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

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odies for any purpose, including commercial purposes. Requests may be submitted orally either directly or over the phone, or in writing via direct delivery, post, fax or email (Article 13.1). A request shall include the name of the applicant, contact details, a description of the information sought and the form in which the applicant would prefer to access the information. Requests for private information should also be accompanied by the applicant’s identifi cation document. Where a request is defi cient the applicant should be informed within fi ve working days. Failure to identify the requested information suffi ciently clearly is a ground for refusing a request. Reasons are not required to be given except in certain cases, such as where offi cial confi rmation of provision of the information is needed for purposes of exercising a right or where the information is sought on an urgent basis (Articles 15, 21.1 and 24.4). Public bodies are generally required to secure everyone’s “free, unrestricted and equal” right to access information (Article 10.1). More specifi cally, they are required to inform applicants about the “terms, policies and methods” of making requests, to assist applicants locate information they do not hold, to assist applicants to defi ne the information sought suffi ciently clearly and to provide assistance as necessary to applicants who cannot produce a written request, for example due to illiteracy or disability (Article 17). Requests for information must be registered upon receipt unless they are anonymous or verbal, although provision of a request on letterhead or with even a single contact detail is enough to engage the obligation of registration (Article 18). Every properly submitted written request must be processed (Article 15.7). The manner in which a request has been dealt with – either through provision of the information or rejection of the request – shall be entered into the register, along with the name of the offi cial, the date, and the details of any provision of information or grounds for refusing a request (Article 28). These are progressive provisions which, if followed, will ensure a good paper trail for any appeals. Article 24 provides that requests must be answered as soon as possible and in any case within seven working days (see also Article 10.4.1). Where more time is needed to prepare the information, to defi ne the request or to search through a large number of documents, the response time may be extended by an additional seven working days, in which case the applicant shall be informed within fi ve working days (Article 25). Where the information is needed more quickly, requests shall be processed immediately or, where this is impractical, within 24 hours. Where the information is needed to prevent a threat to life, health or freedom, it should be provided within 48 hours (Article 24). Providing for quick timelines where the information is needed quickly is an interesting innovation which may be particularly useful for journalists. Where a public body does not hold the information requested, it should try to determine which public body does hold the information and transfer the request to that body within fi ve working days. This obligation does not apply to private bodies covered by the law, but they shall inform applicants within fi ve working days if they do not hold the information sought (Article 23). The Azerbaijani RTI Law does not address the question of notifi cation of third parties. Article 27 provides that a request is considered satisfi ed when the information has been provided, the request has been forwarded and the applicant notifi ed, the applicant has been advised on how to access the information, or the applicant receives a “grounded notifi cation on the refusal” to provide information. This is supplemented by Article 21.3, which provides that the response to any refusal to provide information should be ‘explicit’ and indicate the specifi c legal provisions upon which it is based. These provisions could be further improved by requiring details regarding the right of appeal to be provided where a request is refused. Article 14.1 addresses the question of form of disclosure of information, while Article 10.4.1 provides generally that requests must be answered in the manner most appropriate for the applicant. Applicants may specify various forms of access including inspection of a document, an opportunity to make a copy of a document, being provided with a certifi ed copy, transcription of coded information, or provision in electronic form. The specifi ed form of access may be refused where the public body lacks the technical means to comply, where the form in which the information is held makes this impossible, where to do so would interfere with the normal operation of the public body, or where this would cause damage to the record. In these cases, the public body determines the form of access (Articles 14.5, 16.1 and 16.2). Article 16.2 describes when a verbal response may be provided, such as where a request is made in the form of a direct appeal to offi cials. Where information is available in many languages, it should be provided in the language preferred by the applicant (Article 16.5). 45
46 Access to information shall be free where it is via inspection of the record, the applicant copies it him- or herself or no technical support is provided by the public body, presumably including when provision is electronic. It shall also be free if the information is already public. Otherwise, a charge may be levied which shall not exceed the costs incurred to prepare and present the information to the applicant. Within three years, the administrative body responsible for information shall prepare a list of chargeable services, payment procedures and other matters relating to fees. Until that time, these shall be determined by each public body internally (Articles 26 and 57.2). Where a public body provides incomplete or inaccurate information, the supplementary or correct information should be provided free of charge (Article 22.3). These are reasonably progressive fee provisions although they would be strengthened by the inclusion of fee waivers in certain cases. Also, costs of preparing the information are not chargeable in many right to information systems, as this largely depends on how well the relevant public body maintains its own records. Duty to Publish Article 10.4.3 establishes a general duty on public bodies to provide the public with information on the activities they have undertaken to implement their mandate. Chapter IV deals in detail with proactive disclosure. Article 29 lists some 34 categories of information that must be disclosed proactively, including statistical data, budgetary and detailed fi nancial information and forecasts, information on staff, including salaries, information on the environment, legal documents, planning documents, services provided, and, signifi cantly, a list of secret documents. This is a long and progressive list of proactive disclosure obligations. Article 30 provides for disclosure via the Internet, the mass media, offi cial publications, and libraries and other public information centres. Article 31 provides generally that disclosure should be in a manner that allows everyone to access the information as soon as possible. Where a special means of disclosure is envisaged by a law or international agreement, it shall be respected. Information relating to a threat to life, health, property, the environment or other matters of signifi cant public interest must be disclosed immediately via the mass media and Internet, with a view to mitigating any risk. Articles 32 places an obligation on public bodies to establish Internet “information resources” (websites or similar) to facilitate disclosure of the information described in Article 29. Private bodies undertaking public functions are, pursuant to Article 33, also required to take measures to ensure access to information over the Internet, including by placing up-to-date and ‘effective’ information online. Pursuant to Article 12, public bodies are required to establish accessible public electronic registers of key documents they hold, whether they produce or acquire them. This can be a very useful tool to assist those seeking to identify information. A number of documents – such as accounting records, greetings, correspondence and memos – are not required to be registered. The “respective executive authority”, presumably the minister responsible for the RTI Law, shall establish policies governing the creation, maintenance and updating of the register. In addition to the actual document, the following information must be recorded: the mode of receipt and/or dispatch of the document, where relevant; the type of document; and, as applicable, limitations on access to it. Exceptions Overall, the regime of exceptions in the RTI Law, while respecting international standards in some respects, is one of the weaker aspects of the Law. It includes a comprehensive list of types of information that should be kept secret, divided into two main grounds: ‘offi cial use’ and privacy. It would appear that the Law also doubles as a secrecy law, in the sense that confi dential information may not be disclosed (in addition to the public not having a right to access it). Article 41, for example, provides that public bodies must take measures to protect information intended for ‘offi cial use’.
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 53: 44 The Right of Access The right of
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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