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

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provision of advice within government. While this may be justifi ed in the short-term, the risk of disclosure in 15 or 20 years can hardly be expected to exert a chilling effect on the free and frank provision of advice, a key interest protected by this exception. Hard ‘historical disclosure’ time limits create a presumption that the original harms no longer pertain, after which continued withholding of the information needs to be specially justifi ed. PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available Guaranteeing the right to information effectively in practice requires not only proactive disclosure by public bodies (the obligation to publish) but also that anyone be able to request and to receive any information they hold, subject to the exceptions. This, in turn, requires that clear procedures be established according to which public bodies process requests for information. It also requires a system for independent review of internal decisions by public bodies. Processes for accessing information are complex and this normally occupies a large part of right to information laws. At the same time, this is not as high profi le as some other right to information standards and so occupies relatively less prominence in international statements on the right to information. The UN Standards call for a requirement for public bodies “to establish open, accessible internal systems for ensuring the public’s right to receive information”, specifi cally referring, in this regard, to the need for “strict time limits for the processing of requests for information” and for notice to be given for any refusal to provide access which includes “substantive written reasons for the refusal(s)”. The Joint Declaration of the special mandates calls for procedures to “be simple, rapid and free or low-cost”. The COE Recommendation contains by far the most detail on processes, establishing a number of specifi c standards, including the following: requests should be dealt with by any public body which holds the information, on an equal basis and with a minimum of formality; applicants should not have to provide reasons for their requests; requests should be dealt with promptly and within established time limits; assistance should be provided “as far as possible”; reasons should be given for any refusal to provide access; and applicants should be given access in the form they prefer, either inspection of the record or the provision of a copy (Principles V-VII). Most of these standards are refl ected in the provisions of the Aarhus Convention (see, in particular, Article 4). It is also well-established that any refusal by a public body to disclose information, or any failure to deal with requests in the prescribed manner, should be subject to appeal. Many national laws provide for an internal appeal to a higher authority within the same public body to which the request was made. This is a useful approach, which can help address mistakes, build confi dence among lower-ranking offi cials to disclose information and ensure internal consistency. 37
38 It is, however, crucial that a right of appeal to an independent body be available to review decisions made by public bodies. Absent this, individuals cannot really be said to have a right to access information held by public bodies, but merely a right to have their requests for information considered. Absent independent review, much information, for example revealing corruption or incompetence, may never be disclosed. While the various international statements on the right to information right to clearly call for independent review, they are somewhat less clear as to the nature of that review and, in particular, whether review by a dedicated, independent oversight body – such as an information commission, ombudsman or human rights commission – is required or whether review by the courts – which in many countries oversee government actions by default – is suffi cient. Some of the standards seem to refer implicitly to an oversight body and some refer to both an independent body and the courts. Commonwealth Principle 5 simply calls for decisions to refuse to disclose to be “subject to independent review”, while the Joint Declaration of the special mandates calls for a right to appeal such refusals “to an independent body with full powers to investigate and resolve such complaints”, suggesting that something other than the courts may be envisaged. The COE Recommendation refers to the right to appeal to a “court of law or another independent and impartial body established by law”. The same language is refl ected in Article 9 of the Aarhus Convention. Principle IV(2) of the African Declaration, for its part, refers to two levels of appeal, “to an independent body and/or the courts”. In practice, the more progressive right to information laws do provide for an appeal to an independent oversight body. This is far more accessible to ordinary people seeking information than the courts and has a proven track record as an effective way of ensuring the right to information. It does not matter whether a new body is established for this purpose of the task allocated to an existing body, such as a human rights commission or an ombudsman. What is important is that the body be adequately protected against political interference. There is also merit in providing for an appeal from the oversight body to the courts. Only the courts really have the authority to set standards of disclosure in controversial areas and to ensure the possibility of a full, well-reasoned approach to diffi cult disclosure issues. An important aspect of appeals, also widely respected in better practice national laws, is that public bodies seeking to deny access to information should bear the onus of proving that such a denial is legitimate. This fl ows from, indeed is central to, the idea that access to information is a right and also to the presumption of openness which should, at a minimum, dictate that the burden of proof should lie on the party seeking to deny access. Few international standards address this issue; the Joint Declaration of the special mandates, however, states: “The burden should be on the public authority seeking to deny access to show that the information falls within the scope of the system of exceptions.” PRINCIPLE 6. COSTS Individuals should not be deterred from making requests for information by excessive costs The charging of fees for gaining access to information is another diffi cult issue. On the one hand, if fees are excessive, they will pose a barrier to access, and hence undermine the right. On the other hand, the provision of access does impose costs on public bodies which they should have some means of recouping. Several of the international statements on the right to information touch on this issue. The UN Standards, for example, note that the cost of access “should not be so high as to deter potential applicants and negate the intent of the law itself”. Principle VII of the COE Recommendation is more specifi c, calling for consultation of documents to be free and any fees charged for copies not to exceed the actual costs incurred.
