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

More documents

Recommendations

Info

Unfortunately, the reaction of many States to the problem of terrorism has been to increase secrecy rather than to bolster democracy through openness. Appeals It is widely recognised that individuals should have the right to lodge complaints or appeals where they feel that their requests for information have not been dealt with properly, in particular where they have been refused access to the information sought. Different laws provide for different complaint options. An internal complaint is a common option, as is a complaint to an independent oversight body and/or the courts. Some sort of independent oversight is clearly needed since otherwise decisions on whether or not to disclose information ultimately rest on the discretion of public offi cials. Many laws – including those of South Africa, the United States, Peru, India and Jamaica – provide specifi cally for an internal appeal, normally to a higher authority within the same body which originally refused the request. In some cases, such as in the United Kingdom, completing this appeal is a pre-requisite to lodging a higher level appeal. Most of the laws reviewed – with the exception of South Africa, Sweden, Uganda, Peru and Bulgaria – provide for an independent oversight body to play a role in resolving access to information complaints. This is something which has proven central to the effective functioning of the right to information regime. Appeals to the courts are too time-consuming and expensive for all but a small minority of applicants, and yet it is essential that an external level of appeal be available. The importance of this is refl ected in part by moves in countries which do or did not have oversight bodies to introduce them. Very recent amendments in the United States have fi nally established an oversight body with a mandate to help resolve complaints, while in South Africa the establishment of such a body is a key civil society demand. For the most part, laws establish specifi c bodies for this purpose although some, such as the Kyrgyz law, allocate the task to an existing body, in that case the ombudsman. This has a number of disadvantages, including that the powers of the body are unlikely to be tailored to the specifi c needs of information appeals and that the body is unlikely to develop the specialised expertise required to deal properly with information appeals. At the same time, this can be an attractive option for less wealthy or smaller countries. In some countries – such as the United Kingdom and Thailand – the law provides for both an independent oversight body and a specialised tribunal with the power to hear further appeals. Given that, at least in their complaints role, oversight bodies have to mediate between the public and offi cials, it is important that they be protected against interference, particularly of a political nature. Different laws take different approaches to guaranteeing the independence of these bodies. The appointments process is clearly central to this guarantee. In Japan, the Prime Minister appoints the Commissioners upon the approval of both houses of parliament. In Mexico, appointments are made by the executive branch, but are subject to veto by the Senate or Permanent Commission. In India, the President appoints, but on the nomination of a committee consisting of the Prime Minster, the Leader of the Opposition and a cabinet minister. A similar system applies in Jamaica, but without the cabinet minister. Involving more different sectors of society in the appointments process is an important way of enhancing the independence of appointments. A number of other provisions in different laws enhance independence, including prerequisites for being appointed as a member – such as having expertise and having a strong moral record – conditions on membership – for example against individuals with strong political connections from being appointed – protection of tenure – for example through establishing limited grounds for removal – and funding mechanisms – including by linking salaries of members to pre-existing civil service grades, such as those of the judicial service. The grounds for complaint should be broad, so that all failures to apply the law may be remedied. Specifi c grounds in different laws include an inability to lodge a request, failure to respond to a request within 151
152 the set time frame, a refusal to disclose information, in whole or in part, charging excessive fees and not providing information in the form sought. A catch-all for other failures is found in many laws. It is also important that the body be able to investigate breaches of its own motion, so that general failures about which complaints are unlikely to be lodged by individuals – such as a failure to respect proactive publication rules – may also be addressed. In most cases, oversight bodies are given the necessary powers to conduct full investigations into information complaints, including to summon witnesses. Importantly, in most cases, they are empowered to request any information from public bodies, including the information to which access has been refused, which they may consider in camera if necessary to protect its confi dentiality until a decision has been reached. Powers of enforcement are also normally provided for, sometimes by registering decisions with the courts. In a number of countries – including the United States, Uganda, Indian and Jamaica – the law specifi cally provides that the onus in case of a complaint shall be on the public body to justify any refusal to provide information. This is consistent with the idea of a right to information, which establishes a presumption