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Tbilisi 2014

THE OBLIGATION TO SUBMIT PUBLIC INFORMATION REPORTS (Applied practice in Georgia and experience of the United States of America and the Commonwealth of Australia)

(saqarTveloSi arsebuli praqtika da amerikis SeerTebuli Statebis da avstraliis kavSiris gamocdileba)

sajaro informaciis angariSebis wardgenis valdebuleba Tbilisi 2014


kvleva ganxorcielebulia saqarTvelos axalgazrda iuristTa asociaciis mier proeqtis - “angariSvaldebuli da gamWvirvale mmarTvelobis xelSewyoba saqarTveloSi” - farglebSi, “Ria sazogadoebis fondebis” (OSF) - finansuri mxardaWeriT. gamocemaze pasuxismgebelia saqarTvelos axalgazrda iuristTa asociacia da misi Sinaarsi ar gamoxatavs donoris oficialur pozicias.

--------------------------------------------------------------------------------------------------© 2014, Georgian Young Lawyers’ Association Coping and Dissemination of publication for commercial purposes without GYLA’s written permission is prohibited. Was edited and published in the Young Lawyers’ Association 15, J.Kakhidze st. Tbilisi 0102, Georgia (+995 32) 295 23 53, 293 61 01 Web-page: www.gyla.ge E-mail: gyla@gyla.ge Responsible for Publication: TAMAR GVARAMADZE SULKHAN SALADZE Tech. Editor: IRAKLI SVANIDZE

avtori: salome saRaraZe sofio Wareli redaqtori: xaTuna yviralaSvili

Editor: KHATUNA KVIRALASHVILI Authors: SALOME SAGHARADZE SOFIO CHARELI

teq. redaqtori: irakli svaniZe gamocemaze pasuxismgebeli: Tamar gvaramaZe sulxan salaZe

aiwyo da dakabadonda saqarTvelos axalgazrda iuristTa asociaciaSi. j. kaxiZis q.15 Tbilisi 0102 saqarTvelo (+995 32) 295 23 53, 293 61 01 veb-gverdi: www.gyla.ge el-fosta: gyla@gyla.ge

akrZalulia aq moyvanili masalebis gadabeWdva, gamravleba an gavrceleba komerciuli mizniT, asociaciis werilobiTi nebarTvis gareSe --------------------------------------------------------------------------------------------------© 2014, saqarTvelos axalgazrda iuristTa asociacia

Georgian Young Lawyers’ Association is responsible for the Report and it does not necessarily reflect the position of the donor. This Report was published by Georgian Young Lawyers’ Association in the framework of the project “Support to Establish Transparent and Accountable Governance in Georgia” financed by Open Society Foundations (OSF).


1. Introduction “A democracy requires accountability, and accountability requires transparency”1 – the phrase clearly expresses the key principle which is the core element of the state’s democracy development. This approach should be selected as guiding principle in the course of any reforms and changes.

For the past period some activeness is observed in terms of establishing transparent governance, which shall be achieved through development of public information institute and its regulatory legislative bases. Article 492 of the General Administrative Code of Georgia is an important regulation in terms of accountability and transparency, obliging public agencies to submit and publish FOI reports by December 10 annually.

On October 17, 2013 after the elected President of Georgia took his oath, the new edition of the Article 49 was enacted. As it follows from the Article, public agencies became obliged to submit FOI reports to the Prime Minister along with the President and the Parliament. Moreover, the report shall also be published in the Legislative Herald of Georgia. According to the explanatory note3 of the draft, amendments to the General Administrative Code of Georgia were reasoned by the amendments introduced to the Constitution in 2010. GYLA has been submitting researches4 on the December 10 reports for many years, where organization assessed content of the report and submitted statistics. Moreover, the document revealed problematic issues observed by the monitoring group in the course of examination, namely •

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Failure of public agencies to fulfill the reporting obligation;

President Barak Obama;

Article 49 Submission and publication of the report (20.09.2013. N1263 the Law shall be enacted from the moment when the newly elected president as a result of the October 2013 Presidential Elections takes an oath) Public agency is obliged to submit FOIA reports to the Parliament of Georgia, the President of Georgia and the Prime Minister of Georgia, as well as to publish the reports in the “Legislative Herald of Georgia[...] ” 2

