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

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specialized Information Disclosure Tribunals, based on the type of information in question, such as security, economy or law enforcement, are appointed by the Council of Ministers upon recommendation of the Commission. Each Tribunal consists of at least three people, with government offi cials acting as secretary and assistant secretary. The lack of independence of the Commission means that the Tribunals also suffer from a lack of structural protection for their independence. At the same time, some limited protection against bias is provided by the rule prohibiting members of the Tribunal who represent a particular public body from participating in any decision concerning that public body. The Tribunal shall decide appeals within seven days and their decisions are considered fi nal (sections 36 and 37). The powers and duties of the Tribunals, as well as procedural matters, shall be provided for in Rules adopted by the Commission and published in the Government Gazette. Where the Commission, Tribunal or courts access information marked as confi dential as part of the resolution of a dispute, they are prohibited from divulging that information as part of the consideration of the dispute (section 19). Sanctions and Protections The RTI Law does not contain any sanctions for wilful obstruction of access. It also does not really include any protection for good faith disclosures. Section 20, noted above in connection with the public interest override, does protect offi cials who disclose information which has not been classifi ed in accordance with section 16, even where such disclosure in fact breaches an exception set out in section 15. Furthermore, offi cials of a certain level, as prescribed by ministerial regulation, are exempted from liability if they disclose information in the public interest. Even in this case, however, the public body may still be subject to liability. As a result, it may be assumed that this power will rarely be used. Promotional Measures The Thai RTI Law includes few promotional measures. As noted, the Law includes a chapter on protection of personal data, limiting the collection, storage and use of such data. This system also allows everyone to access their own personal data, subject to the regime of exceptions (sections 21-25). In addition to its mandate to receive complaints, the Commission has a mandate to provide advice to State offi cials and public bodies, to make recommendations regarding the enactment of regulations or rules under the Law, to provide an annual report on implementation of the Law to the Council of Ministers and to carry out other duties as entrusted to it by the Council of Ministers or Prime Minister (section 28). U ganda Introduction Article 41(1) of the 1995 Constitution of Uganda guarantees every citizen the right to access information held by the State, except where release of the information is likely to prejudice the security or sovereignty of the State or interfere with an individual’s right to privacy. Signifi cantly, Article 41(2) specifi cally requires 111
112 parliament to make laws prescribing the classes of information covered by this right, as well as the procedure for realising it. Despite these strong guarantees, it was nearly ten years before the Ugandan Access to Information Act, 2005, 279 (RTI Law) was signed into law on 7 July 2005, and another nine months before it came into force on 20 April 2006. Civil society had been active in advocating for a right to information law since at least 2003 and the government made a commitment to adopt one, motivated at least in part by a desire to combat corruption, the same year. Some of the more positive aspects of the Law are a narrowly drafted, for the most part, regime of exceptions, including a developed set of exceptions to exceptions. The procedural guarantees are also well-developed and, again for the most part, progressive, particularly as regards notice, which is required to be provided in some detail at every step. Importantly, the Law provides protection for whistleblowers, or those who disclose evidence of wrongdoing. On the other hand, the Law contains only a very limited regime for proactive or routine publication of information, contrary to the trend in some of the more recent right to information laws. The Law also fails to establish an independent oversight mechanism, so that the only recourse for a refusal to provide access is the judicial system. The Law also contains an extremely rudimentary set of promotional measures, which can be a barrier to successful implementation. Indeed, implementation of the Law remains illusive. Implementing regulations have still not been adopted as this goes to print, over two years after the Law was adopted, and this has prevented proper implementation. Efforts are currently underway to see regulations adopted but it remains to be seen whether these will be effective, and if so when. The Right of Access Section 5(1) of the RTI Law clearly sets out the right of access, echoing Article 41 of the Constitution, stipulating that every citizen has a right to access information and records held by public bodies, unless release of the information is likely to prejudice security or sovereignty, or an individual’s right to privacy. Section 5(2) supplements this by providing that the information citizens have a right to access should be accurate and up-to-date. A further, and important, gloss on this is provided in section 24(1), which provides for access to information or records held by public bodies if the requirements of the Law have been complied with and access is not prohibited by Part III of the Law, setting out the exceptions. This is important since the limited exceptions specifi cally referred to in the Constitution, as well as in section 5(1) of the Law, are insuffi cient to protect the various public and private interests that might legitimately override the right to access information. Section 3 sets out the purposes of the Law which are, among other things, to promote “effi cient, effective, transparent and accountable” government, to give effect to Article 41 of the Constitution, to protect individuals who disclose evidence of wrongdoing in government, to promote transparency and accountability of the organs of the State by providing the public with access to timely and accurate information, and to empower the public to scrutinise and participate in government decisions that affect them. Section 2(3) further provides that nothing in the Law shall detract from the provisions of any other law granting a right to access information. These are all very positive purposes which, taken together, should provide a good interpretive background to the Law. The right of access as set out in section 5 applies to both information and records. Information is defi ned in section 4 as including written, visual, aural and electronic information. A record is defi ned as “any recorded information, in any format, including an electronic format” in the possession of a public body, whether or not that body created it. These defi nitions would appear to cover all information held by public bodies. The right of access applies to all information and records held by the State or any public body. Section 4 defi nes a public body as including “a government, ministry, department, statutory corporation, authority or
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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
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54 Article 5 provides that the righ
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56 The initial indications are that
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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 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: 110 In terms of specifi c exception
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
Page 165: 156 from different regions around t
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