The FOI Center decided to turn to the Court of Cassation to finally resolve the issue of subjecting officials, who refuse to provide information, to administrative sanctions. In the last few months, the RA Administrative Court has examined four freedom of information cases brought by the FOI Center. In all four cases, the court refused to subject officials to administrative sanctions for refusing to provide information, as was requested by the FOI Center.
On April 16, the FOI Center filed a Court of Cassation claim against the Nor Nork district authorities (taghapetaran), the Nor Nork community leader David Petrosyan and the Judge of the RA Administrative Court Ashot Sargsyan, claiming a violation of substantive and procedural legislation (administrative case verdict number VD/6279/05/08 of 23.03.2009).
The RA Administrative Court had earlier examined the FOI Center’s claim against the Nor Nork taghapetaran and the Nor Nork community leader David Petrosyan, in which the FOI Center had asked the Court to consider the inaction of the Nor Nork taghapetaran as unlawful, to require the taghapetaran to provide the requested information within five days and to impose an administrative fine of 50,000 AMD on the Nor Nork Community leader David Petrosyan. On 23.03.2009, the RA Administrative Court decided to uphold the FOI Center’s claim partially and consider the inaction of the Nor Nork taghapetaran as unlawful.
The community leader’s actions related to refusing to provide the information requested by the FOI Center were also considered as unlawful. The court refused to uphold the part of the claim about requiring the Nor Nork taghapetaran to provide the requested information within five days and imposing an administrative fine of 50,000 AMD on the Nor Nork community leader David Petrosyan. The RA Administrative Court explained its decision to throw out a part of the claim by citing Article 198.7, paragraph 1 of the RA Administrative Violations Code, according to which administrative penalties are imposed for not providing information illegally, whereas the Nor Nork community leader eventually did provide the information, albeit late. Thus, the court found that there are no legal grounds for subjecting the person to administrative sanctions.
However, the FOI Center think that the court misinterpreted Article 198.7, paragraph 1 of the RA Administrative Violations Code, according to which: “Illegal failure to provide information prescribed by law on the part of officials from state and local self-governance bodies, state institutions, state budget-financed organizations and organizations of public importance is punishable by a fine in the amount of up to fifty times the minimum wage.”
The court found that the provision of the requested information during court hearing removes the legal grounds for punishing the person for his failure to provide information. However, this interpretation does not correspond to Articles 27 and 27.1 of the RA Constitutions, Article 9, paragraph 7(3) of the RA Law on Freedom of Information and Article 198.7, paragraph 1 of the RA Code on Administrative Violations, because the interpretation of the aforementioned articles implies that failure to provide information includes means failure to provide it within the prescribed period of time, which is 30 days in this case, and missing the said deadline is considered an illegal failure to provide information.
This means that the offense described in Article 198.7, paragraph 1 of the RA Administrative Violations Code is considered completed when information is not provided within the time period established in Article 9, paragraph 7(2) and (3) of the RA Law on Freedom of Information (5 days or 30 days).
Otherwise, it would be impossible for anyone to exercise effectively the rights under Articles 27 and 27.1 of the RA Constitution and Article 9, paragraph 7(2) and (3) of the RA Law on Freedom of Information, and any state or local self-governance body would simply not provide information within the required period of time, but will do it only if someone takes them to court.
