My Freedom of Information Request Was Refused in Turkey — What Now?

First check the form of the refusal: reasons are mandatory

The Act does not permit a refusal letter without reasons. Act No. 4982, Article 12(2): “Where the application is refused, the grounds for that decision and the avenues of appeal against it shall be stated.” Article 23 of the Implementing Regulation repeats this in respect of exemptions: “Freedom of information applications made on matters regulated in the Act as exemptions to the right of access to information shall be refused, and the refusal decision shall be notified to the applicant with reasons.” Article 18(7) of the Regulation goes one step further: “Where the application is refused, the grounds for that decision and the avenues of appeal against it and the applicable time limits shall be stated.”

• Does the refusal letter contain concrete reasons? “Your request has not been considered appropriate” is not a reason.
• On which of the exemptions in Articles 16 to 28 of Act No. 4982 do the reasons rest, and is the article number stated?
• Are the avenue of appeal and the time limit stated (Reg. Art. 18(7))? The appeal to the Board and the 15-day period should be set out.
• If the document contains both parts falling within an exemption and parts that do not, was severance carried out, and were the grounds for severance notified in writing (Act 4982 Art. 9)?
• On what date was the decision notified? The 15 days run from that date; what matters is the date of notification, not the date on the refusal letter.

Should it have been an outright refusal or partial access: the severance rule

The most valuable provision for a journalist is Article 9 of Act No. 4982: “Where the information or documents requested contain both classified information or information whose disclosure is prohibited and information that may be disclosed, and these are capable of being separated from one another, the information or document shall be made available to the applicant after the classified information or the information whose disclosure is prohibited has been removed. The grounds for severance shall be notified to the applicant in writing.” The same provision is repeated in Article 21 of the Regulation.

The consequence is this: the ground that “the document contains confidential information” does not on its own justify an outright refusal. The institution must first assess separability, provide the remainder if it is separable, and notify the grounds for severance in writing. If no assessment of severance appears in the refusal letter at all, put that forward in your appeal as a fundamental illegality. We tabulated all the exemptions, and which of them are not in fact exemptions, article by article, in our piece on information outside the scope of the right to information.

The route map: four steps and their time limits

Step 1 — Appeal to the Board: 15 days, calendar days

Article 13 of Act No. 4982 reads in full: “An applicant whose request for information is refused may, before applying to the courts, appeal to the Board within fifteen days of notification of the decision. The Board shall give its decision on the matter within thirty business days. Institutions and organisations are obliged to supply any information or document requested by the Board within fifteen business days. An appeal to the Board suspends the applicant’s time limit for applying to the administrative courts.” Article 24(1) of the Regulation adds a single formal requirement: “The appeal shall be made in writing.”

• The period is fifteen days, not fifteen business days. The text says “fifteen days”; weekends and public holidays count towards it. Confusing the access period (15 business days) with the appeal period (15 days) is the most expensive mistake.
• The appeal is optional — the Act says the applicant “may appeal”. You can also go straight to the administrative courts.
• But if you do appeal, the time limit for applying to the administrative courts is suspended (Act 4982 Art. 13(2)). That is a mechanism that buys you time.
• By Article 1 of Law No. 5432, the words “on the grounds provided for in Articles 16 and 17” were removed from Article 13(1). An appeal is therefore no longer confined to refusals grounded on state secrets and economic interests; the Board may be approached against any refusal decision.
• The Board’s secretariat services are provided by the Ministry of Justice (Act 4982 Art. 14, final para.) — the appeal petition reaches the Board through that channel.
• Board Regulation, Article 12(2): if the appeal is withdrawn, or “if it is established that recourse has been had to the courts before the appeal has been concluded, the appeal application shall be struck out.” You cannot run the two in parallel.

Step 2 — How long does the Board take to decide

The Act and the Regulation say “thirty business days”. Article 11(3) of the Regulation on the Working Procedures and Principles of the Review Board for Access to Information clarifies when time starts: “The appeal shall be concluded within thirty business days of the date the petition enters the Board’s records.” In other words, time starts not on the day you post the petition but on the day it enters the Board’s register.

The same Regulation also shows the internal workings: the appeal petition is examined by a rapporteur designated by the Chair (Art. 11(1)); the rapporteur “shall prepare a report on procedure and merits and submit it to the Chair within five business days of the date the appeal was given to him” (Art. 11(2)). The quorum for meetings is six and the quorum for decisions is five (Art. 7(1)), and the Board meets “at least once a month, or whenever the need arises” (Act 4982 Art. 14). The Board consists of nine members; members serve four-year terms.

Step 3 — The institution must hand over the document, even if it is confidential

This is where the real force of an appeal lies. Regulation, Article 26(1): “The Board may request any information or document from the institution or organisation to which the application was made. Institutions and organisations are obliged to supply any information or document requested by the Board within fifteen business days.” Article 13(3) of the Board Regulation puts it even more strongly: “Institutions and organisations are obliged to supply any information or document requested by the Board, even if it is confidential, within fifteen business days.” The Board may also invite representatives of the relevant ministry and of other institutions and organisations to its meeting, and those representatives “are obliged to attend at the place, date and time indicated” (Board Reg. Art. 13(2)).