Page 1 and 2: Toby Mendel is the Law Programme Di
Page 3 and 4: The author is responsible for the c
Page 6 and 7: Table of Contents Foreword and Note
Page 8 and 9: Country Chapters 43 Azerbaijan 43 I
Page 10 and 11: Foreword by Abdul Waheed Khan Assis
Page 12 and 13: Introduction The importance of the
Page 14 and 15: Access to medical records, for exam
Page 16 and 17: International Standards and Trends
Page 18 and 19: egard to information held by Govern
Page 20 and 21: very exercise of democracy.” The
Page 22 and 23: Group to discuss the right to infor
Page 24 and 25: y Article 8 of the Convention. 70 I
Page 26 and 27: information on hazardous materials
Page 28 and 29: The Guerra case at the European Cou
Page 30 and 31: Court of Japan established in two h
Page 32 and 33: Charter standards and gradually ame
Page 34 and 35: 43. Report of the 65th Meeting of t
Page 36 and 37: 105. See, for example, Handyside v.
Page 38 and 39: Features of a Right to Information
Page 40 and 41: principles of law recognised by the
Page 42 and 43: PRINCIPLE 2. OBLIGATION TO PUBLISH
Page 44 and 45: The complexity and yet importance o
Page 48 and 49: The Aarhus Convention has reasonabl
Page 50: Notes 137. UN General Assembly Reso
Page 53 and 54: 44 The Right of Access The right of
Page 55 and 56: 46 Access to information shall be f
Page 57 and 58: 48 information the disclosure of w
Page 59 and 60: 50 have been taken to disseminate i
Page 61 and 62: 52 funded from the consolidated bud
Page 63 and 64: 54 Article 5 provides that the righ
Page 65 and 66: 56 The initial indications are that
Page 67 and 68: 58 Duty to Publish The Indian RTI L
Page 69 and 70: 60 personal information which does
Page 71 and 72: 62 Section 4(1)(a) provides for a r
Page 73 and 74: 64 A public body (the term used in
Page 75 and 76: 66 ‘subject area’ of the public
Page 77 and 78: 68 justifi ed in its original decis
Page 79 and 80: 70 The Right of Access The right of
Page 81 and 82: 72 Exceptions The Japanese RTI Law
Page 83 and 84: 74 Sanctions and Protections The Ja
Page 85 and 86: 76 formats or of certain types, suc
Page 87 and 88: 78 Article 20 provides a long list
Page 89 and 90: 80 Sanctions and Protections Articl
Page 91 and 92: 82 source, date of creation or form
Page 93 and 94: 84 Duty to Publish Article 7 of the
Page 95 and 96: 86 Appeals For agencies, complaints
Page 97 and 98:
88 Peru Introduction The 1993 Peruv
Page 99 and 100:
90 automatically from a database, w
Page 101 and 102:
92 information classifi ed on grou
Page 103 and 104:
94 S outh Africa Introduction The 1
Page 105 and 106:
96 The Law contains detailed provis
Page 107 and 108:
98 The main exceptions are set out
Page 109 and 110:
100 an applicant a fee for inspecti
Page 111 and 112:
102 Chapter 2 of the Swedish Law de
Page 113 and 114:
104 where this “presents serious
Page 115 and 116:
106 Appeals An individual may appea
Page 117 and 118:
108 for providing the information (
Page 119 and 120:
110 In terms of specifi c exception
Page 121 and 122:
112 parliament to make laws prescri
Page 123 and 124:
114 required to grant earlier acces
Page 125 and 126:
116 Most of the exceptions do inclu
Page 127 and 128:
118 Sanctions and Protections The U
Page 129 and 130:
120 The Law does not include a sect
Page 131 and 132:
122 There have been efforts recentl
Page 133 and 134:
124 The specifi c exceptions are as
Page 135 and 136:
126 Sanctions and Protections The R
Page 137 and 138:
128 The new OPEN Government Act add
Page 139 and 140:
130 educational or scientifi c inst
Page 141 and 142:
132 The sixth exception covers fi l
Page 143 and 144:
134 the number of full-time staff
Page 145 and 146:
136 196. It was amended by Law No.
Page 147 and 148:
138 259. Act No. 100 of 1980. Avail
Page 149 and 150:
140 318. Banisar, D., Government Se
Page 151 and 152:
142 Some laws also include a number
Page 153 and 154:
144 of parliament. These are unfort
Page 155 and 156:
146 is a complex one. In some count
Page 157 and 158:
148 Exceptions Most laws include a
Page 159 and 160:
150 public interests. A number of l
Page 161 and 162:
152 the set time frame, a refusal t
Page 163 and 164:
154 must make each such report avai
Page 165:
156 from different regions around t
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