The right to access information: balancing public and private interests

Rukoleev Vitalii Aleksandrovich ORCID: 0000-0002-6879-9192 Assistant; Department of Constitutional and International Law; Ural State University of Economics 45 Narodnaya Volya str., room 750, Sverdlovsk region, Yekaterinburg, 620144, Russia v.a.rukoleev@bk.ru Other publications by this author

Zadorina Mariya Andreevna ORCID: 0000-0002-2531-8475 PhD in Law Associate Professor; Department of Constitutional and International Law; Ural State University of Economics 45 Narodnaya Volya str., office 750, Sverdlovsk region, Yekaterinburg, 620144, Russia zadorina@bk.ru

Introduction.

In the science of constitutional law, a position has been repeatedly expressed on the complex nature of some constitutional rights, as a result of which separate rights are distinguished in their composition – elements of complex constitutional law ^{[1, p. 149; 2, p. 9]}. This approach is also applied to the right to information, which includes the right to access to information and the right to on awareness ^{[3, p. 148]}. This division is not conditional. Each of these rights has its own form of claim to information. The right to access information is characterized by an active form. An individual initiates a legal relationship by drafting and submitting a procedural document to a public authority (official). This may be, for example, an application for the provision of a state (municipal) service, a request for information, or an application for attendance at a meeting of a collegial authority. As for the right to be informed, the initiator of the dissemination of information is the public authority itself. We are talking about socially significant information, which a public authority is obliged to disseminate by virtue of the prescriptions of regulatory legal acts.

This study is not devoted to the right to information as a whole, but to its separate element (or sub–rule) - the right to access information. It will be revealed through the prism of a balance of public and private interests. Considering that the issue of combining public and private interests has not been unambiguously resolved in legal science ^{[4, p. 55; 5, p. 290; 6, p. 43]}, the selected topic is of special scientific interest. The problem of disproportionate restriction of the right to access to information, observed in law enforcement practice, gives great relevance to the study. Over the past few years, the analysis of such law enforcement practice has been repeatedly reflected in the works of legal scholars ^{[7, pp. 131-146; 8, pp. 197-207; 9, pp. 110-120]}. At the same time, in the context of the aggravation of the international political situation, the issue of the realization of the right to access to information, taking into account the balance of public and private interests, becomes especially relevant.

The subject and methods of research.

The subject of the study is the judicial practice of the Constitutional Court of the Russian Federation related to the application of legislation on the right to access to information, the norms of the Constitution of the Russian Federation and other normative legal acts regulating legal relations related to the realization of the right to access to information, as well as the works of domestic legal scholars.

The methodological basis of the research was made up of general scientific methods, and from among the special legal methods - the formal legal method. Among the general scientific methods, the work used general logical methods of cognition (analysis, synthesis, induction, deduction, generalization), as well as a structural and functional method that allowed reflecting the structure of the right to access information and consistently revealing each element.

The results of the study and their discussion.

The right to access information occupies a key place in the system of fundamental rights and freedoms. This situation dictates the relationship with other rights and freedoms. The studied right is closely correlated, for example, with the right to appeal ^{[10, p. 109]}, the right to judicial protection ^{[11, p. 118-119]}, the right to receive qualified legal assistance ^{[12, p. 59]}. With the development of technology and scientific progress, the right to access information is undergoing an evolution. Digitalization processes lead to the emergence of new rights ^{[13, p. 21]}, such as the right to access the Internet. At the same time, some legal scholars perceive it as independent and refer to "unwritten" constitutional rights ^{[9, p. 72, 133]}, while others write about its "synthetic" origin (meaning that it is derived from fundamental rights and freedoms) ^{[14, p. 153]}, consider it in the context of law the right to information ^{[15, pp. 80-81]} or the right to access information ^{[16, p. 15]}. Without going into the ongoing disputes about the nature and place of the right to access the Internet in the system of rights and freedoms, it should be recognized that the right to access information is realized for the most part through the Internet ^{[17, p. 43]}. This method of searching and obtaining information, as scientists note, is very in demand when the subject satisfies interest in various information through the use of social networks ^{[18, pp. 43-44]}. At the same time, regardless of the specific ways of searching and obtaining information, the problem of disproportionate restrictions on the right of access to information is quite acute.

