Turkish Right to Information Blog

Archive for the ‘Turkish Law’ Category

In a related case to Bergama No. 1, following the 4th Administrative Court of Ankara rejection of the applicants’ stay of execution request in May 2006, the 4th Administrative Court of İzmir issued a judgment (2005/1732 e, 2007/155 K) in favour of the applicants on 28.02.2007. The Court stated that

“the public authorities are obliged to provide every kind of information and documents to those who ask them in accordance with the principles of equality, impartiality and openness which are requisites of transparent and democratic administration in accordance with article 4 of the Right to Information Act.”

The Ministry of Finance received the judgment of the 4th Administrative Court on 24 April 2007. Subsequently, on 11 May 2007 the Ministry of Finance appealed with a stay of execution request. On 20 June 2007, the 10th Chamber of the Supreme Administrative Court rejected the stay of execution request of the Ministry of Finance. On 31 July 2007, the applicants applied to the Ministry of Finance with a request of the execution of the judgment of the 4th Administrative Court of İzmir. On 29 August 2007, the Ministry of Finance sent a letter to one of the applicants stating that the appeal case at the 10th Chamber of the Supreme Administrative Court had not yet been concluded. The Ministry argued that once the notification was received by the Ministry of Finance the necessary action would be taken.
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Three Turkish lawyers, members of the Izmir Bar Association, who are also environmental protection activists within the Aegean region were involved in the monitoring of the activities of the EUROGOLD Mining Company which has been operating a gold mine in Bergama. Following some media rumours that EUROGOLD would sell the mining facility and leave the area without shouldering any cleaning and reforestation burden, the lawyers tried to obtain information from the Ministry of Finance with a right to information request made in February 2005 and asked the Ministry whether EUROGOLD has carried out its legal and tax obligations in accordance with the relevant domestic regulations. The comprehensive right to information request involved 14 questions.
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Freedom of Information is not so free: “Freedom of Information is not so free
The number of individual citizens requesting information from public agencies as part of an information access law that promotes transparency and democracy has been increasing, but the number of rejections of these requests has also been rising, a report has shown. “

According to a report on queries made by individual citizens to public agencies in 2007 prepared by the Prime Ministry’s Council on Information Acquisition (BEDK), higher judicial organs have been the most resistant of all state institutions to comply with a law governing the right to information.

Those agencies reluctant to respond to requests for information in the first few years after the law’s enactment were much more responsive to queries in 2007. Another report released in May of this year compiled by Yaman Akdeniz, a senior lecturer in law at the University of Leeds, assessing the implementation of the Right to Information Act, agrees that agencies have been more responsive, but highlights that resistance still remains in place.

The most notable example, however, is undoubtedly the Constitutional Court, which received 3,389 requests and rejected 2,367 of them. None of the inquirers appealed the court’s rejection. Nearly 1 million requests were made to public agencies across the country last year and only about 7 percent were rejected. The Constitutional Court’s rejection rate last year stood at 69.8 percent.

The Supreme Court of Appeals rejected all 154 inquiries made to it last year and the Council of State rejected 115 out of 146 requests. The law went into force on April 24, 2004 as a necessary means to ensure a democratic and transparent administration. The BEDK was set up when several agencies refused to respond to queries from citizens.

Under the law, if an agency refuses to respond to a request for information, the inquirer has the right to appeal the agency’s refusal by turning to the BEDK, which decides whether an agency can provide the information sought or not.

Akdeniz’s report, released in May, incorporates data and research gathered between 2004 and 2008. It suggests that higher numbers of right to information requests in the latter years after the law went into force suggest broader awareness of the existence of the law and the right to information and access to official documents in Turkey. However, the right to information is not being completely complied with, Akdeniz’s report found.

At the time of the release of the report Akdeniz said: “Although the enactment of the Right to Information Act is a very important step towards openness, transparency and democratization, the report has identified several problems with the application of the law. As the report will show, despite the BEDK’s decisions and administrative court orders, resistance to give information remains and a high number of public authorities dispute the council’s decisions either by ignoring them or by appealing to administrative courts to challenge them. Therefore, there needs to be significant improvements to the current system to break down the culture of secrecy and resistance to provide information.”

Akdeniz, a freedom of information activist since 1998, is also the co-founder of the BilgiEdinmeHakki.org lobby group, which has monitored the implementation and application of this law since 2003. The full report can be acquired from their Web site.

The BEDK report

According to the BEDK report released last week, 395,557 queries were made to public agencies around the country in 2004 compared to a total of 998,442 applications demanding information in 2007. About 5 percent of the queries were denied an answer in 2004 and 7 percent in 2007.

