Facts

 On July 15, 2024, azatutyun.am published a video titled: “The Prosecutor’s Office considers the question of whether they have received communication on cadastral maps confidential.” The author questioned the legality of the RA Prosecutor’s Office’s refusal to provide the information requested by the media, claiming it was considered a secret as stipulated by law. In particular, according to the publication, on July 9, 2024, Radio Liberty reporter Shogher Galstyan requested information from the RA Prosecutor’s Office about whether that body had received communication from the RA Government concerning land allocations made outside the territory of the Republic of Armenia, in the village of Kirants of Tavush region, which were supposedly due to inaccuracies in the relevant maps, as announced by Arayik Harutyunyan, Chief of Staff of the RA Prime Minister, in the National Assembly.

According to the July 15 publication by the radio station, the Prosecutor’s Office responded to the inquiry by stating: “In response to your inquiry dated July 9, 2024, we inform you that providing the requested information is not possible under Article 8, paragraph 1, point 1 of the RA Law “On Freedom of Information.” According to the cited legal provision, the information holder shall refuse to provide information if “it contains state, banking, commercial secret or administrative information with limited distribution.” On the same publication day, July 15, journalist Shogher Galstyan appealed to the Information Disputes Council for an expert opinion on this issue.

Conclusion

A public body’s rejection of a media’s request to provide information constitutes an informational dispute, and the IDC considers itself authorized to issue a professional opinion on the matter.

Article 42 of the Constitution guarantees the right to seek, receive and disseminate information. Society, in turn, has the right to access information about events and developments of general significance. This is crucial for the exercise of the public right of democratic governance, which is primarily ensured through media. Therefore, the media’s right to seek, receive and disseminate information of public significance should be given special attention and respect from state institutions engaged in public governance.

The aforementioned is guaranteed by legislative norms. Specifically, Article 4 of the RA Law “On Freedom of Information” outlines that the principles of ensuring freedom of information involve safeguarding the freedom to seek and receive information, ensuring the accessibility of information and maintaining publicity in the freedom of information. The details provided suggest that there is a presumption in favor of providing information, with restrictions being an exception to this principle. According to Article 8, paragraph 1, point 1 of the same law, the provision of information may be rejected if it contains state, banking, commercial secret or administrative information with limited distribution. The legal definition of each of these concepts is specified in relevant laws and departmental lists. Therefore, when rejecting a request addressed to them under this point, information holders must also cite the law, which classifies the information as a state, administrative or other type of secret. It is also desirable to substantiate this with a reference to the relevant departmental list.

According to Article 10, paragraph 2 of the European Convention on Human Rights, restrictions on information of public interest must be narrowly interpreted, and state authorities’ rejections to provide information must be reasoned, based on genuine, rational grounds, and proportionate to the legitimate purposes for restricting the information. Moreover, the European Court highlights that “the information, data or documents to which access is sought must generally meet a public‑interest test in order to prompt a need for disclosure… Such a need may exist where, inter alia, disclosure provides transparency on the manner of conduct of public affairs and on matters of interest for society as a whole and thereby allows participation in public governance by the public at large.”[1]

The Council of Europe Convention “On Access to Official Documents” (Tromsø Convention)[2] provided a broader definition and normative status to overriding public interest as a legitimate basis for the provision of information. According to Article 3, paragraph 2 of the Convention, even if an official document contains state, administrative, commercial or other secret established by law, state bodies are obligated to ensure its accessibility, in case there is an overriding public interest.

This approach is also partially enshrined in Article 8, paragraph 3 of the Law “On Freedom of Information,” which stipulates that the provision of information cannot be denied if it relates to three categories of urgent issues: emergency threats to citizens’ security and health, data related to the overall state of the Armenian economy or the environment, or situations where the failure to provide information would have a negative impact on the implementation of certain state programs.

In the light of the aforementioned legal regulations, the response of the RA Prosecutor’s Office is evidently unlawful. It fails to meet even the minimum standards for the right to access information. First, the response lacks reasoning, as it only generally refers to Article 8, paragraph 1, point 1 of the law, without specifying whether the requested information in this case is a state, banking, commercial secret or information with limited distribution. The careless manner in which the Prosecutor’s Office handled the information request demonstrates this state body’s disregard for the fact that the requested information actually belongs to the public, with that body serving only as its guardian, which should strictly follow the requirements of the Armenian legislation and international norms when making decisions on providing or refusing the provision of data. The Prosecutor’s Office failed to do so.

To summarize, the IDC points out that the Prosecutor’s Office did not specify what type of secrets (if any) the information requested by the media contained, nor did it cite any legal provision to support such a claim. Meanwhile, one of the inquiries concerned whether the body had received communication from the RA Government about land allocations and map inaccuracies in Kirants village of Tavush region. At least in this regard, it was necessary for the body to either refute or confirm the news that had already been voiced in the National Assembly. Furthermore, the Prosecutor’s Office failed to substantiate that the legitimate purpose of maintaining the confidentiality of the information outweighed the public interest in accessing it. Meanwhile, the state body was obligated to make this assessment. And finally, it is possible that in this particular case the information request was related to one of the grounds specified in paragraph 3 of Article 8 of the Law “On Freedom of Information” (referenced above). If this was the case, the Prosecutor’s Office should have shown greater diligence and provided the requested information, irrespective of its legal status as a secret. However, the vague response from the Prosecutor’s Office does not allow to determine the likelihood of existence of such grounds.

As a result, the IDC concludes that the refusal by the RA Prosecutor’s Office to provide information requested by Radio Liberty reporter Shogher Galstyan was unlawful, causing a disproportionate restriction on the accessibility of official data and the media’s right to receive and disseminate information.

Information Disputes Council

Shushan Doydoyan (IDC Secretary), President of Freedom of Information Center

Ara Ghazaryan, Director of “Ara Ghazaryan” Law Firm

Boris Navasardian, Honorary President of Yerevan Press Club

Aram Abrahamyan, Chief Editor of “Aravot” Daily

Ashot Melikyan, Chairman of Committee to Protect Freedom of Expression

Olga Safaryan, Lawyer

[1] Case of Magyar Helsinki Bizottsag v. Hungary, Application No. 18030/11, 08/11/2016, point 161

[2] Armenia ratified the Convention on September 1, 2022