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

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information the disclosure of which may undermine testing or a fi nancial audit, until these processes
have been completed;
information the disclosure of which may undermine the free and frank exchange of ideas within a
public body;
information the disclosure of which may adversely affect management of the economy, until the
activity in question has been completed;
information the disclosure of which may undermine the administration of justice, until a decision
has been made;
documents regarded as confi dential by foreign States and intergovernmental organisations;
information the disclosure of which might harm the environment;
information the disclosure of which might harm the interests of the public body;
where confi dentiality has been agreed with a private body undertaking public functions;
draft decrees, resolutions and orders, until these have been submitted for approval; and
legal documents on the obligations of private bodies engaged in monopoly activities, until these
have been signed.
The categories on this list are, for the most part, recognised in many right to information laws. However, a
combination of no or a weak harm test means that the list remains signifi cantly overbroad.
All of these documents must be marked confi dential and the expiry date of this confi dentiality must be
indicated (Article 36). The Law does also contain a long list of types of documents which may not be
considered confi dential, including a range of economic and fi nancial information, information on any
benefi ts provided to members of the public, opinion polls, information on disasters, the environment,
healthcare, etc., and a list of information considered to be secret (which, list as noted above, is itself
subject to proactive disclosure). Private bodies which constitute a monopoly cannot keep secret the terms
of offers, prices of goods and services or any changes to these, while private bodies operating under a
public subsidy cannot keep secret the terms or use of those subsidies (Article 37).
Article 38 lists information which may be kept confi dential on the basis that it is private or concerns family
life, including the following categories:
information on political or religious views, ethnic or racial origin, health, individual features and
abilities, or mental or physical disability;
information collected as part of the investigation of a crime or other offence, until judgment is
rendered, to protect children, morality, privacy, victims or witnesses, or as required to execute
judgment;
applications for social protection or services, registration of civil status, or adoption;
tax information, except for outstanding debts; and
information on sexual or family life.
The listed categories are somewhat peculiar. It may well be, for example, that an individual has made
his or her religious or political views public, in which case they would not fall within the scope of private
information.