Secrecy and Confidentiality as the Rule, Openness and Transparency as the Exception: 20 Years of the Right to Information in Türkiye

Abstract

This article provides a comprehensive analysis of the nearly 20-year trajectory of Law No. 4982 on the Right to Information in Türkiye, enacted in April 2004, evaluating its implementation amid evolving political landscapes and persistent bureaucratic hurdles. The study posits that in Türkiye, secrecy and confidentiality function as the default paradigm, while openness and transparency remain exceptional, often subordinated to administrative discretion and state interests. Drawing on international human rights standards, legal frameworks, statistical data, judicial precedents from the Constitutional Court and the European Court of Human Rights, and case studies, the article interrogates the gap between the law’s democratic aspirations and its practical erosion, highlighting implications for freedom of expression, accountability, and democratic governance.

Internationally, the right to information is enshrined as a fundamental human right under freedom of expression, as articulated in the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee's General Comment No. 34 (2011) mandates proactive disclosure of public interest information, ensuring access is prompt, effective, and practical, with limited fees, reasoned denials, and appeal mechanisms. Restrictions must adhere strictly to ICCPR Article 19(3), without requiring justification from requesters. This right intersects with socio-economic entitlements like water, health, education, and environmental protections, as seen in UN conventions on corruption, pollution, climate change, disability, and migration. The European Court, after initial reluctance, has progressively recognized access to information under Article 10 of the European Convention on Human Rights, particularly in cases where it serves as a tool for expressing opinions or fulfilling public watchdog roles. In Magyar Helsinki Bizottság v. Hungary (2016), the Grand Chamber established four threshold criteria, namely, purpose of the request, nature of the information, role of the applicant, and availability of the information, to determine if denial constitutes interference with expression rights. The Turkish Constitutional Court has adopted this framework in Yaman Akdeniz (2) (2023), linking information rights to freedom of expression.

In Türkiye, the right emerged amid early 2000s democratization efforts, with the 58^th Government Program (2002) pledging transparency via new laws and technology. Law No. 4982, unanimously passed in October 2003, aimed to foster equality, impartiality, and openness, with then-Deputy Prime Minister Mehmet Ali Şahin envisioning transparency as the norm and secrecy as the exception. Effective from April 2004, the law was bolstered by a regulation and the establishment of the Right to Information Evaluation Board. Constitutionalized in 2010 via Article 74, it empowers citizens to access public records without relevance requirements for Turks, though foreigners face reciprocity limits. The law defines “information” broadly as records and “documents” as any medium, mandating efficient provision within 15-30 working days, with appeals to the Board, the Ombudsman, or courts.

However, amendments have expanded exemptions. A 2013 addition excluding ÖSYM exam questions was annulled by the AYM in 2014 for disproportionate restriction on education and fair trial rights. Similarly, a 2018 exclusion of the National Intelligence Organization (MİT) was struck down in 2022 for overbroad secrecy, violating Articles 13, 20, and 74, as existing safeguards sufficed. The law lists 13 exceptions, including state secrets, economic interests, intelligence, investigations, and privacy, but procedural barriers, in particular, Article 7(2)’s allowance for denying requests requiring “special additional work” have become de facto shields, contravening proportionality under Article 13 of the Constitution.

Statistical analysis of 2004-2024 reveals over 34 million applications, peaking at 3.3 million in 2014 before a sharp 2015 drop (likely due to education ministry related applications), rebounding post-2016 coup attempt. Acceptance rates hover at 84.86%, with 7.25% rejections, but the regulation’s mandate for detailing rejection rationales (Article 44(c)) is ignored, fostering opacity. Board’s low approval rate for appeals (18.11% of 32,295 appeals) and publication of only 64 decisions underscore transparency deficits, with private sites like BilgiEdinmeHakki.Org offering more historical insights than official channels.

Moreover, the article argues that political conjunctures exacerbate issues. Article 7(2) is misused for routine data compilation, contradicting Board’s 2007 ruling prioritizing public benefit, Ombudsman’s 2016 guidance, and judicial precedents like the Council of State’s 2010 affirmation of ministerial duties. The Board’s inconsistency reflects contextual arbitrariness. The Board’s 2016 Principle Decision, amid the State of Emergency, categorically excluded Decree Law-related information under Articles 19-20, upheld by the Council of State despite Board’s prior denial of such authority (2004), enabling systemic denials and undermining defence rights.

Finally, the article argues that the non-implementation of judgments exemplifies the “secrecy norm.” Cases include: (I) Author’s BTK access blocking statistics request, where the Constitutional Court’s 2023 violation ruling led to retrial, yet BTK appeals continue; (II) Post-2023 earthquake Twitter bandwidth throttling details, denied despite court decision; (III) The Justice Ministry ignoring Ombudsman and court decision with regards to certain statistics, prompting the Constitutional Court’s 2025 violation finding; (IV) DİSK’s TÜİK inflation prices, defied through multiple lawsuits and prosecutorial dismissals, with ongoing Constitutional Court appeal.

In conclusion, despite formal advancements, the right to information remains hindered by bureaucratic resistance, political influences, and judicial non-enforcement, reinforcing secrecy over transparency. Reforms such as mandatory Board decision publication, detailed rejection reporting, sanctions for non-compliance are essential. The Yaman Akdeniz (2) decision offers hope by aligning with ECtHR criteria, potentially bolstering future access. Yet, without cultural shifts, this right risks perpetual marginalization, weakening democratic oversight in Türkiye.