Turkish Right to Information Blog

Archive for April, 2008

IFEX

Freedom of information (FOI) laws, which give access to public information, are considered one of the most important pieces of legislation to reduce and eventually beat corruption – the “primary obstacle to development,” says UNESCO.

Despite some problems with poorly crafted laws, laws that aren’t implemented, and new laws promoting secrecy in the global war on terror, upwards of 70 countries around the world have comprehensive freedom of information acts, and another 30 have FOI laws in the works, says ARTICLE 19. And the movement to adopt them is growing: witness Jordan’s step last year to become the first country in the Middle East to have a right to information law, or Liberian citizens marching to Parliament this month to present a draft FOI law nearly four years in the making.

“But the media can only play their part in empowering people, if their consumers have the necessary literacy skills to analyse and question the information they receive,” says UNESCO.

Visit these links:
- IFEX World Press Freedom Day page
- UNESCO World Press Freedom Day 2008 page
- AMARC
- ARTICLE 19, “Freedom of Information: A Comparative Legal Survey”
- Privacy International’s Freedom of Information page

Article 10 of the Right to Information Act 2003 provides that the public authorities may charge the applicants for the cost of the procedure. This is to be added as an income to their budget and the cost would be proportionate to the expenses occurred by the public authorities. It is explained in article 22 of the related Regulations on the Application of the Right to Information Act that the tariff of the cost would be determined by the Ministry of Finance. However, the public institutions are not allowed to demand any cost for the first 10 pages of documents containing the information requested by the applicants as well as the related postal charges. The public institutions are also not allowed to charge for access to documentation in electronic format.

The lack of clarity within the legislation and the related regulations led into some confusion about the cost issue and a decision of the Right to Information Assessment (Review) Council led into an amendment of article 22(1) of the Regulations on the Application of the Right to Information Act in November 2005. It was reaffirmed that there would be no cost on the first 10 pages of documents containing the information requested by the applicants as well as the related postal charges. However, proportionate charges could be applicable for anything beyond 10 pages including for electronic documents if the public authorities had to conduct research, and spend time for copying and reviewing, and compiling the information requested. They can also charge for postage if the documents are sent via post.

The details of the policy were announced in February 2006 when the Ministry of Finance published the tariff and the right to information application charges policy. Subsequently, this policy came into force in March 2006. According to the new policy, there is no obligation to charge, and the public authorities are free to decide whether they would require the applicants to pay for the information requested. However, if the public authorities decide to charge for the right to information requests, they then need to follow the Ministry of Finance policy. The policy clearly establishes that the charges are introduced to recover a proportion of the costs incurred to provide the requested information. The new charges policy was not introduced for the public iauthorities to make a profit, and should, as a matter of policy, not be more than the cost to obtain and gather the information. It is provided that photocopy and printing charges would be 50 Yeni Kuruş (0.5 YTL) per page (both for A4 and A3 size papers) but no charges would be applicable for the first 10 pages of any document.

Additionally, the public authorities may charge for research, reviewing, and compiling, but this should in any case be no more than 5YTL per page (no charges would be applicable for the first 10 pages of any document), and no more than 100YTL in total regardless of the length of the document. The policy also provides that there may be some additional costs if the information requested may not be provided electronically, or on paper. In terms of communication charges, no charges would be applicable for the first 10 pages of any document. However, public authorities may apply relevant postal charges, and 50 Yeni Kuruş (0.5 YTL) per page if the applicants require the documents to be faxed to them.

Finally, and more importantly, the Ministry of Finance policy established that the public authorities will not charge for documents that are provided electronically to the applicants regardless of the length of the documents. However, they may still charge for research, reviewing and compiling.

The application of the Ministry of Finance policy was confirmed in a decision of the Right to Information Assessment (Review) Council in March 2006 with regards to an unreasonable amount asked by an educational authority in Samsun. The Council reminded that the amount of 3,149YTL asked by the authority for research, reviewing, and compiling, was unreasonable and the maximum amount that could be charged in such a scenario was no more than 100YTL subject to no charges would be applicable for the first 10 pages of any document principle as laid down by the Ministry of Finance policy.

This is the news coverage of the draft State Secrecy Law.

Top board for state secrets to be established

Published in Zaman, 26.04.2008 (Article by Ercan Yavuz)

Former Democrat Party leader Mehmet Ağar refused to testify to any court or commission about the Susurluk case, citing the principle of “state secrets.”

Public officials will no longer be able to use the “state secret” defense to justify their actions when the state secrets bill is passed and establishes the Higher State Secret Board (DSK) — an ultimate authority for deciding what constitutes classified information and documents.

The state secrets bill, drafted by the Justice Ministry in 2005 but never enacted due to opposition, has finally been submitted to Parliament. It introduces new regulations concerning the concept of state secrets, in the past one of the greatest obstacles in the prosecution of high-ranking public servants.

