Law on access to information declared obsolete by a decision of the SCJ

09 September 2020

Journalists and citizens risk not receiving answers to requests for information of public interest within 15 working days, as required by the Law on Access to Information, and the authorities may not be sued for late response or failure to respond to requests.

Journalists and citizens risk not receiving answers to requests for information of public interest within 15 working days, as required by the Law on Access to Information, and the authorities may not be sued for late response or failure to respond to requests. This may happen because of a decision of the Supreme Court of Justice (SCJ), which found that, with the adoption of the new Administrative Code, the Access to Information Act is obsolete (outdated). Journalists send requests for information, but do not always receive answers, and often, even if they come in time, the answers are superficially formulated. Liuba Shevciuc, investigative journalist and co-founder of the media project "CU SENS", sent a request to President Igor Dodon, asking him for information about the compensation Russia has to pay to farmers on the left and right bank of the Dniester River because the self-proclaimed regime in Tiraspol banned them from working their agricultural land along the Ribnitsa-Tiraspol route in 2004-2006. The journalist requested the information for an investigation and wanted to know what the President of the Republic of Moldova is doing/has done in this case and whether he has had any dialogue with Russian officials on the subject, given that there are already several ECtHR rulings obliging the Russian state to pay compensation to some inhabitants of that region. Although the 15 working days set by law for responses to requests for information have passed, the Presidency has not responded to the initial request. Liuba Shevchuk said that because she did not receive a response to the first request, she asked the questions repeatedly, and later Igor Dodon answered the questions on the show "The President Answers". The journalist concludes that due to a lack of reaction from the authorities, journalists are forced to look for various alternatives just to get an answer. Irina Tabaranu, a journalist with TVR Moldova, was in the same situation. She asked for information from the Public Services Agency in July and also received no reply. Requests considered petitions On 17 June 2020, the Enlarged Civil, Commercial and Administrative Chamber of the Supreme Court of Justice issued a decision, finding that the Law on Access to Information is no longer applicable once the new Administrative Code enters into force on 1 April 2019. Thus, the magistrates qualify the applicant for information as a petitioner and state in the decision that if he has not received a response from the authority, then he must send a prior request. "Thus, if the petitioner's request regarding the issuance of the individual administrative act, is rejected, then the preliminary request has the specific purpose of nevertheless obtaining the requested favorable individual administrative act. At the same time, the issuing public authority, and possibly the hierarchically superior one, shall repeatedly verify and if necessary carry out further investigation of the factual situation, and if necessary, either issue the requested individual administrative act or consolidate its individual administrative act rejecting the petitioner's request", is mentioned in the decision of the SCJ. In practice, this means that editors, journalists or citizens who cannot obtain information of public interest from the authorities and go to court, could lose in court, as magistrates could refer to the decision of the SCJ by which the Law on Access to Information is no longer applicable. Lawyer Nicolae Frumosu says that until the SCJ decision on the outdated Access to Information Act was adopted, the applicant for official information could, in the event of a violation of his rights, file a criminal complaint or bring an action in court, requesting an order to provide official information and possibly recover damages. "Under the current circumstances, the application of the legal provisions in the case of a contravention of the law on access to information (Article 71 of the Contravention Code) has become uncertain. In other words, it is not clear how sanctions for violation of certain provisions will be applied if they have been declared obsolete and inapplicable. Therefore, there is a risk that representatives of public authorities may no longer be sanctioned for failure to provide or late provision of official information. Only practice will answer this dilemma," says N. Frumosu. The lawyer considers that the SCJ did not have the prerequisites to declare the law on access to information obsolete, as this law has always been and is always invoked by the judiciary and public authorities, a fact confirmed by judicial practice itself. A stone for journalists? Vasile Năstase, the vice-president of the parliamentary committee on culture, education, research, youth, sport and the media, a journalist by profession, is aware of the problem, but believes that it is not the magistrates who should decide whether one law or another is obsolete, but the judges at the Constitutional Court. "There has been a legal collapse and a legislative vacuum, which is not normal. All the more so as the Access to Information Act was and is used by journalists and newsrooms. The media has been working under it for 20 years. I now believe that there is an urgent need for lawyers and media experts to file a complaint with the Constitutional Court so that the magistrates there can have their say on the matter. Someone probably does not like the way this law has worked, which has brought benefits to the press and to the citizen, and now they want to block access to information, taking into account that the election campaign is coming", concludes the MEP. Have your fundamental rights and freedoms been violated? Call the free "hotline" 080080030 from landlines or mobile phones and we will help you to be heard and refer you to the relevant public institutions. Lilia Zaharia Independent Press Association