Freedom of information is one of the pillars of democratic governance: society can control the exercise of power only when it knows what that power is doing. The chapter on freedom of information in the General Administrative Code of Georgia builds a complete system of access to public information — it defines the participating notions, the public character of sessions, the public registry, the procedure for requesting information and obtaining copies, the conditions and terms of classification, an exhaustive list of information that may never be classified, and the remedies for a violated right. This page explains that system in detail.
Basic Notions: To Whom the Regime Applies
The Code first fixes its vocabulary. A public institution is an administrative organ, and also a private-law legal person financed from the state or municipal budget — within the limits of such financing. A collegial public institution is one whose head or deliberative body consists of more than one person and in which decisions are jointly adopted or prepared by more than one person; a member of such an institution is a public servant who participates, with voting rights, in the adoption or preparation of decisions. A session is the discussion of a matter by the members for the purpose of adopting or preparing a decision in the name of the institution.
Publication means the entry of public information into the public registry in the manner established by law and the securing of its accessibility to society, as well as proactive publication — the placement, under a procedure set by a subordinate normative act, of public information carrying public interest on electronic resources. A public database is data systematically collected, processed and stored by a public institution or public servant. The chapter separately defines executive privilege — the release of public institutions and public servants from the duties provided for by this chapter — and urgent necessity, meaning the threat of a violation of legislation or a situation in which the functioning of public institutions faces a real threat in a democratic society. Relations connected with personal data are regulated by a separate law of Georgia on the protection of personal data.
Public Sessions and the Rules of Publication
Every collegial public institution is obliged to conduct its sessions openly and publicly, except for the cases provided for by legislation. The guarantee of openness operates in advance: the institution is obliged to publicly announce, one week beforehand, the forthcoming session, its venue, time and agenda — and where a decision is taken to close the session, to announce the closure as well.
The publication rule reaches secret information too. After the removal of the material assigned to secrecy, any separable part of secret public information, and of the minutes of a closed session of a collegial public institution, must be published within reasonable limits. In such a case the publication indicates the person who classified the information, the ground on which the information was deemed secret, and the term of classification — preserving a trace of who declared the information secret, why, and for how long.
The Public Registry, Accessibility and Copies
A public institution is obliged to enter the public information existing in it into the public registry. A reference to public information must be entered in the registry within 2 days of its receipt, creation, processing or issuance — indicating the name of the information, the dates of those actions, and the name of the natural or legal person, public servant or public institution from whom the information was received or to whom it was sent. In this way a surveyable map of the institution's holdings is created.
Accessibility must also be organised. A public institution is obliged to designate the public servant responsible for securing the accessibility of public information and for its proactive publication. The institution is obliged to secure the accessibility of copies of public information as well, and it is impermissible to impose any kind of fee for the issuance of public information, apart from the reimbursement of the amount necessary for making the copy — the information itself is free.
Requesting Public Information
Everyone has the right to request public information regardless of its physical form and condition of storage, to choose the form of receipt where it exists in different forms, and to inspect the original. Where a risk of damage to the original exists, the public institution is obliged to secure the possibility of inspecting it under supervision or to present a copy certified in the appropriate manner.
To obtain information, a person submits a written application, and it is not necessary to indicate the motive or purpose of the request — no one owes an explanation of interest. The exception is another person's commercial secret: on such a request the applicant, save in cases provided for by law, submits the consent of the corresponding person, certified notarially or by an administrative organ. A request may also be made electronically, through the electronic resources of the public institution, and the standard for electronic requests is approved by the corresponding subordinate normative acts.
Classification: Executive Privilege and Terms
The Code balances the principle of openness with measured exceptions. Executive privilege protects from disclosure the identity of public servants — other than state-political officials — who participate in the process of preparing decisions of an official: the anonymity of internal decision-making extends to the assisting staff.
A decision to classify public information may be adopted only where the law imposes a direct requirement to protect it from disclosure, establishes specific criteria for protection, and contains an exhaustive list of the information to be protected — all three conditions must be satisfied together. As to terms: save in cases provided for by law, professional and commercial information is classified indefinitely; however, a commercial secret must be declared open where it no longer possesses the value for which it was so considered. Decisions on classification and on the extension of the term are entered in the public registry, which lends transparency to the very act of protection.
Information That May Not Be Classified
The decisive guarantee of openness is the list of information whose classification is impermissible — everyone has the right to know:
- information on the environment, and data on threats to life or health;
- the basic principles and directions of the activity of a public institution;
- the description of its structure, the definition and distribution of servants' functions, and its decision-making procedure;
- the identity and official addresses of the state and public servants who hold a position or are charged with classifying information, public relations or providing information to citizens;
- the results of open voting held for the adoption of a decision in a collegial public institution;
- all information connected with the election of a person to an elective office;
- audit conclusions and the results of revisions, as well as court materials in cases where the public institution is a party;
- the name and location of public databases in its custody, and the identity and official address of the person responsible for the database and of the personal data protection officer, where one exists;
- the purposes, fields of application and legal grounds of the collection, processing, storage and dissemination of data;
- the existence or non-existence of personal data in a public database, and the procedure for inspecting them — including the procedure by which identification takes place, where the person or a representative has submitted a request;
- the categories of persons entitled by law to inspect personal data in the database;
- the composition and sources of the data in the database, and the categories of persons about whom information is collected, processed and stored;
- all other information that, in cases and by the procedure provided for by law, is not deemed a state, commercial or professional secret and does not constitute personal data.
Remedies, Personal Data and Control
The secrecy of personal data is governed by a distinct rule: a public institution may not disseminate a person's personal data without that person's consent, save in cases provided for by law where this is necessary to secure state or public security, public interests, health or the rights of others. At the same time, the personal data of officials — and of candidates nominated for office — are public. The issuance and publication of the text of a judicial act resulting from an open court session are governed by the Organic Law of Georgia on Common Courts.
Where the right is violated, a person may apply to a court demanding the annulment or amendment of a decision of a public institution, state servant or public servant, and may also claim compensation for property and non-property damage — upon refusal to issue public information, full or partial closure of a session, classification, the creation and processing of incorrect information, or violation of other requirements of the chapter. The burden of proof here rests on the responding institution, state or public servant.
Two control mechanisms operate in the sphere of secrecy. The court has the right to request and examine classified public information in order to study the lawfulness of its classification in whole or in part, and, at a party's request, to conduct that examination in a closed session. Reporting is annual: by 10 December of every year, each public institution must submit to the Parliament, the President and the Prime Minister of Georgia, and publish in the Legislative Messenger, a report — on the number of requests received and refusals, on databases and the processing of personal data, on violations and disciplinary penalties, on the legal grounds relied upon for refusals, on appeals, and on costs, including amounts paid in a party's favour.
For historical information the Code establishes a special openness: public information protected from disclosure, apart from personal data, commercial and professional secrets, is open where it was created, sent or received before 28 October 1990 — in a form excluding the identification of the persons mentioned in it, during those persons' lifetime.