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

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Exceptions The regime of exceptions (commonly referred to as exemptions) has been rendered reasonably clear through juridical interpretation but it could be signifi cantly improved upon. Subsection (d) provides that the Law does not justify non-disclosure of information except as provided for in the Law and that it is not authority to withhold information from Congress. In other words, the exceptions in the Law are comprehensive in the sense that no other exceptions are recognised. Signifi cantly, however, paragraph (b)(3), the third exception, excludes from the ambit of the Law all records which are exempt from disclosure by other statutes, as long as these laws leave no discretion as to non-disclosure or establish particular criteria for withholding information. These conditions would rule out some secrecy provisions but leave in place most secrecy laws. The fi rst exception in subsection (b) covers all information which is specifi cally classifi ed as secret, under criteria established by an Executive Order, for purposes of national defence or foreign policy, as long as the material is in fact properly classifi ed pursuant to that Executive Order. Classifi cation is currently governed by Executive Order 13292 – Further Amendment to Executive Order 12958, as Amended, Classifi ed National Security Information, adopted by President Bush on 25 March 2003. 328 The Order does ensure some procedural guarantees against excessive classifi cation, including who may classify information (section 1.3), on what grounds (section 1.4) and for how long (section 1.5). In general, information may be classifi ed under the Order only if its disclosure would cause damage to national security, but the disclosure of information provided by foreign governments is presumed to cause harm (section 1.1). The Order also prohibits classifi cation of information in certain cases, for example to conceal violations of the law, to prevent embarrassment or to restrain competition (section 1.7). Many of the primary exceptions under subsection (b) are not subject to a harm test. As a result, many information requests fall into the “discretionary” category. A Memorandum issued by the Attorney General on 4 October 1993 called on public bodies to use this discretion to disclose information. 329 This was reversed by a later Memorandum issued by the Attorney General on 12 October 2001, which required public bodies to carefully consider any discretionary disclosures, stating: Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information. The later Memorandum also promised legal defence to public bodies whenever there was a ‘sound legal basis’ for their decision to withhold information, replacing the ‘foreseeable harm’ test applied previously. 330 There is no provision in the RTI Law for a public interest override. Subsection (b) requires that any information which may be segregated from exempt material be disclosed. It also requires applicants to be informed about the amount of information deleted and, where technically feasible, the place where the deletion was made. The Law contains nine primary exceptions in subsection (b), in addition to a general exception for information that has already been published in the Federal Register or which is required to be made available for public inspection. The fi rst exception, relating to classifi ed information, is detailed above. The second exception covers records, “related solely to the internal personnel rules and practices of an agency”. There is no harm test, although the exception itself is relatively narrow. The third exception, which relates to secrecy provisions in other laws, has already been described. The fourth exception applies to trade secrets, and confi dential or privileged commercial or fi nancial information obtained from a third party. Once again, although the exception does contain conditions, it is not subject to a harm test. The fi fth exception applies to inter-agency memoranda which would not be available to parties in litigation. This is effectively the internal deliberations or ‘room to think’ exception. 131
132 The sixth exception covers fi les the disclosure of which, “would constitute a clearly unwarranted invasion of personal privacy”, a relatively strong form of harm test. In practice, courts have applied a modifi ed public interest test to determine whether or not an invasion of privacy is warranted. The seventh exception relates to a range of records compiled for law enforcement purposes, all of which, apart from one to protect confi dential sources of information, have built-in harm tests. The eighth exception relates to certain reports prepared by a public body responsible for regulating fi nancial institutions. Once again, although harm may often be presumed, the exception would benefi t from being explicitly subject to a harm test. The fi nal exception, which is not found in most right to information laws, relates to geological and geographical information concerning wells – added due to lobbying by the oil industry – and it is not subject to a harm test. These last two exceptions are seldom used in practice. Certain records are, pursuant to subsection (c), excluded entirely from the ambit of the Law (these are commonly referred to as exceptions). These include records relating to enforcement of the criminal law where the subject is not aware of the investigation and disclosure of the record could reasonably be expected to interfere with enforcement proceedings, records maintained by a criminal law body under an informant’s name, unless the status of the informant is public, and records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or international terrorism. Appeals Applicants must fi rst appeal any refusal to disclose information to the head of the relevant public body. This internal appeal must be decided within 20 working days and, if the appeal is refused, in whole or in part, the applicant must be notifi ed of the possibility of judicial review (clause (a)(6)(A)(ii)). In unusual circumstances, as outlined above in relation to the original request, this period may be extended by written notice, for a maximum of another 10 days (clause (a)(6)(B)(i)). If there is no response within the stipulated time limits, the applicant can appeal directly to the courts. There is no provision for an independent administrative level of appeal. This is a serious shortcoming in the Law. There are, however, currently some efforts in place to address this. The most recent amendments to the Law will establish a new Offi ce of Government Information Services within the National Archives and Records Administration, with a mandate, among other things, or making recommendations for reform of the system and of mediating disputes between applicants and public bodies, with a view to alleviating the need for litigation. 331 If the internal appeals system has been exhausted, an appeal will lie to various courts, at the choice of the applicant (subparagraph (a)(4)(B)). An appeal will also lie to the courts if the time limits for a response have been exceeded, subject to exceptional circumstances (see above, under Process) (clause (a)(6)(C)(i)). The defendant public body must fi le a response within 30 days of service of the pleading in the complaint (subparagraph (a)(4)(C)). The court may require the public body to produce the record for its examination, in camera if warranted, and require the public body to disclose the record. The court shall examine the matter de novo, and the burden of proof shall be on the public body to justify non-disclosure. However, the court is required to accord “substantial weight” to an affi davit of a public body concerning whether the information falls within the scope of an exception (subparagraph (a)(4)(B)). When considering appeals relating to fee waivers, the court shall consider the matter de novo, but based only on the record before the public body (clause (a)(4)(A)(vii)). The court may, in any case where the complainant “substantially prevails”, order the government to pay reasonable lawyers fees and other litigation expenses (subparagraph (a)(4)(E)). In case of non-compliance with an order of the court, the responsible offi cer may be punished for contempt of court (subparagraph (a)(4)(G)).
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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
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62 Section 4(1)(a) provides for a r
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64 A public body (the term used in
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66 ‘subject area’ of the public
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68 justifi ed in its original decis
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70 The Right of Access The right of
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72 Exceptions The Japanese RTI Law
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74 Sanctions and Protections The Ja
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76 formats or of certain types, suc
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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 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: 130 educational or scientifi c inst
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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