Administrative and legal regulation of access to information about the activities of public authorities in the Russian Federation

Duben' Andrei Kirillovich Scientific Associate, Institute of State and Law of the Russian Academy of Sciences; Assistant, Department of Civil and Administrative Proceedings, Russian State University of Justice 119019, Russia, Moscow region, Moscow, Znamenka str., 10 k.duben@mail.ru Other publications by this author

         Ensuring the right of citizens to access information about the activities of state authorities and local self-government bodies is impossible without effective information development and ensuring the information security of critical infrastructure facilities. In the light of the transformation and digitalization of law, it is important to note the importance of information openness of public authorities from the point of view of administrative and legal regulation ^{[1, p. 71]}.

As previously noted, the right to access to information is one of the directions of ensuring information openness of the activities of state bodies, at the same time, to ensure this process, it is necessary to create and form information resources and change the norms of administrative and legal regulation of information exchange between citizens, non-governmental organizations and public authorities. Consequently, the widespread use and introduction of information and communication technologies in all spheres of life improves the quality of administrative activities of state bodies and the interaction of citizens and the state. For this reason, the achievement of information and legal openness requires the intensification of the processes of development of resources of an administrative and legal nature, which ensured this constitutional right of citizens throughout the territory of the state, regardless of individual subjects of the state, as well as changes in certain norms in administrative law.

In the Decree of the President of the Russian Federation dated 09.05.2017 No. 203 "On the Strategy for the Development of the Information Society in the Russian Federation for 2017-2030", ensuring the rights of citizens to access information is one of the principles of this act ^[2]. Consequently, the importance of the right of citizens to access information is determined by the fact that its provision is one of the conceptual foundations of the development of the information society. The importance of understanding and defining the content of constitutional and legal guarantees is due to:

1) firstly, the fundamental nature of such guarantees, as they are enshrined in the text of the Constitution of the Russian Federation (hereinafter - the Constitution of the Russian Federation);

2) secondly, the legal status of the individual, one of the elements of which are legal guarantees.

The right of citizens to access information, despite the special position of this legal category within the framework of information legal relations, also permeates other areas of legal regulation. This allows us to conclude that there are intersectoral links that determine the legal nature of the right of citizens to access information, and therefore, for its study, it is necessary to refer to several branches of law and branches of legislation. At the same time, the focus will be mainly on the problems that arise when accessing information about the activities of public authorities due to the highest degree of their relevance.

The legislator's special attention to the concept under consideration is expressed in the consolidation in Part 4 of Article 29 of the Constitution of the Russian Federation of the right of everyone to freely seek, receive, transmit, produce and distribute information in any legal way. For a more accurate and clear understanding of constitutional and legal norms, it is necessary to define the concept of "information".

The right to access information is separately enshrined in Article 8 of the Law on Information. According to this article, all legal entities (individuals and legal entities) have the right to search for and receive any information in any form and from any sources, subject to compliance with the requirements established by this law and other federal laws. The reference to federal laws as the only limiter of this right corresponds to the provisions of the Constitution of the Russian Federation, namely, paragraph "i" of Article 71, according to which information, information technologies and communications are under the exclusive jurisdiction of the federal center. This is due to the special public-legal and social significance of information, which requires uniformity of legal regulation throughout the state and excludes the possibility of a special regional or local regime of access to information. The Supreme Court of the Russian Federation in one of the cases considered by it explicitly stated that the right to access information is not absolute, and the possibility of its restriction by federal law corresponds to Part 3 of Article 55 of the Constitution of the Russian Federation ^[3].

In relation to citizens, the right to access information is expressed in the possibility of obtaining information from public authorities and their officials that directly affects the rights and freedoms of an individual (part 2 of Article 8 of the Law on Information). The difficulty lies in the uncertainty of the criteria for understanding whether specific information affects the rights and freedoms of a particular citizen.

One of the problems that arise in practice is that the implementation of access to information may depend on the proper motivation of the applicant justifying the connection of the requested information with his rights and freedoms, although in most cases the legislator directly enshrines the right of a citizen not to justify the need to obtain the requested information by specifying a specific list of information that may be requested. So, according to the materials of one of the court cases, a citizen challenged the refusal of a local government body to familiarize himself with the materials of the inventory of capital construction facilities. The court, rejecting the claim, pointed out that "no evidence was presented to the court that the information contained in the materials requested by the plaintiff in the request directly affects his rights and freedoms" ^[4]. This problem will be considered by us in more detail later.