The draft on introducing amendments to the General Administrative Code of Georgia; (07-3/207; 05.09.2013) http://www.parliament.ge/files/Draft_Bills/10.09.13/07-3.207.pdf;

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GYLA’s researches: “Analysis of the December 10 reports(2001-2009 reporting periods),” 2010 publication, Tbilisi, Freedom of Information in Georgia, (The main trends of court practice 2008-2010,) publication 2011, Tbilisi “Freedom of information in Georgia-2011”, publication 2012, Tbilisi; 4

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• • •

Non-uniform approach; Incompletely prepared and submitted information; Pro-forma nature of the process;

In view of the observed problems GYLA applied to relevant public agencies annually with recommendations for development of annual freedom of information reports and for elaboration of the controlling function.

By the 2013 changes important amendment was made to the Code in terms of obligating public agencies to publish information in the “Legislative Herald of Georgia”. It should be considered as a step forward to the transparency principle, though no principles changes were carried out. Apart from the Parliament and the President additional target – the Prime-minister was determined for submitting FOI reports, thought as mentioned already no legislative regulations were incorporated in the Code for filling the gaps that has been observed by GYLA in its previous reports.

In the course of working on the research, GYLA aimed to determine the number of public agencies submitting the FOI reports in 2013 to the relevant entities and their role and function in further developments. In particular, GYLA intended to find out who processed, controlled and inspected received information and how it was implemented, as well as number of other issues. As for international practice, GYLA examined experience of the United States and the Commonwealth of Australia.5 2. Methodology

In the course of examination, GYLA applied comparative research method. It determined targets of the research and requested public information from the Parliament, administration of the President and the government chancellery. Namely it retrieved information about: • individuals responsible for processing FOI reports as per Article 49 of the General Administrative Code of Georgia; • copy of the legislative act (if any) adopted for the purpose of Article 49 of the General Administrative Code; • the form of processing information received from public agencies and the manner of inspecting fidelity of submitted information; 5

From here after Australia;

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• • •

undertaken measures in case of failure to submit FOI reports or in case of submitting incomplete documents; the number of public agencies submitting the report; the list of public agencies submitting the report.

With a view to scrutinize publication of the reports, GYLA carried out visual monitoring of the web-page of the Legislative Herald of Georgia.6

Furthermore, GYLA studied experience of the foreign countries, namely applied practice in the USA and Australia in terms of submitting FOI reports. The countries were selected for their many years’ experience of FOI administration. 3. “December 10” reports

As it follows from the responses7 submitted by the monitoring targets, information is processed and analyzed by FOI officer(s), though the manner of analyzing and processing information is not determined. Moreover, nobody inspects comprehensiveness and correctness of the reports, let alone other further responsibilities.

It should be noted as well, that save for Article 49 of the General Administrative Code of Georgia no other legislative act envisages obligation to submit annual FOIA reports, while it contains only obligation of submitting December 10 reports and says nothing about other obligations of recipient public agencies (such as analysis of the reports, control, inspection, imposing of responsibility). In view of above, there is a doubt that a submission of FOI reports is only pro-forma, while no attention is paid to the content of the documents. Accordingly, we receive the reports full of gaps similar to Article 49 of the General Administrative Code. Timeliness of the reports is also decisive. By January 13, the Legislative Herald of Georgia had published 1709 reports on its web-page. They were published in the period of December 10-13 during every working day. 6

https://matsne.gov.ge/

The letter of the Administration of the President of Georgia #15/371 of December 6, 2013; the letter #2472-2-4 of December 9, 2013 of the Parliament of Georgia. The Chancellery of the Government of Georgia failed to submit requested information within established terms. As a result, GYLA submitted an administrative complaint 17.01.14 # g-05/01-14 7

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1957 public agencies submitted their annual reports to the President, 2338 – to the Parliament and 1855 to the Prime Minister.8 The difference in number of submitted FOI reports illustrates that recepients of the reports are selected according to the view points of the public agencies that comes in conflict with Article 49 of the General Administrative Code of Georgia which is an obliging rather than entitling norm for all public agencies.

