Access to Information ‘Moves’ to the Court

2017 – the Year of Battles for the Access to Information

2017 was certainly the year of journalists’ struggle for access to information. Some officials tried to shift the focus by claiming that journalists actually fought against the protection of citizens’ personal data. Citizens, whom the state institutions make so much effort to protect, are in fact ministers, MPs, mayors, judges, prosecutors, public servants, and public property managers. Most of them have integrity issues.
To begin with, in February 2017 the Ministry of Justice, by a decision that no one has officially taken responsibility for, has eliminated the possibility of searching court judgement by names. That is the same year when national courts judged the cases of high social impact related to the billion stolen from ‘Banca de Economii’, ‘Banca Sociala’ and ‘Unibank’. Several ministers, heads of state-owned enterprises, mayors, all accused of abuse of office, corruption, or excess of powers, were brought to justice as well.
Even though the journalists immediately reported abuse, and an awareness campaign in the press (XYZ dignitaries) was held, as well as conferences and round tables, the violation was eliminated only at the end of November 2017. This happened after the journalists protested in front of the Superior Council of Magistracy. It took ten months to remove an artificially created anonymous interdiction.

After Information with Bailiffs

Also in 2017, several media outlets have sued for access to public information, hidden by state institutions under various pretexts. The Center for Investigative Journalism (CIJM) won a lawsuit against the Central Electoral Commission (CEC), which, in the 2016 presidential election campaign, restricted journalists’ access to subscription lists submitted by initiative groups for registration of candidates and financial reports of the election contestants. All under the pretext of the protection of personal data. Although magistrates obliged the institution to provide the CIJM journalists with the data they have requested access for, the CEC was refusing to comply for several months, and eventually offered ‘fragmentary’ access to lists of sponsors of election contestants.
Towards the end of last year, the Association of Independent Press (API) won a case at the Supreme Court of Justice (SCJ) in a lawsuit against the ‘Posta Moldovei’ IS, which blocked journalists’ access to information about tenders organized during 2014–2016. In April 2016 API requested information about companies that have provided services for construction, renovation, rehabilitation and modernization of country’s post offices. Serghei Nastas, general manager of the ‘Poşta Moldovei’ State Enterprise, refused to provide information of public interest, explaining his refusal as follows: ‘Even if the institution falls under the scope of the regulatory act, the requested information could not be provided, since it belongs to the field of administration, finance, and in terms of art. 7, paragraph 2) of Law on Access to Information, the disclosure of information on administration, finance, which could affect the interests of the enterprise, is not allowed.’
Although the CSJ decision is indefeasible and final, ‘Posta Moldovei’ has been avoiding its execution for several months, and provided information only after the initiation of legal proceedings on compulsory enforcement.  
On March 30 2018, ‘RISE Moldova’ also won a trial at the SCJ against the MIA, which refused to give it information on listing 10 individuals as wanted nationally and internationally, specifying the article from the Criminal Code underpinning the charges and the criminal cases opened against them. The need to protect personal data served as a pretext this time as well.
In 2017, the SCJ issued 16 court judgements in cases concerning the restriction of access to information for journalists and citizens.
Even though journalists receive dozens of refusals of access to information or incomplete responses annually, as of today, the ECHR has a single file regarding the restriction of journalists’ access to public information by state institutions in the Republic of Moldova. It is the ‘Center for Investigative Journalism against the Presidency’ case filed with the Strasbourg Court after the national courts have ruled that the Presidency was right when refused to provide information about people who have been decorated with state distinctions by the heads of state from 2001 up to the present.

The Poisoned Apples of the Legislator

While journalists are ‘arming’ with lawyers to claim their right to information, a draft law designed to improve conditions of media’s access to information has been gathering dust on Parliament’s shelves for two years. The draft, prepared by the Independent Journalism Centre (IJC), provides for the reduction of the term for the presentation of public information requested by both citizens and journalists, from 15 working days (as currently regulated) to ten calendar days. The document also stipulates introduction of tougher sanctions for people violating the law. The draft was voted in the first reading in July 2016, and nothing has been heard since then.
Instead, Parliament has adopted in recent years several laws that ‘lock up’ public information. For example, the new Law on Public Procurement never got to include state-owned companies in the list of those that would have to make procurements publicly. Moreover, even though this law provides that contracting authorities shall include representatives of civil society (including journalists) in the working groups, the by-laws leave the bad-faith authorities room for manoeuvre.
The new Law on Protection of Personal Data is the ‘poisoned apple’ the authorities are now trying to shove down our throats. Among filters protecting private life, the document also provides for the obligation of journalists to justify the purpose, the legal grounds and the causal link between the personal data requested and the cause/referral/complaint/address, the legitimate interest. What does this mean for an investigative journalist who tries to maintain maximum discretion while documenting his or her subject? And how the ‘filter’, that decides how convincing the journalist’s justification is, will work? I guess you can imagine it.
The same draft law once again provides for the elimination of the possibility to search court judgments by name and the depersonalization of published judgments. (...)
___________________________
The article was published within the Advocacy Campaigns Aimed at Improving Transparency of Media Ownership, Access to Information and promotion of EU values  and integration project, implemented by the IJC, which is, in its turn, part of the Moldova Partnerships for Sustainable Civil Society project, implemented by FHI 360. This article is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The content are the responsibility of author and do not necessarily reflect the views of USAID or the United States Government.