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

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very exercise of democracy.” The resolutions also call on States to “promote the adoption of any necessary legislative or other types of provisions to ensure [the right’s] recognition and effective application.” 37 In the Declaration of Nueva León, adopted in 2004, the Heads of State of the Americas stated: Council of Europe Access to information held by the State, subject to constitutional and legal norms, including those on privacy and confi dentiality, is an indispensable condition for citizen participation and promotes effective respect for human rights. We are committed to providing the legal and regulatory framework and the structures and conditions required to guarantee the right of access to information to our citizens. 38 The Council of Europe (COE) is an intergovernmental organisation, currently composed of 47 Member States, devoted to promoting human rights, education and culture. One of its foundational documents is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 39 which guarantees freedom of expression and information as a fundamental human right, at Article 10. Article 10 differs slightly from guarantees found in Articles 19 of the UDHR and ICCPR, and Article 13 of the ACHR, in that it protects the right to “receive and impart”, but not the right to “seek”, information. The political bodies of the Council of Europe have made important moves towards recognising the right to information as a fundamental human right. In 1981, the Committee of Ministers, the political decisionmaking body of the Council of Europe (composed of Member States’ Ministers of Foreign Affairs) adopted Recommendation No. R(81)19 on Access to Information Held by Public Authorities, which stated: I. Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities … 40 In 1994, the 4 th European Ministerial Conference on Mass Media Policy adopted a Declaration recommending that the Committee of Ministers consider “preparing a binding legal instrument or other measures embodying basic principles on the right of access of the public to information held by public authorities.” 41 Instead, the Committee of Ministers opted for a recommendation, which it adopted on 21 February 2002. The Recommendation includes the following provision: III General principle on access to offi cial documents Member states should guarantee the right of everyone to have access, on request, to offi cial documents held by public authorities. This principle should apply without discrimination on any ground, including national origin. The rest of the Recommendation elaborates in some detail on the content of the right. Principle IV, for example, delineates the legitimate scope of restrictions on access to information, while Principles V and VI address matters of procedure. The Recommendation also addresses forms of access (Principle VII), costs (Principle VIII), the right to have any refusal of access reviewed (Principle IX), promotional measures (Principle X) and proactive publication (Principle XI). In May 2005, the Committee of Ministers tasked a group of experts with “drafting a free-standing legally binding instrument establishing the principles on access to offi cial documents.” 42 The Group of Specialists on Access to Offi cial Documents (known by the acronym DH-S-AC), presented a draft European Convention on Access to Offi cial Documents to the Council of Europe’s Steering Committee for Human Rights. The Convention, once adopted, would be a formally binding instrument recognising an individual right of 11
12 access to offi cial documents. The Steering Committee will consider the draft treaty at its next meeting in March 2008. 43 The Charter of Fundamental Rights of the European Union, 44 adopted in 2000 by the (now) 27-member European Union, sets out the human rights to which the Union is committed. Article 42 of the Charter grants a right of access to documents held by European Union institutions in the following terms: Any citizen of the Union, and any natural or legal person residing or having its registered offi ce in a Member State, has a right of access to European Parliament, Council and Commission documents. Originally just a ‘political’ document, the Charter is set to become legally binding by virtue of Article 6 of the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Reform Treaty). 45 The Reform Treaty is expected to be signed by European Heads of State in December 2007, after which it will be open for ratifi cation. The Charter is based on the constitutional traditions of Member States, so its recognition of the right to information suggests that this right has not only become ubiquitous, but is widely perceived as a fundamental right by European Union States. African Union Developments on the right to information at the African Union have been a more modest. However, the African Commission on Human and Peoples’ Rights adopted a Declaration of Principles on Freedom of Expression in Africa in October 2002. 46 The Declaration is an authoritative elaboration of the guarantee of freedom of expression found at Article 9 of the African Charter on Human and Peoples’ Rights. 47 The Declaration clearly endorses the right to access information held by public bodies, stating: IV Freedom of Information 1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defi ned rules established by law. The same Principle goes on to elaborate a number of key features of the right to information. The Commonwealth The Commonwealth has taken important concrete steps to recognise human rights and democracy as a fundamental component of the system of shared values which underpin the organisation. In 1991, it adopted the Harare Commonwealth Declaration, which enshrined its fundamental political values, including respect for human rights and the individual’s inalienable democratic right to participate in framing his or her society. 48 The importance of the right to information was recognised by the Commonwealth nearly three decades ago. As far back as 1980, the Law Ministers of the Commonwealth, meeting in Barbados, stated that “public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to offi cial information.” 49 More recently, the Commonwealth has taken a number of signifi cant steps to elaborate on the content of that right. In March 1999, the Commonwealth Secretariat brought together a Commonwealth Expert
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 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
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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
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104 where this “presents serious
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106 Appeals An individual may appea
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108 for providing the information (
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110 In terms of specifi c exception
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112 parliament to make laws prescri
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114 required to grant earlier acces
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116 Most of the exceptions do inclu
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118 Sanctions and Protections The U
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120 The Law does not include a sect
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122 There have been efforts recentl
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124 The specifi c exceptions are as
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126 Sanctions and Protections The R
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128 The new OPEN Government Act add
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130 educational or scientifi c inst
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132 The sixth exception covers fi l
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134 the number of full-time staff
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136 196. It was amended by Law No.
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138 259. Act No. 100 of 1980. Avail
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140 318. Banisar, D., Government Se
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142 Some laws also include a number
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144 of parliament. These are unfort
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146 is a complex one. In some count
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148 Exceptions Most laws include a
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150 public interests. A number of l
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152 the set time frame, a refusal t
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154 must make each such report avai
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156 from different regions around t
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