E. V. Talapina, reflecting in her scientific work on the development of human rights with the advent of digital technologies, outlined the existing gap between Article 2 of the Constitution of the Russian Federation and law enforcement practice ^{[19, p. 129]}. The right to access information under Russian law is a subjective right. It, like any subjective right, arises upon the occurrence of legally significant circumstances provided for by a legal norm ^{[20, p. 49]}. Primarily, a legally significant circumstance is understood as the expression of an individual's will. A.V. Savoskin reveals the will of an individual through a combination of internal and external components. The first one covers the mental processes of a person's awareness of the need to receive benefits. The external component is represented by the actions of a person to verbally express the content of the expression of will and directly submit it to the addressee ^{[10, p. 384]}. The legal obligation to provide the requested benefit by the responsible person corresponds to the order of the person. This is stated in the provisions of Federal Law No. 149-FZ dated July 27, 2006 "On Information, Information Technologies and Information Protection". In accordance with articles 8 and 9, the right of access to information implies the free exercise of searching and obtaining any open information. Information, the circulation of which may harm the public interests named in part 3 of Article 55 of the Constitution of the Russian Federation, is provided to a certain circle of persons in accordance with the procedure established by regulatory acts. The expression of a person's will, which contains a requirement to provide the information of interest (the opportunity to get acquainted with the information of interest), obliges the owner of the information to respond appropriately. The response to a person's request is given by sending the information of interest in the form of a message about the availability of the opportunity to get acquainted with the information of interest or a reasoned refusal to do so. According to part 6 of Article 8 of the above-mentioned federal law, a person has the right to appeal the refusal of the information holder to a higher authority (official) or to a court. Law enforcement practice knows many cases of violation of the right of access to information by unlawful decisions of information holders. In particular, an analysis of such law enforcement practice is given in the works of N. E. Kolobaeva ^{[7, pp. 131-146]}, I. Y. Pashchenko ^{[8, pp. 197-207]}, A. I. Khusnutdinov ^{[9, pp. 110-120]}. The researchers pointed out that the reason for the violations was the divergence of public and private interests. The basic views on their constructive correlation are reflected in the decisions of the Constitutional Court of the Russian Federation.

The issues of correlation of public and private interests have been explained many times in the judicial practice of the Constitutional Court of the Russian Federation. So, as an example, let's give Resolution No. 3-P of February 18, 2000. It follows from the text of the act that the citizen appealed to the court of higher instance with a complaint about the unconstitutionality of paragraph 2 of Article 5 of Federal Law No. 2202-1 dated January 17, 1992 "On the Prosecutor's Office of the Russian Federation". In this provision, as amended on November 17, 1995, it was stated that employees of the prosecutor's office had no obligation to provide information on cases and materials in their production. On the one hand, taking into account the discourse about the place of the prosecutor's office in the system of public authorities, here we mean a kind of guarantee of the independence of the structure under discussion, and on the other hand, there is a norm for the implementation of the right to access information affecting rights, freedoms and legitimate interests at the discretion of the law enforcement officer. Hence, the satisfaction of the need to obtain the requested information is made dependent on the discretion of the prosecutor's office. Thus, in the opinion of the Court, the prerequisites for encroachments on the essence of the said right have been created. The legislator, contrary to the prescription of part 2 of Article 24 of the Constitution of the Russian Federation, allowed the possibility of a general restriction of the right to access information affecting rights, freedoms and legitimate interests. Paragraph 2 of Article 5 of the Federal Law "On the Prosecutor's Office of the Russian Federation" was found not to comply with the Basic Law. In order to avoid such situations in the future, the Court formulated a legal position: "The grounds for such restrictions can be established by law only as an exception to the general permission ... and should be related specifically to the content of information ...".

