The Constitutional Court Emphasized the Right of Access to Information Regarding an Individual’s Own Records Held by the Institution They Work For Within the Scope of the Right to Information
The applicant, born in 1961, was serving as a department head at the Ministry of Foreign Affairs (the Administration) at the time of the application. After holding various positions within the Ministry of Foreign Affairs, the applicant was assigned to the First Secretary position at the Embassy of the Republic of Turkey in Buenos Aires in 2018. The applicant claimed that events such as the insufficient payment of overseas allowances and the termination of his assignment at the Buenos Aires Embassy after one year, despite being appointed for a four-year term, were influenced by the records and information notes in his personnel file. Therefore, the applicant made multiple requests for information from the Ministry of Foreign Affairs in 2017 and 2018, but some of his requests were either not responded to or were rejected. In its response, the Ministry stated the following reason for the rejection:
“The institutions are not obliged to send the requested information and documents to the external parties through the lawyer. Therefore, it does not seem possible to send the information and documents you requested.”
Following this, the applicant filed a lawsuit for the annulment of the administrative decision rejecting his information request. The Ankara 4th Administrative Court (the Administrative Court) rejected the case on 19/6/2019. The relevant part of the reasoned decision was as follows:
“…Although the applicant claimed that ‘he made numerous information requests in 2017 and 2018, and these requests were rejected either implicitly or with subjective and unlawful reasons,’ according to the above information, it was found that the administration responded to the requests as required, and the requests made through the lawyer were addressed according to Article 2 of the Attorneyship Law. Some of the requested documents (the applicant’s records, evaluation, and information notes) were classified, and the reason for not sending these documents is based on the provision in Article 9 of the ‘Regulations on the Keeping of Personnel Files’ published in the Official Gazette on 15.04.2011 (number 27906), which states that ‘The privacy of personal life must be respected in the maintenance and preservation of personnel files. Information about personnel files cannot be disclosed or shared with anyone except authorized investigative and prosecuting authorities.’ Based on the legal provisions outlined above, it was concluded that the administrative act in question was lawful.”
Subsequently, the applicant appealed the decision. The Ankara Regional Administrative Court, 12th Administrative Division (Regional Administrative Court) definitively rejected the appeal on 23/10/2019. After learning of the final ruling on 13/11/2019, the applicant made an individual application on 9/12/2019. The Constitutional Court, in its assessment, ruled that the denial of access to personal data about the applicant violated the right to protection of personal data within the scope of the right to respect for private life. The evaluation in the relevant decision is as follows:
“…The applicant’s complaint is related to the refusal of the information regarding the records and information notes in his personnel file. In this context, it is understood that the applicant’s complaints are connected to the right to respect for private life. The right to respect for private life is protected under Article 20 of the Constitution. The state is obliged not to arbitrarily interfere with individuals’ private and family life and to prevent unlawful attacks by third parties. One of the legal interests protected under the right to respect for private life is the right to privacy. However, the right to privacy is not only the right to be left alone but also encompasses the legal interest of the individual in controlling information about themselves. An individual has a legitimate interest in ensuring that their personal information is not disclosed, spread, accessed by others, or used without their consent—essentially, in keeping that information private. This pertains to the right to determine the future of information about oneself. The right to protection of personal data, which is part of the right to respect for private life, is explicitly regulated in Article 20 of the Constitution. Paragraph 3 of Article 20 states that everyone has the right to request the protection of personal data about themselves, which includes the right to be informed about personal data, access it, request its correction or deletion, and learn whether it is used for the intended purposes…”
“…In the present case, the information notes and records in the applicant’s personnel file, which were issued by the supervisory authorities regarding the applicant’s professional activities, undoubtedly pertain to the applicant’s performance. The Council of State has determined that performance reports are documents prepared by supervisors to assess the general situation and behavior of civil servants for the year, indicating their merits and shortcomings. According to this, the performance reports cover topics such as the civil servant’s compliance with discipline, sense of responsibility, efficiency, diligence, commitment to duty, professional knowledge, impartiality, and attitude towards colleagues, superiors, and clients. The Constitutional Court has expressed no doubt about the personal data nature of the performance reports in the case of Nurcan Belin, emphasizing the significance, nature, and content of the reports as they relate to the applicant’s professional activities. Therefore, the collection, storage, or transfer of personal data is undoubtedly protected under the right to respect for private life within the context of Article 20 of the Constitution. In this situation, the refusal to provide these personal data to the applicant constitutes a violation of the applicant’s right to request the protection of personal data, as regulated in Article 20, Paragraph 3 of the Constitution. Therefore, this application was examined within the scope of the right to protection of personal data.”
“It is clear that there is no lack of grounds, and there is no other reason that would require the dismissal of the claim. Therefore, the claim of violation of the right to protection of personal data within the scope of the right to respect for private life should be accepted as admissible.”
Lawyer Yalçın TORUN
Trainee Lawyer Tunahan TIRAŞ
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