Step 4 — What the Board’s decision may say

Article 13 of the Board Regulation divides the outcome in two: “(4) If the appeal is found to be unjustified, it shall be dismissed. (5) If the appeal is found to be justified, it shall be decided that the appellant is to have access to the information and documents at issue.” The decision states “the registration and decision number of the appeal, the parties, … the name and surname of the rapporteur, a summary of the appeal, the legal grounds on which the decision rests, the reasoning of the decision and the decision itself, and the date of the decision”, together with any dissenting votes (Art. 16(1)); “A copy of the decision shall be sent to the appellant and to the institution or organisation concerned” (Art. 16(2)). Article 25(2) of the Regulation also provides that the Board is “empowered to regulate” matters relating to the exercise of the right of access to information.

When an appeal is dismissed without going to the merits

Article 12 of the Board Regulation governs the procedural review. Do not fall into these traps:

• If the requirements for the petition are not met, the Board asks by interim decision that the deficiency be remedied “within fifteen days”; “If the deficiency or irregularity indicated is not remedied within the period prescribed, the appeal shall be dismissed” (Art. 12(1)).
• If the appeal is withdrawn, or it is established that recourse to the courts was had before the appeal was concluded, “the appeal application shall be struck out” (Art. 12(2)).
• “A second appeal made by the same person relying on the same factual and legal grounds shall be dismissed without examination” (Art. 12(3)). You cannot take the same file to the Board a second time on the same arguments.
• The exception: if you establish “a deficiency, forgery or similar circumstance” in the information or documents on which the decision was based, or if you obtain “new information or a new document capable of affecting the merits”, you may apply to the Board; the Board may reconsider its decision (Art. 12(4)).

Deemed refusal: where the institution gives no answer at all

Regulation, Article 24(2): “Where no answer, positive or negative, is given to the applicant by institutions and organisations within the periods set out in Article 20, the application is deemed refused on the expiry of sixty days under Article 10 of the Code of Administrative Procedure No. 2577.” Article 24(3) then ties the start of the appeal period to a different point: “an applicant whose request for information is deemed to have been refused may, before applying to the courts, appeal to the Board in writing within fifteen days of the date on which the period for bringing proceedings begins.”

In practice this means a two-stage timetable: first the periods in Article 20 of the Regulation (15 or 30 business days) expire, then the sixty-day period runs by reference to Article 10 of Law No. 2577 and the deemed refusal arises. We set out step by step how these periods are counted, and which are business days and which calendar days, in the timetable in our article on freedom of information response times. Meanwhile the institution’s obligation does not lapse: “Failure to answer the application within the periods set out in the Act, by reason of the negligence or fault of public officials, does not remove the obligation of institutions and organisations to answer” (Reg. Art. 18(8)).

Appeal petition template

The template below is drawn up according to the procedural requirements in Article 24 of the Regulation and Articles 11 to 13 of the Board Regulation. The appeal is in writing; remember to annex the refusal decision, the original application and the notification document.

TO THE PRESIDENCY OF THE REVIEW BOARD FOR ACCESS TO INFORMATION
(Secretariat: Ministry of Justice - Act 4982 Art. 14, final para.)

APPELLANT               : Name Surname / Title of legal person
Turkish identity number :
Address                 :
Email / Telephone       :
(For a legal person, the authorised person's Turkish identity number and
 AUTHORISATION DOCUMENT are annexed)

INSTITUTION THAT GAVE THE DECISION APPEALED AGAINST :
Date and number of the decision   : ../../....   No. : ..............
Date the decision was NOTIFIED    : ../../....
Date of the original FOI application : ../../....
Application registration / receipt no. : ..............

SUBJECT: Request that the refusal decision identified above be set aside and
that access be granted to the information and documents I requested.

SUBMISSIONS
1) On ../../.... I applied to ............ under Act No. 4982 and requested
   information and documents concerning ............................ (ANNEX-1)
2) By its letter of ../../.... no. ........., the institution refused my
   request on the ground that "............................". (ANNEX-2)
3) The refusal decision is unlawful for the following reasons:
   a) The information/document requested is EXISTING information held by the
      institution, or which it ought to hold by virtue of its duties
      (Act 4982 Art. 7(1)). No separate study, research, examination or
      analysis has been requested.
   b) The decision does not concretely identify WHICH of the exemptions in
      Articles 16-28 of Act No. 4982 it rests on. Yet under Art. 12(2) and
      Regulation Arts. 23 and 18(7) a refusal decision must give REASONS and
      state the avenues of appeal and the applicable time limits.
   c) Even if the document contains parts falling within an exemption, those
      parts are SEPARABLE. Under Act 4982 Art. 9 those parts should have been
      removed, the remainder provided, and the grounds for severance notified
      in writing; instead the request was refused OUTRIGHT.
   d) The institution has relied on a confidentiality provision in its own
      organisational legislation. Act 4982 Art. 5(2): "From the date this Act
      enters into force, provisions of other statutes contrary to this Act
      shall not be applied."
   e) The information requested is of public concern and relates to the use of
      public resources; the public interest lies in favour of access.

