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

Section 10(1) provides for partial disclosure of a record where only part of it is covered by an exception
(severability). The Law also provides for historical disclosure, whereby the exceptions do not apply to
information relating to any matter which took place 20 years prior to the request, although this does not
apply to the exceptions in favour of sovereignty, security, strategic interests, relations with other States, the
privileges of parliament and cabinet papers (section 8(3)). It would be far preferable if the historical limits
did apply to these exceptions, which are among those which are more likely to be abused, increasing the
importance of historical disclosure.
The RTI Law establishes the following specifi c exceptions:
information the disclosure of which would prejudicially affect sovereignty or integrity, the security,
strategic, scientifi c or economic interests of the country, or relations with a foreign State, or which
would lead to incitement of an offence (section 8(1)(a));
information the publication of which has expressly been banned by a court or the disclosure of which
would constitute contempt of court (section 8(1)(b));
information the disclosure of which would constitute a breach of the privilege of parliament or a
state legislature (section 8(1)(c));
information, including trade secrets, the disclosure of which would harm the competitive position of
a third party, unless the larger public interest warrants disclosure (sections 8(1)(d) and 11(1));
information available to a person in his fi duciary relationship, unless the larger public interests
warrants disclosure (section 8(1)(e));
information received in confi dence from a foreign government (section 8(1)(f));
information the disclosure of which would endanger the life or safety of any person, or identify a
confi dential source of information relating to law enforcement or security (section 8(1)(g));
information the disclosure of which would impede the investigation, apprehension or prosecution of
offenders (section 8(1)(h));
cabinet papers, including records of the deliberations of the Council of Ministers, although these
shall be made public after the decision has been taken “and the matter is complete, or over”, subject
to the other exceptions (section 8(1)(i));
personal information which has no relationship to any public activity or interest, or the disclosure
of which would lead to an unwarranted invasion of privacy, unless the information offi cer or the
appellate authority is satisfi ed that the larger public interest warrants disclosure or the information
could not be denied to parliament (section 8(1)(j)); and
information the disclosure of which would involve an infringement of a copyright subsisting in a
person other than the State (section 9).
These exceptions are largely consistent with those found in other right to information laws, apart from
some, such as information the disclosure of which would incite to an offence and information available
to a person in his or her fi duciary relationship. At the same time, the list of exceptions does not include a
general exception in favour of the internal deliberations of public bodies, an exception which, although it
can be important, has been roundly abused in many countries. As noted, most include express or implied
harm tests although, signifi cantly, the exception relating to cabinet papers does not and the same is true
of the exception for information received in confi dence from a foreign government. The standard of harm
stated is, however, very high, in most cases requiring that the harm would in fact occur as a result of
disclosure of the information.
The exception in favour of personal information is strangely worded. The fi rst part of it does not include a
harm test, although it does not extend to information relating to public activities or interests, so that some
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