The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 7 June 2019, the First Board of the Constitutional Court of Georgia adopted the judgment in the case of “N(N)LE "Media Development Foundation” and N(N)LE "Institute For Development of Freedom of Information” v. The Parliament of Georgia" (constitutional complaints N693 and N857). Constitutionality of several provisions¹ of the Administrative Code of Georgia and the Law of Georgia “On Personal Data Protection” were challenged. The disputed norms regulated granting freedom of information (FoI) request regarding the public information, which contained personal data. The disputed provisions restricted the disclosure of any type of personal data in response to public information requests. If the personal data fell under the special category, disclosure or granting access of that data as FoI without the consent of the data subject was prohibited under any circumstances.

According to the complainants, accessing the full text of the judgments (without depersonalization of the text) of the court is vital for judicial transparence and it is protected under the right to access public information. The complainants indicated that, due to the disputed provision, they were unable to acquire full text of the judicial acts adopted by common courts of Georgia after open/public hearing. Namely, courts refused to disclose judicial acts in order to protect the personal data contained therein on the one hand, and, on the other hand, if the act was requested in a redacted form, they indicated that it was impossible to depersonalize the requested document and they did not grant the requests. The complainants claimed that such a regulation contradicted the right to access the information existing in public institutions (Article 18 (2) of the Constitution of Georgia).

The respondent disagreed with the complainants’ position and argued that the disputed provisions were aiming to protect personal data of the parties and other participants to cases. The respondent indicated that the legislation allowed disclosure of the personal data within the document whereby the balance of interests was protected. In the view of the Parliament of Georgia, personal data under the special category was extremely sensitive and the prohibition of disclosure of such information without the consent of the data subject was justified. Consequently, the respondent concluded that the disputed provisions were in accordance with the requirements of the Constitution of Georgia.

The Constitutional Court of Georgia noted that Article 18 (2) of the Constitution of Georgia protected the right of the members of the society to be informed on the issues they deemed important, and to be actively engaged in discussions surrounding them, as well as the process of implementation thereof. All of this serves the aim of making information existing in public institutions accessible, which is to facilitate public control and to engage the society in decision making process. The Constitutional Court noted that the disputed provisions regulated, in general, the issue of access to public information containing personal data that existed in any public institution. Considering the constitutional claim, the Constitutional Court assessed constitutionality of the disputed norms only with respect to accessibility of judicial acts delivered at an open hearing by the common courts of Georgia.

The Constitutional Court noted that the freedom to access judicial acts was protected under the right to receive information from public institutions. The Court interpreted that the disputed provisions restricted access to judicial acts that contained personal data and, in cases where depersonalization was not possible, respective acts were not being disclosed. Therefore, the Court found that there was interference within the protected scope of Article 18 (2) of the Constitution of Georgia.

The Constitutional Court agreed with the respondent position in that the legitimate aim of the disputed provisions was the protection of personal data. In addition, disclosing personal data during the open court hearing has an instant effect, whereas disclosing the same information in response of the requests increases the publicity level and in certain circumstances, it may restrict right to privacy more intensively in comparison to open court hearing. Therefore, the Constitutional Court did not exclude the interest of data subject to prevent the further spread of instantly revealed information and the considered that the disputed provisions were adequate/suitable for achieving the said legitimate aim.

When discussing the issue of necessity, the Constitutional Court put an emphasis on the will of the personal data subject to keep his/her personal data confidential. The Court noted that the legislation does not contain flexible measures that would ensure the right of an adult person with full legal capacity to waive his/her right on personal data protection within the scope of the respective judicial act. The legislation requires the consent of the data subject in every separate occasion, on a case by case basis, while in most cases, the identity of the data subject is usually unknown for the person seeking a copy of the judgment. According to the assessment of the Constitutional Court, within the existing legal framework, it was almost impossible to gain access to full texts of the judicial acts even in cases where data subjects have no interest in protecting their personal data, or, moreover – they want the public to be acquainted with such information. The Constitutional Court ruled that such a regulation restricted the access to information existing in public institutions with the intensity and the scope much broader than it was necessary for achieving the legitimate aim and, hence, the necessity requirement was not met.

According to the Constitutional Court, the will of the data subject to keeping their personal data confidential should not automatically provide grounds for restricting accessibility to such data. The Constitutional Court noted that, under such circumstances, there was a collision between two competing constitutional rights and it decided upon the balance between these competing interests at the stage of proportionality (stricto sensu) assessment.

The Constitutional Court noted that not all information existing in public institutions as well as public accessibility thereof is of the same significance. A higher public interest might exist with respect to specific type of information. The Court deemed judicial transparency to be the first and foremost interest from the point of view of accessibility of the common courts’ judgments. The Court noted that the Constitution of Georgia places judicial transparency among the matters of special importance insofar as the Constitution regards transparency as a principle for exercising the judicial power.

