Turkey: Promising New Ruling On The Limits Of Administrative Bodies' Discretion Regarding The Right To Access To Information

The 2nd Administrative Court of Ankara (the "Court") annulled the Turkish Competition Authority's ("Authority") decision whereby the Authority dismissed the application of an undertaking (the "Undertaking") requesting access to information contained in the Authority's file, based on Law No. 4982 on the 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 background information, in Turkey, there are two different means of obtaining access to information in competition law related cases, namely: (i) a petition for requesting access to file on the basis of Communiqué No. 2010/3 of the Turkish Competition Board ("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); (ii) a petition on the basis of the general "right to access to information" as guaranteed by Law No. 4982 for 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 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 was filed to prepare the Undertaking's defence during an on-going lawsuit in which a purchaser of the Undertaking (the "Purchaser") had filed against it, claiming that the Undertaking caused damages to the Purchaser by participating in anticompetitive agreements with other undertakings active in the same sector.

The Authority rejected the Undertaking's request for access to information and refused to communicate the requested information and documents.

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

In its judgment, the Court observed that access to a substantial part of the requested information and documents was rejected since 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 Law No. 4982 is the communication of the information and confidentiality is the exemption. Based on this principle, the Court considered that stating merely that the requested information is considered "internal documents" and dismissing the request without declaring any other reasoning does not comply with the purposes of Law No. 4982. The Court further underlined that the acceptance of the opposing view would equate to admitting that the communication of information and documents that are within the scope of the right to access to information according to Law No. 4982 can be refused 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.

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 of requests for access to information in damages actions and to lay out the strict boundaries of the discretionary power that administrative authorities may use 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. The 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 impacted as a result of such administrative acts.

This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in September 2016. A link to the full Legal Insight Quarterly may be found here.

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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