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Comments of

Nicholas Johnson

on the

Freedom of Information

Proposed Law of the Parliament of Georgia

As translated from Georgian to English by the

National Democratic Institute

February 24, 1998


March 17, 1998

 General Comments

The Law.  The draft law in question is not reproduced in this document; it is, however, available from this Web site.  The reader may find it useful to print it out and have it available when reading these comments.  See "Georgia 'On Freedom of Information.'"

Disclaimer.  The materials contained herein represent the opinions of the author and editors and should not be construed to be the view of the American Bar Association (ABA) or the Central and East European Law Initiative.  The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA and, accordingly, should not be construed as representing the policy of the ABA.

U.S. Law Orientation/Bias.  As a U.S.-trained lawyer/law professor, it is unavoidable that I bring the perspective, or bias, of the legal system most familiar to me.

Scope.  It would always be my preference that statutes deal with one subject at a time.  That provides sharper focus by the drafters, and in the resulting legislative history as to purpose.  That, in turn, makes it easier for judges, lawyers, academics and the public to understand and accept the law.  This law, as drafted, is quite broad by those standards.  I understand there may be political reasons for this (i.e., the desire of the journalists).  Over-broad, or even totally irrelevant, provisions are inserted in U.S. legislation for these reasons as well.  I express no view as to the most appropriate political solution, only a preference regarding legislative drafting.

Translation.  I am unable to read Georgian.  I am grateful to the NDI for its efforts at translation from Georgian to English, without which I would not be able to provide these comments at all.  But there are hazards to providing comments based on translations, on something other than the original text.  There may be an inaccuracy in translation; there may be a word, or concept, in Georgian that has no direct English equivalent; there may well be a cultural, historical or legal context for a Georgian word that gives it meaning and purpose unknown to me.  Aside from some conversations, I am unaware of the "legislative history" -- including the background purposes and goals -- of this legislation that might very well give more, or different, meaning even to the English translation.  Obviously, such problems are only multiplied when these comments of mine, which are being drafted in the English language, are then translated back into Georgian.

Ambiguity.  In general, I prefer specific language to general in legislation; I prefer clarity to ambiguity.  (There are exceptions in U.S. law.  For example, the U.S. broadcasting law provides that the Federal Communications Commission is to grant and renew broadcasting licenses on the basis of what it believes will best serve the "public interest, convenience and necessity.")  Clarity is especially important, it seems to me, when one is trying to move a country/government/legal system from "state control" to diversity/democracy/free markets/rule of law.  In that context, ambiguity leaves the possibility for the continued exercise of state power, and for the somewhat arbitrary decisions of government officials (both high and low) that can give rise to corruption and worse.  There are places in this law where the language is more ambiguous than I believe necessary or desirable.

Constitutions, Legislation and Regulation.  "Law" can be created, and then codified, in the form of a provision in a nation's constitution, as a statute from its legislature, or as a regulation from an executive branch agency or independent regulatory commission.  (Of course, it can also be created through litigation and the ultimate decision of a constitutional or other court, or regulatory agency, interpreting such codes.  But I am speaking here of the codes themselves.)  What determines those principles and standards that will be embodied in constitutions, and those that will be the basis of legislation or regulation?  In general, much turns on the desired permanence of the provision.  Constitutions are the most difficult to change; regulations the easiest.  To the extent the matter being regulated involves both rapidly changing conditions (such as with newly evolving electronics technology) and the need for specialized expertise, legislative bodies are more likely to delegate the decisions to administrative agencies that have the necessary time, skills and ability for rapid change.  (For example, the U.S. Constitution guarantees the broadcaster "free speech" rights.  Congressional legislation creates the Federal Communications Commission to regulate what would otherwise be broadcasting chaos.  The F.C.C.'s "regulations" provide for the hours of operation to minimize signal interference.)  There are some provisions in this law that I believe might better be in either constitutional provisions, or in regulations.  At the same time, I recognize that Georgia now has neither regulation-issuing agencies nor the equivalent of the U.S. "Administrative Procedure Act" for controlling the abuses of such bodies.  And I also recognize that the need for, and ability to create, administrative agencies is, in part, related to the size of the population.  (For example, in the U.S., state legislatures, county supervisors, and city councils may very well personally take on tasks that, at the federal level, would certainly require a new agency.)  Thus, what I think (because of my Washington experience) requires an administrative agency may, in Georgia, be perfectly appropriate for Parliamentary regulation and oversight.

