The right of citizens to attend meetings of collegial authorities

Rukoleev Vitalii Aleksandrovich ORCID: 0000-0002-6879-9192 Assistant, Department of Constitutional and International Law, Ural State University of Economics 620144, Russia, Sverdlovsk region, Yekaterinburg, 8 Marta str./narodnaya Volya, 62/45, room 750 v.a.rukoleev@bk.ru

Introduction.

The information openness of the authorities is ensured in a number of ways. Depending on the manifestation of the category of "interest" in the behavior of subjects (citizens, their associations, organizations) aimed at finding and obtaining information, the methods are grouped into forms of achieving publicity of the public administration apparatus. On the pages of the legal literature, emphasis is placed on the existence of an active and passive form ^{[1, pp. 172-173; 2, p. 148]}. The active form implies the emergence of interest in information available to the authority and (or) affecting the rights and freedoms of the person who applied for their provision. The passive form, on the contrary, does not imply the emergence of interest. The initiator of the publication of information is the authority, as a rule, by virtue of the indication of legal acts.

The presence of citizens at meetings of collegial authorities is one of the main ways to ensure the information openness of authorities. As a component of the active form, attendance at meetings is preceded by the fact of interest in receiving information. The subject, having familiarized himself with the subject of the scheduled meeting, notifies the authority of his intention to attend as a listener. Notification is carried out by sending an appeal. The authority has the right to refuse to be present if there are grounds established in legal acts. As law enforcement practice shows, authorities often abuse their right. The reason for this is the incompleteness of legislative regulation and excessive independence in the substantive development of the right to attend meetings of collegial authorities. In this regard, the chosen topic for the study seems relevant.

The purpose of this work is to form a systematic scientific and practical understanding of the state of normative consolidation of the right of citizens to attend meetings of collegial authorities.

The main text.

The presence of citizens at meetings of collegial authorities, as a way to ensure access to information about the activities of government bodies, is regulated by a number of regulatory legal acts. The basic law is Federal Law No. 8-FZ dated February 09, 2009 "On Ensuring access to information on the activities of State Bodies and local Self-government bodies". Paragraphs 1 and 3 of Article 4 of this law refer to the principles of achieving transparency of the public administration apparatus as openness and accessibility of information about its activities, as well as freedom of action in relation to this information (search, receipt, transmission, dissemination). According to paragraph 3 of article 8, users of information have the right not to substantiate the reason for the interest in certain information that is at the disposal of an authority and (or) directly affects their rights and freedoms. The guarantee of access to information about the activities of the authorities is the possibility of further pre-trial or judicial appeal against acts or actions (inactions) of the authorities and their officials. This is stated in paragraph 4 of article 8 of the above-mentioned law.

The procedure and rules for the presence of citizens at meetings of collegial authorities are developed by the authorities themselves, taking into account their specifics and peculiarities of functioning. Decisions are clothed in a certain form (regulations, rules, etc.), meet all the signs of normativity. The range of issues detailed in such solutions is similar. The practice of lawmaking testifies to the description of the process of notifying the authority of the intention to attend the meeting and the grounds excluding attendance.

The intention to attend the meeting is expressed by submitting an appeal. For this purpose, time limits are provided, calculated from the moment of publication on the official website of the authority on the Internet of the date, time, place and topic of the meeting. According to paragraph 9 of Part 1 of Article 13 of Federal Law No. 8-FZ dated February 09, 2009 "On Ensuring access to information on the activities of State Bodies and local Self-government bodies", information about upcoming meetings is subject to mandatory posting on the official website of the authority. Such information is socially significant ^{[1, p. 171]} due to its ability to promote the realization of rights, freedoms and legitimate interests.

The grounds excluding the possibility of citizens' presence at meetings are designed to ensure normal work, order in the meeting room and the safety of confidential information. The following situations are usually an obstacle: the absence of an identity document (confirming authority); previously committed violations of public order; lack of free places to accommodate in the meeting room; the announcement of restricted access information is planned at the meeting. Other grounds are less common. For example, from the analysis of regulatory legal acts of local governments located on the territory of the Sverdlovsk region, it follows that violation of the ban on photographing, audio and video filming in the meeting room entails a subsequent ban on being present in the meeting room. We also paid attention to the number of places equipped for interested persons. It varies from 2 to 25 places. If the number of interested persons exceeds the number of equipped places, the placement takes place in turn according to the date and time of receipt of the request. Thus, there is a permissive procedure for the presence of citizens at meetings of collegial authorities.

