Subject: Ask for help - FOI law, "tacit refusal" and EU legislation

Dear friends,
we urgently need your opinion or experience..

There is a provision in the Slovak Freedom of Information Act saying that in the case "the obliged institution" failes to provide information within a fixed period, or it fails to issue a written resolution denying the access to information, this fact shall be deemed that the obliged institution issued a resolution denying information (so called "tacit" or "mute" refusal).

The Slovak state officials argue that the "tacit refusal" institute does not comply with the EU Directive 2003/98/EC because (from its nature) it does not involve information about remedies to this tacit refusal.

They argue that Article 4 paragraph 4 of the EU Directive 2003/98/EC on re-use of public sector information requires: "Any negative decision shall contain a reference to the means of redress in case the applicant wishes to appeal the decision." and therefore the existence of "tacit refusal" is contrary to EU Directive.

Finally, they state that the institute of "tacit refusal" should be abolished.

We would very much appreciate information on what the FOI legislation sets in you countries (especially in old members of EU) in the issue of "tacit refusal" or "tacit decision" and how your country implemented EU Directive 2003/98/EC in relation to "tacit refusal"

We will be very grateful for your fast replies - we need to know this till Thursday evening.
Thanks a lot!

Peter Wilfling
lawyer, Citizen and Democracy Association (Obcan a demokracia), Dobrovicova 13, 811 09
Bratislava, Slovakia

We have a provision in South African law allowing a "deemed refusal" if there is no response from administrators. We find this helpful because we get a high percentage of requests being followed by no response, and the deemed refusal allows us to assume the body has said no to the request and start litigating.

Alison Tilley
Chief Operating Officer
Open Democracy Advice Centre [South Africa]

Dear Peter,

in the text of EU Directive 2003/98/EC

I have repeatedly asked EU to define miminum standards in EU member states about access to public documents and always got the answer that this is "beyond the remit" of the EU commission:
http://home.online.no/~wkeim/330166.htm and
http://home.online.no/~wkeim/files/eu-040323.pdf
(because Germany is one of the last major countries in Europe without access to public documents).

Therefore it seems strange to me that the Slovak government uses EU Directive 2003/98/EC to try to restrict access.

Regards,

Walter Keim
--------------------------------------------------------
Høgskolen i Sør-Trøndelag (HiST), Avdeling for informatikk og e-læring
Sør-Trøndelag College, Faculty of Information Technology and e-Learning
http://aitel.hist.no/~walterk/

Dear Peter, Please find enclosed the Hungarian regulation regarding this issue.

Act LXIII of 1992
on the Protection of Personal Data and the Disclosure of Information of Public Interest

Section 20.

(1) The agencies processing information of public interest must comply with requests for information without any delay, and shall provide it in an intelligible form within no more than 15 days. The applicant may also request for a fee, a copy of the document or part of a document containing the data in question, regardless of the form of storage.

(2) When a request for information is refused, the applicant must be notified within 8 days in writing and must be given the reasons for refusal.

(3) The head of agency processing information of public interest may charge a fee for any supply of information, not exceeding the costs of service. If requested by the applicant, the amount of charges must be specified in advance.

(4) The agencies specified in Subsection (1) of Section 19 shall notify the data protection commissioner once a year on refused requests, including the reasons of refusal.

Section 21.

(1) When a person's request for public information is refused, he may file for court action.

(2) The burden of proof of compliance with the law lies with the data processor agency.

(3) The lawsuit shall be initiated within 30 days from the date of refusal against the agency that has refused the information.

(4) Any person who cannot sue or be sued may also be involved in such lawsuits.

(5) Lawsuits against agencies of nationwide jurisdiction shall be filed at the competent county (Budapest) court. Lawsuits against local agencies shall be filed at the central county court, or at the Central Pest District Court in Budapest. The competency of the court is determined based on the location of the agency that refused to provide information.

(6) The court shall hear such cases under priority.

(7) When the decision is in favor of the plaintiff, the court shall order the data processor agency to provide the information.

Forgacs Nóra [Hungary]

Dear Peter,

I am travelling and don't have easy access to my files but there are a number of countries which do have the tacit or deemed refusal provision. As Alison points out, this can assist requesters where the public body simply fails to respond. However, it is also true that this situation represents a breach by the public body of its primary obligation to respond to a request (including by providing information about remedies for any refusal to disclose information). Ideally, the law should make this very clear (perhaps even providing for penalities for persistent non-responders).

Toby [Mendel, Article 19]

We too have a similar tacit refusal provision in the Irish FOI Act.

In my opinion however, the contents of Directive 2003/98 are not relevant to the operation of national access laws such as your FOI Act.

Directive 2003/98 is concerned with re-use of public sector information, not with access. Recital 9 of the Directive specifially states that

"The Directive builds on the existing access regimes in the Member States and does not change the national rules for access to documents.

The negative decision referred to in Art.4 is concerned with a refusal to authorise re-use of public sector information, not a refusal of access.

