On February 26, 2024, the Ministry of High-Technology Industry released a draft of a new law “On Public Information” as well as amendments and additions to related laws, for public discussion. According to the government, this law will serve as a basis of implementing open data policy, and in particular, enable public oversight over the performance of state and local self-government bodies. The new draft defines:
New draft law put forward after CSOs voice concerns
This is the second draft law from the government to set a unified data policy and the state information system, planned in the framework of the Open Government Partnership Armenia Action Plan for 2022-2024. The first draft law “On Freedom of Information and Public Information”, aiming to replace the current Law on Freedom of Information, was published on December 19, 2023. The government agreed to review it following criticism from CSOs, who noted that the draft was a regression in terms of access to information and called to regulate data policy issues in a separate legal act.
The new draft aims to regulate issues of data policy in a separate legal act, with relevant minor amendments in the Law on Freedom of Information and Law on Personal Data Protection. In addition, several draft amendments are proposed in the Law on State Secrecy, specifying the terms and limitations for classifying ‘official information of limited distribution’ and conditions for its access.
The current draft does not include some of the previously discussed problematic provisions. In particular, based on the proposals of CSOs, the following provisions were removed:
Issues identified by CSOs in the new draft law and related draft amendments
The draft has received 20 comments on the e-draft platform (public e-consultation website), CSOs highlighted the following main concerns:
1. Expanding possibilities for restricting information
The draft amendments to the Law on State Secrecy introduce the option to prolong the duration of limiting access to information for up to 5 years, thus extending the maximum limitation period up to 10 years from the current 5 years. The list of objectives for classifying information as restricted includes the protection of public order, which is not specified in the current law. This might be problematic in terms of giving larger discretion to authorities. The draft amendments propose a list of information that cannot be restricted under notion of ‘information of limited distribution’. However, this list is narrow as it does not include certain types of information prohibited to be classified under the current legislation.
2. Setting fees for access to information
The draft stipulates that reasonable compensation may be charged for costs related to provision of information; further, a fee or a state duty may also be charged in. Establishing state duty for access to information is problematic in terms of the international obligations undertaken by Armenia․ In particular, according to the Council of Europe Convention on Access to Official Documents, ratified by Armenia in 2022, fees for providing copies of official documents should be reasonable and not exceed the actual costs of reproduction and delivery of the document. In its Opinion on the draft Law on Freedom of Information communicated to Armenia in 2009, Council of Europe Venice Commission noted that the self-cost principle should clearly explain that fees can only be charged for actual copying costs, not for the work performed by the staff of the information holder.
3. Dismissing the list of information items subject to proactive disclosure
The draft amendments to the Law on Freedom of Information propose to remove the list of information that shall be proactively published by information holders, presumably on the grounds that it should be published in an open data format anyway. The mentioned regulation, however, is problematic considering the fact that the requirement to publish certain information mentioned in the list also implies a direct obligation for information holders to obtain/analyse the relevant information or collect statistics on the respective issue.
Based on the preliminary written feedback of the government provided to the comments in the e-draft platform, it is expected that some of these concerns will be addressed, and the drafts will be revised accordingly. In particular, the government agreed to remove the protection of public order as a ground for classifying information, as well as to reduce the number of years for prolonging the duration of restricted access. Generally, CSOs positively assess the readiness of the government for dialogue and expect that further revisions of the drafts will be made with continuous consultations with civil society.
Source։ CSO Meter website