Among the specified grounds excluding the possibility of citizens' presence at meetings, a lot of disputes give rise to refusal due to the discussion of issues containing limited access information planned on the agenda of the meeting. It is not a new judgment that not all information is suitable for dissemination among the general public. The confidentiality of some information, N. Y. Korchenkova emphasizes, is explained by security considerations of the state and society ^{[3, p. 35]}. The circulation of metered information and citizens' trust in government institutions is a challenge for modern democracy ^{[4, pp. 1, 3; 5, pp. 5-6]}. The balance is laid down in Federal Law No. 149-FZ dated July 27, 2006 "On Information, Information Technologies and Information Protection". They introduce categories of information outlining the scope of its turnover. Thus, part 2 of Article 5 stipulates that, depending on access, information is divided into publicly available and restricted access. The object of initiative actions is the first one. A citizen's claim to publicly available information, otherwise unclassified information about the activities of an authority, should be perceived as a legitimate demand. Meanwhile, the list of issues on the agenda of the meeting may be mixed, located in the area of each category. Then the course of the meeting is thought out to give the audience the opportunity to attend the open part. The conclusion follows from the provisions of paragraph 3 of Article 11 of Federal Law No. 8-FZ dated February 09, 2009 "On Ensuring access to information on the activities of State Bodies and local Self-government bodies". In fact, citizens are experiencing difficulties with permission to attend meetings of government bodies.

The method of providing access to information about the activities of government bodies that we are investigating is not supported by the authorities themselves ^{[6, p. 19]}. Excessive independence in the substantive development of the right to attend meetings forms the basis for its violation ^{[7, p. 97]}. The federal legislator only declares this right, fixing the regulatory and organizational conditions for meeting the requirements of citizens to attend meetings in order to obtain information. The specification of procedural points is carried out individually by the collegial authority by issuing a subordinate (municipal) act.

In the legal literature, by-laws and municipal acts are recognized as public acts that affect public relations ^{[8, pp. 77-78]}. Municipal acts issued on the basis of prescriptions of laws have all the properties of by-laws ^{[9, pp. 11-12; 10, p. 38]}. M. A. Krasnov writes that by-law acts cannot intrude into the material content of law. Such acts establish the procedure, terms and conditions for the acquisition or protection of a specific social good ^{[11, p. 85]}. S. E. Nesmeyanova, N. E. Kolobaeva and A. A. Petrov think in the same plane. By-laws, according to researchers, are not excluded from the regulation of rights and freedoms, but their restriction is carried out in the form of a federal law ^{[12, p. 11; 13, p. 65]}. The position of G. M. Sukhodolsky is interesting, also pointing to the secondary nature of by-laws. In his understanding, the publication of by–laws is a form of interaction of elements of the public authority system for the implementation of a legislative function ^{[14, p. 205; 15, p. 67]}. The polar point of view is seen in the works of K. V. Davydov and S. B. Pashenko. Depending on the consequences for the subjects of law, scientists classify by-laws into positive and negative ones. The positive ones improve the situation of legal entities, while the opposite ones are aimed at limiting the right, assigning responsibilities ^{[8, p. 79; 16, p. 52]}.

In our opinion, acts of subordinate law-making should functionally continue the thought of the legislator. That is, to give a detailed answer: how and under what conditions are the prescriptions of the norms of the laws implemented? In addition, by-laws cannot contradict higher-level acts and include theses restricting rights and freedoms. But the incompleteness of legislative regulation leads to a deviation from the doctrinal approach to structuring the sources of law, in fact, to the violation of general legal principles. As a result, there are contradictory approaches in the subordinate regulation of homogeneous social relations ^{[17, p. 35; 18, p. 120]}. Which, by the way, is evident from the example of public relations regarding the exercise by citizens of the right to attend meetings of collegial authorities. Judicial practice confirms this.

Thus, a citizen appealed to the court with an administrative statement of claim for invalidation of a number of provisions of municipal regulatory legal acts defining the procedure and conditions for the presence of individuals at meetings of the representative body of the municipality. In particular, it was documented that citizens who expressed a desire to attend the meeting by submitting an application addressed to the head of the collegial authority were allowed to replace being in the meeting room with providing an opportunity to observe the course of the event in real time on a display device (monitoring monitor) in the local administration building. The Rules of Procedure made the right of citizens to attend meetings at all dependent on the discretion of the head of the collegial authority. The text of the judicial act contains a reference to the norms granting it the exclusive right to invite citizens, including representatives of organizations, to open meetings. By a court decision, the contested provisions were declared invalid from the date of their entry into force due to the evidence of the fact that they unreasonably limited the ability of citizens to attend meetings of the representative body of the municipality directly in the meeting room. It is also concluded that the chosen approach to regulation also restricts a related right – the right to law-making initiative (Decision of the Moscow Regional Court of November 01, 2018 in case No. 3a-764/2018). The Court of Appeal, having studied the defendant's complaint, found no grounds for revoking or changing the decision (Appeal Ruling of the Judicial Board for Administrative Cases of the Supreme Court of the Russian Federation dated June 05, 2019 No. 4-APA19-9).

