Access to information cannot be restricted unless the public authorities justify a serious threat to public security or protection of citizens

On 22 June 2015, the Constitutional Court of Moldova delivered its judgment on the interpretation of Article 34.3 of the Constitution on the limits of restriction of the right of access to information (Complaint no. 23b / 2015).

 Circumstances of the case

 The case originated in a complaint lodged with the Constitutional Court by MPs Mihai Ghimpu and Valeriu Munteanu.

Under Art. 34.1 and 34.2 of the Constitution, the right of a person to have access to any kind of information of public interest shall not be curtailed. Public authorities, according to their assigned competences, shall be committed to ensure that citizens are correctly informed both on public affairs and issues of personal interest. At the same time, under Art. 34.3 of the Constitution, the right of access to information shall not prejudice neither the measures taken to protect the citizens nor the national security.

 The authors of the complaint requested the interpretation of the constitutional provision in order to elucidate the conditions of classifying information where it refers to „measures taken to protect the citizens” and „national security.”

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case-files, the Court held that under Article 34.1 of the Constitution, the right of a person to have access to any kind of information of public interest shall not be curtailed. The right of access to information is a precondition for the exercise of other political, economic, social and cultural rights.

At the same time, under Art. 34.3 of the Constitution, the right of access to information shall not prejudice neither the measures taken to protect the citizens nor the national security.

The Court noted that access to information may be restricted in case it concerns measures meant to protect citizens and ensure public security.

At the same time, in the context of the measures "to protect the citizens" and "national security" the Court held that the restriction of the right of access to information must observe:

(1) the condition of a real and justified purpose for the protection of a legitimate interest regarding the protection of the citizens or national security;

(2) the condition that the public interest of finding the information does not prevail; 

Also, the Court noted that any restriction to access to information must be legally provided and necessary in a democratic society for the protection of a legitimate interest. The justification of a legitimate interest is founded on the seriousness of prejudice thereto in case of publication of certain information.

Public authorities must prove that the disclosure of information would seriously threaten the protection of citizens or national security.

Additionally, the Court underscored that, upon the request of any person concerned, the decision to restrict access to information shall be subject, depending upon the category of the act, to constitutional or judicial review, by checking all the aforementioned conditions which determined the restriction.

Judgment of the Court

Examining the case-files, the Court ruled:

1. For the purposes of Article 34.3 of the Constitution:

- The restriction of the right of access to information may occur only when it is based on a real and justified purpose for safeguarding a legitimate interest regarding the protection of citizens or national security, and the public interest of finding the information does not prevail;

- Any restriction to access to information, including the categories of specific information which cannot be revealed for the purposes of protecting citizens or ensuring national security must be provided for by the law and necessary in a democratic society for the protection of a legitimate interest;

- The justification of the legitimate interest is founded on the seriousness of prejudice thereto in case of publication of certain information, the public authorities being under the duty to prove that the disclosure of information would seriously threaten the protection of citizens or national security.

2. The Constitutional Court will decide judiciously in cases of restriction of access to information by the acts of the Parliament, the President of the Republic of Moldova and by Government’s acts, in line with the requirements of paragraph 1 of the operative part of this Judgment.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.