Freedom of Information: A Comparative Legal Survey - Federation of ...

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Article 4 also provides that compliance with the Law should not lead to ‘reprisals’ against offi cials responsible for releasing requested information. On the other hand, Article 18 provides that offi cials must keep information covered by the exceptions in Articles 15-17 confi dential and that they shall be responsible for any leaks. It is not clear how compatibility between these two provisions is achieved. It seems likely that Article 4 applies subject to Article 18. In other words, offi cials may not be subject to sanction for releasing information pursuant to a request, unless the information falls within the scope of an exception, in which case they may be sanctioned. In better practice RTI laws, offi cials are protected against any sanction for releasing information as long as they act in good faith, which helps promote a culture of openness. The Peruvian RTI Law does not provide for protection for whistleblowers. Promotional Measures The Peruvian RTI Law contains only very basic promotional measures. Pursuant to Article 3, public bodies must designate an offi cial responsible for responding to requests for information. This is backed up by Article 8, which reiterates this obligation, and also provides that, where an offi cial has not been identifi ed, responsibility will lie with the ‘secretary general’ or whomever is in charge of the body. Article 3 also establishes two general positive obligations, namely that the responsible offi cial shall plan an ‘adequate infrastructure’ for the “organisation, systematisation, and publishing of information” and that the body should “adopt basic measures that guarantee and promote transparency”. It is unclear how far these obligations extend and how they might be applied in practice. Article 21 places an obligation on the State to create and maintain its records in a professional manner to ensure proper exercise of the right to information. It forbids public bodies to destroy information ‘under any circumstance’ and instead provides for the transfer of all information to the National Archive, in accordance with deadlines established by law. The National Archive may destroy information that lacks relevance, in accordance with its internal regulations, but only if the information has not been requested for a reasonable period of time. These are positive obligations but they could be strengthened by establishing more specifi c systems for ensuring the proper management of records. Furthermore, the idea that public bodies may not destroy any information but must, instead, transfer all information to the archives appears to be based in an unduly narrow conception of ‘information’ which should include, for example, things like emails and even cookies on computers. Article 22 of the Law places an obligation on the Council of Ministers to report annually to Congress on information requests, and to indicate which were granted and which denied. The Council of Ministers must furthermore gather information from public bodies so that it may prepare this report. Although positive, it would be helpful if the Law set out in more detail the categories of information required to be included in such a report. 93
94 S outh Africa Introduction The 1996 Constitution of the Republic of South Africa not only guarantees the right to access information held by the State, but also to acces information held by private bodies which is necessary for the exercise or protection of any right. 242 The Constitution also specifi cally requires the government to pass a law giving effect to this right within three years of its coming into force. 243 This is an extremely practical provision, which forced the government to adopt legislation in a timely fashion, something it did just within the deadline. The enabling legislation, the Promotion of Access to Information Act (RTI Law), came into effect in March 2001. 244 This is one of the more progressive right to information laws in the world, no doubt a refl ection of the profound mistrust of government the apartheid era instilled in people. It has very strong procedural guarantees, as well as a narrowly crafted set of exceptions. A major shortcoming of the South African Law is that it does not provide for an administrative level of appeal. As a result, if requests are refused by public bodies, only courts can review this. It also essentially lacks any proactive obligation to publish, something which has received extensive attention in some of the more recent right to information laws and which is an important complement to request-driven access. At least as importantly, implementation has been weak. One study suggests that 62% of requests are met with a ‘mute refusal’ or simply no answer, the highest for any country in the study where a right to information law was in force. 245 The study notes that in terms of compliance (i.e. actual provision of information in response to requests), South Africa had “by far the lowest score of the seven monitored countries with freedom of information laws.” 246 This receives some corroboration from the 2005-2006 Annual Report of the South African Human Rights Commission, which notes with concern: “The number of public bodies submitting section 32 reports [on their performance under the Law] continues to remain low with a decrease in the number of reports received compared to the previous reporting period.” 247 It is clearly a problem if public bodies do not even fulfi l clear, highly visible and offi cially monitored statutory obligations like reporting. The Right of Access The right of access to public records is set out in section 11(1) of the RTI Law, which provides that an applicant (referred to as a requester) must be given access to a record if he or she complies with the procedural requirements set out in the Law and the record is not covered by an exception. The right to access information held by private bodies is set out in section 50(1) of the Law and is substantially identical to the right defi ned for public bodies, with the important difference that it is only engaged where the information is required for the exercise or protection of a right. This Chapter focuses mainly on the right of access in relation to public bodies; the Law contains parallel, and very similar, provisions regarding access to information held by private bodies. Fairly detailed ‘objects’ for the RTI Law are set out in section 9. These include: giving effect to the constitutional right to access information, subject to justifi able limitations, including those “aimed at the reasonable protection of privacy, commercial confi dentiality and effective, effi cient and good governance”; giving effect to the constitutional obligation to promote a human rights culture, including by allowing public bodies to access information held by private bodies; establishing practical mechanisms to give effect to the right of access “as swiftly, inexpensively and effortlessly as reasonably possible”; and generally promoting transparency, accountability and good governance, including through public education.
