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

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commission” while section 2(1) states that the Law applies to information held by “Government ministries, departments, local governments, statutory corporations and bodies, commissions and other Government organs and agencies”, which appears to be a bit broader. Regardless, these defi nitions are not as wide as those of some right to information laws, which also include bodies funded or controlled by the State, and even private bodies undertaking public functions. As noted, the right of access applies only to citizens, contrary to best practice laws, which apply to everyone, including corporate bodies. Procedural Guarantees Requests must be provided in writing, in the prescribed form. The RTI Law does not stipulate whether or not requests may be lodged electronically. The request must include a description of the information or record sought in suffi cient detail to allow an experienced offi cer to identify it, the identity and address of the applicant and the means by which the applicant would like the information to be communicated (section 11). Where an applicant is unable, due to illiteracy or disability, to make a written request, the request may be made orally, in which case the information offi cer shall reduce the request to writing and provide a copy to the applicant. Section 12 places a general obligation on information offi cers to assist applicants, free of charge, even when the request is for information held by another public body. It also requires information offi cers to give notice to applicants whose requests fail to meet the requirements described above and to offer to provide them with assistance so as to resolve the problem. Pursuant to section 6, the right of access is not affected by any reason an applicant may give for requesting information or by an information offi cer’s belief as to an applicant’s reason for making a request. It might have been better had the Law simply provided, as many right to information laws do, that no reasons are required to be given, although the prohibition on information offi cers being infl uenced by their beliefs as to reasons for a request could prove important. Section 14 deals with cases where a public body does not hold or cannot, after making reasonable effort, fi nd requested records and does not know which public body has them, in which case the applicant shall be informed of this fact in writing, along with a full account of steps taken to fi nd the record. A notice of this sort shall, for appeal purposes, be regarded as a refusal to fulfi l a request. The section also provides that, should the information be found, it must be provided to the applicant. An applicant should normally be notifi ed within 21 days as to whether or not his or her request will be granted (section 16(1)). This may be extended by up to another 21 days where the request is for a large number of records or requires a search through a large number of records and to comply within the original 21 days would unreasonably interfere with the work of the public body, where the request requires access to records not located in the same location and this cannot reasonably be completed within the original timeline or where the applicant consents to the extension in writing. In this case, the information offi cer shall notify the applicant of the period of the extension, the reasons therefore and his or her right to lodge an appeal (section 17). Pursuant to section 18, failure to comply with the relevant timelines shall be a deemed refusal of a request. These provisions provide a good balance between the need for reasonably short timelines and the need for timelines not to be so short that it is impossible in practice for offi cials to comply with them. Pursuant to section 15, access to a record may be delayed where the record is to be published within 90 days “or such further period as is reasonably necessary for printing the record for the purpose of publishing it”, where the record is required by law to be published or where the record has been prepared as a submission (to a public body, public offi cer or particular person), but has not yet been submitted. In this case, the applicant shall be notifi ed of the likely period of delay and given an opportunity to make representations to the information offi cer as to why he or she requires the record before that time. Information offi cers are 113
114 required to grant earlier access to the record only if there are “reasonable grounds for believing that the person will suffer substantial prejudice” from the proposed delay. Many right to information laws provide for delays in these or analogous cases. The problem with these provisions is the absence of hard timelines. A law may, for example, require publication of certain material but give no particular deadline for this, or a deadline of two years hence. A document may be prepared for submission to a public body in the distant future, or it may never actually be submitted, in which case section 15 would allow indefi nite delay. The possibility of overcoming the delay is helpful, but the standard – substantial prejudice – is high and, given that access is a right, does not suffi ce to negate the underlying problem of an absence of deadlines. Section 13 provides for the transfer of requests where the information is not held by the public body originally approached or where the subject matter of the information is more closely connected to the work of another public body. Such transfer should be effected as soon as possible but in any case within 21 days and, in this case, the applicant should be informed of the fact of the transfer, the reasons for it and the period within which the request will be dealt with. These provisions are analogous to those found in other right to information laws, although the period given to effect a transfer, 21 days, is the same as to process a request, which seems unduly long for this relatively simple matter. Pursuant to section 35, where an information offi cer intends to disclose a record he or she must, within 21 days, inform a third party in writing where the record might contain a trade secret of that third party, confi dential fi nancial, commercial, scientifi c or technical information supplied by that third party, or information the disclosure of which could result in a commercial loss to that third party. In this case, the third party shall have 20 days to make a representation as to why the information should not be disclosed and the information offi cer shall, within another 21 days, decide whether or not to release the record (section 36(1)). This sort of provision is common in a right to information law, save for the timelines, which are unduly long and do not conform to the time requirements set out in sections 16 and 17 (since the various periods listed in this section run to over 60 days). Where a decision has been made to grant a request, notice shall be provided indicating any fee to be paid, the form in which access is proposed to be given and the right of the applicant to appeal against the proposed fee or form of access, as well as the procedure for making such an appeal (section 16(2)). Where a request is refused, the notice shall state adequate reasons for the refusal, including the provisions in the RTI Law upon which it is based, the right of the applicant to appeal against the refusal, and the procedure for doing so (section 16(3)). Where access to part of a record is granted and part refused, notice should be provided in accordance with the above for the respective parts of that record (section 19(2)). The RTI Law includes very detailed provisions on the form of access. Section 20(2) provides a long list of possible forms of access, which include a copy of a record (including in electronic form where relevant), inspection of the record (including via sound equipment), the extraction of information from the record using equipment available to the public body and even for the applicant to make copies of a record him- or herself, subject to certain conditions. Access should normally be provided in the form requested, unless this would unreasonably interfere with the work of the public body, be detrimental to the preservation of the record or breach a copyright not held by the State. Where access is, for one of these reasons, provided in a form other than that requested, the fee shall not exceed that which might have been levied had the information been provided in the form requested. The Law also includes detailed provisions on access by persons with disabilities, to whom access should be provided in an appropriate form, unless this would be ‘outrageously expensive’. Fees are, in analogous fashion, capped at the level they would have been had the person not had the disability. The RTI Law includes only very framework rules on fees. Section 20(1) provides that access should be granted as soon as any fee is paid. No other mention is made of fees in the Law itself, other than to grant the minister responsible for the Law the power to make regulations regarding “any matter relating to the fees including the procedures and guidelines for determining when such fees should be waived or reduced”. Such fees must, however, represent only the actual cost of retrieval and reproduction of the information (section 47(1)(b) and (2)). This system has its strengths and weaknesses. It does at least ensure that there is a central set of fee rules, ensuring consistency across public bodies on this important matter, along with, presumably, fee waivers or reductions. On the other hand, inclusion of retrieval costs has the
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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
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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 and 120: 110 In terms of specifi c exception
Page 121: 112 parliament to make laws prescri
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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