The Court emphasized that public oversight over the exercise of the judicial power and judicial acts in particular was of crucial importance in a democratic society. In this manner, every individual enjoys the possibility to carry out public control of the judicial system. People shall have the opportunity to evaluate every judicial act and place every judgment, order or interpretation under the broad public scrutiny. The Court noted that it is important for the interested persons to have access to full texts of judicial acts, given that, under certain circumstances, it is impossible to fully assess whether or not a given judgment was rendered by an impartial and unbiased court.

The Constitutional Court pointed out that judicial transparency forms part of the right to a fair trial and legal safety. Under the Court’s assessment, every person has the right to inform the public on judicial acts adopted within the scope of judicial proceedings where he/she is involved, as well as to have public scrutiny exercised over such proceedings. At the same time, legislation only gains its real effect upon application in the jurisprudence. Within the architecture of government branches established by the Constitution, the judiciary the branch that has the final say with respect to interpretation and application of the law. Thus, accessibility of judicial decisions ensures the opportunity of individuals to know the content of the law, how specific provisions are applied by the courts, and what does a normative regulation requires from them. Based on mentioned arguments the Constitutional Court considered that there was a heightened public interest toward accessibility of the judicial acts.

The Constitutional Court underlined the importance of the personal data protection and noted that confidentiality of personal data existing in public institutions aims to ensure the protection of one’s private life. The level of the protection varies based on the importance of the information and its potential to have a negatively impact on one’s private life. The intensity of such a negative impact and thus a stronger interest in the protection of information might be stemming from the category of information, as well as circumstances pertaining to gaining access to such an information, making it publicly available and other important factors.

The Constitutional Court put a strong emphasis on the fact that the disputed norms restrict access to judicial acts that were delivered as a result of an open/public hearing. The Court ruled that the level of confidentiality of the personal data contained within such acts is usually low and that it shall not outweigh the heightened public interest in the accessibility of the judicial acts. However, the Court noted that, in some cases, it might be necessary to conceal the personal data contained in the acts adopted as a result of a public hearing. In such cases, it should be assessed whether the necessity to protect the personal data can outweigh a heightened constitutional interest of accessibility of judicial acts.

The Court indicated that the disputed norms by default established the balance in favor of the personal data protection and deemed that such an outcome contradicted the value-order established by the Constitution. The Court noted that the disputed norms undermined the public oversight of the judiciary and consequently reduces trust toward it. The requirement to substantiate the heightened interest in openness of information with respect to personal information contained in every judicial act virtually eliminates the possibility of exercising random control and conducting effective oversight of bias tendencies or selective justice. According to the Constitutional Court, the intensity of the restriction increases even more in cases where it is impossible to obtain a depersonalized version of a judicial act, thus making in inaccessible for interested parties, which not only excludes the possibility of random control, but also undermines the requirement of legal safety that the reasoning of the court – as an authoritative definition of the existing legislation - be publicly available.

The Constitutional Court also noted that certain circumstances might require reversing the balance in favor of personal data protection, when disclosure of the data has an intensively negative effect on one’s privacy, considering the content and subject of the data, time and form of exposure and other conditions. In order to demonstrate such exceptional circumstances, the Court invoked the interests of minors and issues related to intimacy. However, the Court noted that even under such exceptional circumstances, there should be a possibility of making the court’s judgment publicly available in case a particularly heightened public interest exists with respect to the matter.

Based on the foregoing argumentation, the Constitutional Court ruled that the disputed provisions established an unconstitutional balance between the personal data protection and the right to access the information kept in public institutions, which resulted in breach of Article 18 (2) of the Constitution of Georgia. In addition, the Court noted that enforcing its judgment immediately would cause legislative absence. Namely, there would be no legislative grounds for denying freedom of information requests in order to protecting personal data within the judicial acts, which could cause the violation of the right to privacy. In addition, for the purposes of ensuring necessity of restrictions both with respect to current and finalized judicial proceedings, the Court pointed to the necessity of creating a mechanisms, that would ensure that the restriction of the access to judicial acts for the purposes of protecting personal data be possible only in cases where a person concerned voluntarily and consciously expresses his/her interest to protect confidentiality of such an information. Accordingly, the Constitutional Court postponed invalidation of the disputed provisions until 1 May 2020.

1. Disputed provisions within the N693 constitutional complaint – Article 44 (1) of the Administrative Code of Georgia (effective until 16 December 2018) and Article 6(3) of the Law of Georgia “on personal data protection with respect to Article 41(1) of the Constitution of Georgia (effective until 16 December 2018).

Disputed provisions within the N857 constitutional complaint – Article 28(1) and 44 (1) of the Administrative Code of Georgia (effective until 16 December 2018) and articles 5, 6(1) and 6(3) of the Law of Georgia “on personal data protection with respect to Article 41(1) of the Constitution of Georgia (effective until 16 December 2018).