Request for information on the activities of the authorities: is there a need for separate regulation?

Rukoleev Vitalii Aleksandrovich ORCID: 0000-0002-6879-9192 Assistant; Department of Constitutional and International Law; Ural State University of Economics 45 Narodnaya Volya str., room 750, Sverdlovsk region, Yekaterinburg, 620144, Russia v.a.rukoleev@bk.ru Other publications by this author

Savoskin Aleksandr Vladimirovich ORCID: 0000-0002-7112-6845 Doctor of Law Professor; Department of Constitutional and International Law; Federal State Budgetary Educational Institution of Higher Education 'Ural State University of Economics' 45 Narodnaya Volya str., office 750, Sverdlovsk region, Yekaterinburg, 620144, Russia savoskinav@yandex.ru

Introduction.

Historically, appeals in general and, above all, complaints have long been represented in domestic jurisprudence. Meanwhile, the requests for information themselves appeared (were normatively isolated) relatively recently. This happened through the adoption of similar and largely overlapping legal acts – Federal Law No. 262-FZ of December 22, 2008 "On Ensuring Access to Information on the Activities of Courts in the Russian Federation" and Federal Law No. 8-FZ of February 09, 2009 "On Ensuring access to information on the Activities of State Bodies and Bodies local government". The legalization of the institute for requesting information about the activities of government authorities (hereinafter referred to as the request for information) for persons with a general legal status, rather than a special one (lawyers, notaries, investigators, etc.), was positively received by the scientific community ^{[1, p. 3; 2, p. 49; 3, p. 22-23]} and entailed significant activity on the direction of such appeals. However, at the moment, statistics on the submission of information requests indicate their relatively low popularity, unlike traditional types of appeals ^{[4, pp. 172-173]}. The experience of the authors of this article interacting with government officials often demonstrates the complete ignorance of citizens about the existence of an appropriate means of providing access to information, or a lack of understanding of its specifics.

The analysis of scientific literature demonstrates interest in certain types of information requests (lawyers ^{[5, pp. 244-247; 6, pp. 234-236]}, mass media ^{[7, pp. 43-47]}, authorities ^{[8, pp. 103-105; 9, pp. 27-34]}, etc.). At the same time, comprehensive research on the request There is practically no information about the activities of the authorities. The exception is the works of: I. M. Konobeevskaya ^{[10, pp. 19-24]}, V. V. Andrianova ^{[11, pp. 53-55]}, I. I. Maskayeva ^{[12, pp. 53-60]}, A.O. Konovalov ^{[13, pp. 345-349]}. But, alas, they are significantly outdated. Studies of the correlation of information requests and traditional appeals are also sporadic ^{[14, pp. 115-120]}.

The work reflects the authors' attempt to comprehensively compare the request for information with traditional appeals, in particular with statements, to determine the place of the request for information and its role in the system of citizens' appeals. Based on the results of the study, proposals for improving legislation will be formulated.

The main text.

The legal definition of the concept of "citizen's appeal" is given in paragraph 1 of Article 4 of Federal Law No. 59-FZ dated May 02, 2006 "On the procedure for Considering Appeals from Citizens of the Russian Federation". It follows from its content that the appeal can be submitted orally or in writing, as well as in the form of an electronic document. The addressee of the appeal is the authorities and officials. The resolution of the Constitutional Court of the Russian Federation dated July 18, 2012 No. 19-P additionally mentions organizations performing publicly significant functions. Based on the text and meaning of the ruling of the Constitutional Court of the Russian Federation dated June 27, 2017 No. 1361-O, these include organizations established by a public legal entity that are directly entrusted with the implementation of publicly significant functions. The definition includes a closed list of types of appeals – a statement, a proposal, a complaint. Thus, the key concept in the studied sphere of public relations is revealed through the enumeration of forms, addressees and types of appeals. The signs characterizing the treatment as a generic category remained outside the framework of legal regulation. This led to a significant decrease in the potential of the constitutional right to appeal, weakened its role as contributing to the realization of other rights and freedoms.

