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

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A zerbaijan Introduction Country Chapters Article 50(I) of the 1995 Azerbaijani Constitution provides: “Every person shall have the right to legally seek, get, pass, prepare and spread information.” The Law on Right to Obtain Information was signed into law by the President in December 2005. 160 This was preceded by a 1998 Law on Information, Informatization and Protection of Information, 161 which is mostly about how government should organise information internally, although it does create a right to access one’s own personal data, as well as a separate 1998 Law on Freedom of Information which set out general principles relating to information but did not create a right of access. 162 The law was developed by a working group which included both government and civil society representatives in what was a comparatively highly consultative process for developing legislation in Azerbaijan. It is a progressive piece of legislation which improved throughout the drafting process, demonstrating positive political will. It includes provision for an independent administrative oversight body (a sort of information commissioner), strong process provisions and extensive proactive publication obligations. At the same time, the regime of exceptions is overbroad, the Law lacks sanctions for obstruction of access and protection for good faith disclosures, and few promotional measures are provided for. Furthermore, implementation has been very weak. At the time of going to print, no information commissioner had yet been appointed although this should have been done by June 2006. According to a report by the Media Rights Institute, 163 no State body has yet provided for a registry of documents, as required by the Law, the information available on public websites falls far short of what is required under the Law and few public bodies have appointed information offi cers. Signifi cantly, of 441 requests Media Rights Institute lodged with 186 different public bodies, only 125 were responded to at all, only 32 of the responses provided all the information requested, and only 17 did so within the seven working day deadline established by the Law. These are extremely poor results by any measure. 43
44 The Right of Access The right of access under the Azerbaijani RTI Law is set out primarily in Article 2.3, which provides that anyone applying for information is entitled to obtain it freely, and on an unrestricted and equal basis, if the public body holds that information. This is supported by Article 2.2, which provides that any person is entitled to apply directly or via his or her representative to public bodies for information, and to stipulate the manner and form of obtaining that information. Article 2.1 further provides that access to information ‘is free’. Article 1 sets out the purpose of the RTI Law, which is to establish a legal framework for ensuring free, unrestricted and equal access to information in accordance with Article 50 of the Constitution, based on an open society, and to create conditions for citizen oversight of the exercise of public functions. A long list of principles of access to information is provided in Article 6 including, in addition to the principles noted, the obligation of public bodies to disclose information, maximum transparency, the rapid processing of requests for information, protection for confi dential information, judicial protection for the right of access, access for free, except as otherwise provided in the Law, responsibility of public bodies for violating the right to information and that classifi cation should not be unduly extensive. In principle this should provide a good interpretive base for the law. Information is defi ned in Article 3.0 as any “facts, opinions, knowledge, news or other sort of information” irrespective of the date of production, form or classifi cation. Private information is information which could, directly or indirectly, facilitate the identifi cation of a person, while public information is information acquired during the performance of legal duties. This is supplemented by Article 7, which defi nes documented information as information of any sort recorded on a “tangible data medium in the form of text, voice or picture; irrespective of its source, place of storage, offi cial status, type of ownership and whether or not it has been produced by the entity which it belongs to”. Formally, the right of access applies primarily to ‘information’ held by public bodies, so the relevance of the more restrictive defi nition of public information, which is qualifi ed by the notion of legal duties, is unclear. There is also some possibility of confusion between the defi nitions of information and documented information but both are broad. Article 3.0 also defi nes public bodies (‘information owner’) as “state authorities, municipalities, legal entities irrespective of the ownership type, and individuals as determined by Article 9”. Article 9 defi nes public bodies as State authorities, municipalities and legal entities implementing public functions, as well as private legal entities operating in the spheres of “education, healthcare, cultural and social sphere based on legal acts or contracts”. The obligations of private legal entities, however, are limited to information produced or acquired as a result of their public duties (see also Article 21.2.2). It is not clear whether the spheres listed – education, healthcare, etc. – are considered to be inherently public duties. This is potentially a very broad defi nition as it is linked to function rather than form, although this would depend on how the Law is interpreted. Fully or partly State-owned or subsidised bodies, as well as legal entities holding dominant or exclusive market positions or rights, or operating in natural monopoly areas, are also considered to be public bodies in relation to certain types of information, including “offers and prices of goods as well as the services and changes in such terms and prices”. The latter part of this is a progressive innovation not found in many right to information laws. At the same time, State-owned or subsidised bodies are under similar disclosure obligations as all public bodies in many countries. As noted, the right of access applies to every person, not limited by nationality, residence or other conditions. Procedural Guarantees Article 11.2 provides generally that public bodies are required to organise themselves regarding provision of access to information. Article 2.5 provides that applicants may use the information the obtain from public
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 46 and 47: provision of advice within governme
Page 48 and 49: The Aarhus Convention has reasonabl
Page 50: Notes 137. UN General Assembly Reso
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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