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SCJ: The Law on Access to Information Is Inapplicable. What Consequences Could the Magistrates’ Decision Have?

26 June 2020
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The Supreme Court of Justice (SCJ) has stated in a recent decision that the Law on Access to Information is “obsolete” and “inapplicable”. According to some lawyers, the magistrates’ statements are dangerous and could generate even more obstacles in obtaining information of public interest.
The Court’s decision of June 17 concerns a dossier on access official information of the Public Service Agency (PSA). The case was sent to court after a person and “Lawyers for Human Rights” Association requested the PSA to provide more public data on persons holding management positions at the institution and their salaries, expenses allocated for travel, means owned by the PSA, and data on their purchases or repair in May 2019. The agency refused to provide the information, and the applicants contested the refusal. The court of first instance admitted the claimants’ application only in part, and the decision was subject to the appeal procedure. However, Chisinau Court of Appeal declared that action inadmissible, and the SCJ supported the decision.

In the issued document, the Civil, Commercial, and Administrative Litigation College states, inter alia, that the Law on Access to Information became inapplicable after Administrative Code came into force on April 1, 2019. Therefore, exclusively the provisions of the Code have to be applied to asserting and protecting the right of access to information of public interest.

According to Cristina Durnea, the lawyer at the Independent Journalism Center, the Administrative Code, unlike the law in question, does not contain substantive law rules that provide for express rights, guarantees, and correlative obligations regarding the right of access to information.

She emphasizes that the decisions issued by the Supreme Court of Justice serve as a benchmark for settling disputes for other courts, and findings of the inapplicability of the Law on Access to Information could result in faulty judicial practice.

“For instance, we will not be able to address requests for information to those providers that do not belong to the category of public institutions/authorities. At the same time, information applicant will receive a response to the addressed requests for a longer period of time, as the Administrative Code provides for 30 days instead of 15. Moreover, in case of infringing the right of access to information, we will have to go through mandatory preliminary procedure. It means that, in the event of a refusal to provide information, the applicant will be obliged to challenge it at the same authority that decided upon the refusal or to the hierarchically superior authority”, the lawyer explains.

“Media representatives have so far been faced with a number of obstacles and difficulties in obtaining information of public interest, and from now on, in the context of what has happened, everything seems to get dramatically complicated”, Cristina Durnea concludes.

The legal analysis of the SCJ’s findings is presented below:

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