News: Court of Human Rights Grand Chamber recognises an Article 10 right to access to information

The Grand Chamber of the European Court of Human Rights today handed down judgment in the case of Magyar Helsinki Bizottság v. Hungary (application no. 18030/11).  It held (15:2) that there is an Article 1o right to public access to information where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression.

The applicant, Magyar Helsinki Bizottság (Hungarian Helsinki Committee), is an NGO based in Budapest.  In pursuit of a survey on the quality of defence provided by public defenders, it requested from a number of police departments the names of the public defenders selected by them in 2008 and the number of appointments per lawyer involved.

The request for information was rejected and it brought court proceedings.  In 2009 the organisation brought court proceedings against two police departments which had rejected the request for information. The domestic courts dismissed the proceedings finding that while the implementation, by defence lawyers, of the constitutional right of defence was a task of the State, the public defenders’ subsequent activity was a private one and that their names did not therefore constitute public information.

The Grand Chamber  considered that Article 10(1) of the Convention could be interpreted as including, in the circumstances of the case, a right of access to information, specifying that where the access to information was decisive for the exercise of the right to receive and communicate information, to refuse that access could amount to an interference with the enjoyment of this right.

It noted that the information requested from the police by the applicant NGO was necessary for it to complete the study on the functioning of the public defenders’ system being conducted by it in its capacity as a non-governmental human-rights organisation, in order to contribute to discussion on an issue of obvious public interest.

By denying it access to the requested information, which was ready and available, the domestic authorities had impaired the applicant NGO’s exercise of its freedom to receive and impart information, in a manner striking at the very substance of its Article 10 rights.

As a result, there had been an interference with a right protected by Article 10, noting however that this interference was prescribed by law (section 19(4) of the Data Act) and that it pursued the legitimate aim of protecting the rights of others. The Court observed that the central issue underlying the applicant NGO’s grievance was that the information sought was classified by the authorities as personal data not subject to disclosure.

The Court considered that public defenders’ professional activities could not be considered to be a private matter. In addition, the information sought did not relate to the public defenders’ actions or decisions in connection with the carrying out of their tasks as legal representatives or consultations with their clients. Moreover, the Government had not demonstrated that disclosure of the information requested for the specific purposes of the applicant’s inquiry could have affected the public defenders’ enjoyment of their right to respect for private life within the meaning of Article 8 of the Convention.

The disclosure of public defenders’ names and the number of their respective appointments would not have subjected them to exposure to a degree surpassing that which they could have foreseen when registering as public defenders.   The interests invoked by the Government with reference to Article 8 of the Convention were not of such a nature and degree as could warrant engaging the application of that article and bringing it into play in a balancing exercise against the applicant NGO’s right as protected by Article 10.

The issue under scrutiny thus went to the very essence of a Convention right, the Court was satisfied that the applicant NGO had intended to contribute to a debate on a matter of public interest. The refusal to grant the request had effectively impaired the applicant NGO’s contribution to a public debate on a matter of general interest. The arguments advanced by the Government, although relevant, were not sufficient to show that the interference complained of had been “necessary in a democratic society”.

In particular, the Court considered that, notwithstanding the discretion left to the respondent State (its “margin of appreciation”), there had not been a reasonable relationship of proportionality between the measure complained of and the legitimate aim pursued. The Court therefore concluded that there had been a violation of Article 10 of the Convention.

The Grand Chamber’s view of the relevant principles in relation to Article 10 was as follows

“The Court continues to consider that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him.” Moreover, “the right to receive information cannot be construed as imposing on a State positive obligations to collect and disseminate information of its own motion”. The Court further considers that Article 10 does not confer on the individual a right of access to information held by a public authority nor oblige the Government to impart such information to the individual. However, as is seen from the above analysis, such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force (which is not an issue in the present case) and, secondly, 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” [156].