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

Court of Japan established in two high-profi le cases the principle that shiru kenri (the “right to know”) is
protected by the guarantee of freedom of expression in Article 21 of the Constitution. 114
In 1982, the Supreme Court of India, in a case involving the government’s refusal to release information regarding
transfers and dismissals of judges, ruled that access to government information was an essential part of the
fundamental right to freedom of speech and expression, guaranteed by Article 19 of the Constitution:
The concept of an open Government is the direct emanation from the right to know which
seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a).
Therefore, disclosures of information in regard to the functioning of Government must be
the rule, and secrecy an exception justifi ed only where the strictest requirement of public
interest so demands. The approach of the Court must be to attenuate the area of secrecy as
much as possible consistently with the requirement of public interest, bearing in mind all
the time that disclosure also serves an important aspect of public interest. 115
In South Korea, the Constitutional Court ruled in two seminal cases in 1989 and 1991 that there was a “right to
know” inherent in the guarantee of freedom of expression in Article 21 of the Constitution, and that in certain
circumstances the right may be violated when government offi cials refuse to disclose requested documents. 116
In an August 2007 ruling, the Constitutional Court of Chile also ruled that the right to access information
held by public offi cials was protected by the general guarantee of freedom of expression. In a case based
on an application by a private company for information held by the Customs Department, the Court held
that public bodies must fi rst consult with interested third parties before refusing to provide access to
information provided by them. It also held that the overall public interest in disclosure needed to be taken
into account before any refusal to disclose might be justifi ed. 117
In some countries, national courts have been reluctant to accept that the guarantee of freedom of expression
includes the right to access information held by the State. The US Supreme Court, for example, has held
that the First Amendment of the Constitution, which guarantees freedom of speech and of the press, does
not “[mandate] a right to access government information or sources of information within government’s
control.” 118 However, this may be because the First Amendment is cast in exclusively negative terms,
requiring Congress to refrain from adopting any law which abridges freedom of speech. 119 International,
and most constitutional, protection for freedom of expression is more positive in nature, recognising that in
some cases State action is necessary to ensure respect in practice for this key democratic right.
Specifi c Constitutional Provisions
The constitutions of a growing number of countries provide specifi c protection for the right to information.
Sweden is an interesting example, as the whole of its Freedom of the Press Act, adopted in 1766, has
constitutional status. This Act includes comprehensive provisions on the right to information. 120 During
the last decade, many countries which have recently adopted multi-party systems, or are otherwise in
transition to democracy, have explicitly included the right to right to information in their constitutions. A
few examples from different regions of the world include Bulgaria (1991 Constitution, Article 41), Estonia
(1992 Constitution, Article 44), Hungary (1949 Constitution, Article 61(1)), Lithuania (1992 Constitution,
Article 25(5)), Malawi (1994 Constitution, Article 37), Mexico (1917 Constitution, Article 6), the Philippines
(1987 Constitution, Article III(7)), Poland (1997 Constitution, Article 61), Romania (Constitution of 1991,
Article 31), South Africa (1996 Constitution, Section 32) and Thailand (2007 Constitution, Section 56).
In Latin America, constitutions have tended to focus on one important aspect of the right to information,
namely the petition of habeas data, or the right to access information about oneself, whether held by public
or private bodies and, where necessary, to update or correct that information. For example, Article 43 of
the Constitution of Argentina states:
Every person shall have the right to fi le a petition (of habeas data) to see any information
that public or private data banks have on fi le with regard to him and how that information
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