According to the above-mentioned legal position of the Constitutional Court of the Russian Federation, the right to access information affecting rights, freedoms and legitimate interests is a relative right. It is implemented not directly, but through law enforcement ^{[21, p. 67; 22, p. 55]}. That is, a person applies to a public authority (to an official) with a request to provide information of interest to him. The owner of the information considers the application, adopts an individual legal act on the provision of information or on the refusal to provide it. When resolving the issue, the connection of information with the addressee and the possibility of making it public are taken into account. However, the criterion of communication with the addressee is decisive. The Constitutional Court of the Russian Federation has repeatedly focused attention on this. Thus, Resolution No. 15-P of June 16, 2015 describes a case of failure to provide a citizen with information about the fact of adoption and registration of the birth of her deceased father. The courts of general jurisdiction referred to Article 139 of the Family Code of the Russian Federation, the meaning of which was interpreted literally. Refusing to satisfy the claims, the citizen was explained that the secret of adoption is not subject to disclosure even after the death of the adopted (father) and adoptive parents (grandparents). In fact, it implies an indefinite ban on the disclosure of confidential information. The Court gave an excellent performance. As emphasized in the decision, the legislator links the disclosure of information about the adoption of a child only with the will of the adoptive parents. And after their death, consent cannot be obtained. It turns out, the Court states, that there is preferential protection of the secret of adoption over the right to know about one's origin and the origin of one's parents. This creates conditions for violating the "balance of rights and obligations of all participants in a complex system of legal relations."

Another example. Resolution No. 32-P of November 23, 2017 refers to the failure to provide a person with a copy of the materials of the procedural checks carried out at his request and the decision to refuse to initiate criminal proceedings. The reason for this was the unreformed access to state secrets. The citizen considered the actions of law enforcement agencies to be unlawful, since all documents adopted following the results of verification measures affect his interests. The courts of general jurisdiction did not accept his arguments. What not to say about the Constitutional Court of the Russian Federation. He noted the infringement of a person's right to judicial protection due to the deprivation of the opportunity to get acquainted with the results of checking a crime report. After all, the subsequent appeal of decisions already made is difficult because of the information vacuum created. A person is unable to defend his point of view before the court, to challenge the arguments of the participants in the criminal process. In order to normalize public relations in this area, the Court stated the position on the appropriateness of protecting state secrets by other means, without always resorting to the general procedure for admission to state secrets. Such a means is seen as a warning about the non-disclosure of state secrets, which became known as a result of familiarization with the materials of inspections and various procedural acts, about which a corresponding receipt is taken.

In the examples from the practice of the Constitutional Court of the Russian Federation, there was a justification for the outcome of the resolution of the case by the need to maintain a balance of public and private interests. Meanwhile, there are widespread discussions on the definition of the concept of "balance of interests" on the pages of the legal literature. The abstract meaning of legal positions derived using this concept contributes to pluralism ^{[4, p. 59]}. In particular, Yu. N. Andreev understands the balance of interests as the balance of competing interests of subjects of law, which is achieved voluntarily or forcibly. In other words, by agreement of the parties or by coercion of public authorities ^{[23, p. 32]}. S. V. Shigapova reveals the balance of interests through a combination of the principles of proportionality and proportionality ^{[24, p. 169-170]}. The harmonious development of the individual, society and the state depends on the implementation of these principles ^{[24, p. 176]}. In the scientific works of O. V. Sokolova and N. A. Taraban, the concept of "balance of interests" is presented as a compromise of value priorities leading to a regime of protection of the legitimate rights and interests of subjects ^{[4, p. 59; 25, p. 51]}. Researcher T. T. Aliyev, reflecting on this topic, offered his interesting vision. He pointed out that the category of "interest" forms legal regulation, but the balance of interests is a positive correlation of individual and collective interests. At the same time, the protection or restoration of the position of subjects of law is guaranteed by justice ^{[26, p. 63]}.

The aspect related to the relationship between the concepts of "balance of interests" and "constitutional values" deserves special attention. In scientific research, constitutional values are understood as ideas, phenomena or socially significant circumstances enshrined in the constitutional text (identified as a result of constitutional interpretation), acting as a guideline for the construction of current legislation ^{[27, p. 47; 28, p. 76; 29, p. 66]}. According to E. I. Devitsky, constitutional values and the balance of interests are united by a single meaning. Both of them project a fair state in legal regulation, which is achieved by the legislator and law enforcement officers ^{[30, pp. 51-52]}. It is difficult to agree with this position. The point of view of Y. A. Rudt and S. E. Nesmeyanova seems to be the most convincing. In particular, Y. A. Rudt declares the unacceptability of identifying the concepts under discussion ^{[27, p. 28]}. In her opinion, constitutional values are revealed through the prism of a balance of interests by weighing conflicting constitutional rights, principles, and goals. At the same time, the balance of interests is only one of the areas of consideration of constitutional values ^{[27, p. 52; 31, p. 77-78]}. A similar position is taken by S. E. Nesmeyanova, who also distinguishes between the concepts of "balance of interests" and "constitutional values". The professor believes that interests (public and private) are the basis for the classification of constitutional values, and balance is a proper assessment of values when determining higher priorities ^{[32, p. 73]}. It seems to us that it is hardly possible to talk about the balance of interests in isolation from constitutional values. Each constitutional value, being a model of proper (lawful) behavior, manifests itself in the implementation of the balance of public and private interests. Thus, a combination of prescribed and law enforcement is seen.