4. International Experience Effective and practical realization of freedom of information regulatory legislative norms is especially important in the process of establishing transparent governance. To this end, certain mechanism shall be set up along with the number of obligations envisaged by freedom of information regulating norms of various states, for ensuring observance of obligation by state agencies. The letter of the Administration of the President of Georgia #15/434 of January 6, 2014; the letter # #37/2-4 of January 9, 2013 of the Parliament of Georgia. The letter #39202 of December 27, 2013 of the Chancellery of the Government of Georgia failed to submit requested information within established terms. As a result, GYLA submitted an administrative complaint 17.01.14 # g-05/01-14 by the period of December 26, 2013. 8

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“Each agency must be fully accountable for its administration of FOIA” 9, accordingly for effective implementation of the obligation, the necessity to carry out certain monitoring is determined. Although no explicit obligation is envisaged by the international law in terms of setting up the monitoring agency, it still imposes “positive obligation” on the state since the freedom of information is among universally recognized human rights. The issue was highlighted once again in the judgment10 of the Inter-American Court of Human Rights, according to which while on the one hand the state is obliged to refrain from interfering in the field protected by rights, on the other hand the state shall carry out positive measure for its effective realization. As it follows from the international practice, FOIA imposes reporting obligation on administrative agencies under its jurisdiction. Importance of the institution is high, since apart from collecting statistical data, it also allows evaluation of the activities of public agencies and raises possibility of effective administration of imposed obligations. Though, for attaining the objective set up by the legislator and for creating the accountability system, the obligation also requires effective monitoring mechanism implying inspection of correctness and fidelity of submitted reports and their compliance with legislative requirements.

Firstly, two aspects shall be considered when we discuss the obligation to submit FOI reports. These are: uniform approach to the issue and procedural consistency implying examination of the submitted reports, inspection of their compliance with legislation and their further application. By granting high contextual importance to the reports motivation of public agencies increases in terms of effective management of the process and monitoring of the conduct of responsible individuals with a view to develop FOIA reports. Ultimately, it results in timely submission of public information to interested individuals and at the same time responds to the state’s “positive obligation” to ensure unrestricted realization of the right.

The United State of America and Australia illustrated quite an interesting approach in terms of submitting FOIA reports. Both states have shown identical attitude with regard to formation of the uniform practice. Namely special instructions are worked out for public agencies with detailed regulation of aspects for submission of reports. The guidelines concern issues, „Each Agency must be fully accountable for its administration of FOIA” – Attorney General Eric Holder; 9

The Inter-American Court of Human Rights, in a case against Chile (Claude Reyes et al vs. Chile); 10

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such as the list of public agencies directly obliged to submit FOIA reports. In addition, they specify types of reports and define their essential elements, terms of submitting reports, the form for publication, special web-resources (if any) where the reports are filled in, the responsible agency where FOIA reports shall be submitted, all procedural steps which may be passed by the reports and others. 11

As regards the United States, the department of justice works out the instructions, while in case of Australia it is implemented by Freedom of Information Commissioner. In the first case all guidelines are incorporated in “Guidebook for creation of the FOI annual reports”12 while in another case part of instructions are displayed in FOIA general guidelines, 13 and the rest are available on the official web-resources of FOI Commissioner.14

Furthermore, it should be noted that in USA the Handbook for Agency Annual Freedom of Information Acts Report is divided in two main parts, out of which the first concerns effective management of the process of examining FOI applications and complaints and the second unites instructions about drafting the final reports. This highlights importance of reasonable administration of ongoing process in the reporting period, for the purpose of submitting the report with full observance of legislative requirements. 15 The instructions are common for all public agencies, therefore it promotes http://www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-ofinformation-act-reports.pdf#page=69&zoom=auto,69,380; http://www.oaic.gov.au/images/documents/freedom-of-information/foi-guidelines/ Combined_set_-_Guidelines_issued_by_the_Australian_Information_Commissioner_ under_s_93A_of_the_FOI_Act.pdf, part 15 – reporting; http://www.oaic.gov.au/freedom-of-information/foi-resources/freedom-of-informationagency-resources/guide-to-the-quarterly-and-annual-foi-act-statistical-returns-to-the-officeof-the-australian-information-commissioner; 11

http://www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-ofinformation-act-reports.pdf#page=69&zoom=auto,69,380; 12

http://www.oaic.gov.au/images/documents/freedom-of-information/foi-guidelines/ Combined_set_-_Guidelines_issued_by_the_Australian_Information_Commissioner_ under_s_93A_of_the_FOI_Act.pdf, part 15 – reporting; 13

http://www.oaic.gov.au/freedom-of-information/foi-resources/freedom-of-informationagency-resources/guide-to-the-quarterly-and-annual-foi-act-statistical-returns-to-the-officeof-the-australian-information-commissioner; 14

