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

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Sanctions and Protections The Law includes a mechanism for addressing cases of obstruction of access. Where the circumstances of a case in which costs have been assessed against the government raises questions as to whether the personnel of the public body “acted arbitrarily or capriciously” with respect to the withholding of information, the Special Counsel shall initiate a proceeding to determine whether disciplinary action is warranted. The fi ndings of this proceeding shall be submitted to the administrative authority of the public body concerned, as well as to the offi cer concerned (subparagraph (a)(4)(F)). 332 These provisions have never been applied. However, the most recent amendments to the Law require the Attorney General to notify the Special Counsel of each case described above, and require both the Attorney General and the Special Counsel to submit an annual report to Congress on this (section 6 of the OPEN Government Act). The Law does not provide general protection for offi cials who disclose information improperly. However, Section 1.8 of Executive Order 13292 does promote challenges to improper classifi cation of information, and provides protection against retribution for offi cials who launch such challenges. A variety of laws, including the Sarbanes-Oxley Act of 2002, 333 provide some protection to whistleblowers but there is still no comprehensive legislation protecting whistleblowers. 334 Promotional Measures Various promotional measures are required under the RTI Law and derivative rules. Executive Order 13392, adopted in December 2005, 335 requires public bodies to appoint a Chief FOIA Offi cer with broad responsibilities for ensuring appropriate implementation of the Law, including by monitoring implementation, by making recommendations as to necessary changes and by fostering public awareness of the purposes of the exceptions (paragraphs 2(a) and (b)). The most recent amendments to the Law enshrine this at the statutory level. 336 Public bodies are also required to establish one or more FOIA Requester Service Centers and to appoint one or more FOIA Public Liaisons. The former is a fi rst port of call for applicants seeking information on the status of their request, while the latter are supervisory offi cers with whom applicants may raise concerns (paragraph 2(c)). The head of each public body is required to prepare and make publicly available a guide for requesting records including an index of all major information systems, a description of the main information locator systems and a handbook for obtaining various types of public information from the public body (subsection (g) of the Law). Public bodies are required to submit annual reports to the Attorney General on their activities under the Law and these annual reports must be made publicly available, including via electronic means. The reports must, in particular, cover: the number of refusals to disclose information, along with the reasons; the number of appeals, their outcome and the grounds for each appeal that does not result in disclosure of information; a list of all statutes relied upon to withhold information, whether or not the court has upheld the refusal to disclose, and the scope of information withheld; the number of requests pending and the average number of days they have been pending; the number of requests both received and processed, along with the average number of days to process requests of different types; the total amount of fees charged; and 133
134 the number of full-time staff working on access to information (paragraphs (e)(1) and (2)). The Attorney General must also make all annual reports available at a central website and notify various Congressional committee representatives of their availability (paragraph (e)(3)). The Attorney General, in consultation with the Director of the Offi ce of Management and Budget, must develop reporting and performance guidelines for the annual reports and he or she must also submit an annual report listing the number of cases arising under the Law, the exception relied upon in each case, the disposition of each case, and the cost, fees and penalties assessed (paragraphs (e)(4) and (5)). 337 Section 3 of Executive Order 13392 requires public bodies to review and evaluate their right to information operations, including by reference to numerical benchmarks, and to identify ways to eliminate or reduce backlogs. A plan must be developed to ensure that applicable standards are being met, including through the increased dissemination of information proactively, to avoid the need for individuals to have resort to the request procedure. The Plan should include concrete milestones with specifi c timelines, and must be followed up by including a report on the development and implementation of the Plan in the annual reports fi led by public bodies in 2005 and 2006. The Attorney General was required to provide a report on implementation to the President within ten months of the adoption of the Order. The Report, published in October 2006, reported that all public bodies had reviewed their performance under the Law and developed implementation plans. 338 At the same time, the Report noted problems with a number of the plans, as well as steps to address these. 339 It remains to be seen how effective implementation of the plans will be in practice. Notes 160. The Law is available at: http://www.antikorrupsiya.gov.az/eng/img/Law_on_right_to_ obtain_information_done.pdf. 161. Available at: http://www.ijnet.org/Director.aspx?P=MediaLaws&ID=25178&LID=1. 162. Banisar, D., Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws (Privacy International, 2006), p. 47. Available at: http:// www.privacyinternational.org/foi/foisurvey2006.pdf. 163. How does the Law «On obtaining of Information” WORK in Azerbaijan? (Media Rights Institute, 2007). The Media Rights Institute is a body founded by Internews Azerbaijan. See http://www.internews.az/eng/media/. 164. The Code was enacted on 11 July 2000. The amendments were introduced on 20 October 2006. 165. Available at: http://www.parliament.bg/?page=const&lng=en. 166. Available at: http://www.aip-bg.org/library/laws/apia.htm. 167. Available at: http://www.mvr.bg/NR/rdonlyres/C4EA720F-B6D3-4316-A3F9- CB4BEB9251B1/0/06_Law_Protection_Classifi ed_Information_EN.pdf. 168. See http://www.aip-bg.org/documents/press_070607_eng.htm. 169. See Access to Information in Bulgaria: 2006 (AIP, 2007), Forward. Available at: http:// www.aip-bg.org/pdf/report2006-en-end.pdf. 170. AIP alone has been involved in over 120 court appeals. 171. The scope of this is discussed below, under Exceptions. 172. See Articles 2(1) and 7(1). See also Article 9(2). 173. Transitional and fi nal provisions of the amendments. 174. S.P. Gupta v. President of India [1982] AIR (SC) 149, p. 234. See also State of Uttar Pradesh v. Raj Narain and Others, (1975) 4 SCC 428 and Indian Express Newspapers (Bombay) Pvt. Ltd.v. India, (1985) 1 SCC 641.
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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
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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 and 140: 130 educational or scientifi c inst
Page 141: 132 The sixth exception covers fi l
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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