Which Information Falls Outside the Right to Information in Turkey?

Where the exemptions are regulated

The limits are in Articles 15 to 28 of Act No. 4982. The Regulation on the Principles and Procedures for the Implementation of the Right to Information Act repeats the same content under different article numbers (Articles 27-41). Article 23 of the Regulation sets out the procedure: “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.” The institution is therefore obliged to show which article it relies on; “it is confidential” is not on its own a reason.

Table of exemptions (all of Articles 15-28)

Three of the articles are in fact in favour of access

These are the articles most often misused in refusal letters. If the institution has refused on the basis of Article 15, Article 26 or Article 28, the article it relies on is working for you, not for it.

• Article 15: “Administrative acts outside judicial review that are of a nature to affect a person’s working life and professional honour are within the scope of this Act. The right of access to information thus afforded does not have the consequence of opening the act to judicial review.”
• Article 26(1): Information and documents in the nature of opinions, information notes, proposals and recommendations obtained by institutions in carrying out their activities “fall within the right of access to information unless otherwise decided by the institution or organisation.”
• Article 26(2): “The opinions of persons, units or institutions under a legal duty to give opinions in fields of expertise such as scientific, cultural, statistical, technical, medical, financial, legal and the like are open to requests for information, provided they form the basis of the decisions to be taken by institutions and organisations.”
• Article 28: “Information or documents that have been declassified become open to freedom of information applications if they do not fall within the other exemptions set out in this Act.”
• Article 24, for its part, is not a prohibition but a referring provision: “The provisions of the relevant legislation shall apply to freedom of information applications concerning intellectual and artistic works.”

Article 16, state secret — two conditions required together

The text reads: “Information or documents whose disclosure would clearly harm the security, foreign relations, national defence and national security of the State and which are classified and by their nature State secrets fall outside the scope of the right of access to information.” The sentence contains the conjunction “and”: both clear harm and classification are required. If the document carries no security classification, or if the institution has written only an abstract security ground, you have solid ground for an appeal.

Article 17, the country’s economic interests — the time element

“Information or documents whose disclosure, or disclosure before their time, would harm the country’s economic interests or cause unfair competition and gain, fall outside the scope of this Act.” The words “before their time” show that the exemption may be time-limited. In tender, privatisation or public procurement files, framing your request for a point after the transaction is complete exhausts this ground. Article 12(3) of the Regulation contains a parallel rule: information announced in advance as due to be disclosed on a particular date is not supplied before that date — meaning it is supplied after it.

Article 18, intelligence — not an absolute exemption

The first paragraph is broad: “Information or documents relating to the duties and activities of civil and military intelligence units fall outside the scope of this Act.” But the second paragraph opens the door again: “However, where such information and documents are of a nature to affect a person’s working life and professional honour, intelligence-related information and documents are within the scope of the right of access to information.” For the file of a person not hired or removed from office as a result of a security clearance check, this paragraph is directly applicable.

Article 19, administrative investigation — four subparagraphs

The exemption is not the whole administrative investigation file but the information and documents whose disclosure, or disclosure before their time, would give rise to the following consequences. An institution cannot close the file by saying “there is an administrative investigation”; it must show which subparagraph is engaged. If the investigation has been completed and decided, the basis for subparagraphs (c) and (d) largely disappears.

• a) Information and documents that would result in a clearly unjustified interference with individuals’ private life,
• b) that would endanger the life or security of individuals or of the officials conducting the investigation,
• c) that would jeopardise the security of the investigation,
• d) that would cause the disclosure of a source of information that must remain confidential, or make it more difficult to obtain similar information and sources of information relating to the investigation.

Article 20, criminal investigation and prosecution

The structure is the same. Where disclosure, or disclosure before their time, would: “a) lead to the commission of an offence, b) jeopardise the prevention and investigation of offences or the lawful apprehension and prosecution of offenders, c) obstruct the proper discharge of the judicial function, d) violate the right to a fair trial of a person against whom proceedings have been brought”, the information or documents in question fall outside the scope of this Act. The article also reserves the provisions of the Code of Criminal Procedure No. 1412, the Code of Civil Procedure No. 1086, the Code of Administrative Procedure No. 2577 and other special statutes — so the procedure for access to the file is assessed separately under those laws.

Article 21, privacy of private life — the public interest door

“Save in cases where the person has given permission, information or documents whose disclosure would constitute, within the scope of the privacy of private life, an unjustified interference with a person’s health information and with their private and family life, honour and dignity, and professional and economic values, fall outside the scope of the right of access to information.” The second paragraph opens a door with a defined procedure: “Where the public interest so requires, personal information or documents may be disclosed by institutions and organisations on condition that the person concerned is notified at least seven days in advance and their written consent is obtained.” The seven days here are calendar days, and this is a procedure the institution is required to apply; if you justify the public interest in your request, you can ask the institution to operate this route.