Department of Justice Annual FOIA Report Handbook, www.justice.gov/oip/ docs/doj-handbook-for-agency-annual-freedom-of-information-act-reports. pdf#page=69&zoom=auto,69,380, p.2; 15

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establishment of the best practice and preparation of identical reports from various public agencies.

As for the types and monitoring mechanism of the report worked on the basis of FOIA, the research has illustrated different approach. In the United States public agencies report on their progress in administering the FOIA through two reports. The first, among many other things, contains detailed statistics on the numbers of requests received and processed, the time taken to respond and the number of any backlogged requests, therefore they mostly focus on statistical data.

As for the second type of reports, it is drafted by FOIA Officer and reports on the steps that have been taken to improve FOIA operations and facilitate information disclosure at their agencies. Namely, the report concerns on:  the steps taken to improve the use of technology in FOIA administration;  the steps taken to increase proactive disclosures;

 the steps taken to reduce any backlogs and to improve timeliness in responding to requests;

 the steps taken by their agencies to apply the presumption of openness and others.16

As for compliance of activities of administrative agencies with legislation, special government Offices of Information Policy17 and Government Information Services18 carry out monitoring. The Office of Information Policy mainly focuses on the technical part of drafting FOIA reports and the group under its subordination is always ready to provide assistance to any public agency for resolution of various problematic issues. The Office of Government Information Service mainly examines contents of the repost and uses them for further purposes.

With a view to elaborate the best practice and implement FOIA requirements the Office of Information Policy and the Office of Government Information Service actively cooperate on development of FOIA reports submitted by public agencies. With a view to clarify the active role of these institutions, we would discuss in details ongoing process after preparation of the reports. 16 17 18

http://www.justice.gov/oip/docs/sum-2012-chief-foia-officer-rpt.pdf;

The Office of Information Policy;

Office of Government Information Services;

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When relevant administrative agencies finish work on FOIA reports and they are placed on the web-pages, the Office of Information Policy inspects the document in terms of their compliance with legislation. If any inconsistency occurs, monitoring entity is entitled to apply to the relevant administrative agency and to demand elimination of the gap.19 As mentioned already, the initial inspection is more technical, and implies comparison of submitted reports with established procedures. Apart from the formal part, the Office of Information Policy also prepares one combined report based on the reports submitted by FOIA officers 20 which intend to show progress achieved by each administrative agency in the reporting period. As for detailed contextual analysis of the submitted reports, the government office of Government Information Services has more active role. According to the imposed authorities OGIS engages in review and control of agencies’ FOIA policies, procedures and compliance, if needed it also substitutes the mediation role and works out recommendations for improving FOIA.21 Accordingly, it is the competent agency which examines public agencies’ reports with a view to determine deficiencies and weaknesses which require further improvement. Afterwards OGIS makes recommendations to Congress and the President for implementation of necessary measures for improving FOIA on the information it has gathered.

Unlike the United States, in case of Australia, Public Information Commissioner carries out monitoring of fulfillment of FOIA requirements by public agencies. Similar practice applies in different European Countries22 and is an effective tool for implementation of monitoring on the ongoing process. Similar to all other cases, one of the main duties of Australian Information Commissioner is monitoring of public agencies activities and effective realization of FOIA. Since submission of FOIA report is among obligations of administrative agencies, it would be interesting to review established practice. As opposed to the United States, Australian legislation does not envisage publication of FOIA reports by each public agency. As per section 93 of the FOIA, 23 public agencies shall provide information determined by http://www.justice.gov/oip/docs/doj-handbook-for-agency-annual-freedom-ofinformation-act-reports.pdf; 19

