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

Comparative Analysis
As the survey above demonstrates, countries all over the world are recognising that individuals have a
right to access information held by public bodies and that legislation is needed to give practical effect to
this right. The survey indicates that there are signifi cant areas where national legislation is reasonably
consistent, but that there are also areas of divergence. This chapter looks at the different issues dealt
with in right to information laws, pointing out consensus themes, as well as areas of disagreement. It also
highlights some of the more imaginative or innovative approaches adopted in different countries.
The Right of Access
Establishing a right to access information held by public bodies is the fundamental reason for adopting
a right to information law, and most legislation does this pretty clearly. In some cases, such as the laws
of Mexico and Jamaica, this is set out as a free-standing right, subject to the regime of exceptions. In
other cases, for example in Thailand and the United Kingdom, the right is cast in more procedural terms,
providing that anyone may make a request for information and, subject to certain conditions – procedural
and substantive – have the information communicated to him or her. It is not clear whether this makes
much difference in practice, although a more rights-based approach may prove important over time.
Some laws – for example those of South Africa and Jamaica – provide for a right of access to documents
or records while most others provide for a right of access to information. A few, like Uganda, provide for a
right of access to both. There are problems with restricting the right of access to documents, since most
applicants will not have a specifi c document in mind when lodging their information requests. There have
been problems in some cases with offi cials applying an unduly rigid understanding of a right to documents
to reject, instead of responding in substance to, requests. At the same time, where an applicant can specify
a particular document, he or she should obviously be given access to it. In this respect, the Ugandan
approach may have some advantages.
In many countries, the law includes principles governing access or sets out its purposes or functions.
These can be a useful to clarify the underpinnings of the law and as an interpretive tool, helping to clarify
ambiguity or the confl icts between openness and other public interests that are bound to arise. Principles
that are found in different laws, many occurring frequently, include promoting transparent, accountable
and effective government, controlling corruption, fostering public participation, enhancing the ability of the
public to scrutinise the exercise of public power, promoting a democratic and human rights culture and
the rule of law, improving public record management, and building public understanding and an informed
citizenry.
141