Many scientists write about the failure of the achieved normative approach to understanding the "appeal of citizens". For example, A.V. Savoskin and I. Y. Ostapovich believe that the definition of the category under study does not comply with the rules of logic. The collective approach used in the construction of the definition did not allow the legislator to describe the treatment of citizens as a separate socio-legal phenomenon ^{[15, pp. 50-51; 16, p. 249]}. Moreover, the specificity of the chosen methodological approach does not imply an open list of elements, but rather an exhaustive one. Which, on the one hand, explains the indication of a closed list of types of appeals, but on the other hand, goes against the array of legal acts and established law enforcement practice ^{[17, p. 29]}. The authors of the monograph "Reception of citizens and consideration of appeals in investigative bodies" agree with the presented opinion. In their opinion, the legislator did not actually define the concept of "citizens' appeal" ^{[18, p. 89]}, and therefore there is uncertainty about the attribution of certain types of expressions of will to citizens' appeals ^{[18, p. 90]}. A. B. Abazov is much more categorical in his judgments. He speaks about the low level of legal technique, referring to the presence of a formal technical and legal defect ^{[19, p. 171]}, since the definition should not cover concepts that are disclosed within the norms of a specific legal act ^{[20, p. 311; 21, p. 187-188]}. Regarding which, N. A. Vlasenko emphasizes that definitions reflect the main features of phenomena and objects ^{[22, pp. 59-60]}. V. Y. Turanin, reflecting on the problems of interpretation of legal terminology, refers cognitive and interpretative functions to the group of functions of definitions. Both predispose to comprehension of the essence of a legal act, its correct perception ^{[23, pp. 214-215]}. We share these positions. The definition of "citizens' appeal" is not without drawbacks. Its content artificially divides the appeals named in Federal Law No. 59-FZ of May 02, 2006 "On the Procedure for Considering Appeals from Citizens of the Russian Federation" into traditional (universal) and others. This is especially noticeable in the example of such a type of appeal as a request for information.

Article 33 of the Constitution of the Russian Federation guarantees everyone the right to apply to the authorities. The subject of the appeals is not limited by anything. This suggests that requesting information is one of the means of exercising the constitutional right to appeal. At the same time, neither the literal meaning of Article 33 of the Basic Law of the Russian Federation, nor its interpretation in a number of decisions of the Constitutional Court of the Russian Federation (Resolution No. 19-P of July 18, 2012, Definition No. 1163-O of May 21, 2015, definition No. 1139-O of May 30, 2024), reduce exclusively to the existence of applications, complaints, and proposals provided for by Federal Law No. 59-FZ of May 02, 2006 "On the Procedure for Considering Appeals from Citizens of the Russian Federation". Accordingly, the request for information does not differ in any way, for example, from judicial appeals (lawsuits, complaints, petitions) or any other special types of appeals, that is, it acts as another special type of appeals that falls under the constitutional norm, but is regulated specifically. This happens because there is a generic category of "citizens' appeals" and a specific category of "other appeals". The latter is regulated by regulations that "overlap" the effect of the above-mentioned law.

In this context, the wording of paragraph 2 of Part 5 of Article 2 of Federal Law No. 8-FZ dated February 09, 2009 "On ensuring access to information on the activities of State Bodies and Local Self-government bodies" that the commented law "does not apply to the procedure for consideration by state bodies and local self-government bodies of citizens' appeals", although it confirms the above thesis, however, looks unsuccessful. I think it would be correct to point out that the norms of Federal Law No. 59-FZ dated May 02, 2006 "On the procedure for Considering Appeals from Citizens of the Russian Federation" do not apply to providing information on citizens' requests.