I think the balance of interests is the coexistence of different interests on an equal basis with each other. Any conflicts are resolved on a constructive and objective basis, and the likelihood of their recurrence is eliminated with the help of law. Of course, our and similar views embody an ideal that is not adapted to current realities. The bias hidden in the body of legislation is officially confirmed as such, often when considering a specific dispute in a higher court. The analogy with obstacles to the realization of the right to access information affecting rights, freedoms and legitimate interests is indicative. Although it is relative, nevertheless, in the context of the positions of the Constitutional Court of the Russian Federation, it anticipates the realization of other rights and freedoms. A. A. Yugov calls the desire to obtain information about himself the initial stage of the realization of some rights and freedoms ^{[33, p. 4]}. A person acquires information and initiates a legal relationship, which will mark the transition to the organizational stage, and in the future, to the legal realization ^{[33, p. 4-5]}. First of all, the arguments concern a set of rights to protection. Indeed, according to A.V. Malko, the essence of the right to access information affecting rights, freedoms and legitimate interests is to promote and enhance the legal protection of the individual ^{[34, p. 19]}.

The restriction of the right of access to information affecting rights, freedoms and legitimate interests needs a sufficiently strong justification, echoing the achieved normative consolidation. The concept of justification should be based on the correct prioritization. In this regard, the failure to provide information is justified by large undesirable consequences for both collective and individual interests. The assessment for the intersection of the designated line involves a thorough study of the situation. As an example, here is a very ambiguous case from the practice of the Constitutional Court of the Russian Federation. Resolution No. 2-P of January 18, 2024 clearly resolves the conflict of interests of a citizen in obtaining information about his minor child and the interests of society regarding the preservation of inviolability and privacy. As follows from the court decision, the father secretly installed parental control software on his seven-year-old son's mobile phone. Using the app, he remotely listened to the conversations of his son, the ex–wife, the child's mother, her sisters and the mother living in the same room. The purpose of the invasion of the privacy of individuals was the desire to protect the child from the destructive influence of the mother, to ensure the safety of the minor. The court of general jurisdiction found in the actions of a citizen signs of a crime under part 1 of Article 137 of the Criminal Code of the Russian Federation. The good intentions expressed in an attempt to protect the child, without direct intent in collecting information about the private life of the persons living with him, are ignored. The motive for the commission of the crime, the type of intent (direct or indirect) are not important for the qualification of the act. The polar position was formulated by the Constitutional Court of the Russian Federation. In the course of interpreting the norms of law, he concluded that the use of software for parental control does not constitute a crime. The rule applies even if the person has become aware of information about the private lives of others. The application records and transmits everything that happens around the child. Of course, this cannot but affect the rights and legitimate interests of others. The confidentiality of information made available through the use of the software is guaranteed by limiting its transmission, including mechanisms of legal liability. Thus, the Court took into account the balance of the right to inviolability and privacy and parental rights (duties) to ensure the safety of the child. The model of a citizen's behavior in searching for and obtaining information was recognized by the Court not so much as legitimate, as motivated.

An analysis of the practice of the Constitutional Court of the Russian Federation proves the thesis put forward that the expression of a person's will, containing a requirement to provide information directly related to him (or the opportunity to get acquainted with information directly related to him), obliges a public authority to respond appropriately. The restriction of the right of access to information affecting rights, freedoms and legitimate interests is carried out taking into account the balance of public and private interests. The restrictions imposed on information transform it into the category of confidential, as a result of which a person faces difficulties in exercising a number of rights and satisfying legitimate interests. Therefore, it is excessive to take the characterization of some properties of the relativity of the right to access information affecting rights, freedoms and legitimate interests literally. The opposite statement is about the subjective right of access to open information.

