The Right of Access to Information on the Public Administration Activities in Russia and Germany: the Constitutional and Legislative Framework

Abstract

The article deals with the constitutional and legislative grounds for the right of access to information in the sphere of public governance in Russia and Germany from a comparative perspective, its content and restrictions are subject to consideration. The thesis that the interpretation of the given right in national legal systems is significantly affected by international and supranational legal regulation is substantiated. However, the degree of such regulation penetration in Russia is rather lower than in Germany. The right of access to information in the public governance sphere is suggested having a dual nature - the right guaranteeing freedom for the individual (status negativus), and the right to participate in the state affairs governing (status activus). Such an approach to the nature of the right of access to information in the public governance understanding offers grounds to a broader understanding of a citizen's information aspiration, where aspiration satisfaction does not depend on the fact whether the requested information affects the citizen's rights or not. A comparative analysis of the constitutional guarantees of the right of access to information indicates that under the Russian Constitution they are represented more widely in comparison with the German Fundamental Law guaranteeing everyone free information recipience only from sources accessible to public. In this respect, access to information in the sphere of public governance regarding its intraadministrative official nature turned out to be outside the constitutional guarantees framework. At the same time, legislative and enforcing interpretation of the right in question guarantees in Germany tends to their continuous broadening while in Russia both legislative and judicial practice neither complement nor expand constitutional guarantees but concretize them in terms of setting restrictions on the right of access to information. Comparison of the right restrictions both in Russian and German legislation authenticates legal determinacy deficiency of the Russian legislative approach. Moreover, Russian approach in relation to adoption and judicial interpretation of the restrictions of the right of access to information concerning public administration activities is notable for unilateralism which is expressed in the absolutization of the idea of the protection of any restricted access information. In this respect, the use of the German experience in application of a weighing interests' method to conflicts resolution between the right of access to information and other constitutional rights deserves special attention aimed at improving Russian legislation and judicial practice in the sphere under consideration.