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

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means of addressing exceptions and relations with other laws. Article 2(2) requires any restriction to be “scrupulously specifi ed in the provisions of a special Act of law”, under which the government may issue detailed regulations. This special act is the Secrecy Act, which sets out comprehensive grounds for secrecy, including references to other legislation and government regulations. 267 Article 2(1) of the RTI Law provides for restrictions which “are necessary having regard to” seven specifi c interests. Under the Secrecy Act most provisions provide for some form of harm test, although a few exceptions are absolute, in the sense that the information may disclosed only pursuant to an overriding statutory rule (for example allowing courts to access the information). The remaining exceptions are divided into two categories. The fi rst provides for release of information unless the public body can show that harm will result, a proper presumption of openness approach. In the second category, the presumption in favour of disclosure is reversed and the document is presumed to be secret unless it is clear that no harm will result. 268 Neither the Freedom of the Press Act nor the Secrecy Act provide for a general public interest override. However, some secrecy provisions in the area of consumer protection and health and safety do include internal public interest tests. Furthermore, some provisions in the Secrecy Act authorise the government, in special cases, to disclose particular offi cial documents, which is analogous to a public interest override. The RTI Law also provides for severability of documents where only part of the document is covered by an exception (Article 12). The RTI Law, in conjunction with the Secrecy Act, also envisages that in some cases documents subject to secrecy may be made available subject to certain reservations, such as a prohibition on publication or on any use other than for research, where these would eliminate the risk of harm. 269 Similar reservations may be imposed by an individual when waiving their right to personal privacy for purposes of release of a document. Finally, the Secrecy Act imposes time limits, ranging from 2 to 70 years, on the withholding of documents. Protection of privacy and private interests, for example, usually attracts secrecy for between 50 and 70 years, while protection of public or private commercial interests is often limited to 20 years. 270 There are seven specifi c interests protected by the RTI Law, which correspond to separate chapters of the Secrecy Act, as follows: security or relations with foreign States or international organisations; central fi nance policy, monetary policy or foreign exchange policy; inspection, control or other supervisory functions; the interest in preventing or prosecuting crime; the public economic interests; protection of personal integrity and economic privacy; and preservation of animal or plant species. These are, by-and-large, restrictions commonly found in other right to information laws, apart from the last one, which is somewhat unique. These are the only grounds for restricting access to offi cial documents and, where a document is confi dential, a notation must be provided on the document, indicating the provision under which the restriction is authorised (Article 16). 105
106 Appeals An individual may appeal any refusal to provide, or limits on access. Appeals are in most cases lodged with the administrative courts. The Secrecy Act shall “stipulate in detail” how such an appeal may be lodged and they shall “always be dealt with promptly.” An appeal against a decision by agencies of the parliament will be governed by special provisions (Article 15). There is no provision for a binding appeal to an independent administrative body, which is another serious shortcoming in the Swedish RTI Law. Sanctions and Protections The Law does not provide for sanctions for breach of its provisions. However, courts have the power under the Penal Code to sanction individuals who fl out the provisions of the Law, either by releasing secret documents on purpose or through negligence, or by mishandling requests for access. 271 The Law also does not provide protection for those who, in good faith, release information pursuant to a request. Instead, Chapter 7 of the Freedom of the Press Act, entitled “On Offences Against the Freedom of the Press” provides for sanctions for individuals who, without authority but lacking the intent to aid a foreign power, traffi c in or release through ‘gross carelessness’ sensitive security information (Articles 4(4) and (5)). Article 5 of the same chapter makes it an offence deliberately to publish a secret offi cial document acquired in the course of public service or to disregard a duty of secrecy. Promotional Measures The Swedish RTI Law fails to incorporate any provisions placing an obligation on public bodies to undertake promotional measures. At the same time, a long-standing culture of openness, along with the implementation in practice of a number of promotional measures, means that it may be less important for these to be required by law, as is the case with many more recent right to information laws. T hailand Introduction The worst economic crisis in decades, coming to a peak in the late 1990s, had a profound impact on politics in Thailand, leading to the adoption of a new Constitution in October 1997, which provided very strong rights guarantees. Among other things, the 1997 Constitution guaranteed the right to access information held by public bodies, subject only to limited exceptions in favour of State security, public safety or the interests of others, as provided for by law. 272 The same Constitution also guaranteed the right to receive information from public bodies before permission is given for any activity which might affect the environment, health, quality or life or any other material interest. 273 The same guarantees are contained in the 2007 Constitution, approved by referendum on 19 August 2007. 274
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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
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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 and 112: 102 Chapter 2 of the Swedish Law de
Page 113: 104 where this “presents serious
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
Page 163 and 164: 154 must make each such report avai
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156 from different regions around t
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