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

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Conclusion At its best, the right to information can deliver important social benefi ts. It can provide an important underpinning of democracy, fuelling peoples’ ability to participate effectively and to hold governments to account. Examples of the right to information being used to expose corruption are legion and powerful, ranging from grassroots cases linked to basic livelihoods to major corruption scandals which have brought down governments. The right to information has also been used less dramatically, but no less importantly, to ensure an effi cient fl ow of information between government and business. These utilitarian benefi ts of the right to information have been recognised since at least 1776, when the idea fi rst found legislative recognition in Sweden. Of far more recent vintage, however, is recognition of the right to information as a fundamental human right, an aspect of the right to freedom of expression which, under international law, guarantees not only the right to impart, but also to seek and receive information and ideas. Fifteen years ago, almost no one claimed that access to information held by public bodies was a fundamental human right. By the time the fi rst edition of this book was published in 2003, the idea had become more established but was still largely the preserve of right to information activists, supported by a few academics and others. As this second edition goes to print, the idea has matured signifi cantly, to the point where it is constantly referred to not only by activists but also by inter-governmental bodies, development workers and even government offi cials. The author has, over the years, spent considerable energy promoting the idea of the right to information as a human right, including through the fi rst and now second editions of this book, and its growing recognition as such is a source of some satisfaction. The fi rst edition of this book brought together for the fi rst time all of the key international standards supporting the idea of access to information as a human right, along with supporting national developments, and marshalled the arguments in favour of such recognition. The second edition updates the evidence and extends the arguments, which are now presented as highly persuasive. It is important to recognise the proper status of the right to information but, as with other complex human rights, the devil is in the detail. This book seeks to elaborate in some detail on specifi c principles derived from international standards on the right to information, namely: a strong presumption in favour of access; good procedural means by which the right may be exercised, including through proactive publication obligations; a clear and narrow regime of exceptions; and the right to appeal breaches of the rules to independent oversight bodies. Beyond these (still quite general) principles, the now considerable practice of different States in giving effect to the right to information in law serves as an important body of knowledge both for those promoting the adoption of a law for the fi rst time and for those reviewing their existing law and practice with a view to reforming it. This book provides a wealth of comparative information on the practice of 14 States 155
156 from different regions around the world, all of which have pursued relatively progressive approaches to implementing the right to information. It has often been noted that the adoption of a progressive right to information law is only the fi rst, and in some ways the easiest, step in realising the right to information in practice. The author fully endorses this view, which is also clearly borne out in practice. Fulsome implementation requires political will, an active civil society and at least some other key democratic features, such as respect for the rule of law. While a good law is not suffi cient to deliver the right to information, it is at the same time a necessary precondition. It is the platform upon which these other required features build. It is hoped that this book will assist those promoting the right to information to build a strong legal platform in support of this key human right.
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Toby Mendel is the Law Programme Di
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The author is responsible for the c
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Table of Contents Foreword and Note
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Country Chapters 43 Azerbaijan 43 I
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Foreword by Abdul Waheed Khan Assis
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Introduction The importance of the
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Access to medical records, for exam
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International Standards and Trends
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egard to information held by Govern
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very exercise of democracy.” The
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Group to discuss the right to infor
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y Article 8 of the Convention. 70 I
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information on hazardous materials
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The Guerra case at the European Cou
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Court of Japan established in two h
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Charter standards and gradually ame
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43. Report of the 65th Meeting of t
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105. See, for example, Handyside v.
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Features of a Right to Information
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principles of law recognised by the
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PRINCIPLE 2. OBLIGATION TO PUBLISH
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The complexity and yet importance o
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provision of advice within governme
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The Aarhus Convention has reasonabl
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Notes 137. UN General Assembly Reso
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44 The Right of Access The right of
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46 Access to information shall be f
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48 information the disclosure of w
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50 have been taken to disseminate i
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52 funded from the consolidated bud
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54 Article 5 provides that the righ
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56 The initial indications are that
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58 Duty to Publish The Indian RTI L
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60 personal information which does
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62 Section 4(1)(a) provides for a r
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64 A public body (the term used in
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66 ‘subject area’ of the public
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68 justifi ed in its original decis
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70 The Right of Access The right of
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72 Exceptions The Japanese RTI Law
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74 Sanctions and Protections The Ja
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76 formats or of certain types, suc
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78 Article 20 provides a long list
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80 Sanctions and Protections Articl
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82 source, date of creation or form
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84 Duty to Publish Article 7 of the
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86 Appeals For agencies, complaints
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88 Peru Introduction The 1993 Peruv
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90 automatically from a database, w
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92 information classifi ed on grou
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94 S outh Africa Introduction The 1
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96 The Law contains detailed provis
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98 The main exceptions are set out
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100 an applicant a fee for inspecti
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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 and 160: 150 public interests. A number of l
Page 161 and 162: 152 the set time frame, a refusal t
Page 163: 154 must make each such report avai
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