There are no Governments that are fond of Freedom of Information

The Law of the Republic of Armenia on Freedom of Information has not been amended for the 16 years of its existence. Shoushan Doydoyan, President of the Freedom of Information Center remembers that there have been 9 attempts to amend the law, all of which failed due to ineffective discussions between the Government and civil society. ‘I do not know of any government in this world being fond of the Law on Freedom of Information. It is always a headache for the government, it always creates problems for them, for which reason governments tend to make this law worse.’

At the beginning of 2017 the RA Ministry of Justice drafted and circulated a completely new draft law on freedom of information, which was meant to render the relations in the sphere even more complicated. This draft was removed from circulation at the time of the new government. Moreover, the drafting of the Law on Freedom of Information is not foreseen in the Government Action Plan for 2018-2022.

Under the present circumstances it is necessary to make small but effective amendments to the law, taking account of the new phenomena, the technological advancement, the contemporary forms of communication between citizens and public officials.

Toby Mendel, the Executive Director of the Canada-based Centre for Law and Democracy and an international expert in the field believes after the democratic elections held in Armenia it is time to think about amending the Law on Freedom of Information. For example, it is necessary to establish an independent and professional body in charge of administrative review, to which the people may apply once their requests for provision of information are rejected.

What should this authorised body look like? What should be its structure and functions?  These are questions that call for expert discussions.

The legal regulation of electronic inquiries is also missing in the Law. In 2015, the RA Ministry of Justice adopted sub-legislation, according to which inquiries may be submitted to public bodies electronically. Shoushan Doydoyan believes that this possibility needs to be prescribed by legislation. Liana Sayadyan, Deputy President of the NGO Investigative Journalists agrees with her in view of the fact that certain government agencies have traditionally been demanding that inquiries to them be sent physically rather than electronically.

The other legislative gap identified by the experts in the field concerns the payments made for receiving the requested documents. Under the Law on FoI, the information provided on up to 10 pages is free of charge. However, certain government agencies charge for less relying on other laws. In other words, there is a need to harmonise the existing legislation, according to Shoushan Doydoyan.

Incidentally, the Government has recently launched the website for online inquiries, which makes it possible to send inquiries to all government agencies but also to reduce the costs incurred by citizens and the public administration bodies in this process, to oversee the timing of replying to inquiries and to have systematic statistics on this. This digital tool is useful. However, it is not sufficient for excluding the violations of the right to receive information.

In conformity with the results of the survey conducted by the Freedom of Information Center in 2016-2018, in only 57% of cases the requested information is provided in a timely manner. In 2018, silent denials have reduced sharply. However, there are many other violations of the law. For example, a number of provided responses are incomplete.

According to Liana Sayadyan, ‘The state bodies are not interested in providing information for investigative journalistic articles. Therefore, we often receive ungrounded rejections or in some cases the responses are of a purely formal nature.’

Cases of violating the right to receive and disseminate information in 2017-2018

In 2018, the Committee to Protect Freedom of Speech recorded 98 facts of violations of the rights to receive and impart information. There is thus an increase by 36 points compared with the figure of the previous year.

The reason for this, according to Hovhannes Movsisyan, Head of the State Non-Commercial Organisation Center for Public Relations and Information, is not the Law on FoI. He remembers the first months of the activities of the new government: ‘Within just a few months we received the same number of requests and letters that had been received during the past year, the quantity was just abnormal and since the officials in charge were new, problems emerged. However, later, when the situation stabilised I found out from my talks with the media that at least now there are almost no delays in providing responses to the inquiries. Sometimes it is said that the 30-day limit is excessive. We’ll try to rectify this as well.’

According to the Law on FoI, a state body must reply to a written inquiry within a 5-day period. If the response requires additional information, the applicant is informed about that within 5 days and the response is provided within a 30-day period.

Liana Sayadyan notes: ‘There is a practice among the bodies of public administration that irrespective of the nature and volume of the requested information, they tend to ask for an additional 30-day period. We thought that in post-revolutionary Armenia it would be easier to work. However, we have not observed any visible changes.’

Very often public officials rely on privacy having complete disregard for the issues of public importance. As Shoushan Doydoyan notes: ‘An official normally refuses when s/he does not want the public to have the information.’

Article 8 of the Law on Freedom of Information prescribes that the holder of information refuses to impart it if the information contains a state, service, banking, commercial secret, violates the right to privacy, contains investigative data that are subject to non-disclosure, discloses a medical, notarial, legal secret, violates copyright, etc.

The question is whether the mechanisms of liability, for example the fines will enhance the good faith work of the government agencies. It is unclear to Hovhannes Movsisyan who must pay the fine: the spokesperson, the official or the agency.

According to Souren Krmoyan, Deputy Minister of Justice, liability cannot be an end in itself. ‘At present, it is possible to subject an employee to disciplinary liability.’

According to Liana Sayadyan, for the time being they apply to the court to have the latter resolve the matter: ‘This is time-consuming and the information may become outdated. However, we want to show that we are consistent in our approach and that the public bodies must abide by their obligations. This approach of ours has an educational meaning. Experience shows that it renders positive results.’

Not always do the media apply to the court to protect their rights. In only 5 of the 98 cases registered by the CPFS in 2018, complaints were lodged with the court.

In 3 of these 5 cases the complaints of the media were granted, while in 2 cases the proceedings were discontinued. 5 more cases instituted on the basis of the media complaints are in the pipeline.

The Canadian expert Toby Mendel notes that in his country the law adopted in 1983 is much weaker in terms of its regulations than the Armenian one. However, the will to implement the law is stronger and therefore in Canada the level of implementation of the legislative requirements is much higher. This is the reason why in Canada criminal liability is foreseen for public officials that do not provide information of public interest or obstruct the receipt thereof. This said, not a single official has been held criminally liable within the past 35 years.

Hasmik Boudaghyan

CPFS Expert