The report found that the attitude of security-related institutions was changing positively on the right to information. For example, the National Intelligence Organization (MİT), which put up some resistance in the beginning, was one of the most responsive public agencies last year. No queries were made to the Military High Administrative Court and the Military Supreme Court of Appeals. The Constitutional Court received 3,389 queries while the General Staff received 8,405 requests for information. Only 89 requests were made to the National Security Council (MGK), a sharp fall from 128 queries in 2004 when the MGK had not yet been reformed to become a more civilian institution.

The General Staff responded to 6,100 out of the 8,405 queries it received, partially responded to 91, refused to respond to 1,654 and redirected 549 to other public agencies. Only four inquirers appealed rejected queries last year. In comparison, of the 2,017 requests made in 2004 to the General Staff, only 278 inquiries received a response, 365 received a partial response, 139 were rejected and 638 were unanswered, with the involved agency citing classified or sensitive information as the reason.

In 2007 MİT replied to 2,388 queries out of the 3,398 it received. It gave a partial response to 85 and refused to give any information at all to 837 queries. It redirected 88 queries to other public agencies. In 2004 MİT replied to 4,260 out of 6,185 questions and rejected 1,797.

In 2007 Parliament received 1,865 queries, 18.5 percent less than the year before. Nearly 70 percent of these queries received a full response while 17 percent were rejected. Parliament redirected 228 queries that should have been addressed to other institutions to the relevant public agencies.

BilgiEdinmeHakki.Org Press Release: 08.05.2008

A report prepared by Dr. Yaman Akdeniz entitled Freedom of Information in Turkey: A Critical Assessment of the Implementation and Application of the Right to Information Act 2003 is made available by BilgiEdinmeHakki.Org, a Turkish pressure group on 08 May, 2008.

The report incorporates data and research gathered between 2004-2008, and provides a detailed analysis of the implementation and application of the Right to Information Act in Turkey. High numbers of right to information applications between 2004-2006 (1,886,962 in total) suggest wider awareness of the existence of the law and the availability of a right to information and access to official documents in Turkey.

The report includes an assessment of the work of the Turkish Right to Information Review Council (BEDK) between June 2004 and March 2008 as well as the assessment of the implementation of the law by central and local government agencies. The report further assesses whether the enactment of a freedom of information law in Turkey helped to achieve an open and transparent regulatory process and whether the new law promotes openness and good practice within government institutions in terms of provision of information.

The report highlights both positive and negative observations with regards to the application and implementation of the Right to Information Act and provides a set of recommendations for improvement of the application of the Right to Information Act in Turkey.

The author of the report, Dr. Yaman Akdeniz, stated that “Although the enactment of the Right to Information Act is a very important step towards openness, transparency, and democratisation in Turkey, the report has identified several problems with the application of the law. As the report will show despite Right to Information Review Council decisions and administrative court orders, there is still resistance to give information, and a high number of public authorities are disputing Council decisions, either by ignoring them, or by appealing to administrative courts to challenge such decisions. Therefore, there needs to be significant improvements to the current system to break down the culture of secrecy and resistance to provide information.”

The report is available at http://www.bilgiedinmehakki.org/doc/Turkey_FOI_2008_Report.pdf
For further information see the Turkish Right to Information Blog: http://foia.bilgiedinmehakki.info
Dr. Yaman Akdeniz can be contacted at akdeniz@bilgiedinmehakki.org

Dr. Yaman Akdeniz is a senior lecturer in law at the School of Law, University of Leeds, United Kingdom. Dr. Akdeniz has been following the enactment of the Turkish Right to Information Act 2003 which came into force on 24 April, 2004 since its inception. He has been a freedom of information activist since 1998 and is also the co-founder of the BilgiEdinmeHakki.Org pressure group which monitors the implementation and application of the Turkish law since 2003.

BilgiEdinmeHakki.Org (www.bilgiedinmehakki.org) has been set up as a pressure group on 09 October, 2003, the day the Turkish Government enacted the Right to Information Act 2003 (No: 4982) to ensure that the Act is effectively used by the Turkish citizens and a greater degree of openness and transparency is established in Turkey as part of its democratization. Bilgi Edinme Hakki stands for Right to Information in Turkish, and the name of the organisation is based upon the Turkish Act.

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.

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.

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.

Information is defined as “every kind of data that is within the scope of this law and are included in the records of the institutions” by article 3(c) of the 2003 Act. Article 3(d) defines “documents” as “any written, printed or copied file, document, book, journal, brochure, etude, letter, software, instruction, sketch, plan, film, photograph, tape and video cassette, map of the institutions and the information, news and other data that are recorded and saved in electronic format that are within the scope of this law.”

Article 3(3) also provides a definition for “access” to information and documents. The law requires access to “information” and the public institutions need to provide copies of any documents that are available. This could be photo-copies or documents in electronic format.

However, in cases were it is not possible to provide a copy of the document requested, an applicant may be permitted to examine the original information or the document or see the contents of such documents, or any form of data, and should be allowed to take notes.