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

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In an extremely signifi cant development, the Inter-American Court of Human Rights, in a decision rendered
on 19 September 2006, specifi cally held that the general guarantee of freedom of expression at Article 13
of the ACHR protects the right to access information held by public bodies. Specifi cally, the Court stated:
77. In respect of the facts of the present case, the Court considers that article 13 of the
Convention, in guaranteeing expressly the rights to “seek” and “receive” “information”,
protects the right of every person to request access to the information under the control
of the State, with the exceptions recognised under the regime of restrictions in the
Convention. Consequently, the said article encompasses the right of individuals to receive
the said information and the positive obligation of the State to provide it, in such form that
the person can have access in order to know the information or receive a motivated answer
when for a reason recognised by the Convention, the State may limit the access to it in
the particular case. The information should be provided without the need to prove direct
interest or personal involvement in order to obtain it, except in cases in which a legitimate
restriction is applied. 57
Inherent in the quotation above are some key attributes of the right to information, namely that restrictions
on the right of access may only be imposed consistently with Article 13 and that no reasons need to be
provided to access information. The Court went on to elaborate in some length on the legitimate scope
of restrictions on the right to information, stating that they should be provided by law, aim to protect a
legitimate interest recognised under the ACHR and be necessary in a democratic society to protect that
interest. 58
The Court unanimously held that the respondent State, Chile, had breached the right to freedom of
expression guaranteed by Article 13 of the ACHR. Signifi cantly, the Court, also unanimously, required Chile
not only to provide the information to and compensate the victims, and to publish the judgment, all fairly
routine remedies, but also to adopt the necessary measures through national legislation to give effect to
the right to information, and even to provide training to public offi cials on this right. 59
European Court of Human Rights
The European Court of Human Rights has also considered claims for a right to receive information from
public bodies. It has looked at this issue in a number of cases, including Leander v. Sweden, 60 Gaskin v.
United Kingdom, 61 Guerra and Ors. v. Italy, 62 McGinley and Egan v. United Kingdom, 63 Odièvre v. France, 64
Sîrbu and others v. Moldova, 65 and Roche v. United Kingdom. 66 In the cases which presented a claim based
on the right to freedom of expression as guaranteed by Article 10 of the ECHR, 67 the Court held that this did
not include a right to access the information sought. The following interpretation of the scope of Article 10
from Leander either features directly or is referenced in all of these cases:
[T]he right to freedom to receive information basically prohibits a Government from
restricting a person from receiving information that others wish or may be willing to impart
to him. Article 10 does not, in circumstances such as those of the present case, confer on
the individual a right of access… nor does it embody an obligation on the Government to
impart… information to the individual. 68
By using the words, “in circumstances such as those of the present case”, the Court has not absolutely
ruled out the possibility of a right to information under Article 10. However, these cases involve a wide range
of different fact patterns so that, taken together, the rejection of an Article 10 right to access information
in all of them presents a high barrier to such a claim. As a Grand Chamber of the Court stated in Roche
when rejecting the Article 10 claim of a right to access information: “It sees no reason not to apply this
established jurisprudence.” 69
The Court did not, however, refuse to recognise a right of redress in these cases. Rather, it found that to deny
access to the information in question was a violation of the right to private and/or family life, guaranteed