Drafting Style.  Every lawyer -- or writer of any kind -- has his or her own style.  There are many things I would do differently from the way others writers have done them.  Indeed, I rewrite my own material, often going through ten drafts or more.  It is for this reason (not because of any inadequacy in the legislation) that I would have written differently, or would now rewrite, virtually every provision of this law.  It is hard to know when matters of style become matters of substance.  But, for the most part, I have refrained from suggesting stylistic changes -- matters involving sentence structure, ambiguous referents, incomplete sentences, grammar, and so forth.  I am assuming that, once final language is agreed upon, someone will perform that kind of rigorous proof reading (or, perhaps, that the problems exist only in the English-language translation and not in the original Georgian version).

 Article-by-Article Analysis

Article 1.  Goal of the Law.  As explained above, I would prefer that the statute be more limited in scope.  Given what it now covers, however, this article seems adequate.

Article 2.  Definitions.  For the most part, I think these are adequate.  Insofar as the draft deals with what U.S. law would call "freedom of information" the "Public Information" definition would be limited to documents within government agencies; what in this draft is defined as "Official Document."  "Certain circles" is perhaps too ambiguous.  "Producer of public information" may need some work.

"Official Document" needs to be at least thought through carefully, if not rewritten.  What do the drafters intend to include?  All correspondence; copies of all e-mail send and received?  Officials' appointment logs?  Voice phone messages?  Dairies?  Memos from staff aides?  There can be good arguments to include all, or some, of the above; also good arguments not to.  There are many reasons why this needs to be made clear; not the least of them is the problem created for agencies under Article 6 in preparing a "register" of all such pieces of paper.

Article 3.  Right to Obtain and Disseminate Information.  "Pursuing the producer of information for the published information" is not clear to me.  The rest of the sentence I take to mean something roughly equivalent to the U.S. Constitution First Amendment.

Article 4.  Right to freely disseminate information.  This seems, likewise, First Amendment-consistent.  "Registration" could become problematical (i.e., offer opportunities for state interference with media); to the extent the clause simply requires that media corporations comply with legislation applicable to other corporations the clause is unnecessary (i.e., the other law would be applicable, without the necessity of this law saying anything about it).

Article 5.  Right to Obtain information from the State and Bodies of Local Self-governance.  This article comes the closest, in this proposed act, to what is covered in the U.S. "Freedom of Information Act" and "Privacy Act" (right to see one's own files in government agencies).

See "Scope," above.  I would prefer that the article be divided into two:  one dealing with the citizen's right regarding information about him or herself; the other dealing with the right to gain access to government information generally.  (See, e.g., Sec. 4, which even combines both within one section.)

The first section is most like the U.S. Privacy Act.  Perhaps consideration should be given to adding every individual's right, once their own file has been seen, to (a) request that information be corrected, added, or deleted, or (b) failing compliance with that request, to add their own statement to that effect to the file.

The phrase "state or public security" is troublesome, to me, because imprecise and seemingly the basis for arbitrary state action.

Sec. 5 seems, to me, unrelated to either privacy or access to government documents.

Article 6.  Register of Official Documents.  This article reflects a sophisticated understanding that "public information" or "freedom of information" requires much more than a requirement that documents be available.  For a document meaningfully to be public requires that it be (1) printed, bound, and otherwise available in multiple copies, (2) distributed to "depository libraries" around the country, and otherwise easily accessible (say, by "publication" on an Internet Web page), and -- the provision of Article 6 -- (c) indexed in such a way that the existence of the document can be known, and its text retrieved.

A possible problem with Article 6 involves the definition of "official document," discussed above under Article 2.

Article 7.  Confidentiality of Source of Information.  I assume this is primarily designed to protect professional journalists working for commercial mass media.  At least in the U.S. it would be argued that there is a First Amendment interest in enabling reporters to protect their confidential sources (because that enables the reporters to get, and pass along to the public, information that might otherwise be unavailable).  Is it also the intention to protect private citizens from having to disclose what they know in the case of, say, a grand jury investigation of serious crime?