Next is the following example. The representative body of local self-government decided to hold an extraordinary meeting. The agenda consisted of several issues: on the approval of municipal acts; on the payment of incentives to the head of a municipality; on the application of liability measures to an elected official for a corruption offense. The inclusion of the last two issues in the agenda predetermined the holding of a closed meeting out of the need to protect the personal data of persons holding municipal positions. The change in the form of the meeting entailed the removal from the hall of a citizen who had previously expressed his intention to attend. Considering his right violated, he applied to the court for its restoration. The court of first instance refused to satisfy the claims. The decision was justified by the fact that the current legislation provides for the possibility of holding open and closed meetings. The order of attendance at meetings, the decision on the form of holding refers to the powers of the authorities (Decision of the Zapadnodvinsk Interdistrict Court of the Tver Region dated December 28, 2022 in case No. 2a-285/2022). The Court of Appeal did not agree with these arguments. The definition emphasizes that the decision to hold a closed meeting prevents the implementation of the principle of information openness and a more general principle – the constitutional principle of transparency. After all, in addition to the information that constitutes a secret protected by federal law, the agenda included items that did not imply the need to narrow the circle of persons when discussing them. That is, in a closed session, according to the court, only part of the issues from the previously planned ones should have been discussed (the appeal ruling of the Judicial Board for Administrative Cases of the Tver Regional Court dated March 15, 2023 in case No. 2a-285/2022).

The last example. The court received an administrative statement of claim for recognition of the provision of the rules of procedure of the representative body of the municipality, which allows deputies to arbitrarily postpone the discussion of an issue on the agenda to a closed meeting of the committee. This is directly indicated by the wording of the contested provision: "... certain issues on the agenda of the meeting may be closed by decision of the majority of deputies present at the meeting of the committee." Based on the literal meaning of the norms of legislation in the field of ensuring the information openness of authorities, the court concluded that the above-mentioned wording actually expands the list of information access to which is limited on the basis of their confidentiality by federal law. Thus, the defendant unreasonably expanded the boundaries of his competence, created legal uncertainty and, as a result, created prerequisites for violation of the right to information. As a result, the court declared the contested provision of the regulations invalid (Decision of the Court of Khanty-Mansiysk Autonomous Okrug – Yugra dated April 12, 2023 in case No. 3a-17/2023). The second instance upheld the decision (Appeal ruling of the Judicial Board for Administrative Cases of the Second Court of Appeal of General Jurisdiction dated July 20, 2023 in case No. 66a-693/2023). Cases with similar circumstances were considered in other courts of general jurisdiction. For example, the prosecutor stated the requirement to invalidate the provision of the rules of procedure of the representative body of the municipality, which establishes the conditions and procedure for holding closed meetings. In particular, it was stipulated that closed meetings are held in cases described in federal laws and by decision of an authority to discuss certain issues, including confidential ones. The courts supported the requirements (the Decision of the Smolensk Regional Court of June 09, 2022 in case No. 3a-63/2022 and the Appellate Ruling of the Judicial Board for Administrative Cases of the First Court of Appeal of General Jurisdiction of September 22, 2022 in case No. 66a-2774/2022).

In examples of law enforcement practice, the courts took into account the legal positions of the Constitutional Court of the Russian Federation on resolving conflicts when setting limits on the exercise of rights and freedoms. Thus, in a number of decisions of the constitutional control body, the idea of accessibility of any information was traced, but with a reservation: if a special legal status of the relevant information is not provided (Ruling of the Constitutional Court of the Russian Federation No. 173-O of May 12, 2003 and Ruling of the Constitutional Court of the Russian Federation No. 3-O of January 29, 2009). A special legal status establishes differences in the turnover of information in order to achieve a reasonable balance of constitutionally protected values in conjunction with the public interests set out in Part 3 of Article 55 of the Constitution of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation dated February 18, 2000 No. 3-P). Seizures are formalized by federal law, and their content should not lead to disproportionate restriction of the rights and freedoms of information users by the state (Resolution of the Constitutional Court of the Russian Federation No. 8-P of March 27, 1996). It should also be borne in mind that the legislator, having extended a special legal status to certain information, should avoid creating irreparable obstacles in familiarizing persons with them whose rights and freedoms are affected by them (Resolution of the Constitutional Court of the Russian Federation No. 1-P of January 13, 2020). The conditions and procedure for access to information restricted in circulation, based on the general legal criterion of certainty, clarity and unambiguity, should be clearly regulated (Resolution of the Constitutional Court of the Russian Federation No. 31-P of November 22, 2017).

