(ARTICLE 19/IFEX) – The following is an ARTICLE 19 open letter to Justice Minister David Harutyunyan: Ministry of Justice Minister Mr. David Harutyunyan Fax: (3741) 582157 1 March 2004 Dear Mr. Harutyunyan, ARTICLE 19, the Global Campaign for Free Expression, is deeply concerned about the proposed Law On Amendments to the Law of the Republic […]
(ARTICLE 19/IFEX) – The following is an ARTICLE 19 open letter to Justice Minister David Harutyunyan:
Ministry of Justice
Minister Mr. David Harutyunyan
Fax: (3741) 582157
1 March 2004
Dear Mr. Harutyunyan,
ARTICLE 19, the Global Campaign for Free Expression, is deeply concerned about the proposed Law On Amendments to the Law of the Republic of Armenia on Freedom of Information, put forward by the Ministry of Justice. The proposed amendments would weaken key guarantees in the existing Law on Freedom of Information and undermine the public’s right to know and good governance in Armenia.
ARTICLE 19 urges the Ministry of Justice to refrain from considering any amendments to the existing Law until it has had a chance to be tested in practice. Should amendments be introduced, they should be designed to further promote, rather than restrict, access to information. Furthermore, any proposed amendments should be the subject of extensive consultations with civil society and receive due legislative attention.
As you know, the Law on Freedom of Information, a joint effort by civil society actors and members of the National Assembly, was adopted in September 2003. This was a very important step towards ensuring in practice the right of access to information guaranteed in the Constitution of Armenia, as well as towards honouring the obligations and commitments Armenia accepted upon joining the Council of Europe. ARTICLE 19, along with numerous other international organisations, very much welcomed the adoption of the Law.
The Law contains a number of positive provisions, including broad definitions of information and information holders, an obligation to publish a wide range of information, even in the absence of a request, a relatively narrow regime of exceptions, including a form of public interest override, and rules making public officials responsible for any refusals to disclose information.
At the same time, the Law contained a number of omissions, including a failure to provide for an independent oversight body, no protection for whistleblowers and very limited protection for good faith disclosures pursuant to the law. Instead of addressing these weaknesses, however, the proposed amendments actually undermine some of the positive features of the existing Law, contrary to international standards in this area, including Recommendation No. R(2002)2 of the Committee of Ministers of the Council of Europe to Member States on access to official documents, adopted 21 February 2002.
ARTICLE 19 has analysed the proposed amendments against international standards and we note the following key problems:
* Article 10(1) of the existing Law limits the fees that may be charged by public bodies for information requests to the costs of providing the information. The proposed fee structure, in new Article 6(3) in conjunction with new Article 10(1), no longer includes this limitation. This would open up the possibility of abusively high fees being charged to deter requesters.
* Article 7(3) of the existing Law includes a long list of categories of information that information holders must publish, even in the absence of a request, one of its positive features, as noted above. A number of the categories, including some very important ones, have simply been removed. These include budgetary information, information about work and services costing policies, a full list of personnel (as opposed to the names and contact details of officials), and information about the information held and requests received. These deletions would seriously undermine this important provision.
* Existing Article 7(2) provides for urgent publication of various types of information to prevent danger, for example to State and public security, public health, the environment, individual rights and so on. This provision is not found in the proposed amendments.
* Article 8(3) of the existing law provides for a limited public interest override. Three situations where access to information may not be refused, notwithstanding the regime of exceptions, are established: where the information discloses a urgent threat to public security and health; where the information relates to “the overall economic situation of the Republic of Armenia, as well as the real situation in the spheres of nature and environment protection, health, education, agriculture, internal trade and culture”; and where a refusal to disclose the information would have a negative impact on the implementation of state programs. This provision is not found in the proposed amendments. Instead, a new Article 6(5) does provide for disclosure of environmental information, as well as threats to public security and health, but access in the other two situations would no longer be protected. This would constitute a serious limitation on the public interest override, a key part of an effective freedom of information regime. Furthermore, Article 14(2) of the existing Law provides for protection for those who release information pursuant to Article 8(3). The proposed amendments do not protect those who release information pursuant to new Article 6(5).
* The proposed amendments expand the list of information holders to include private entrepreneurs and legal entities. This is a very significant and novel development which requires careful treatment. The proposed amendments, however, do not even set out clearly what obligations these actors are under, so that proper evaluation of this proposal is not possible. If implemented in this form, these changes would be likely to cause confusion and possibly even to lead to injustice.
* Article 13(2) of the existing Law sets out clearly the responsibilities of information officers, which include ensuring that the provisions of the law have been met and assisting requesters. These important clarifications are not found in the proposed amendments.
* The proposed Article 9(7)(1) would increase the time limit for requests from 5 to 15 days. Given the importance of timely access, and the fact that the time limits may be extended until 30 days, this is unfortunate.
ARTICLE 19 strongly recommends that no amendments be made to the existing Law on Freedom of Information, at least until it has been in force long enough for its strengths and shortcomings to be properly assessed. Furthermore, any amendments should be designed to bring the law more fully into compliance with international standards on freedom of information, rather than to weaken its disclosure provisions.
We therefore urge the Armenian Ministry of Justice to withdraw the Law On Amendments to the Law on Freedom of Information and, instead, to monitor implementation of the existing law with a view to improving access to information in Armenia.
We would be happy to provide further views on the proposed amendments or advice on how to improve the freedom of information regime in Armenia.
Yours truly,
Luitgard Hammerer
Europe Programme Director