In order to comply with the principle of legal certainty, which ensures the ability of subjects to reliably predict the legal consequences of their actions, the right to access information is implemented through special legislative acts regulating certain areas of public relations. Thus, Article 8 of the Law of the Russian Federation No. 2300-1 dated 07.02.1992 "On Consumer Rights Protection" establishes the consumer's right to information about the manufacturer (performer, seller) and about goods (works, services). In addition, the consumer has the right to demand information confirming the powers of an authorized organization (entrepreneur). A similar right is provided for by Article 495 of the Civil Code of the Russian Federation. Article 14 of Federal Law No. 152-FZ of 27.07.2006 "On Personal Data" (hereinafter referred to as the Law on Personal Data) establishes a reference norm that allows determining the list of information to which the subject of personal data has the right of access. Article 13 of Federal Law No. 147-FZ of 17.08.1995 "On Natural Monopolies" establishes the right of regulatory bodies of natural monopolies to access information about the activities of subjects of natural monopolies.

As you can see, based on the provisions of Russian legislation, the right to access to information can also be considered in a broader sense, that is, as an opportunity to access any information, and not only that requested from public authorities and related to their activities.

The right to access information about the activities of public authorities has a solid constitutional and legal basis. Thus, Part 2 of Article 24 of the Constitution of the Russian Federation establishes a general rule according to which public authorities and their officials are obliged to provide everyone with the opportunity to get acquainted with documents and materials directly affecting their rights and freedoms. As indicated by the Constitutional Court of the Russian Federation, the right of a citizen arising from Part 2 of Article 24 of the Constitution may be restricted only if such information has a restricted access regime established by federal law. The availability of information on the activities of public authorities is one of the aspects of the principle of information openness according to the Decree of the President of the Russian Federation dated 31.12.1993 No. 2334 "On additional guarantees of citizens' rights to information" ^[5].

In addition, the Constitution of the Russian Federation, in addition to Part 2 of Article 24, provides for cases of direct reference to transparency and transparency of the activities of public authorities. So, as a general rule, it is open:

1) a meeting in the Federation Council and the State Duma (Part 2 of Article 100);

2) judicial proceedings in all judicial bodies (part 1 of Article 123).

At the moment, the procedure for access to information on the activities of public authorities is established by a separate law - Federal Law No. 8-FZ of 09.02.2009 "On ensuring access to information on the activities of State Bodies and local Self-Government bodies" (hereinafter - Law No. 8-FZ of 09.02.2009) ^[6]. Such information includes information (including in documented form) created within the limits of their powers by public authorities or organizations subordinate to them, or received by these bodies and organizations, including regulatory legal acts and municipal acts. The right of access to normative legal acts is conditioned by the need to ensure the principle of legality, since the execution of laws and other normative legal acts by all subjects of law is impossible without proper legal literacy and awareness of citizens.

The exercise of the right to access information about the activities of public authorities is carried out through Article 33 of the Constitution of the Russian Federation, which provides for the possibility for citizens to apply personally, as well as to send individual and collective appeals to public authorities. The procedure for exercising this right is established by Federal Law No. 59-FZ of 02.05.2006 "On the Procedure for Considering appeals from Citizens of the Russian Federation" ^[7]. Article 2 of this Law, which discloses the content of the right to appeal, states that this right is exercised on a voluntary, free and gratuitous basis. Free of charge (gratuitousness) in obtaining information is one of the most important guarantees that provide a real opportunity for citizens to access information regardless of their social status. This guarantee is also enshrined in Part 8 of Article 8 of the Law on Information.

Nevertheless, part 9 of Article 8 of the Law on Information states that an exception to the general rule on the gratuitousness of providing information on the activities of public authorities may be established by federal law. The Law of 09.02.2009 No. 8-FZ in Article 22 establishes such an exception: "if the amount of information requested and received exceeds the amount of information provided free of charge determined by the Government of the Russian Federation." It seems that this is due to the fact that the right to access information can be used by unscrupulous actors who can abuse it, harming public legal interests. In this regard, compensation in this case is established to maintain a balance between the private interest of a citizen in ensuring transparency and transparency of state and municipal activities to meet his own needs and the public interest of the state, which is responsible for the correct and economically justified use of budgetary funds.

The application of the Law of 09.02.2009 No. 8-FZ in judicial practice is associated with many problems.

Firstly, the restrictive interpretation of information about the activities of public authorities. So, in one of the cases, the court recognized information about cars (make, year of manufacture, cost, date of purchase) assigned to the head of the Administration and his deputies, information about the economic activities of the Administration, which does not relate to information about the activities of public authorities ^[8]. This interpretation runs counter to the definition of information established by the Law of 09.02.2009 No. 8-FZ, and unreasonably restricts it.

Secondly, the previously mentioned problem of the connection of the requested information with the rights and freedoms of the applicant. In one of the court cases, the court stated that the requested information, despite the absence of the applicant's obligation to justify the purpose of obtaining it, should affect his rights and freedoms, in connection with which the local government lawfully refused the applicant to receive information about municipal legal acts. At the same time, the court does not take into account the fact that the norms of the Law of 09.02.2009 No. 8-FZ are special in relation to the norms of the Law on Information. In this regard, it is impossible to reduce the right of access to information about the activities of public authorities only to obtaining information that affects the rights and freedoms of the applicant.

