Turkey: Promising New Ruling on Limits of Administrative Bodies' Discretion Regarding Right to Access to Information

The 2nd Administrative Court of Ankara ascertained the importance of the right to access to information and decided to annul a decision of the Turkish Competition Authority whereby the Authority rejected a request for access to information that an undertaking introduced in a view to prepare its defence in an ongoing litigation by accessing to information contained within the Authority's file related to a past pre-investigation.

The 2nd Administrative Court of Ankara (the "Court") annulled the Turkish Competition Authority's (the "Authority") decision whereby the Authority dismissed the application of an undertaking (the "Undertaking") – represented by ELIG, Attorneys-at-Law – requesting access to information contained in the Authority's file, based on Law No. 4982 on Right to Access to Information ("Law No. 4982") in an attempt to obtain information related to a pre-investigation process of the Authority that had been closed several years ago.

As a background information, in Turkey there are two different means for obtaining access to information in competition law related cases, namely through (i) a petition for access to file on the basis of the Communiqué No. 2010/3 of the Turkish Competition Board (the "Board") related to the right of access to the file, bearing in mind that the scope of this Communiqué only covers on-going proceedings pursuant to its Article 8(3) and (ii) a petition on the basis of the general "right to access to information" as guaranteed by Law No. 4982 for the cases where the procedure has already ended (which therefore do not qualify as within the scope of Communiqué 2010/3). In the present case, as the Authority's pre-investigation had been closed several years ago, the Undertaking introduced its request for access to information based on the general "right to access to information" as guaranteed by Law No. 4982.

The relevant request for access to information has been filed in a view to prepare the Undertaking's defence in an ongoing lawsuit that a purchaser of the Undertaking (the "Purchaser") filed against it, claiming that the Undertaking caused damages to the Purchaser by participating to anticompetitive agreements with other undertakings active in the same sector.

The legal basis for the alleged claims of the Purchaser concerning the litigation was made subject to a pre-investigation, where after looking into the case, the Turkish Competition Board closed the file at the pre-investigation stage.  A few years later the Board's decision, the relevant Purchaser filed a lawsuit against the Undertaking, claiming that it suffered damages from alleged anticompetitive behaviours in Turkey.

In order to prepare its defence within the scope of the litigation initiated by the Purchaser, the Undertaking filed an application for access to information before the Authority with the aim of obtaining communication of information and documents related to the Authority's pre-investigation file. The Undertaking specifically requested the non-confidential versions of certain documents concerning the pre-investigation.

The Authority rejected the Undertaking's request for access to information and refused to communicate the requested information and documents based on the following grounds:

- For the substantial part of the documents/information requested the Authority based its rejection decision on the provisions of Article 26 of Law No. 4982 which provides that the information and documents that qualify as opinion, information note, proposals and recommendations which facilitate the execution of the activities of the institutions and organizations are within the scope of the right to information, unless the opposite is decided by that institution or organization.

- For the remaining part of the documents/information requested, the Authority refused to communicate such information on the basis of Article 22 of Law No. 4982 which provides that information and documents which could violate the confidentiality of communication are outside the scope of Law No. 4982, considering that the requested information and documents are related to a communication that the Purchaser undertook with the Authority.

The Undertaking contested the validity of the decision by filing an objection petition before the Information Request Evaluation Committee ("Committee"). The Committee is an intermediary administrative authority which is entitled by Law No. 4982 to assess the objections against rejection of information requests by administrative bodies. However, the Committee rejected the objection petition based on the very same reasoning as the Authority.

Following the rejection of its application by the Authority and the Committee, the Undertaking introduced an annulment action before the Court in order to contest the legality of the Authority's decision mainly by arguing that the contested decision lacks legal basis since it does not provide any explicit reasoning on the reasons why the communication of the requested information and document -concerning the trade secret excluded versions of the communications- is considered as "inappropriate" under the scope of both Article 22 and Article 26 of Law No. 4982. The Undertaking thus challenged the unlimited discretionary power that the Authority used for rejecting its application, which is contrary to the principles laid down under the provisions of Law No. 4982 as well as the standards of Council of Europe and the case-law of European Union regarding the right to information.

In its judgment, the Court observed that access to substantial part of the requested information and documents were rejected as they are considered within the scope of Article 26 (i.e. "information and documents that qualify as opinion, information note, proposals and recommendations which facilitate the execution of the activities of the institutions and organizations"). The Court stressed that the main principle provided in the Law is the communication of the information and confidentiality is the exemption. Based on this principle, the Court considered that only stating that the requested information are considered as "internal documents" and dismissing the request without declaring any other reasoning does not comply with the purpose of Law No. 4892. The Court further underlined that acceptance of the opposing view would equal to admitting that the communication of information and documents that are within the scope of the right to access to information according to the Law can be refused to the applicants solely on the basis of the administration's discretionary power and without stating any reasoning.

Concerning the Undertaking's remaining request that the Authority rejected due to "confidentiality of communication", the Court observed that the applicant's request does not relate to the content of any communication, but rather aims at obtaining factual information concerning the existence of certain communication between the Authority and the Purchaser. The Court also observed that the relevant information will be used within the scope of the right of defence on the on-going litigation. As a consequence, the Court concluded that the rejection of the request is contrary to the Law.

Based on the foregoing, the Court concluded that the Authority's decision rejecting the Undertaking's application for access to information is contrary to Law No. 4982 and decided to annul the challenged decision of the Authority.

The judgment of the 2nd Administrative Court of Ankara has the merits to clarify the principles applying to requests for access to information in compensation lawsuits and to lay out the strict boundaries of the discretionary power that the administrative authorities may use only within the scope of the general legal principles and by providing a clear and sufficient reasoning in their decision, in case they decide to reject the applications for access to information. Therefore, it would not be assertive to state that the relevant judgment of the Court could be regarded as an important precedent in the Turkish legal order for weighing the balance between the boundaries of discretionary power of administrative bodies and interest of counterparts that could be negatively affected as a result of such administrative acts.

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.

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