The analysis of judicial practice has revealed typical shortcomings of the legal regulation of public relations regarding the exercise by citizens of the right to attend meetings of collegial authorities. In the array of court decisions, it is found that often the subjects of law-making, issuing acts in compliance with Article 15 of Federal Law No. 8-FZ dated February 09, 2009 "On ensuring access to information on the activities of state bodies and local governments", go beyond their competence. This projects going beyond the scope of the subject of regulation of the legal act. For example, the assignment by local governments of the authority to expand the list of information classified as restricted access. In the fair opinion of A.V. Bleshik, such norms are drawn up with technical and legal violations ^{[19, p. 109]}. There are defective and unclassified prescriptions with a significant degree of discretion in determining the circumstances that prevent citizens from attending meetings of collegial authorities. The availability of options for interpreting the norms of restrictions allows the law enforcement officer in a particular case to show his will when recognizing an individual as a listener. Inaccuracy and ambiguity predetermine an individual approach to evaluating users of information. Such regulation contradicts the principle of information openness in the activities of government bodies, as an integral part of the constitutional principle of transparency. It is also worth quoting I. P. Kozhokar's point of view that negative abstraction contradicts the constitutional principle of the rule of law due to the inevitable difficulties in the uniform perception and application of legal norms and generally reduces the quality of regulation ^{[20, pp. 218-222]}. Therefore, it is not necessary to talk about the uncertainty of legal norms as a positive property of law, which allows taking into account the dynamics of the development of public relations ^{[21, p. 36]} regarding the openness and transparency of public management activities.

G. Z. Javakian's position on the influence of the principle of reasonable restraint on the certainty of law deserves attention. The scientist sees among the various directions of action of this initial principle the promotion of stability of legal regulation and unity of law enforcement ^{[22, pp. 118-119]}. Being an instrument of self-restraint of power in order to achieve balanced functioning, the principle directs the actions (inaction) of the bodies embodying it in the direction of proportionality ^{[22, pp. 15, 119]}. First of all, M. V. Presnyakov notes, we are talking about the adequacy of restrictions on rights and freedoms ^{[23, p. 4]}. In a concise way, the indicators of the so-called "adequacy" are presented in part 3 of Article 55 of the Constitution of the Russian Federation ^{[24, pp. 42-43]}. Hence, obstacles to obtaining information at meetings of collegial authorities can be considered proportionate if they pursue constitutionally significant goals listed in the specified provision of the Basic Law of the Russian Federation. When constructing restrictions on subjective law, contradictions between constitutional and sectoral norms should be avoided, and those that have already arisen should be promptly eliminated in order to eliminate dissonance in the system of regulation of the right to information. As A.V. Savoskin noted in his dissertation research on related law – the right to appeal, improper conditions for the implementation of subjective constitutional law deprive the general regulatory legal relationship formed by him of meaning, which opens the way to abuse ^{[25, p. 116]}.

Conclusion.

The presence of citizens at meetings of collegial authorities is regulated mainly at the subordinate level. The legislator provided only basic, declarative norms. In their development, the authorities independently, taking into account their specifics and peculiarities of functioning, develop the procedure and rules for the presence of citizens at meetings.  As a result, contradictory approaches have developed in regulating the studied social relations. The established law-making practice reflects differences in the presentation of the process of notification by citizens of the authority of their intention to attend the meeting and the grounds excluding attendance. Law enforcement practice indicates massive violations of the right to attend meetings of government bodies. It is obvious that the current legislation requires changes. As measures to improve it, we propose: firstly, to indicate the timing of informing citizens about the meeting appointed by the authority and the sources with which it is necessary to inform, as well as the deadline for contacting the authority about the intention to attend the meeting; secondly, to fix the inadmissibility of including issues containing information in the agenda of one meeting open and restricted access; thirdly, to unify the grounds that exclude the possibility of attending meetings of government bodies. These measures will have a positive impact on the regulation of public relations related to the exercise of the right to attend meetings of collegial authorities.