Thirdly, there is a balance between the right to personal data protection and the right to access information. Part 5 of Article 2 of the Law of 09.02.2009 No. 8-FZ explicitly states that the effect of this law does not apply to relations related to providing access to personal data. In this regard, the courts recognize as lawful the actions of the authorities that refuse to provide information on the sole grounds that the requested document contains personal data. Nevertheless, this approach seems to us wrong, since the balance between these rights can be achieved if public authorities provide the requested documents with depersonalization of personal data of persons.

Despite the fact that the judicial system is part of the system of public authorities, there is a separate law in Russia concerning access to information about the activities of courts – Federal Law No. 262-FZ of 22.12.2008 "On Ensuring access to information about the activities of Courts in the Russian Federation" (hereinafter – Law No. 262-FZ of 22.12.2008) ^[9]. Such information should include information prepared within the limits of their powers by courts, the Judicial Department and its bodies, bodies of the judicial community or received by these organizations and related to the activities of courts, including regulatory and law enforcement acts relating to such activities. The specificity in this case consists in the publication of judicial acts on the Internet, which in turn is not only a guarantee of compliance with the principle of transparency of legal proceedings, but also a threat to information security. For this purpose, the law provides for cases in which judicial acts are not subject to publication, as well as a list of personal data that are not subject to publication.

Unlike the Law of 09.02.2009 No. 8-FZ, the Law of 22.12.2008 No. 262-FZ, in addition to the general four principles, provides for the principle of ensuring access to information: "non-interference in the administration of justice when providing information about the activities of courts" (paragraph 5 of Article 4). This is due to the principle of independence operating within the framework of procedural relations judges, which implies the prohibition of extraneous influence on judges during the consideration and resolution of court cases by them. A certain guarantee of access to information about the activities of public authorities, including courts, is also the right of the requesting person not to motivate the need for information.

The accuracy and clarity of legal regulation, which includes legal norms, the content of which makes it possible to determine a specific list of information available to a citizen, as well as the unambiguity and consistency of law enforcement decisions, are one of the guarantees of the realization of the right of citizens to access information and one of the aspects of the general legal principle of legal certainty ^[10]. To a certain extent, the effect of this principle is ensured by the constitutional and legal guarantee provided for in Part 3 of Article 15 of the Constitution of the Russian Federation, which ensures that citizens are aware of the content of the current legislation.

The principle of legitimate expectations is also related to this principle, which is often defined by the Constitutional Court of the Russian Federation as "the principle of maintaining citizens' trust in the law and the actions of the state." This principle in its informational and legal aspect, in our opinion, presupposes the predictability of the actions of public authorities when citizens apply for information affecting their rights and freedoms. The predictability of the actions of public authorities in this case is ensured by the legitimate expectations of the applicants, which are based on established law enforcement practice and the content of the law that certain information will be provided to them.

Taking into account the above-mentioned principles, it should be noted that one of the problems in the implementation of the right of access to information is the contradiction of regional legislation to federal legislation, which has greater legal force. Thus, in the Republic of Sakha (Yakutia), the Law of the Republic of Sakha (Yakutia) 823-Z No. 563-IV "On providing access to information on the activities of magistrates in the Republic of Sakha (Yakutia)" was adopted. This law fixed the possibility of the state authorities of the Sakha Republic to determine cases when information about the activities of magistrates is provided for a fee, which contradicts Part 5 of Article 19 of the Law of 22.12.2008 No. 262-FZ. This provision was declared invalid by the court, since federal legislation does not provide for the possibility of establishing by the subjects of the Russian Federation cases of providing information about the activities of courts on a reimbursable basis.

In this regard, it can be concluded that the right to access information, based on the provisions of various branches of Russian legislation, can be considered in a narrow and broad sense:

1) in a narrow sense, this right is connected with the implementation of the principle of publicity of the activities of public authorities;

2) in a broad sense – with the ability to obtain any information from the subjects who have it, if there are legitimate grounds for it, including within the framework of civil law relations.

Thus, in our opinion, the right to access information is a separate subjective right, since it contains all the necessary structural elements:

1) the right to own actions, which is realized through independent actions of a citizen aimed at obtaining information;

2) the right to require obligated persons to perform certain actions, which is implemented by contacting the subject who is obliged to provide certain information;

3) the possibility to resort to legal remedies in case of non–fulfillment of obligations by the other party, in this case - for unlawful denial of access to information;

4) the opportunity to use a social good, in this case, information ^{[11, p. 26]}.

