IDC opinion on the case of FOICA against Environmental project implementation unit state institution

#39
IDC opinion on the case of FOICA against Environmental project implementation unit state institution
THE FACTS.
 
On May 29, 2012, Freedom of Information Center sent a written request to the head of “Environmental project implementation unit” (now Unit) state institution asking to provide following information.
  1. Did “Environmental project implementation unit” SA collaborators receive awards (bonuses, presents) in 2011?
  2. If yes , then who had been awarded (according to staff) and how much money (what kind of present)?
  3. How much was the total amount of “Environmental project implementation unit” SA collaborators’ received money awards ?
  4. How much was the each present value of “Environmental project implementation unit” SA collaborators’ received and the total amount of presents’ value?
 
The Unit refused to provide information about the second question explaining that it was information about their private life. About the other all questions information was provided.
 
The organization litigated the refusal in the court insisting that the mentioned information asked according to their staff  not nominal and in such condition the information didn’t raise a question about the immunity of civil employee’s private life. The organization asked the court to take into account the public importance of information.
 
After a number of judicial proceedings, on the 2nd of October 2014 Kentron and Nork-Marash administrative district court of general jurisdiction rejected the claim. The court considered that the Unit  once a year at least had to publicize the staff lists, officials’ name, surnames and other personal data and in such conditions the claimants could synthesize easily this information with the required information of the second question and thus discovered the personal data of information subject , that is- who has received subject matter bonuses and their amount. The court considered that in such condition the right of civil employees’ private life will be broken based on the 23rd article of  RA Constitution, the 8th of ECHR, the 131st, 134th, 199th of RA Labour Code and “On freedom of information” the 8th  article of RA Law.
 
2. CONCLUSION
 
The right of private life is confirmed by the 23rd article of  the Constitution. Nonetheless this right is not absolute and needs to be limited which bases are stated in the 43rd article of the Constitution. Thus the right of private life can be only limited to the procedure established by law, if it follows  one or some of legitimate aims stated in the same article (prevention of crimes, protection of state security, public order, society health and ethics, protection of other persons’ rights, freedom, honor ) and if the restriction requires in the democratic society.  
 
The first condition, the principle of legitimacy is satisfied the Unit has substantiated its decision with some legislative norms which , in general, relate to the right for respect the private life. What relates to the legitimacy of the aim it is obvious that the restriction of information provision is directed to the protection of “other person’s right” in the present case  private life. Thus in this sense the restriction is also legitimate.
 
What relates to the third criterion in this sense is rising a question whether there is need to make a secret of the salary and awards amount and the staff of public employee award received   from tax-payers’ sum in democratic society for carrying out the public functions. The facts, that the information subject is a person carrying public service but not employee from private company as well as the information has a public importance essence are considerable circumstances. One of the primary conditions in the democracy which is social control over officials will suffer if the regular principals of private legal relationships are apply in regard to public importance of information. 
 
In this sense the Council can’t neglect that the court or first instance hasn’t touched upon the public importance of information and tried to compare the public interest of receiving information with the interest of private life protection and on balance cleared up whether the information refusal is proportionate with the legitimate aim or not.
 
Any restriction have to be in rational touch with the necessity which is presented as a base or restriction. In this sense the abstract and general argumentations don’t coincide with the fundamental principles of proportion and necessity which stand out in the administrative relations. Hence, the circumstance which  will discover the name and surname of civil employee is not a sufficient reason to refuse the information provision about civil employee’s staff, bonus and public importance of salary. It needs to show whether the special circumstance is available, in which condition the information about the secrecy of personal data dominates the public interest of receiving information. Such as can the information which, in case of providing, will be discovered the person’s racial origin, political or religious or other beliefs, state of health, personal data having a relation to the sexual life, in which sense the availability condition of certain specific circumstances  can be demanded much more reticence then it needs in usual conditions. Any kind of circumstance doesn’t exist in this case which gives us another reason to insist that the information refusal hasn’t been proportionate and enough means.
 
Hence, even if the information about the staff brings to or is able to bring to the identification of person holding this staff: it is not substantiated by any factual data, that the person holding a post of public employee will appear essentially in unfavorable situation and interference of the right for respect the private life will be as deep that the supremacy of public interest for receiving information hasn’t been justified. At last the  society has right to know what post is holding and who is that public employee who receives large bonuses at tax-payers’ expense for taking up the public and environment problems. 
 
Based on the before-mentioned the Council finds the right of information accessibility of organization has been broken by the Unit based on the 27th article of the Constitution unduly refusing the organization demand about information provision. 
 
Information Disputes Council
Shushan Doydoyan (Secretary of the Council)- President of the Freedom of
Information Centre of Armenia; 
Manana Aslamazyan - Director of Alternative Resources in Media program; 
Boris Navasardyan - President of the Yerevan Press Club;
 Aram Abrahamyan - Chief Editor of "Aravot" newspaper; 
Ara Ghazaryan - Deputy Director of "Arni Consult" Law Firm office;
Gegham Vardanyan- Producer of the Media Initiative Center