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

Another issue is the role of classifi cation in determining the release of information under a right to
information law. In most cases, classifi cation is irrelevant and the exceptions in the right to information
law, or possibly in a secrecy law, serve as the basis for decisions about disclosure. This has obvious merit,
since mere administrative classifi cation should not be able, in effect, to override legal provisions requiring
disclosure. On the other hand, and formal legal rules aside, classifi cation often have a very important
bearing on disclosure in practice and a number of laws put in place measures to limit it. The Azeri law, for
example, requires classifi ed information to include a date upon which classifi cation will expire. Under the
Mexican law, classifi cation is subject to different levels of review, including by the independent oversight
body.
The three-part test for exceptions to the right to information was noted above in the chapter on Features of
a Right to Information Regime. Pursuant to this test, information must be disclosed unless the public body
can show a) that the information falls within the scope of an exception listed in the law; b) that disclosure
would pose a risk of harm to the protected interest; and c) that this harm outweighs the overall public
interest in the disclosure of the information. Few of the laws surveyed in this book strictly conform to all
three parts of this test, but many do at least broadly refl ect it.
A large overall majority of the exceptions in the various laws are subject to a harm test of one sort or
another, or have built-in harm tests, although most laws have a least some exceptions that are not subject
to a harm test. Certain exceptions, for example in favour of legally privileged information, effectively contain
an internal harm test, since the defi nition of legally privileged information was developed specifi cally to
protect overriding interests. Otherwise, the standard of harm varies considerably and this has an important
bearing on disclosure of information since the higher the standards of harm, the narrower the exception
will be in practice. A few examples of harm found in different laws are: ‘would be likely to prejudice’, ‘could
lead to a negative result’, adequate reason to believe harm would result’ and ‘harm could reasonably be
expected’.
In Sweden, the exceptions are divided into two categories, one for which harm is presumed and the other for
which there is a presumption against harm. In some countries – such as the United Kingdom and Jamaica
– certain offi cials have the power to issue certifi cates to the effect that disclosure of the information would
harm a protected interest, thereby effectively rendering the information secret. These certifi cates can be
very problematical from the perspective of openness, depending on their precise impact; they normally
limit the standard of review by appellate bodies such as an information commissioner or even the courts.
A number of laws completely exclude certain bodies from the ambit of the law which is a radical way of
avoiding not only the harm test but also any public interest override and even any consideration of whether
the information should be disclosed at all. Security and/or intelligence bodies, for example, are excluded
in the United Kingdom, India and Peru, while the Cabinet and courts are excluded in Uganda. Signifi cantly,
in India the exclusion does not apply to information relating to corruption or human rights abuse.
A number of countries also exclude certain types of requests. In Mexico, for example, offensive requests
or requests which have already been dealt with are excluded, in the United Kingdom vexatious or repeated
requests, requests for information which is already accessible and requests for information intended to
be published are excluded. Information about to be published and frivolous or vexatious requests are also
excluded in South Africa. Both exclusions are in principle legitimate. There is nothing wrong with leaving
in place existing publication systems as an alternative to request-driven access, as long as the standards
that apply – for example in terms of timeliness or cost of access – are similar. Where this is not the case,
however, public bodies could use publication of information to avoid the procedures in place for requests.
Similarly, vexatious, offensive or repetitive requests can impose costly burdens on public bodies and yet not
advance the right to information. Again, however, where these are applied to broadly or within unduly wide
discretionary limits they can be problematical.
About one-half of the laws surveyed – including the United Kingdom, India, South Africa, Uganda, Azerbaijan
and Japan – have general public interest overrides. In some cases – such as South Africa, Uganda and,
arguably, Thailand – the public interest override is limited to certain types of interests, such as a breach
of the law or a serious risk to public safety or the environment. This approach has the advantage of being
clear, whereas a general reference to the public interest may lead to diffi cult interpretation issues. At
the same time, indeed by the same token, it is also narrow in scope, excluding a wide range of potential
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