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

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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