01 March 2004



Dear Mr. Harutyunyan,



ARTICLE 19, the Global Campaign for Free Expression, is deeply concerned about
the proposed Law On Amendments to the Law of the Republic of Armenia on Freedom
of Information, put forward by the Ministry of Justice. The proposed amendments
would weaken key guarantees in the existing Law on Freedom of Information and
undermine the public’s right to know and good governance in Armenia.



ARTICLE 19 urges the Ministry of Justice to refrain from considering any
amendments to the existing Law until it has had a chance to be tested in
practice. Should amendments be introduced, they should be designed to further
promote, rather than restrict, access to information. Furthermore, any proposed
amendments should be the subject of extensive consultations with civil society
and receive due legislative attention.



As you know, the Law on Freedom of Information, a joint effort by civil society
actors and members of the National Assembly, was adopted in September 2003. This
was a very important step towards ensuring in practice the right of access to
information guaranteed in the Constitution of Armenia, as well as towards
honouring the obligations and commitments Armenia accepted upon joining the
Council of Europe. ARTICLE 19, along with numerous other international
organisations, very much welcomed the adoption of the Law.



The Law contains a number of positive provisions, including broad definitions of
information and information holders, an obligation to publish a wide range of
information, even in the absence of a request, a relatively narrow regime of
exceptions, including a form of public interest override, and rules making
public officials responsible for any refusals to disclose information.



At the same time, the Law contained a number of omissions, including a failure
to provide for an independent oversight body, no protection for whistleblowers
and very limited protection for good faith disclosures pursuant to the law.
Instead of addressing these weaknesses, however, the proposed amendments
actually undermine some of the positive features of the existing Law, contrary
to international standards in this area, including Recommendation No. R(2002)2
of the Committee of Ministers of the Council of Europe to Member States on
access to official documents, adopted 21 February 2002.



ARTICLE 19 has analysed the proposed amendments against international standards
and we note the following key problems:



• Article 10(1) of the existing Law limits the fees that may be charged by
public bodies for information requests to the costs of providing the
information. The proposed fee structure, in new Article 6(3) in conjunction with
new Article 10(1), no longer includes this limitation. This would open up the
possibility of abusively high fees being charged to deter requesters.



• Article 7(3) of the existing Law includes a long list of categories of
information that information holders must publish, even in the absence of a
request, one of its positive features, as noted above. A number of the
categories, including some very important ones, have simply been removed. These
include budgetary information, information about work and services costing
policies, a full list of personnel (as opposed to the names and contact details
of officials), and information about the information held and requests received.
These deletions would seriously undermine this important provision.



• Existing Article 7(2) provides for urgent publication of various types of
information to prevent danger, for example to State and public security, public
health, the environment, individual rights and so on. This provision is not
found in the proposed amendments.



• Article 8(3) of the existing law provides for a limited public interest
override. Three situations where access to information may not be refused,
notwithstanding the regime of exceptions, are established: where the information
discloses a urgent threat to public security and health; where the information
relates to “the overall economic situation of the Republic of Armenia, as well
as the real situation in the spheres of nature and environment protection,
health, education, agriculture, internal trade and culture”; and where a refusal
to disclose the information would have a negative impact on the implementation
of state programs. This provision is not found in the proposed amendments.
Instead, a new Article 6(5) does provide for disclosure of environmental
information, as well as threats to public security and health, but access in the
other two situations would no longer be protected. This would constitute a
serious limitation on the public interest override, a key part of an effective
freedom of information regime. Furthermore, Article 14(2) of the existing Law
provides for protection for those who release information pursuant to Article
8(3). The proposed amendments do not protect those who release information
pursuant to new Article 6(5).



• The proposed amendments expand the list of information holders to include
private entrepreneurs and legal entities. This is a very significant and novel
development which requires careful treatment. The proposed amendments, however,
do not even set out clearly what obligations these actors are under, so that
proper evaluation of this proposal is not possible. If implemented in this form,
these changes would be likely to cause confusion and possibly even to lead to
injustice.



• Article 13(2) of the existing Law sets out clearly the responsibilities of
information officers, which include ensuring that the provisions of the law have
been met and assisting requesters. These important clarifications are not found
in the proposed amendments.



• The proposed Article 9(7)(1) would increase the time limit for requests from 5
to 15 days. Given the importance of timely access, and the fact that the time
limits may be extended until 30 days, this is unfortunate.



ARTICLE 19 strongly recommends that no amendments be made to the existing Law on
Freedom of Information, at least until it has been in force long enough for its
strengths and shortcomings to be properly assessed. Furthermore, any amendments
should be designed to bring the law more fully into compliance with
international standards on freedom of information, rather than to weaken its
disclosure provisions.



We therefore urge the Armenian Ministry of Justice to withdraw the Law On
Amendments to the Law on Freedom of Information and, instead, to monitor
implementation of the existing law with a view to improving access to
information in Armenia.



We would be happy to provide further views on the proposed amendments or advice
on how to improve the freedom of information regime in Armenia.



Yours truly,



Luitgard Hammerer

Europe Programme Director