20 21 22

http://www.justice.gov/oip/docs/sum-2012-chief-foia-officer-rpt.pdf;

https://ogis.archives.gov/for-federal-agencies/working-with-ogis.htm; England, Slovakia, Serbia, Hungary, Scotland;

http://www.oaic.gov.au/images/documents/freedom-of-information/foi-guidelines/ Combined_set_-_Guidelines_issued_by_the_Australian_Information_Commissioner_ under_s_93A_of_the_FOI_Act.pdf, Part 15 – Reporting; 23

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legislation to the Information Commissioner within established terms. The information shall include public information requests, relevant decisions, number of complaints, the total amount of fees paid for disclosure of public information, measures undertaken for effective administration of FOIA and others. On the basis of submitted information, Information Commissioner prepares the final version of the FOIA report, which along to the activities implemented by him/her, also provides description of the situation in various administrative agencies. On the one hand it will be the total statistical data of examined applications, complaints or taken decisions, while on the other hand it will review issues in terms of application of FOIA by administrative agencies. 24 Therefore, according to the Australian legislation, instead of publication of FOIA reports by each public agency, they are combined in one document drafted by the Information Commissioner. The process is more economic and promotes increase of accountability. Furthermore, it should be noted that Australian Information Commissioner carries out realization of FOIA policy in practice and s/he is responsible for submitting proposals to the government for development of FOIA conditions. Therefore, the fact that he is informed in details about FOIA conditions in the reporting public agencies on the one hand increases responsibility of the agencies in terms of submitting timely and precise information to Information Commissioner, while on the other hand creates safeguards for elimination of the existing shortcomings.

In view of above, after studying practice of the researched countries, it should be concluded that the main objectives of submission of FOIA report can be attained in case of both systems. Namely, effective monitoring mechanism on the one hand increases accountability of public agencies by implementation of obligations envisaged by FOIA, while on the other hand effective monitoring is carried out for improvement of legislation and development of applied practice. 5. Conclusions and Recommendations

As it follows from GYLA’s research, the legislative bases in terms of submission of public information is represented by the single Article, which reveals insufficient regulation of the issue. The gap leads to establishment of the dehttp://www.oaic.gov.au/images/documents/freedom-of-information/foi-guidelines/ Combined_set_-_Guidelines_issued_by_the_Australian_Information_Commissioner_ under_s_93A_of_the_FOI_Act.pdf; 24

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fective practice, according to which public agencies responsible on submission of FOIA reports, as well as agencies authorized to receive the reports have pro-forma approach to the process. They fail to implement even trivial obligations such as publication of freedom of information reports on the web-site of the Legislative Herald of Georgia within the terms established by legislation or submission of the reports to the President, the Parliament and the Prime-Minister according to the established rules. Since no monitoring agency is envisaged by Georgian Legislation, indifferent attitude is revealed to the issue once again.

If we examine details of the process and take into account the goals of submission of public information, topicality of the problem is clearly observed. Firstly, the obligation, apart from collecting statistical data, shall intend, on the one hand, development of accountability of public agencies in terms of disclosing public information, while on the other hand it shall assess the current situation, reveal the problems and settle ways for their resolution. Accordingly, it is vitally important to specify on the legislative level the obligation to set up the relevant competent agency, as well as to regulate in details the process after submission of FOIA report implying examination of the content of their reports and introducing of levers for adequate responding. Studied international experience also reinforces the opinion. Namely, apart from uniform and comprehensive guidelines for submission of FOIA reports there is also the need for setting up monitoring agency. According to the researched countries, the monitoring agencies are generally, authorized to submit recommendations on development of applicable legislation and practice. Therefore, detailed examination of their FOIA reports is a guarantee for improvement of legislation and existing practice. In view of above, GYLA has worked out two reccomedations:

ďƒ„ Legislative bases needs to be developed and the obligation to submit FOIA reports should be regulated in details. It should be common for all public agencies and along to other issues should imply detailed rules for the process after submitting the reports; ďƒ„ It is necessary to determine the relevant competent agency obliged to minitor compliance of the FOIA reports with legislative requirements, as well as to examine in details the content of the reports, determine gaps and make relevant reactions thereto.

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The Obligation to submit Public Information Reports