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

of being clear, but it may also be excessively limited and rigid, which could be a problem over time. The
United Kingdom law uses the list approach but also provides that the Secretary of State may designate
additional public bodies. This helps mitigate the rigidity of the list but also has its problems since it opens
the window to some political infl uence over the scope of bodies covered. Perhaps an ideal solution would
be to combine both systems, providing a generic defi nition, but also a list of bodies which are specifi cally
covered.
Many countries include all three branches of government – administrative, legislative and judicial – within
the scope of the right to information law while others, such as the United States and Japan, restrict the
scope of the law to the executive. In some cases – such as Jamaica, South Africa and Thailand – the law
covers the courts but only in relation to their administrative functions. There is no reason in principle
why the legislative and judicial branches should not be covered, as long as the regime of exceptions
protects legitimate secrecy interests, and experience in those countries that do cover all three branches
of government supports this view. Furthermore, limiting the scope of the law to certain branches of
government runs contrary to the idea of access to information as a human right, which should, as a result,
apply to all public bodies.
Mexico has adopted a novel approach to the question of coverage, providing for a very detailed set of
obligations for administrative bodies, and then placing the legislative and judicial branches of government
under a generic obligation effectively to do their best to meet the same standards, without actually
describing in detail how this should be done. If this proves to be successful, which remains uncertain, it
could prove a good model for other countries.
The scope of national legislation may be affected by constitutional limitations. The Mexican approach, for
example, seeks to accommodate the limited power of the legislature to impose rules on other branches
of government or on constitutionally independent bodies. In other countries, this does not appear to be a
problem; the Peruvian law, for example, applies to independent constitutional bodies. Many federal States
– such as the United States and Mexico – also face political division of powers issues so that the national
laws apply only to federal public bodies. This problem is often addressed through the adoption, by the
individual states or provinces that make up the country, of their own, sub-national, right to information
laws. Although a federal State, in India the law applies to both national and state-level public bodies.
Another area of divergent practice is with respect to public corporations. In most countries the law does
extend to public corporations, although this is not always the case, for example in Sweden. In Japan, a
separate, parallel law applies to public corporations. In the United Kingdom, only bodies fully owned by
the State are covered, while in Jamaica, 50% ownership is suffi cient. In principle, and consistently with the
idea of a human right to information, all public bodies should be covered, regardless of whether they take
a corporate form.
The scope of many laws extends beyond public corporations and includes private bodies which receive
funding through public contracts or which otherwise carry out public functions The Indian law, for example,
applies to bodies which are owned, controlled or substantially fi nanced by government. In South Africa,
coverage is extended to all bodies exercising a public power or performing a public function pursuant to any
legislation. The Kyrgyz law extends to bodies fi nanced by the State, specifi cally including bodies focusing
on health, education, information activities and so on. The Azeri law goes even further, applying, albeit in
more limited form, to all bodies operating under a public contract in various spheres – including education,
healthcare and culture – as well as legal entities enjoying a dominant or monopoly market position.
The involvement of the State in a corporation should normally signal a public interest in its operations.
State control over a corporation – which is ensured by 50% ownership but is often present with much lower
percentage of share ownership – should engage this principle. A similar rationale should apply to the use
of State funds or the use of State power, in particular as expressed in legislation, to determine public roles
for private companies.
In a number of countries, there are specifi c exclusions from the law. In Jamaica, for example, the
Governor-General and security forces are excluded, while in the United Kingdom the special forces (i.e. the
intelligence services) are not included. South Africa, for its part, does not include the Cabinet or members
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