Article 22, confidentiality of communications, and Article 23, trade secret

Article 22 is a single sentence: “Information or documents that would violate the principle of confidentiality of communications fall outside the scope of this Act.” Article 23 contains two sub-categories: “Information or documents characterised as trade secrets in statutes, and commercial and financial information obtained by institutions and organisations from natural or legal persons on condition that it remain confidential, fall outside the scope of this Act.” For the second category, the “condition of confidentiality” must actually have been imposed; for an annex to a bid submitted in a publicly available tender file, that condition is generally absent. If the institution relies on Article 23, ask which statute treats that information as a trade secret, or where the condition of confidentiality was imposed.

Article 25, internal arrangements, and Article 27, advice and opinions

Article 25: “Information or documents concerning arrangements of institutions and organisations that do not concern the public and relate solely to their own personnel and internal practices fall outside the scope of the right of access to information. However, the rights of access to information of institutional employees affected by the arrangement in question are reserved.” The two conditions apply together; an operating instruction with public effect does not fall within this article. Article 27 is a single sentence: “Requests for advice and opinions fall outside the scope of this Act.” This directly affects how you draft your petition: asking an institution “what is your view on this” or “is this practice lawful” is not a freedom of information request and will be refused under Article 27. Request an existing item of information or a document, by its date and number. We set out in detail how to construct the petition in the template in our article on response times.

Partial access: the most valuable provision

Article 9 of Act No. 4982 reads: “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 word for word in Article 21 of the Regulation.

This article makes most of the exemptions partial in practice. If a contract contains a unit price treated as a trade secret, the rest of the contract must be provided. If the identity of a witness in an investigation file must remain confidential, the summary of the decision and the operative part can be provided. Where the institution has refused outright without carrying out any assessment of severance, that is the strongest basis for an appeal. Institutions are also obliged, under Article 30(d) of Act No. 4982, to report in their annual reports “the number of applications in which access to information or documents was provided by removing confidential or secret information or by separating out information of that nature” — severance is thus an ordinary practice contemplated by the Act.

Grounds used to refuse that are not exemptions at all

These appear not in Articles 15-28 but in other articles of the Act and the Regulation; they are not “exemptions” but limits relating to the nature of the application. If one of them appears in a refusal letter, do not assume the institution has identified an exemption provision:

• Act 4982 Art. 7(2): requests for information “of a kind that could be produced as the result of a separate or special study, research, examination or analysis” may be answered in the negative. The counter-move: request the existing document by its date and number, and do not ask the institution to produce statistics.
• Reg. Art. 12(2): requests relating to “a process that has not been completed” may be answered in the negative. Reapply once the process is complete.
• Reg. Art. 12(3): Information announced in advance as due to be disclosed on a particular date, whose early disclosure would harm the public interest, is not supplied before that date.
• Act 4982 Art. 8 / Reg. Art. 13: Information already published or disclosed to the public cannot be the subject of an application; but the institution is obliged to state “in what manner, when and where” it was published. That statement is itself an answer, and it gives you a source.
• Reg. Art. 18, final para.: “Repeat applications made by the same persons on matters already answered, and applications that are abstract and general in nature, shall not be processed.”
• Reg. Art. 40: For applications relating to archive material and material destined for the archives, the provisions laid down by Council of Ministers Decision No. 2002/3681 apply “with the exception of the time limits”.

The limit on using a document once obtained

Beyond the list of exemptions there is one further limit that bears directly on the publication stage. Act No. 4982, Article 29(2): “Information and documents accessed under this Act may not be reproduced or used for commercial purposes.” Article 42(3) of the Regulation writes it more broadly: “Information and documents accessed within the framework of the principles and procedures set out in the Act and in this Regulation may not be reproduced or used for commercial purposes, and may not be published without the permission of the institution or organisation that provided access. The provisions of the laws relating to criminal and civil liability shall apply to those who, contrary to this article, reproduce, use or publish accessed information or documents for commercial purposes.”

If the document received from the institution contains photographs, drawings or text belonging to third parties, the copyright dimension also comes into play; Article 24 of Act No. 4982 already refers intellectual and artistic works to the provisions of the relevant legislation. We dealt with the limits of quotation in our article on how much text may be used when quoting news, and with the practice of attribution in our guide to citing sources in news.

Checklist: when reading a refusal letter

• Which article number is relied on? If it says Article 15, 26 or 28, the article is in favour of access — appeal.
• If Article 16 is relied on: does the document carry a security classification, and has clear harm been shown?
• If Article 17 is relied on: is the transaction complete? Is the ground of “before their time” still valid?
• If Article 18 is relied on: does the request concern a person’s working life or professional honour (Art. 18(2))?
• If Article 19 or Article 20 is relied on: has it been shown which subparagraph is engaged?
• If Article 21 is relied on: has the route in Article 21(2) been operated on public interest grounds?
• If Article 23 is relied on: which statute treats this as a trade secret, or where was the condition of confidentiality imposed?
• In every case: has the severance assessment under Article 9 of Act No. 4982 been made, and have the grounds for severance been notified in writing?