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

principles of law recognised by the community of nations. ARTICLE 19 has also published A Model Freedom
of Information Law, 154 which translates the Principles into legal form. This chapter is organised around the
nine primary principles set out in The Public’s Right To Know.
PRINCIPLE 1. MAXIMUM DISCLOSURE
Freedom of information legislation should by guided
by the principle of maximum disclosure
As noted above, the principle of maximum disclosure may be derived directly from primary guarantees of
the right to information and it encapsulates the core meaning of the right to information. A version of this is
explicitly stated as an objective in a number of national laws. The principle of maximum disclosure implies
that the scope of the right to information should be broad as concerns the range of information and bodies
covered, as well as the individuals who may claim the right.
At a very general level, Commonwealth Principle 2 states: “There should be a presumption in favour of
disclosure”. The Joint Declaration of the special mandates on freedom of expression contains a strong and
explicit statement on maximum disclosure:
The right to access information held by public authorities is a fundamental human right
which should be given effect at the national level through comprehensive legislation (for
example Freedom of Information Acts) based on the principle of maximum disclosure,
establishing a presumption that all information is accessible subject only to a narrow
system of exceptions.
More specifi cally, the UN Standards note: “Public bodies have an obligation to disclose information and
every member of the public has a corresponding right to receive information; ‘information’ includes all
records held by a public body, regardless of the form in which it is stored”. The Aarhus Convention also
defi nes information very broadly to include “any information in written, visual, aural, electronic or any other
material form”, although its scope is, in accordance with its purpose, limited to environmental information
(Article 2(3)). The COE Recommendation takes a more cautious approach, defi ning ‘offi cial documents’
widely as “all information recorded in any form, drawn up or received and held by public authorities” but
limiting the scope of this to information linked to “any public or administrative function” and excluding
documents under preparation (Principle I). In practice, most national laws do defi ne information pretty
broadly, while a minority restrict the scope of information covered on the basis of the use which is made
of the information.
An important distinction may be noted here between a right to information (as in the Aarhus Convention)
and to documents or records (as in the COE Recommendation). The UN Standards refer to both information
and records, although the primary right they reference is to access information. This can have a number
of important implications, depending on how the rules are applied. Most countries do not impose an
obligation on public bodies to create information, although some do give a right of access to information
public bodies are obliged to hold, even if they do not, at the time of the request, actually hold it. The
extent to which public bodies are required to extract information from records they hold, for example using
electronic information technologies or by searching through different records for the information sought,
is not settled law, although some effort to extract is clearly required.
A different issue is whether requests for information must identify an actual document or other record, or
simply the information sought. Given that most individuals will not be in a position to identify the actual
document, the right should be understood as extending to information. In some extreme cases, however,
requests have been refused based on a distinction between a right to access information and to access
documents. 155
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