It is important to realize that the legislator's allocation of certain types of appeals is due not only to objective, but also to subjective reasons. Objective reasons, for example, include the inevitability of the existence of special regulation of judicial appeals (due to the specifics of the administration of justice) or the institution of complaints to human rights commissioners (due to the specifics of the activities of ombudsmen). For subjective reasons, we propose to attribute the desire to attach special importance to any sub-institution of citizens' appeals, or to introduce a complicated (simplified) procedure for submitting or considering certain types of appeals. This thesis is well demonstrated by Chapter 9 of Federal Law No. 248-FZ of July 31, 2020 "On State Control (Supervision) and Municipal Control in the Russian Federation", which addresses issues of pre-trial appeal in the exercise of state control (supervision). The procedure differs significantly from the appeal according to the rules of Federal Law No. 59-FZ dated May 02, 2006 "On the procedure for Considering Appeals from Citizens of the Russian Federation" (the requirements for the content of the appeal, the methods of its submission, the procedure for consideration and resolution differ). A reasonable question arises: why should special regulation be established?

On the pages of the legal literature, there are disputes about the need to unify the legal regulation of public relations related to the realization of the right to appeal and the right to information. Thus, I. Y. Goltyapina spoke in favor of recognizing the request for information as a form of appeal. Having studied the procedure for submitting and reviewing traditional appeals and requests for information, she considered it identical ^{[14, p. 118]}. V. A. Meshcheryagina agrees with her. The request for information, the researcher writes, is a kind of "classic" statement ^{[24, pp. 142-143; 25, p. 122]}. Another scientist in his scientific work came to the conclusion that it is advisable to streamline the system of citizens' appeals, eliminate duplication ^{[26, p. 115]}. In our opinion, E. O. Mayakova holds a similar point of view. She notes that statements and requests for information are characterized by the presence in the text of a request from citizens for assistance in the realization of their rights and freedoms. For applications, it is not possible to specify the list of possible requests, and a request for information may contain only a request for some information about the activities of an authority ^{[27, p. 82]}. Excessive accumulation of legal norms on information interaction does not favor information openness for the formation of public confidence in the government ^{[28, p. 2-7; 29, p. 5-7]}. On the contrary, destructive forms of behavior exist in society due to the difficulties of getting acquainted with the information of interest ^{[30, p. 6]}.

An alternative position is taken by D. O. Teplyakov and S. P. Stepkin. They point to the validity of special regulation of information requests. After all, they see the right to appeal as a guarantee of the realization of the right to information ^{[31, pp. 170-171; 32, p. 82]}. V. V. Andrianova and I. A. Bulygina, also defending the existence of special regulation, explain that the request for information, contrary to the same statement, has its purpose to request information from the authority about its activities, and not to solve the problem posed by the citizen. In the application, the citizen must describe the circumstances that prompted him to contact the authority, which should not be done when sending a request for information ^{[11, pp. 53-54; 33, p. 72]}.

Thus, the current state of regulation of public relations related to the realization of the right to appeal and the right to information is ambiguously perceived in the scientific community. At first glance, the objectivity of the allocation of information requests is assumed in accordance with the provisions of Part 4 of Article 29 of the Constitution of the Russian Federation, guaranteeing the right to freely seek and receive information, and the subjective factor is represented by the Concept of Openness of federal executive authorities, approved by the By Order of the Government of the Russian Federation No. 93-r dated January 30, 2014. That is, the allocation of the request for information from the number of traditional requests looks natural. And at the same time, an analysis of Federal Law No. 8-FZ of February 09, 2009 "On Ensuring Access to Information on the Activities of State Bodies and Local Self-Government Bodies" as well as Federal Law No. 262-FZ of December 22, 2008 "On Ensuring access to information on the activities of Courts in the Russian Federation" shows that the regulation of information requests differs slightly from the regulation of traditional statements established by Federal Law No. 59-FZ of May 02, 2006 "On the procedure for Considering Appeals from Citizens of the Russian Federation". Let's try to substantiate the argument we put forward.