that all information is subject to disclosure from which derogations must be justifi ed. Oversight bodies may be given the power to impose a range of remedial measures, such as to require public bodies to disclose the information, perhaps in a particular form, to lower the fee or even to compensate the applicant, to appoint information offi cers, to enhance the provision of training to their offi cials, to publish certain information on a proactive basis, to make changes to their record management systems and so on. In some cases, such as in India, the oversight body is even empowered to impose fi nes. Most, but not all, right to information laws provide for an ultimate appeal to the courts. Even where appeals are specifi cally precluded by the law – as in India – the courts have assumed jurisdiction under administrative law rules. Signifi cantly, in Mexico, only requesters, and not public bodies, may prefer an information appeal to the courts. This prevents public bodies from using their often considerable power to delay or prevent information disclosure. Sanctions and Protections Most laws do include some sort of sanction for individuals who wilfully obstruct access to information – although some, including Thailand and Kyrgyzstan, do not – and some also provide for the direct responsibility of public bodies. In a number of countries – Jamaica, Bulgaria, South Africa and Peru – it is a criminal offence wilfully to obstruct access and conviction may lead to criminal penalties, often including imprisonment. In other countries – like Mexico – the law instead provides for administrative liability. The India law gives the oversight body the power to impose fi nes for obstruction, and provides for the same body to recommend disciplinary action for persistent abuse. In such cases, the burden is on the offi cial to prove that he or she did not act improperly. In the United States, the law provides for an investigation by the Special Counsel when a question as to whether an offi cial has acted ‘arbitrarily or capriciously’ with respect to the withholding of information. Various particular forms of conduct are specifi ed in different laws, such as destroying, damaging, altering, concealing or falsifying records. Other laws simply refer generically to any form of obstructing access. Many laws also provide for protection for good faith disclosures under the law. A number of common law countries – including India, South Africa and Uganda – protect offi cials against any form of liability for acts done in the performance or purported performance of a duty under the law. A gloss on this in the United Kingdom is to limit protection to defamation actions, while in Jamaica, protection extends to defamation law, breach of confi dence and copyright rules. A number of countries – including Japan and Kyrgyzstan – do not provide protection for good faith disclosures. Some countries actually provide for liability for disclosing exempt information. The Swedish law, for example, provides for liability under the penal code and also imposes some forms of direct liability, in Mexico offi cials are administratively liable for wrongful disclosures while in Jamaica offi cials remain
Page 1 and 2:
Toby Mendel is the Law Programme Di
Page 3 and 4:
The author is responsible for the c
Page 6 and 7:
Table of Contents Foreword and Note
Page 8 and 9:
Country Chapters 43 Azerbaijan 43 I
Page 10 and 11:
Foreword by Abdul Waheed Khan Assis
Page 12 and 13:
Introduction The importance of the
Page 14 and 15:
Access to medical records, for exam
Page 16 and 17:
International Standards and Trends
Page 18 and 19:
egard to information held by Govern
Page 20 and 21:
very exercise of democracy.” The
Page 22 and 23:
Group to discuss the right to infor
Page 24 and 25:
y Article 8 of the Convention. 70 I
Page 26 and 27:
information on hazardous materials
Page 28 and 29:
The Guerra case at the European Cou
Page 30 and 31:
Court of Japan established in two h
Page 32 and 33:
Charter standards and gradually ame
Page 34 and 35:
43. Report of the 65th Meeting of t
Page 36 and 37:
105. See, for example, Handyside v.
Page 38 and 39:
Features of a Right to Information
Page 40 and 41:
principles of law recognised by the
Page 42 and 43:
PRINCIPLE 2. OBLIGATION TO PUBLISH
Page 44 and 45:
The complexity and yet importance o
Page 46 and 47:
provision of advice within governme
Page 48 and 49:
The Aarhus Convention has reasonabl
Page 50:
Notes 137. UN General Assembly Reso
Page 53 and 54:
44 The Right of Access The right of
Page 55 and 56:
46 Access to information shall be f
Page 57 and 58:
48 information the disclosure of w
Page 59 and 60:
50 have been taken to disseminate i
Page 61 and 62:
52 funded from the consolidated bud
Page 63 and 64:
54 Article 5 provides that the righ
Page 65 and 66:
56 The initial indications are that
Page 67 and 68:
58 Duty to Publish The Indian RTI L
Page 69 and 70:
60 personal information which does
Page 71 and 72:
62 Section 4(1)(a) provides for a r
Page 73 and 74:
64 A public body (the term used in
Page 75 and 76:
66 ‘subject area’ of the public
Page 77 and 78:
68 justifi ed in its original decis
Page 79 and 80:
70 The Right of Access The right of
Page 81 and 82:
72 Exceptions The Japanese RTI Law
Page 83 and 84:
74 Sanctions and Protections The Ja
Page 85 and 86:
76 formats or of certain types, suc
Page 87 and 88:
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 and 140: 130 educational or scientifi c inst
Page 141 and 142: 132 The sixth exception covers fi l
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: 150 public interests. A number of l
Page 163 and 164: 154 must make each such report avai
Page 165: 156 from different regions around t
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?