in its role as “public watchdog”. This is slightly curious as neither Társaság nor Kenedi concerned requests by the press. The Court has developed the concept of “public watchdog” by, as in earlier cases, equating the role of NGOs and the press – the former being described as “social watchdogs” (a term first used by the Court in Társaság). A similar approach to NGOs and Article 10 was taken in the recent case of Youth Initiative for Human Rights v. Serbia (see our post here).
The Court has clearly recognised the existence of an Article 10 right to access to information – though at present only apparently available to the press and to NGOs. The next step seems likely to be the acknowledgment that all citizens in a modern democracy have an equal right to access information. Article 10 can then, finally, be brought back to the path which other human rights courts have taken and a full Convention to access information recognised.
Meanwhile, this issue is presently being considered by the Supreme Court in the appeal in Kennedy v Charity Commissioners (see our post here on the Court of Appeal decision and the Supreme Court case details here). Judgment is awaited in this case. It will be interesting to see whether the highest English court will recognise the human right to access official information which is, slowly but surely, emerging from Strasbourg.
Kennedi v Hungary does the same thing for an academic researcher.
These cases may be creating a general right of access to information, or they may just be expanding a.10 in a manner similar to what has been done with regard to other rights, eg a.8. If it is the latter, then the a.10 right to information may extend only to situations were there is an intention to communicate the information on to others (note the emphasis on the social watchdog role).
The Kennedy case is enormously interesting in this regard. At the domestic level, such an element to the a.10 would normally be secured adequately through the operation of the FoI regime, but the adequacy of that regime could be questioned at the edges. In that regard, it’s interesting that the court seems to have abjured that function in Kennedy itself (re s.32). If the court does develop a domestic version of the right, then some elements of the 2000 Act become very questionable (eg the s.53 veto power – although one might expect the govt just to brazen out any challenge to that).
For me though, domestic recognition of a Convention right of access would be most important in other areas. What would it mean for the use of confidentiality clauses by public authorities in the settlement of disputes in cases where there is arguably a public interest dimension? Would it mean that a court could not grant a consent order with confidentiality provisions in cases where the wider public or a section of it might have an interest?