ECtHR extends limited right to public interest information under Article 6

The European Court of Human Rights (ECtHR) has held that the refusal of police departments to disclose information on the appointment of public defenders upon request a violation of Article 10 of the European Convention of Human Rights (ECHR). The Court has therefore recognised a limited right to public interest information in circumstances where access to information is instrumental for the exercise of the applicant’s right to receive and impart information.

Magyar Helsinki Bizottság (Hungarian Helsinki Committee), is a non-governmental organisation (NGO) that focuses on access to justice, conditions of detention, and the effective enforcement of the right to defence. The NGO launched a project called, “Steps Towards a Transparent Appointment System in Criminal Legal Aid”,  which aimed to assess whether there were discrepancies in the appointment process of defense counsel between police departments. The NGO received information from twenty two police departments however, two refused to provide information as the “names [of the public defenders] constitute private data, which are not to be disclosed under the law”.

In considering the matter, the Court set out the principles on access to information in Leander v Sweden, being:

• ‘The right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him’
• ‘The right to receive information cannot be construed as imposing on a state positive obligations to collect and disseminate information of its own motion’
• ‘Article 10 does not confer on the individual a right of access to information held by public authority nor oblige the Government to impart such information to the individual’.

The question has been how to reconcile these three ‘principles’ with the position of the Court that it is ‘moving towards the recognition of a right to public interest information’ (first stipulated in 2009 TSAZ v Hungary). According to the Court, this was seen to be permitted “…in circumstances where access to information is instrumental for the exercise of the applicant’s right to receive and impart information, its denial may constitute an interference with [Article 10 ECHR].”

The Court went on to establish that a right to public interest information indeed arises when:

• Disclosure of information has been imposed by a judicial order which has gained legal force.
• Circumstances where access to information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information”.

The Court then laid out four ‘threshold criteria’ to better define the circumstances under which a denial of access to information constitutes an interference in a given case:

• The purpose of the information requested and its contribution to a public debate.
• The nature of the information sought.
• The role of the applicant.
• Whether the information is ready and available to the public authorities.

The ECtHR ultimately held that the denial of access by the police departments constituted an interference of the ECHR’s information provisions under Article 10. Although the information concerned personal data, it did not concern information outside the public domain. The Court further recognised that the information requested was necessary to complete the NGO’s survey, thereby contributing to debate on an issue of clear public interest.

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