JOINT CONCURRING OPINION OF JUDGES SAJÓ AND VUČINIĆ

We are in full agreement with the conclusions and reasoning of this judgment. It is of particular importance for those countries where, even today, long lasting habits make it difficult to have access to data which, in the days of totalitarianism, were used for oppressive purposes by secret services. However, we write this concurring opinion in particular to highlight the general need to interpret Article 10 in conformity with developments in international law regarding freedom of information, which entails access to information held by public bodies. We refer, in particular, to Human Rights Committee, General Comment No. 34 (document CCPR/C/GC/34 of 12 September 2011, § 18).

The Court has recently (in its Gillberg v. Sweden [GC] judgment, (no. 41723/06, § 74, 3 April 2012) restated that “the right to receive and impart information explicitly forms part of the right to freedom of expression under Article 10. That right basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see, for example, Leander v. Sweden , 26 March 1987, § 74, Series A no. 116, and Gaskin v. the United Kingdom , 7 July 1989, § 52, Series A no. 160).”

The Grand Chamber did not quote the continuation of paragraph 74 of the Leander judgment: “Article 10 (art. 10) does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.”

In view of the legal developments summarized in the judgment, and the Council of Europe Convention on Access to Official Documents (2009, not yet in force), and in particular, in view of the demands of democracy in the information society, we find it appropriate to highlight certain implications of the present judgment in light of Gillberg that the Court should address in due course:

1. In the world of the Internet the difference between journalists and other members of the public is rapidly disappearing. There can be no robust democracy without transparency, which should be served and used by all citizens.

2. The case raises the issue of the positive obligations of the State, which arise in respect of the accessibility of data controlled by Government. The authorities are responsible for storing such information and loss of data cannot be an excuse, as the domestic authorities erroneously claimed in the present case. The difference between the State’s negative and positive obligations is difficult to determine in the context of access to information. Given the complexity of modern data management the simple lack of a prohibition of access may not suffice for the effective enjoyment of the right to information.

3. Without prejudice to the specific circumstances of the Leander case, to grant the citizen more restricted access to important information that concerns him or her and is generated or is used by the authorities than to the general public on public information may seem illogical, at least in certain circumstances. An artificial distinction between public data and data of personal interest may even hamper access to public information. Of course, access to information under Article 10 must respect, in particular, informational self-determination and the considerations referred to in Klass and Others v. Germany (6 September 1978, § 81, Series A no. 28).