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

The Guerra case at the European Court of Human Rights also represents an important step in this direction.
While the information involved was not formally classifi ed as being human rights related, many would argue
that information about environmental risks does fall into this category. Importantly, the Court recognised
an obligation on the State to provide information on matters of public importance.
The Right to Political Participation
International law guarantees citizens the right to participate in political affairs. Article 25 of the ICCPR, for
example, guarantees the right of citizens, “[t]o take part in the conduct of public affairs, directly or through
freely chosen representatives” as well as, specifi cally to vote in periodic elections which guarantee “the
free expression of the will of the electors”. 101
It is clear that a free fl ow of information is essential to the ability of individuals to participate. ARTICLE
19 has described information as the “oxygen of democracy”. 102 The UNDP’s Human Development Report
2002, “Deepening Democracy in a Fragmented World”, describes informed debate as the “lifeblood of
democracies” and states:
Perhaps no reform can be as signifi cant for making democratic institutions work as reform
of the media: building diverse and pluralistic media that are free and independent, that
achieve mass access and diffusion, that present accurate and unbiased information. 103
This has also been recognised by international courts. The IACHR has noted that “a society that is not wellinformed
is not a society that is truly free.” 104 The European Court of Human Rights has repeatedly stated:
It has further stated:
Freedom of expression constitutes one of the essential foundations of [a democratic] society,
one of the basic conditions for its progress and for the development of every man. 105
Freedom of the press affords the public one of the best means of discovering and forming an
opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians
the opportunity to refl ect and comment on the preoccupations of public opinion; it thus
enables everyone to participate in the free political debate which is at the very core of the
concept of a democratic society. 106
The UN Human Rights Committee has also stressed the importance of freedom of expression to the
political process:
[T]he free communication of information and ideas about public and political issues
between citizens, candidates and elected representatives is essential. 107
In a very signifi cant development in Australia, the courts have found an implied right to freedom of political
communication based on the democratic system of government, even though the constitution does not
include a bill of rights or explicit protection for human rights. 108
These decisions do not, for the most part, refer specifi cally to the right to information or the right to obtain
information from public bodies. At the same time, it seems clear that it is not possible to judge the actions
of a government that operates in secrecy, or to participate in public affairs in the absence of access to
information held by public bodies. As the Indian Supreme Court has stated, in fi nding a right to information
as part of the general guarantee of freedom of expression:
Where a society has chosen to accept democracy as its creedal faith, it is elementary that
the citizens ought to know what their government is doing. 109
This therefore provides a strong supplementary basis for the idea of a right to information.
19