Given the content of the right of access to information that we have identified, it is worth noting that in practice there are problems with a wrong understanding of the essence of this right. Thus, when considering one of the cases on challenging the inaction of a bailiff, the court indicated: "The right to access information means the possibility of obtaining it, including by familiarizing with the materials of enforcement proceedings." At the same time, the court drew attention to the fact that the bailiff is not obliged to send the recoverer detailed information about the course of enforcement proceedings, thereby confirming that the right to access information is realized primarily through the active actions of the authorized person.

The right to access information, as well as any subjective right, is provided by a general constitutional and legal guarantee enshrined in Article 2 of the Constitution of the Russian Federation. All rights and freedoms, including the right to access information, are of the highest value. The responsibility for compliance with this constitutional and legal provision lies with the State. Human and civil rights, in addition to the Constitution of the Russian Federation, are also guaranteed by generally recognized principles and norms of international law (Part 1 of Article 17 of the Constitution of the Russian Federation).

One of the most important constitutional and legal guarantees is the establishment of responsibility for officials who violate the right of citizens to access information, as well as the regulation of the mechanism of legal protection of interested persons in the Constitution of the Russian Federation:

1) responsibility for concealment by officials of facts and circumstances that pose a threat to human life and health (Part 3 of Article 41);

2) the guarantee of state protection and the opportunity to defend their rights in all ways not prohibited by law (Article 45);

3) guarantee of judicial and international protection, as well as the right to appeal in court against decisions of public authorities that violate the rights and legitimate interests of citizens (Article 46).

Despite this, not all the guarantees presented are implemented properly, which is seen from the practice of the Constitutional Court of the Russian Federation ^{[12, p. 35]}.

Firstly, the uncertainty of the limits of the right of access to information. Thus, the definition of information on the activities of public authorities, provided for by Law No. 8-FZ of 09.02.2009, assumes the possibility of access to any information if it concerns the activities of these bodies and does not contain information constituting a secret protected by law. However, in one of the court cases, the applicants were refused to provide information, since such information does not relate to the activities of State bodies. These applicants appealed to the Constitutional Court of the Russian Federation, challenging the provisions of Law No. 8-FZ of 09.02.2009 containing the definition of information on the activities of public authorities. The Constitutional Court of the Russian Federation confirmed the constitutionality of these norms, while not resolving the problem of the limits of the right of access to information. The applicants again appealed to the Constitutional Court of the Russian Federation with a request for clarification of the ruling, trying to clarify what is meant by the concept of "information about activities" - all information held by the authorities, access to which is not restricted by law, or a specific type of open access information held by the authorities. However, the application was denied. Thus, it can be stated that the uncertainty of the limits of the right of access to information negatively affects the possibility of its protection.

Secondly, the ratio of the general provisions of the Law of 09.02.2009 No. 8-FZ and the special norms of other acts concerning certain types of information about the activities of public authorities. Part 2 of Article 2 of Law No. 8-FZ of 09.02.2009, which has been repeatedly criticized by scientists, states that the specifics of providing certain types of information about the activities of public authorities may be provided for by legislative acts and other regulatory legal acts of the Russian Federation adopted in accordance with them ^{[13, p. 22]}. This can be interpreted as the possibility of a contradiction of by-laws to the provisions of the said law ^{[14, p. 119]}. Thus, the applicants appealed to the Constitutional Court of the Russian Federation, challenging these provisions, since they were denied access to information from a state institution due to the fact that the requested information was not specified in the act of the Government of the Russian Federation regulating the activities of this institution as information to which access can be provided. However, the Constitutional Court of the Russian Federation refused to accept this complaint for consideration ^[15]. Consequently, the danger of a conflict of subordinate and legislative regulation in the interpretation of Part 2 of Article 2 of the Law of 09.02.2009 No. 8-FZ remains.

Thus, the right to access information is a separate constitutional right with its own specific content. At the same time, the proper implementation of this right, taking into account the problems we have considered, is still under threat due to the imperfection of legislative regulation and law enforcement practice. In this regard, the following should be proposed:

1) to fix the possibility of providing documents containing personal data of a third party with a preliminary depersonalization of such data.;

2) determine the limits of the right of access to information, taking into account the departure from the restrictive interpretation of the definition of "information on the activities of state bodies and local self-government bodies" in judicial practice (in a separate resolution of the Plenum of the Supreme Court of the Russian Federation);

3) to reconsider the approach on the relationship between the Law of 09.02.2009 No. 8-FZ and the Law on Information, since the current judicial practice allows requesting only the information that affects the rights and freedoms of the applicant;

4) establish clear limits within which by-laws may provide for the specifics of providing certain types of information about the activities of public authorities, in order to avoid conflict with the general provisions of Law No. 8-FZ of 09.02.2009.