Turkey: Memorandum About The Law On The Right To Obtain Information

LIST OF INDEX

I. SUBJECT

II. PURPOSE OF THE LAW

III. PERSONS ELIGIBLE FOR THE LAW

1. General Principle

2. Use of the "Right to Obtain Information" by Foreigners

IV. OBLIGATION TO GIVE INFORMATION

V. METHOD OF APPLICATION

VI. LIMITATIONS ON THE RIGHT TO OBTAIN INFORMATION

VII. SANCTIONS

VIII. YEARLY REPORTS TO BE ISSUED BY GOVERNMENTAL BODIES AND AUTHORITIES

IX. REGULATION

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The Law On The Right To Obtain Information, no. 4982, has been published in the Official Gazette on 09 October 2003 and will become effective as of 09 April 2004.

This Memorandum is prepared in order to brief the readers about the Law On The Right To Obtain Information.

The Law has been enacted for the purpose of "setting down the principles and procedures of use of the right to obtain information in accordance with the equality, neutrality and openness principles as a requirement of democratic and transparent administration".

According to Article 4 of the Law, "everyone has the right to obtain information". Considering that Article 3/6 of the Law mentions about "natural and legal persons who use their right to obtain information under the Law and apply to the public and governmental bodies and authorities and to the professional organizations established as a public entity", as a matter of principle, every natural or legal person has "the right to obtain information".

With respect to use of the right to obtain information, the Law categorizes the foreigners in two groups. First group is composed of the foreigners RESIDING IN TURKEY. This concept refers to the foreigners who reside in Turkey in accordance with the applicable Turkish Laws.

According to the Law, the second group is composed of the FOREIGN LEGAL ENTITIES ACTIVE AND OPERATING IN TURKEY.

As seen, while the natural person foreigners are required to "reside in Turkey" in order to be eligible for the Law, not only the foreign legal entities who have a permanent office (i.e. residence address) in Turkey, but also the foreign legal entities who "are only active and operating" in Turkey are eligible for the Law, or to put it differently, are granted the right to obtain information under the Law.

Use of the right to obtain information either by a foreign natural person residing in Turkey or by a foreign legal entity active and operating in Turkey is subject to two conditions, as per the Law:

(i) The requested information must be relevant to the foreigner himself or his fields of activity; and

(ii) There must exist a "reciprocity" agreement between the Republic of Turkey and the home country of the foreigner.

Unless and until these two conditions are satisfied, the foreigners are not allowed to apply to the "public and governmental bodies and authorities and the professional organizations established as a public entity" so as to get and obtain information about themselves or their fields of activity.

There are two special provisions of the Law:

(i) The Law retains the rights and obligations arising out of the international agreements to which Turkey is a party. This means to say that by virtue of some rights arising out of the international agreements (providing that the relevant provisions of the international agreement are clear), the foreigners may use their right to obtain information, irrespective of the other conditions.

(ii) Provisions of the Law About Use of the Right of Petition, no. 3071, are also "retained" by the Law on the Right to Obtain Information.

Article 74 of the Constitution of the Republic of Turkey provides that: "Citizens and foreigners residing in Turkey, subject to the condition of reciprocity for foreigners, have the right to petition the public authorities and the Turkish Grand National Assembly about themselves or about their "’wishes and complaints’ relating to public. Results of the review of petitions about themselves will be communicated to the petitioners in writing without delay. The method of use of this right will be regulated by a law." The Law 3071 has been enacted and issued by virtue of this provision of the Constitution pertaining to ‘wishes and complaints’, and in the amendment made thereto by the Law 4778 dated 02.01.2003, the principle of "Foreigners residing in Turkey may also use this right, subject to the principle of reciprocity, and providing that they write their petition in Turkish" has been added to the Law.

It is noted that the right of petition is granted only to the "natural person" foreigners residing in Turkey.

The public and governmental bodies and authorities and the professional organizations established as a public entity are held liable and obliged to make all kinds and types of information and documents, except for some exceptions listed in the Law, available to the applicants efficiently, quickly and accurately.

For the purposes of this provision of the Law, the word "information" refers to "all kinds of information contained in the records within the scope of the Law", while the word "documents" refers to "... written, printed or reproduced files, documents, books, magazines, brochures, studies, letters, programs, instructions, sketches, plans, films, photographs, tape and video cassettes, maps and all kinds of information, news and data carriers recorded in electronic medium, within the scope of this Law".

Documents are usually delivered as a copy or by reviewing the original document and taking notes thereon.

The requested information must be provided to the applicant within 15 business days. This period is 30 business days for the information relating also to other bodies and entities.

Against the decision of a public entity refusing to give the requested information, the requester has the right of appeal to the Information Requests Review Board within 15 days. Such an appeal suspends the period of application to the administrative courts.

Application is made by a petition carrying the identity, address and signature of the applicant. In the case of an application by a legal entity, the petition must be signed by the duly authorized officers of the legal entity.

- Requests for a certain type of information or document which can only be developed as a result of a separate or special study, research, inspection or analysis may be refused.

- Published or publicized information and documents cannot be the subject of an application to obtain information.

- The requested information will be made available to the requester, after exclusion or deletion of some certain information which is marked as confidential or prohibited to be disclosed.

- Information or documents which are described as "trade secrets" in the Law, and commercial and financial data and information which are received by the related public bodies and authorities from other natural or legal persons, subject to the confidentiality obligation, are, however, excluded from the scope of the Law.

- Applications relating to intellectual and artistic works shall be governed by the provisions of the relevant laws.

- Internal bye-laws and regulations are out of scope of the right to obtain information.

- Nor will this Law be applicable on the administrative acts, beyond the reach of the judiciary power, which "do not affect" the working life and professional dignity or honor of a person.

- Confidential information and documents, which are by nature "State Secrets", and of which disclosure MAY OBVIOUSLY BE TO THE DETRIMENT OF the State Security, foreign relations, national defense and national security are also not subject to this Law.

- Information and documents of which disclosure or early disclosure may be to the detriment of the National economic interests or may cause unfair competition and unjust gains are also excluded from the scope of the Law.

- Information of the civil and military intelligence units and services are beyond the scope of the right to obtain information.

- Information and documents about administrative inquiries and investigations, of which disclosure or early disclosure may:

• result in an unfair interference with private life of a person; or

• endanger the security of a person or officer; or

• endanger the security of the investigation itself; or

• result in disclosure of the source of information, thereby making it difficult to find new sources of information,

are held out of scope of the Law.

- The Law is not applicable also on the information and documents relating to juridical investigations, inquiries and prosecutions, of which disclosure may:

• result in commission of an offence; or

• endanger the prosecution; or

• prevent performance of the judiciary duty; or

• breach the "just and fair adjudication right" of defendant.

- Information and documents which violate the principle of confidentiality of private life and communication are also beyond the scope of this Law.

The public servants who show negligence, fault or malicious misconduct in the implementation of the Law will be subject both to a criminal prosecution according to the general law provisions and to disciplinary punishments.

The governmental bodies and authorities will prepare a yearly report containing summary information about the applications received by them in the last year and submit it to the "Information Requests Review Board". After combining all such reports, the Board will present a final report to the Turkish Grand National Assembly, and the results will be made public by the Presidency of the Turkish Grand National Assembly.

According to the Law, a Regulation about implementation of the Law must be issued and put into effect until 09 April 2004, the effective date of the Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.