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

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largely consistent with international standards, apart from the concern with causing confusion, which is not generally considered to be a legitimate ground for limiting access to information. This is in part because ‘confusion’ is an excessively subjective concept and in part because an exception of this nature is inherently paternalistic, contrary to a key thrust of right to information laws, which is to put power into the hands of the people. The sixth exception is aimed at preventing harm to the conduct of business by public bodies. It includes a long list of specifi c harms, which appears to be non-inclusive. The list includes, among other things, obstruction to research, harm to legitimate business interests, undermining personnel management, harm to the State’s interest in contracts or negotiations, and facilitating unfair or illegal acts. Although the list is somewhat off-putting, in fact most items on it are legitimate. Appeals When requests are denied, in whole or in part, requesters can immediately fi le suit before the courts seeking an order overturning the denial, and they can also fi le an administrative appeal. Regarding the latter, the RTI Law provides for appeals to be made to the head of a public body, who is then is required to refer them to the Information Disclosure and Personal Information Protection Review Board, an oversight body attached to the Cabinet Offi ce, unless the appeal is unlawful or a decision has been made to disclose the documents. No binding time limit is set for such a reference and there are some cases which are simply not referred or which are delayed for periods which can exceed a year, in which case the Board has no power to act. The applicant, the person who preferred the appeal (if different) and any third parties who have made representations must be notifi ed of any appeal (Articles 18-19). Although the Review Board is within the Cabinet Offi ce, some efforts have been made to ensure that it is independent. It is presently composed of fi fteen members and appeals are ordinarily considered in threemember panels. 205 Five Board members serve full-time, with one serving as chairperson of each panel. These members are typically retired government offi cials. The other ten members serve on a part-time basis and include academics, practicing lawyers and other members of the community. The chairperson of the Board as a whole is typically a retired appellate court judge (the mandatory retirement age for such judges is 65). The Prime Minister appoints members from among people of “superior judgement” who have been approved by both houses of parliament, which should at least ensure openness and political oversight. The term of offi ce is three years and members may be re-appointed. Members may be dismissed by the Prime Minister once the latter has obtained approval from both houses of parliament. The grounds for dismissal are limited to incapacity, misconduct or having acted in contravention of offi cial duties. While in offi ce, members may not be offi cers of political parties or associations. The RTI Law provides that members’ salaries shall be determined by another law. Full-time members may not engage in other remunerative activities, except with the Prime Minister’s permission. This is clearly open to political abuse and it would be preferable if at least outline rules on this had been included directly in the Law or the power to grant permission situated elsewhere than with the Prime Minister. The Chair is appointed by the other members from among themselves. The Law also provides for a secretariat to assist the Board. The Board shall normally consider matters in groups of three members, although an appellate body of all members may be constituted (Article 6 of the law establishing the Review Board). When considering an appeal, the Board may require the public body to furnish it with the disputed record or request further information from the applicant or from other parties (Article 9 of the Review Board law). The Review Board law provides in detail for the processing of appeals, including representations and investigations. Parties may submit written materials to the Board, which may also allow them to make oral representations (Articles 10-11). 206 Appeals from decisions by the Board may be taken to the district court. 73
74 Sanctions and Protections The Japanese RTI Law does not provide for sanctions for wilful obstruction of access to information or for protection for those who disclose information in good faith. It does, however, provide that it is an offence for members of the Board to disclose secret information they accessed as members, punishable by up to one year imprisonment with hard labour or a fi ne of up to 300,000 yen. This is quite different than imposing sanctions on public offi cials for disclosing information and seems reasonable, although the penalty is very harsh. Promotional Measures The Law includes a number of general and specifi c promotional measures. The government is required generally to “endeavor to enhance measures concerned with the provision of information held by Administrative Organs”. Local public entities, in turn, are required to strive to formulate and implement information disclosure measures (Articles 25 and 26). The Law also requires heads of public bodies to facilitate disclosure by providing information about the records they hold, as well as by taking other “appropriate measures”. Although appointment by public bodies of information offi cers is not required, the Director-General of the Management and Coordination Agency shall establish “comprehensive information centers concerning Disclosure Requests for ensuring the smooth implementation” of the Law (Article 23). Heads of public bodies are required to establish rules providing for the “proper” management of documents, in accordance with a Cabinet Order, and to make those rules public. The Cabinet Order shall set general standards relating to the “classifi cation, preparation, preservation and disposal of Administrative Documents” (Article 22). The Cabinet shall also request reports on implementation from public bodies and, annually, compile and publish a summary of these reports (Article 24). The RTI Law provides that, approximately 4 years after it comes into effect, the government should examine its effectiveness and take necessary measures to improve the disclosure of information, based on the results of this examination (Additional Provision 2). As noted above, the Law was amended in 2004. 207 K yrgyzstan Introduction Article 16(6) of the 2003 Kyrgyz Constitution recognises a limited right of access to personal information, unless this is secret. A process of constitutional renewal is currently underway in Kyrgyzstan, with President Bakiev having called, on 21 September 2007, for a referendum on new constitutional proposals. Changes to the Constitution which were adopted in 2006 were struck down by the Constitutional Court, leading to a restoration of the Constitution adopted in a referendum of February 2003. 208 Kyrgyzstan fi rst adopted a law on Guarantees and Freedom of Access to Information in 1997. 209 Although this law did provide a basic framework for access to information, it did not clearly delineate the exceptions,
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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
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Foreword by Abdul Waheed Khan Assis
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Introduction The importance of the
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Access to medical records, for exam
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International Standards and Trends
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egard to information held by Govern
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very exercise of democracy.” The
Page 22 and 23:
Group to discuss the right to infor
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y Article 8 of the Convention. 70 I
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information on hazardous materials
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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 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: 72 Exceptions The Japanese RTI Law
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
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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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