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

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The fi rst of these essentially covers letters, telegrams and other messages that are distributed on behalf of the public by a public authority, such as the postal and telegraph services. However, these functions have now been privatised so the provision is effectively obsolete. In contrast to the detailed defi nition of offi cial documents, Chapter 2 devotes little attention to the issue of public bodies. Article 5 does note that “the Parliament and any local government assembly vested with powers of decision-making shall be equated with a public authority”. However, the Swedish Ministry of Justice has defi ned public bodies as, …those entities included in the state and municipal administration. The Government, the central public authorities, the commercial public agencies, the courts and the municipal boards are examples of such public authorities. However, companies, associations and foundations are not public authorities even if the state or a municipality wholly owns or controls them. 262 As this makes clear, companies are not public bodies, even if they are owned or controlled by the State. This is a signifi cant limitation, particularly in modern times when many public functions are carried out by companies. However, some companies and other legal persons vested with the power to exercise public authority or to distribute publicly funds are listed in the Appendix to the Secrecy Act and are hence subject to information disclosure obligations like other public bodies. Despite the title of the Law, which refers to the press, and Article 1 of Chapter 2, which refers to Swedish subjects, everyone can claim the right to access information. Article 5(2) of Chapter 14, General Provisions, states that except as otherwise provided for in the Law, foreign nationals are to be equated with Swedish citizens. Sweden has developed a reputation for being a good country to access European Union documents. Procedural Guarantees An application for access to a document should be made to the body which holds it, which shall normally decide upon the request. However, “where special reasons so warrant”, a provision in, or specifi cally authorised by, the Secrecy Act may provide for processing of requests by another body. Specifi c reference is made in this context to documents of “key importance for the security of the Realm”. A public body may not inquire as to an individual’s motivation for requesting a document, except where this is necessary to ascertain whether or not the document is subject to disclosure (Article 14). This might be the case, for example, where information is secret, but the applicant only wants to use it for certain purposes, which do not create a risk of harm (see below under Exceptions). The Swedish Law does not place any obligation on public bodies to provide assistance to applicants. However, public bodies are obliged to assist and give service, as in all dealings with the public, in accordance with the obligations spelt out in the Administrative Procedures Act. Access via inspection shall be dealt with “forthwith, or as quickly as possible” (Article 12), while requests for a transcript or copy shall be dealt with ‘promptly’. In neither case are specifi c timelines set out, although it would appear that most requests are dealt with quickly. 263 Apart from the rule set out above, whereby bodies which receive requests must normally process them, the Law does not provide for the transfer of requests or for consultation with third parties. Where access to all or part of a document or information in a document is refused, the applicant is entitled to written notice of this fact, along with the specifi c grounds upon which the refusal is based. 264 Any offi cial document subject to disclosure must be made available for inspection at the place where it is kept, in a manner that enables it to be read, viewed and so on, free of charge, by anyone. Where necessary, this includes making equipment available for such purposes. These obligations do not, however, apply 103
104 where this “presents serious diffi culty” or where the applicant can be provided access, without serious inconvenience, at a public body “located in the vicinity” (Articles 12-13). The document may also be copied or otherwise reproduced for a fi xed fee, although public bodies are not obliged to make electronic documents available other than via a print out. Inspection of a document shall be provided free of charge. Central statutory rates apply to the provisions of copies of documents exceeding nine pages. 265 A particular feature of the Swedish right to information system, set out in Chapter 15 of the Secrecy Act, 1981, is the requirement for all public bodies to register all documents they have received or drawn up. There are four exceptions to this rule: documents which are obviously of little importance, such as press cuttings; documents which are not secret and which are kept in a manner which makes it easy to ascertain whether they have been received or drawn up by a public body; documents found in large numbers which have been exempted; and electronic records kept in a central registry. 266 The register must record the date the document was received or drawn up, a registration number or other identifying designation, who the document was received from or dispatched to, where relevant, and a brief description of the document. In general, information in the register is itself open for public inspection, although in exceptional cases certain information in the register itself, as an offi cial document, might be covered by a secrecy provision. Duty to Publish A very signifi cant lacunae in the Swedish RTI Law is that it does not include any particular obligation of proactive publication. In practice, most Swedish public bodies do provide a wealth of information on a proactive basis, particularly via their websites. Furthermore, provisions in various other laws and rules place certain proactive publication obligations on public bodies. The government must publish all laws and the various State authorities entrusted with the power to adopt regulations are also obliged to publish these. Material that forms the basis of legislation, such as government committee proposals, is published in a particular series produced by the government at the start of public consultation on the legislation, before the government makes its proposals to parliament. Agreements between Sweden and other States or international organisations are published in a special series, produced by the Ministry for Foreign Affairs. “Post- och Inrikes Tidningar” (PoIT) is an offi cial publication for disseminating announcements from public bodies and others that are obliged by law to publish information. It contains, among other things, information about shareholding companies and other associations, notices to attend shareholders’ meetings, divisions of joint property between spouses, notices to creditors and adjudications of bankruptcy. PoIT, nowadays published exclusively on the Internet, is claimed to be the world’s oldest surviving newspaper, founded in 1645. Exceptions The exceptions are provided for in Article 2 of Chapter 2 of the Law although, as noted above, the defi nition of whether a document is offi cial also serves to limit access. The Swedish Law has a rather unique
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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
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44 The Right of Access The right of
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46 Access to information shall be f
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48 information the disclosure of w
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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 and 102: 92 information classifi ed on grou
Page 103 and 104: 94 S outh Africa Introduction The 1
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: 102 Chapter 2 of the Swedish Law de
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
Page 153 and 154: 144 of parliament. These are unfort
Page 155 and 156: 146 is a complex one. In some count
Page 157 and 158: 148 Exceptions Most laws include a
Page 159 and 160: 150 public interests. A number of l
Page 161 and 162: 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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