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

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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 59
60 personal information which does not constitute an invasion of privacy may be withheld. On the other hand, pursuant to the second part of the exception, information constituting an invasion of privacy which does relate to public activities should not be disclosed, unless this would serve the overall public interest. Some laws exempt only information which is properly private in nature, and exclude private information about public offi cials relating to their work. This seems a stronger formulation than that adopted in the Indian RTI Law although, in practice, this provision is being interpreted to require harm for both parts. Appeals Pursuant to section 19 of the RTI Law, anyone, including a third party, who either does not receive a decision within the specifi ed timeframe or who is aggrieved by a decision under the Law may, within 30 days, lodge an internal appeal with an offi cer who is senior in rank to the responsible information offi cer. A second appeal may be made within 90 days, or such further period as may be deemed appropriate, to the relevant Information Commission (see below). The fi rst appeal must be decided within 30 days, or an extended period of up to 45 days, with reasons for any extension to be given in writing. The onus of justifying any refusal to provide information shall be on the information offi cer who denied the request (section 19). The onus for complaints relating to other matters – such as excessive fees or undue delay – also lies on the information offi cer pursuant to section 20(1). The scope of the right of appeal is outlined in section 18(1), which sets out the duty of the Information Commission to receive and inquire into complaints relating to: inability to submit a request, including because no information offi cer has been appointed; a refusal to disclose information; failure to respond to a request within the established timelines; the fee charged; allegations of provision of incomplete, misleading or false information; or any other matter relating to requesting or obtaining access to records. These are extremely broad grounds for complaint. In deciding an appeal an Information Commission may ‘initiate an inquiry’, in which case they have the same powers as a civil court trying a case under the Code of Civil Procedure, 1908, in respect of: summoning witnesses and compelling them to give evidence; requiring the production of documents, including any public record; receiving evidence on affi davit; and any other matter which may be prescribed (sections 18(2)-(3)). Information Commission decisions are binding. In deciding a matter, an Information Commission has wide remedial powers, including to: order the public body to take such steps as may be necessary to secure compliance with the Law by providing access, in a particular form, by appointing information offi cers, by publishing certain information, by making changes to its record management systems, by enhancing the provision of training to its offi cials or by providing the Commission with an annual report; require the public body to compensate the complainant; or impose any other penalties provided for under the Law, for example to fi ne an information offi cer for obstructing access (sections 19(7)-(8)). The RTI Law includes very detailed provisions regarding the appointment and independence of both Central and State Information Commissions (the commentary below relates only to the Central Information Commission). The Commission shall, pursuant to section 12, consist of a Chief Information Commissioner and up to ten Central Information Commissioners, appointed by the President upon the recommendation of a committee consisting of the Prime Minister, Leader of the Opposition and a Cabinet Minister appointed by the Prime Minister. Although this does prevent the governing party from totally dominating the decision, it is still a highly political approach, although the current Chief Information Commissioner, Wajahat Habibullah, has demonstrated independence in his approach to the position. Commissioners shall be “persons of eminence in public life, with wide knowledge and experience” in one of the fi elds listed. They may not be MPs or hold offi ces of profi t or connected with any political party, or carry on any business or pursue any profession (section 12). This latter condition seems rather harsh and would preclude commissioners from pursuing, even part-time, their professions.
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Toby Mendel is the Law Programme Di
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The author is responsible for the c
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Table of Contents Foreword and Note
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Country Chapters 43 Azerbaijan 43 I
Page 10 and 11:
Foreword by Abdul Waheed Khan Assis
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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 and 54: 44 The Right of Access The right of
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: 58 Duty to Publish The Indian RTI L
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
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112 parliament to make laws prescri
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114 required to grant earlier acces
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116 Most of the exceptions do inclu
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118 Sanctions and Protections The U
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120 The Law does not include a sect
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122 There have been efforts recentl
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124 The specifi c exceptions are as
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126 Sanctions and Protections The R
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128 The new OPEN Government Act add
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130 educational or scientifi c inst
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132 The sixth exception covers fi l
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134 the number of full-time staff
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136 196. It was amended by Law No.
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138 259. Act No. 100 of 1980. Avail
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140 318. Banisar, D., Government Se
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142 Some laws also include a number
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144 of parliament. These are unfort
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146 is a complex one. In some count
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148 Exceptions Most laws include a
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150 public interests. A number of l
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152 the set time frame, a refusal t
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154 must make each such report avai
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156 from different regions around t
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