[IN A CASE OF DEEMED REFUSAL, IN PLACE OF PARAGRAPHS 2 AND 3:]
2) No answer, positive or negative, has been given to the application made to
   the institution on ../../.... within the periods set out in Regulation
   Art. 20.
3) Under Regulation Art. 24(2) (by reference to Art. 10 of Law No. 2577), the
   application is DEEMED REFUSED on the expiry of SIXTY DAYS. This appeal is
   made, under Regulation Art. 24(3), within fifteen days of the date on which
   the period for bringing proceedings begins.

LEGAL GROUNDS
Act No. 4982 Arts. 4, 5, 6, 7, 9, 11, 12, 13; Implementing Regulation Arts. 5,
18, 20, 21, 23, 24, 26; Regulation on the Working Procedures and Principles of
the Review Board for Access to Information Arts. 11, 12, 13.

EVIDENCE
The application petition and the institution's receipt, the institution's
refusal letter, the notification document, correspondence and all other
relevant evidence.

CONCLUSION AND REQUEST
For the reasons set out above, I request that the refusal decision be set
aside and that it be decided that I am to have access to the information and
documents I requested.

Date : ../../....                                        Signature

ANNEXES
1) FOI application petition / form ANNEX-1 and the institution's receipt
2) The institution's refusal letter
3) Notification document (showing the date of notification)
4) (For a legal person) authorisation document

NOTE: The appeal is made IN WRITING (Reg. Art. 24(1)). The period is 15 DAYS
from NOTIFICATION of the refusal decision, and these are CALENDAR DAYS. The
Board gives its decision within 30 BUSINESS DAYS of the date the petition
enters the Board's records.

Arguments that work on appeal

• No severance was carried out (Act 4982 Art. 9): where the institution refused outright without making any assessment of separability, this is the strongest argument.
• No reasons, or no article number (Act 4982 Art. 12(2); Reg. Arts. 23 and 18(7)).
• Reliance on a provision of a special statute: Article 5(2) of Act No. 4982 says that provisions of other statutes contrary to the Act shall not be applied.
• Reliance on the wrong exemption: the intelligence exemption, for instance, is not absolute — under Article 18(2) of Act No. 4982, information and documents come back within scope where they are “of a nature to affect the working life and professional honour of individuals”. Likewise Article 15 brings within scope those acts outside judicial review that affect an individual’s working life and professional honour.
• An erroneous internal-opinion ground: Article 26 of Act No. 4982 is not an exemption; opinions, information notes, proposals and recommendations “fall within the right of access to information unless otherwise decided by the institution or organisation”, and expert opinions forming the basis of a decision are open in all cases.
• A document that has been declassified: under Article 28 of Act No. 4982, information and documents that have been declassified become open to applications, provided they do not fall within another exemption.

The administrative court stage

Article 13(1) of Act No. 4982 provides that the appeal is made “before applying to the courts”, and Article 13(2) provides that “an appeal to the Board suspends the applicant’s time limit for applying to the administrative courts”. The court route is therefore open, and an appeal does not close it — on the contrary, it buys time. But note: under Article 12(2) of the Board Regulation, if it is established that you have gone to the courts before the appeal is concluded, the appeal file is struck out; do not run the two in parallel.

We do not give a time limit here. The time limit for bringing an action before the administrative courts is not regulated in Act No. 4982, in the Implementing Regulation or in the Board Regulation. The only concrete period appearing in those three texts is the sixty days stated for deemed refusal by reference to Article 10 of Law No. 2577. The time limit for bringing an action is governed by the Code of Administrative Procedure No. 2577; verify its current form from the up-to-date text of that Code and with your lawyer.

Common mistakes

• Treating the 15-day appeal period as business days. The text says “fifteen days”; weekends count. The price of that mistake is loss of the right.
• Counting time from the date on the refusal letter. Time runs from the date of notification (Act 4982 Art. 13(1)).
• Starting the appeal period from the wrong point in a deemed refusal. In a deemed refusal the 15 days run “from the date on which the period for bringing proceedings begins” (Reg. Art. 24(3)), not from the date the deemed refusal arose.
• Sending the same appeal a second time on the same factual and legal grounds — it is dismissed without examination (Board Reg. Art. 12(3)).
• Running the appeal and administrative proceedings at the same time — the appeal is struck out (Board Reg. Art. 12(2)).
• Trying to appeal orally or by telephone. “The appeal shall be made in writing” (Reg. Art. 24(1)).
• Not keeping the notification document for the refusal decision. It is the only document proving when time started.

There is also a limit at the publication stage once you have obtained the document: Article 29(2) of Act No. 4982 says “Information and documents accessed under this Act may not be reproduced or used for commercial purposes.” We dealt separately with the difference between the Act and the Regulation on this limit on use, and with what it means for a journalist, in the final section of the article on information outside the scope. For the cost of access to a document and how payment interrupts the period, see our article on the fee regime, and to reach the official texts of the legislation, see our guide to sources.