Firstly, the legislative definition of "request for information" in fact completely coincides with the legislative definition of "citizen's appeal". At the same time, the term "statement" implies a citizen's request for assistance in the realization of his constitutional rights and freedoms and is quite suitable for requests for information.

Secondly, the form of requesting information is complicated compared to the statements nominally. There is an optional requirement to indicate the applicant's phone number, but its absence does not prevent consideration of the request for information.

Thirdly, the procedure for reviewing requests for information and traditional types of appeals are similar: the registration period is three days; the period and obligation to redirect is seven days; the review period is thirty days. The period for which an extension of consideration of a request for information is allowed differs (fifteen days for requests, thirty days for applications). The difference is visible in the payment of certain types of information provided upon request for information and in the grounds for refusing to provide them to a person. It should be noted that in accordance with Federal Law No. 59-FZ of May 02, 2006 "On the procedure for considering Appeals from Citizens of the Russian Federation", responses to appeals are given free of charge. In the case of requests for information, answers are given free of charge if: the information is provided orally; the information is posted on the official website of the authority on the Internet; the information affects the rights and freedoms of the information user; the information is free according to the act of the authority; the amount of information does not exceed the standards of free provision adopted by the Government of the Russian Federation (Decree of the Government of the Russian Federation dated October 24 2011 No. 860 "On approval of the Rules for charging fees for providing information on the activities of State bodies and local governments"). The grounds for refusing to provide information upon request for information are also broader than when refusing to consider an application. A request for information is not satisfied if there is a request in its content: to conduct a legal assessment of legal acts; to analyze the activities of government bodies, organizations subordinate to them, officials; to perform analytical work not directly related to the protection of the rights and freedoms of the information user. It is easy to see that the reasons given make it possible for government entities to avoid providing information on a fairly wide range of issues. Therefore, the amount of information received upon request of information turns out to be less than the potential amount of information that a citizen would receive by submitting an application. But a citizen is deprived of this opportunity, and even if he sends an application, it will be considered as a request for information.

Fourth, responsibility for unjustified obstruction of a citizen's receipt of information about the activities of an authority upon request for information comes under Article 5.39 of the Administrative Code of the Russian Federation, and for violation of the procedure for considering citizens' appeals - under Article 5.59 of the Administrative Code of the Russian Federation. In the articles compared, the size of the sanctions is the same.

Conclusion.

In the light of all the above, a reasonable question arises: is it advisable to have a special legal regulation of information requests, if it mostly repeats the regulation of traditional appeals? Our argument that the current regulation restricts the right of citizens to receive information rather than strengthens it gives special urgency to this issue.

One could assume that special regulation of information requests is more beneficial to the authorities, but this is a superficial statement. Yes, in some cases, it allows you to refuse to provide information to a citizen upon request and "simplify life" to the authorities. But if we consider the institution of inquiry in its entirety, then its existence is unprofitable for officials, as it complicates their work (especially if it is necessary to receive payment for the information provided).

Thus, we propose to eliminate duplication and exclude the norms on information requests from Federal Law No. 8-FZ of February 09, 2009 "On Ensuring Access to Information on the Activities of State Bodies and Local Self-Government Bodies" and Federal Law No. 262-FZ of December 22, 2008 "On Ensuring Access to Information on the activity of courts in the Russian Federation". Meanwhile, we are not against the very possibility of submitting applications in order to obtain information. The specifics of dealing with such appeals may well be reflected in Article 11 "Procedure for considering individual appeals" of Federal Law No. 59-FZ of May 02, 2006 "On the procedure for Considering Appeals from Citizens of the Russian Federation". However, in the latter case, it is important to maintain a balance between the interests of the authorities and the rights of citizens to appeal and information in order to prevent unjustified, from the point of view of Article 55 of the Constitution of the Russian Federation, restrictions on these rights.