Aiming to ensure easy access to information, transparency and an end to an unnecessary culture of secrecy in government operations, the bill envisions regulation of the identification, preservation and disclosure of classified information and documents, as well as related duties and liabilities. In addition to redefining the Turkish concept of a state secret, the bill would institute a time limit on the confidentiality of such secrets — a maximum of 75 years. If the bill passes, light may be shed upon a number of scandals that have fallen into obscurity, experts say.

Bekir Bozdağ, deputy chairman of the Justice and Development Party’s (AK Party) parliamentary group, told Today’s Zaman the bill would be passed soon. “Our party is eager to enact it. Recent developments show that such a law is particularly necessary. Due to Parliament’s busy agenda, we were unable to enact it in the previous parliamentary term — but we’re determined to do so this term. I think this will … [happen] soon,” he said.

The DSK will be chaired by the prime minister and charged with determining which documents and pieces of information are state secrets.

The confidentiality provisions of the bilateral and multilateral treaties to which the Turkish Republic is party will be preserved under the new legislation. Information and documents designated as confidential under such treaties will be considered, depending on their nature, to be state secrets or fall under another confidentiality classification.

In the past, debates over agreements between Turkey and other nations have also been affected by state secrets provisions. For example, debate over the price of natural gas sold by Russia to Turkey was stalemated when former Energy Minister Cumhur Ersümer, on trial by the Supreme State Council on corruption charges, said the agreement concluded with the Russians contained a special provision prohibiting disclosure of the pricing. Similarly, defense agreements concluded between Turkey and Israel in the past have been criticized for confidentiality provisions contained therein.

Easier prosecution of bureaucrats

The bill will make the trying of high-ranking bureaucrats easier. In connection with the Susurluk case, which uncovered dark secret relations among public officials, the police and the mafia, former Democrat Party (DP) leader Mehmet Ağar had refused to testify to any court or commission, citing the state secrets concept. Now, the DSK will evaluate Ağar’s definition of state secrets.

Those who violate provisions concerning the preservation of state secrets will be sentenced to from one to four years in prison under Article 258 of the Turkish Penal Code (TCK). Committing the crime through the press, media organizations or the Internet will be considered an aggravated circumstance.

A new draft law on state secrecy was announced in January 2008, and made public on 24 April, 2008. This new draft law on State Secrecy was sent from the Prime Ministry to the Parliament for discussion.

State Secrecy Council & State Secrecy High Council

If enacted will introduce a State Secrecy Council as well as a State Secrecy High Council. The former which will be formed by the Permanent Undersecretary for the Prime Minister, and will include as its members the permanent undersecretaries for the Prime Ministry, Ministry of Justice, Ministry of Interior, Ministry of Defence and Ministry of Foreign Affairs, will make the secrecy decisions. On the other hand, the State Secrecy High Council will include as its members the Prime Minister, and the ministers for the Ministry of Justice, Ministry of Interior, Ministry of Defence and Ministry of Foreign Affairs. The Prime Minister will act as the president for the State Secrecy High Council. Therefore, there is no provision for an independent oversight body within the proposed system. The State Secrecy High Council would provide its opinion with regards to court action involving state secret classified documents.

Definition of state secrets and classified information

In terms of what constitutes a “state secret”, documents the disclosure of which would seriously undermine and damage national security, the territorial and constitutional integrity of Turkey, or its foreign relations, would be classified as state secrets by the State Secrecy Council. The draft law also provides that certain documents could be protected as “classified information” by the State Secrecy Council and these would be documents the disclosure of which would seriously undermine the economic well-being of the state, state intelligence, military service, documents pertaining the administrative and judicial investigations and prosecutions, as well as documents which were classified as “secret” or “classified” by relevant authorities. The Prime Minister, the Chief of General Staff, State Ministers, and the National Security Council can ask the State Secrecy Council to issue classify documents that relate to their business as state secrets. Other public authorities can only ask the Council to classify documents as state secrets through the Ministries that they are connected to. According to the proposed law, the President of Turkey himself decides the nature and classification of secrecy with regards to the documents he holds.

Duration

In terms of duration, the proposed law enables time limited classifications as well as indefinite classifications. A maximum period of 75 years is provided by law with regards to time based classifications. The State Secrecy Council can modify the time period on such classified documents, or can de-classify such documents. Indefinitely classified documents are subject to review every 10 years. Classified documents which are classified for more than 10 years are subject to review every 5 years. Indefinitely classified state secrets would automatically cease to be state secrets after 50 years unless the State Secrecy Council decides to the contrary. In terms of the duration of other “classified information” these are limited by half of the time period specified for state secrets.

Criminal Sanctions for disclosure

The proposed law refers to section 258 of the Turkish Criminal Code and reminds that those who publish state secrets would be committing a criminal offence punishable between one to 4 years of imprisonment. However, if the publication and dissemination takes place through the media, or through the Internet, such actions would be seen as an aggravating factor and the penalty would be increased by 50%.

The Government today announced the long awaited draft state secrey law which will introduce a State Secrecy Council with regards to official documents containing state secrets. I have the draft law in Turkish and will provide a summary as soon as I digest it. The government also announced another long awaited draft law on data protection. Sadly, no one noticed and this has not hit the news today.

