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

The complexity and yet importance of this issue is refl ected in international standards. At a very general
level, Commonwealth Principle 3 states that exceptions to the right of access should be ‘limited’ and
‘narrowly drawn’. Similarly, the Inter-American Principles note that limits to the right of access should be
‘exceptional’, previously established by law, and respond to “a real and imminent danger that threatens
national security in democratic societies” (Principle 4). This seems to ignore the many other interests
that are widely recognised to warrant limitations on the right of access, such as personal privacy and law
enforcement.
The UN Standards also call for exceptions to be established by law and narrowly drawn, providing:
A refusal to disclose information may not be based on the aim to protect Governments
from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims
which may justify non-disclosure should be provided in the law and exceptions should
be narrowly drawn so as to avoid including material which does not harm the legitimate
interest.
Exceptions must conform to the standards under international law for restricting freedom of expression.
This is clear from general principles and was also the subject of extensive elaboration in the September
2006 decision of the Inter-American Court of Human Rights which recognised a right to information as part
of the more general right to freedom of expression. 159 This means that exceptions must be provided for by
law and protect an interest recognised as legitimate under international law, both of which are specifi cally
recognised in several of the international statements.
Different right to information laws recognise different legitimate aims which may be the subject of an
exception to the right of access, and this is a subject of some controversy. The COE Recommendation
provides a detailed and exclusive list of the possible grounds for restricting the right to information in
Principle IV, titled “Possible limitations to access to offi cial documents”, as follows:
1. Member states may limit the right of access to offi cial documents. Limitations should
be set down precisely in law, be necessary in a democratic society and be proportionate
to the aim of protecting:
i. national security, defence and international relations;
ii. public safety;
iii. the prevention, investigation and prosecution of criminal activities;
iv. privacy and other legitimate private interests;
v. commercial and other economic interests, be they private or public;
vi. the equality of parties concerning court proceedings;
vii. nature;
viii. inspection, control and supervision by public authorities;
ix. the economic, monetary and exchange rate policies of the state;
x. the confi dentiality of deliberations within or between public authorities during
the internal preparation of a matter.
It is clear from both general principles and from the various authoritative statements on the right to
information that it is not legitimate to refuse access to information simply because it relates to one of the
interests noted above. The ARTICLE 19 Principles set out a three-part test for exceptions as follows:
The three-part test
the information must relate to a legitimate aim listed in the law;
disclosure must threaten to cause substantial harm to that aim; and
the harm to the aim must be greater than the public interest in having the
information.
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