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

The relationship between the RTI Law and secrecy legislation is not very clear. On the one hand, Article
4.2.1 provides that the RTI Law does not apply to secrets established by law (Article 21.1.1 reiterates this).
On the other hand, Article 5.2 provides that other laws cannot contradict the requirements of the RTI Law. It
seems likely that the combined effect of these provisions is that the RTI Law does not extend to documents
which are expressly rendered secret according to other legislation.
The RTI Law provides for certain blanket exclusions to which it simply does not apply. These include
proposals, claims and complaints regulated by the law governing citizen complaints, as well as limitations
determined by international agreements. The RTI Law also does not apply to documents which have
been archived in accordance with the law governing the National Archives, although presumably this law
incorporates its own system of disclosure (Article 4.2).
Further general grounds for refusing to provide information are set out in Article 21, including where the
applicant is “not duly authorized to acquire” the information, the applicant has already been provided with
the information, responding to the request would undermine the ability of the public body to discharge its
obligations, due to the volume of information sought, it is impractical to respond to the request at that time,
or responding to the request requires “systematization, review and documentation” of the information
(which may be assumed to mean that the information as such is not held but could be created by the public
body from existing documents). Some of these – in particular the rule on it being impractical to respond to
a request at that time – appear to give wide latitude to public bodies to refuse to process requests.
Many of the exceptions do not incorporate a harm test but, instead, set out blanket categories of information
that may not be disclosed. At the same time, most such exceptions include an internal time limit on secrecy.
For example, information collected “during the effecting of state control” is secret only until a decision has
been made. For those exceptions which do include a harm test, the standard is usually low, with the term
‘will or may’ frequently being employed. The combined effect of this is that information may be confi dential
even where disclosure would not cause any harm, although usually not for very long. The Law does not
envisage certifi cates of confi dentiality being issued, but these may be provided for in other laws.
Article 35.4 appears to provide for something like the opposite of a public interest override, providing
that information may be kept confi dential where the harm from disclosure exceeds the public interest in
accessing the information. However, since this is limited in application to ‘offi cial information’ as defi ned
by Article 35.2, in other words information which is prima facie confi dential, it may in fact be a proper public
interest override. Article 39.1 does provide for a limited public interest override in relation to information on
accidents or offences, as long as this would not impede an investigation.
Article 22.2 provides for partial disclosure of documents whereby, when only part of a document is subject
to disclosure, that part shall be severed from the rest, which shall be kept confi dential. This rule is repeated
in Article 39.3 in relation to information which cannot be regarded as classifi ed on grounds of offi cial use
(see below).
Pursuant to Article 40, information intended for offi cial use can only be classifi ed as long as the grounds for
confi dentiality remain and in any case for not longer than fi ve years. For private information the limitation
period is 75 years, or 30 years after the person concerned has died, or, in a rather strange rule, 110 years
after a person’s birth, should death not be verifi ed.
The RTI Law sets out two main categories of information which may be treated as confi dential, namely
“information intended for offi cial use”, and private information and information on family life. Article 35
sets out a long list of categories of information falling within the ambit of the fi rst, including:
information on criminal or administrative violations, until the case is fi led with a court or
terminated;
information collected “during the effecting of state control”, until a decision has been made;
information the disclosure of which may impede the formulation of policy, until a decision has been
made;
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