Maeve McDonagh

Prof. Maeve McDonagh,
Faculty of Law,
University College Cork,
Ireland

Re Toby's last point - there are a few states in India which actually do impose penalties for unreasonable delay in responding to requests, although these provisions to date are still under-utilised.

[Charmaine Rodriguez, Commonwealth Human Rights Initiative, India]

In Canadian law there is no explicit mention of deemed refusals. However it is understood that a failure to respond within the statutory deadline constitutes a violation of the law and permits a complaint to the Information Commissioner. Indeed most complaints are about deemed refusals. I'm not sure how you could proscribe deemed refusals without eliminating the right to information itself.

Alasdair [Roberts, Campbell Institute, Maxwell School of Public Affairs, Syracuse University]

Not sure if this is helpful at all, but in the US, "tacit refusal" is called "constructive denial" and it is a product of judicial decisions. The FOIA mandates that agencies respond to requests within 20 business days of submission. Courts have found a constructive denial when an agency has failed to provide a substantive response within the 20-day statutory time limit spelling out (1) the agency's determination of whether or not to comply with the request; (2) the reasons for its decision; and (3) notice of the right of the requester to appeal to the head of the agency if the initial agency decision is adverse. See Oglesby v U. S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) (citing 5 U.S.C. § 552(a)(6)(A)(i)). A FOIA requester is permitted to sue in court when there has been a constructive denial. Otherwise, the agency would be permitted to flout its obligations and there would be no remedy.

Meredith Fuchs, General Counsel
National Security Archive, George Washington University, Gelman Library Suite 701
2130 H Street, NW, Washington, DC 20037 www.nsarchive.org

Dear Peter,

The Supreme Administrative Court of Bulgaria has ruled on a similar case, adopting the view that "tacit" refusals could be appealed (refering to the Administrative Procedures Act). I have attached the ruling of the SUpreme Court.

Nikolay

Nikolay Marekov
Computer specialist, Access to Information Programme,
76, Vassil Levski Blvd. 3rd floor, Apt. 3
1000 Sofia, Bulgaria
Web site: www.aip-bg.org

Dear Peter,

Israeli FOI law, like the Canadian one, does not explicitly mention "deemed refusals", but courts have ruled that a request not responded to in the terms defined by the law is indeed deemed as refused. This is in spite of the fact, that the law has a similar clause to that of the EU describing the content of a refusal notification.

To use such a clause in order to counter a "deemed refusal" clause seems to me a serious stretch of what can be considered a reasonable interpretation of the law. I am not familiar with EU laws and regulation (nor with the Slovak FOI law), but to me this seems like an interpretive issue more than anything else. We need to look for the legislature's intent - it seems the intent was to assure that when a request is turned down, the applicant will be notified of his possibilities to redress. The idea is to provide a tool to the applicant, not to the authority. It does not mean to describe exclusive ways to present a negative decision, but merely add a duty on the authority once it issues such a decision. There is nothing there to rule out viewing a no-response as a negative response, even if a flawed one. One should ask where the interpretation of the Slovak government leads? It will create a situation in which the authority, by not abiding to the clause in the EU directive, dismisses itself from any judicial review, since none of its de-facto negative responses can be seen as de-jure negative responses (if I follow their argument correctly, even if a government issues an explicit negative response, but does not follow the EU directive in referring to the means of redress, even that will not be viewed as a negative response...). This would mock the whole idea of the "deemed refusal" clause, and I dont see how that can be taken to be the legislative intent.

To me the Slovak govt's argument looks like a very creative way to misuse the EU directive...

Roy Peled
Movement for the Freedom of Information, Israel

We also refer to the "tacit refusal" in New York as a constructive denial of access. If an agency fails to respond to a request within the statutory time, that failure constitutes a constructive denial of access that can be appealed to the head of the agency or that person's designee. Similarly, if the appeals person fails to respond within the statutory time, that is considered to be a constructive denial of the appeal. At that point, the person seeking records has exhausted his or her administrative remedies and may initiate a judicial proceeding seeking review of the agency's denial of access.

Robert J. Freeman
Executive Director
NYS Committee on Open Government
41 State Street
Albany, NY 12231
Website - www.dos.state.ny.us/coog/coogwww.html

Dear Peter,

Latvian FOIA determines that in case of mute refusal anyone is entitled to submit a claim to the court. The procedure e.g. time limits of appeal is determined in the procedural regulation - Administrative Procedure Law.

According to Administrative Procedure Law a tacit refusal [considered as unfavourable fisical action] can be appealed within the period of one year from the day when decision of instution was due to be issued [in case of administrative act] or act performed [in case of fisical action].

The official position regarding implementation of Directive is that there are no obstacles for realization of the right to re-use official information and thus no specific actions should not be taken to implement it in the national legislation. Presumably material norms laid down in FOIA and procedural norms of Administrative Procedure Law would be used in those cases.

Thus in Latvia existing national legislation is deemed to complement the Directive especially regarding procedure of access and since Latvian law allows to appleal any tacit refusals..I see no problem at all.

Best regards,
Linda

Linda Austere

talr. 7039 339

SPC "Providus"
Alberta iela 13
Riga, LV - 1010