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Toby Mendel is the Law Programme Di
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The author is responsible for the c
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Table of Contents Foreword and Note
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Country Chapters 43 Azerbaijan 43 I
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Foreword by Abdul Waheed Khan Assis
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Introduction The importance of the
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Access to medical records, for exam
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International Standards and Trends
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egard to information held by Govern
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very exercise of democracy.” The
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Group to discuss the right to infor
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y Article 8 of the Convention. 70 I
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information on hazardous materials
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The Guerra case at the European Cou
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Court of Japan established in two h
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Charter standards and gradually ame
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43. Report of the 65th Meeting of t
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105. See, for example, Handyside v.
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Features of a Right to Information
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principles of law recognised by the
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PRINCIPLE 2. OBLIGATION TO PUBLISH
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The complexity and yet importance o
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provision of advice within governme
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The Aarhus Convention has reasonabl
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Notes 137. UN General Assembly Reso
Page 53 and 54: 44 The Right of Access The right of
Page 55 and 56: 46 Access to information shall be f
Page 57 and 58: 48 information the disclosure of w
Page 59 and 60: 50 have been taken to disseminate i
Page 61 and 62: 52 funded from the consolidated bud
Page 63 and 64: 54 Article 5 provides that the righ
Page 65 and 66: 56 The initial indications are that
Page 67 and 68: 58 Duty to Publish The Indian RTI L
Page 69 and 70: 60 personal information which does
Page 71 and 72: 62 Section 4(1)(a) provides for a r
Page 73 and 74: 64 A public body (the term used in
Page 75 and 76: 66 ‘subject area’ of the public
Page 77 and 78: 68 justifi ed in its original decis
Page 79 and 80: 70 The Right of Access The right of
Page 81 and 82: 72 Exceptions The Japanese RTI Law
Page 83 and 84: 74 Sanctions and Protections The Ja
Page 85 and 86: 76 formats or of certain types, suc
Page 87 and 88: 78 Article 20 provides a long list
Page 89 and 90: 80 Sanctions and Protections Articl
Page 91 and 92: 82 source, date of creation or form
Page 93 and 94: 84 Duty to Publish Article 7 of the
Page 95 and 96: 86 Appeals For agencies, complaints
Page 97 and 98: 88 Peru Introduction The 1993 Peruv
Page 99 and 100: 90 automatically from a database, w
Page 101: 92 information classifi ed on grou
Page 105 and 106: 96 The Law contains detailed provis
Page 107 and 108: 98 The main exceptions are set out
Page 109 and 110: 100 an applicant a fee for inspecti
Page 111 and 112: 102 Chapter 2 of the Swedish Law de
Page 113 and 114: 104 where this “presents serious
Page 115 and 116: 106 Appeals An individual may appea
Page 117 and 118: 108 for providing the information (
Page 119 and 120: 110 In terms of specifi c exception
Page 121 and 122: 112 parliament to make laws prescri
Page 123 and 124: 114 required to grant earlier acces
Page 125 and 126: 116 Most of the exceptions do inclu
Page 127 and 128: 118 Sanctions and Protections The U
Page 129 and 130: 120 The Law does not include a sect
Page 131 and 132: 122 There have been efforts recentl
Page 133 and 134: 124 The specifi c exceptions are as
Page 135 and 136: 126 Sanctions and Protections The R
Page 137 and 138: 128 The new OPEN Government Act add
Page 139 and 140: 130 educational or scientifi c inst
Page 141 and 142: 132 The sixth exception covers fi l
Page 143 and 144: 134 the number of full-time staff
Page 145 and 146: 136 196. It was amended by Law No.
Page 147 and 148: 138 259. Act No. 100 of 1980. Avail
Page 149 and 150: 140 318. Banisar, D., Government Se
Page 151 and 152: 142 Some laws also include a number
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144 of parliament. These are unfort
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146 is a complex one. In some count
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148 Exceptions Most laws include a
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150 public interests. A number of l
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152 the set time frame, a refusal t
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154 must make each such report avai
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156 from different regions around t
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