GREEN LIGHT TO PERSECUTION OF CIVIL SERVANTS WHO LEAK INFORMATION?
21.01.2017 / Access to information
In 2016 two more limitations on the right access to information have been established. The right to access to information is one of the important means for providing freedom of expression. The sides benefiting from it use this right more effectively when they possess sufficient information and being informed is tightly related to the existence of ways of sufficient access to information.
The government has several positive obligations for maintaining the right to access to information. Principles defining their framework in international scale are called the principles of freedom of information. Organizations that protect and defend the freedom of expression collect these principles under nine headings:
The principle of maximum openness of information; according to this, the principle of maximum openness of information should stand on the basis of legislation about the freedom of information.
The obligation to publishing information; according to this, state organizations must publish all important information. Here, when we say publishing we mean taking the development processes of existing ICT resources into account and spreading them in the largest audience. For example, publishing can be print materials, e-media, online media and online resources.
- Supporting open government; here state organizations must actively support open government, increase public awareness and effectively fight the official syndrome of secrecy.
- A limited list of exceptions; when applying limitation on information this limitation must be very small and in a small framework. Besides this, when applying limitations information must go through three levels of inspection and the realized limitations must be backed up with the legal purpose as shown in the legislation. There must be a serious risk for damaging this purpose as a result of revealing it and the level of damage to this purpose as a result of revealing this information must be higher than the public interest to this information.
- Applying rules for easing access to information; inquiries for access to information must be viewed fast and fairly and any refusal should have the chance to be viewed by independent organizations.
- Being free of charge; the basis of this principle is the importance of revealing information that carries public interest free of charge. In exceptional cases when payment is required for access to information service, this amount should not be too big and this method should not create obstacles for people’s access to information.
- Open meetings; meetings of state organizations should be open to public.
- The advantage of openness to information; laws contradicting with the principle of maximum openness of information must be changed or annulled. Even though all laws are equal, the approach here is a right of access to information and it is an important key for defending all other laws.
- Protection of the reporters; according to the last principle, individuals from within the organization who leak information about the law violations should have legal protection and these individuals should be put under special protection by the legislation.
From the perspective of these principles, we see that a number of shortcomings exist when we look at the legislation of Azerbaijan. Even though some principles are taken into account in the legislation, most of them are not. In particular, the principles of supporting open government, open meetings and list of limitations are ignored.
Another problematic issue is that some principles that are mentioned in the legislation are not being followed in practice. For example, the principle of protecting reporters is reflected in the legislation. According to the Article 6.1.11 of the Legislation about “Access to Information” the principle of “persecution of officials for revealing information about legal violations causing interest of the public” is reflected. After the adoption of the law even the Article 181-3 was added to the Code of Administrative Offences and according to paragraph 5 of this Article persecution of an official for revealing information about legal violations causing interest of the public is subject to administrative liability.
However, as we are aware, Article 374 of the Code of Administrative Offences entered into force on March 1, 2016. Even though it considers administrative liability for legal violations regarding access to information, the previous coverage of this article has shrank and two issues have been taken out. One of them is the liability of the owner of information for not organizing access to information and other one is the prevention of persecution of information owners, who are the providers of the principle of protection of reporters, for an official for revealing information about legal violations causing interest of the public.
Thus, no legal penalty is considered for state organizations, officials and information owners for not organizing access to information, as well as for the facts about the persecution of officials for leaking information about legal violations causing interest of the public. This somehow encourages less transparency and more severe actions of information owners.