In a nutshell, and as can be seen below, an applicant can lodge a right to information request to any public authority. If the request is denied (or if there is no response) the applicant can appeal to the Right to Information Assessment Council (BEDK) but there is no internal appeal process within the public authority (for example like within the UK system). If the information is still denied and the Council rejects the applicant’s appeal, the applicant then can lodge an appeal with an Administrative Court to review the decision of the Council. In certain circumstances, a subsequent appeal can be lodged with the Council of State.

An interesting story hit the Turkish news in the first few weeks of April 2008. According to various articles in the Turkish media the military found to be recording dissidents and their activities. Parts of a 73-page document which lists all academics, journalists, NGOs and businessmen that have been classified as having received support from the US or EU was leaked to the media. Details of this story is provided below through an article published in English in the Turkish Daily News. More interestingly, I am also listed in this story as having received funding from George Soros’s Open Society Institute (which is true – see publicly available information on this) and am classified as working in the field of freedom of information, very interesting classified stuff!

I have now lodged a right to information request and asked the Chief of General Staff (the top military organization in Turkey) to provide me information about myself included within the classified document, and the legal basis for my inclusion in the classified document. I will report back when I hear from the Chief of General Staff.

Military found to be recording ‘dissidents’ again
Turkish Daily News, Wednesday, April 9, 2008

73-page document lists all academics, journalists, NGOs and businessmen that have been classified as having received support from the US or EU

ISTANBUL – TDN with wire dispatches

The military listed all institutions, academics, journalists and businessmen who in any manner received European Union or United States support in a top-secret report dated March 2006, newspapers reported yesterday.

The story was first reported Monday in daily Taraf and it was not refuted by the Office of the Chief of General Staff. The report was prepared by a colonel and submitted to the deputy chief of staff of the time, Işık Koşaner, the current gendarmerie commander.

According to the document, the report was prepared to highlight the efforts of NGOs that were supported by the EU and the United States for their own purposes.

Of the 73-page-report, 25 pages are allocated to financier George Soros, cited in the report as the man responsible for the chaos in eastern Europe since the end of the Cold War. The report also noted the meetings between Soros and President Abdullah Gül, who was the foreign minister at the time.

Figures were included in the report to illustrate the links between various NGOs and intermediaries. Various Turkish institutions received 88.5 million euros from the EU for 335 projects.

It also lists friendly NGOs and companies that need to be supported.

Taraf yesterday argued that the military objected to the funds provided by the EU because the recipients were civilian, noting that the Office of the Chief of Staff had received 12.7 million euros in 2007 for its project to teach conscripts to read and write and various professional skills.

During May 2008, BilgiEdinmeHakki.Org will publish a report entitled Freedom of Information in Turkey: A Critical Assessment of the Implementation and Application of the Turkish Right to Information Act 2003. The report drafted by Dr. Yaman Akdeniz will be made available initially in English through BilgiEdinmeHakki.Org. A Turkish version will be published in June 2008.

I regularly obtain detailed statistics through the Turkish FOI Council (BEDK) on the behalf of my organization BilgiEdinmeHakki.Org. The below information was obtained in September 2007 following a right to information request I lodged on 28 August, 2007.

The detailed statistics obtained from the Council in September 2007 reveal the following:

➢ Total No. appeal applications to the Council between 24/05/2004 – 28/08/2007: 3,413
➢ Total Number of Council decisions: 3,205
➢ Total number of decision books: 81
➢ Number of decision books published: 28
➢ Number of unpublished decision books: 53
➢ Number of decisions published: 641 (20%)
➢ Number of unpublished decisions: 2564 (80%)
➢ Number of decisions cleared for publication but not yet published: 332
➢ Number of decision books cleared for publication but not yet published: 10
➢ Number of applications proceeded: 3,264
➢ Number of applications non-processed: 149
➢ Total Number of successful appeals: 1,210
➢ Total Number of partially successful appeals: 501
➢ Total number of rejected appeals: 1120
➢ Total number of appeals in which further review was necessary: 20
➢ Total number of appeal applications to be discussed by the Council: 208

As can be seen above, only 20% of the 3205 decisions of the Council were publicly made available as of September 2007 and no further decisions were published since March 2007.

Currently available decisions of the Turkish Council can be obtained (in Turkish I am afraid) through the BilgiEdinmeHakki.Org pages.

Right to Information 

Everyone has a right to obtain information under Article 4 of the Right to Information Act 2003.

All natural and legal persons could apply to the public institutions for exercising their right to information. However, the Act also includes some limitations on this general right to information. Foreigners domiciled in Turkey and the foreign legal entities operating in Turkey can only exercise this right on the condition that the information that they require is related to them or the field of their activities; and on the basis of the principle of reciprocity.

Obligation to Provide Information

All public institutions are required to provide the information requested under article 5. They also have a legal obligation to respond to the applicants.

The public institutions are required to take administrative and technical measures to deal with requests under the 2003 Act.

They have a legal obligation to provide access to information and documents (subject to the exceptions set out in this law) and to review and decide on the applications for access to information promptly, effectively and correctly.