American law recognizes a privilege between reporter and source such that only in the most extreme of circumstances must a reporter divulgte a confidential source.  As a minimum standard, a journalist would only be compelled to disclose his or her sources after the party seeking the source has (a) exhausted all other possible ways of getting the information, (b) the information is essential to the case, and (c) what is obtained is no broader than absolutely necessary for the purpose (a standard often applied by the judge personally examining documents).  Some courts, or state legislation, would provide the journalist an absolute, First Amendment-based protection.  In rare cases, a judge may find a journalist "in contempt of court" for a failure to reveal sources, or turn over notes or video "outtakes" (unused videotape, not broadcast).

In the U.S., those who advertise on radio and TV are required to disclose their identity.  Is it the intention of this article to protect "anonymous speech"?  There may be good reasons for, or against, doing so, but as drafted it is not clear.

Sec. 3, in English translation, needs clarification.

The final sentence seems unnecessary -- unless I don't understand something about it, in which case it needs clarification.

Article 8.  Dissemination of the information considered as a private secret information.  It appears the purpose of this article is to recognize the distinctions between a private citizen and a "public official" or "public figure" in applying different standards of privacy with regard to what the definition article calls "private secret."  As such, it seems to more or less do the job.

Given the definition, it would probably be better to use the "phrase of art" defined ("private secret") rather than the words "a secret information of the individual").

Article 9.  Responsibility for dissemination of information.  What does "humiliating an individual's honor" add to "slander"?  It may; I'm just asking.

Consider Secs. 2 and 3:  What if the reporter does check the accuracy of the information (Sec. 3), but nonetheless knows its not correct (Sec. 2); does Sec. 3 trump Sec. 2 (Sec. 3 says one is only responsible if they have not checked)?

Sec. 6.  Does "information which represent public ideas" mean "opinion" (as distinguished from false facts), on the assumption that there can be no "false" opinion?  If so, there may be a better way to express it.

Sec. 7.  What kind of "losses"?  Out-of-pocked expenses?  Lost potential revenue, or other benefits?  Diminished reputation?  If whatever "losses" as qualify, are "punitive damages" possible?

Article 10.  Evaluation Speech.  Does this differ from Article 9, Sec. 6, above?  If so how?  If so, how need both be revised?

Article 11.  Citation of the information.  I assume by "cited information" is meant "quotations."  If so, it seems to be an effort to legislate a version of "fair and accurate report," with which I have no problem if that is what is intended.

Article 12.  Dissemination of the secret information from the state and governmental bodies.  Sec. 1 appears to legislate something of the Pentagon Papers standard:  It's the government's job to maintain the confidentiality of classified documents; it's the media's responsibility to report whatever they can find out; it is not a crime for the media to do its job better than the government does its job.  Sec. 2, however, is not at all clear to me; I don't disagree with it, I just can't figure out what it is trying to say.

As with "private secret," the defined phrase of art here, "state secret" would probably be a better choice than "the secret information from the state and governmental bodies."

Article 13.  Accountability for impeding the court form [sic] discharging its duties independently and unbiased.  It is not clear to me what this section is trying to do.  For starters, I presume it is not intended to cover all "obstacles in the court system" but only those having to do with "information disseminated."  If it is intended to prevent any coverage of trials before or during trial it should say so.  (There are reasons for, and against, such a prohibition.)  Even if not, the intention needs to be made clear.

Article 14.  Provision of Dissemination of Information by violation of constitutional structure of Georgia, for the purpose of engendering war, national, racial or religious hostility.  This is an example of a provision which -- at least from my perspective -- creates a danger, as a result of its imprecision, that it could be used by the state to threaten, punish, or create a "chilling effect" as against journalists.  Might it be better to eliminate this provision entirely, and rely upon statutory prohibitions of undesirable actions?  "Speech" that risks immediate incitement to action might then, when necessary, be considered "action" rather than just "speech" when those statutes are interpreted by the courts in individual decisions.

Article 15.  Claim for Moral (non-property) Damages.  This provision is not clear to me.  The European concept of "moral rights" is a variety of "copyright" law, recognizing an artist/creator's interest in the integrity of his/her works once created, in addition to any economic interests.  If that is what is intended here it seems out of place in this law.  If it is a reference to "defamation" it seems covered by Article 9, Sec. 1.  If it is an attempt to include the concept of "false light" that should be clarified.

Article 16.  Accountability for the Violation of this Law.  This article also seems to reflect the combination of purposes.  Secs. 1 and 3 seem to refer to "freedom of information" matters -- and, as such, might better be put in Article 5.  Sec. 2, by contrast, seems related to Article 4.

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