The right to access to open information was first argued in the work of V. N. Monakhov. It is part of the right to access information. Due to it, information circulating among the general public acquires the property of completeness ^{[35, pp. 61-62]}. Any non-confidential information that has not been publicly disclosed may be requested by sending a request for information to a public authority (official). It is allowed to get acquainted with the necessary information in the meeting room of collegial authorities and judicial authorities. Information, one way or another, becomes known within the framework of relations for the provision of state (municipal) services, consideration of citizens' appeals. The variety of ways to obtain information, as noted in the ruling of the Constitutional Court of the Russian Federation dated December 08, 2011 No. 1624-O-O, corresponds to the concept of pluralistic democracy.

The value of the mentioned system of views is the reliability of outgoing information. M. B. Napso very succinctly reflected the specifics of this property. Other properties (safety, relevance, integrity), in his opinion, are due to the level of reliability of information ^{[36, p. 122]}. A.V. Minbaleev proposed a more expansive, variable understanding. The reliability of information is embodied as an independent subjective right, or a component of the constitutional right to information, or a legislative requirement ^{[37, pp. 23-24]}. Regarding the latter, the scientist draws attention to the task facing the legislator to regulate the parameters of information reliability ^{[37, p. 24]}. E. N. Balashova and O. V. Petrovskaya are convinced that reliable information means accurate information that does not contradict objective reality ^{[38, p. 40; 39, p. 95-96]}. R. V. Amelin's point of view is interesting. The researcher draws a parallel between reliable and official information. If the addressee of the information is a public authority (or a subordinate organization), reliability is presumed. The message of the development of categories along the way of establishing a correlation relationship between them is noticeable: official information is reliable ^{[40, pp. 460-461]}. Thus, the information coming from public authorities is reliable. In Ruling No. 2411-O dated October 29, 2020, the Constitutional Court of the Russian Federation commented that the current legal regulation does not allow authorities to send false information.

The restriction of the right to access to open information is inferior in negative consequences for the individual to a related right – the right to access information affecting rights, freedoms and legitimate interests. The desire to obtain information in connection with the desire to fill in the lack of information in a certain area, to expand the boundaries of knowledge is a welcome intention. However, it is not comparable to the same activity as for ensuring the realization and protection of rights and freedoms. Nevertheless, restrictions on this right should equally be oriented towards taking into account the balance of interests. The rulings of the Constitutional Court of the Russian Federation No. 173-O dated May 12, 2003 and No. 3-O dated January 29, 2009 set out the argument about the availability of any information except information with a special legal status. Exceptions from a significant layer of heterogeneous information are established for the benefit of constitutionally significant values in conjunction with public interests, which are listed in Part 3 of Article 55 of the Constitution of the Russian Federation (definition No. 1708-O dated July 23, 2020). According to the stable legal position of the Court, such exemptions are formalized by federal law and should not lead to disproportionate restriction of the rights and freedoms of information users by the state (Resolutions No. 8-P of March 27, 1996, No. 3-P of February 18, 2000 and Definition No. 699-O of March 24, 2015). In Resolution No. 1-P of January 13, 2020, the legislator is instructed, after the introduction of a special legal status with respect to certain information, to avoid irremediable obstacles in familiarizing persons with them whose rights and freedoms are affected by them. The conditions and procedure for access to confidential information, based on the criteria of certainty, clarity and unambiguity, should be clearly regulated (Resolution No. 31-P of November 22, 2017).

Conclusion.

The above suggests that the right to access information is a relative right. However, it is excessive to take this characteristic literally. The right of access to information affecting rights, freedoms and legitimate interests, being an element of the right of access to information, in the context of the positions of the Constitutional Court of the Russian Federation anticipates the realization of other rights and freedoms. The restriction of this right is possible as an exceptional measure, taking into account the balance of public and private interests. Another thing is with a related right – the right to access public information. Its restriction entails fewer negative consequences for the person. Nevertheless, restrictions on this right should equally be focused on taking into account the balance of public and private interests.