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«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»

-- [ Page 1 ] --

by

Toby Mendel

Freedom of Information:

A Comparative Legal Survey

by

Toby Mendel

Toby Mendel is the Law Programme Director with ARTICLE 19, Global

Campaign for Free Expression, a leading international human rights NGO based

in London, a position he has held for some six years. In that capacity, he has

worked extensively on freedom of expression and freedom of information issues

in Asia, Africa, Europe, the Middle East and Latin America, running training seminars, advising governments and local NGOs, critiquing laws and taking cases to both national and international bodies.

Toby Mendel has published widely, contributing to numerous ARTICLE 19 publications, as well as other publications. This is the second book by Mr.

Mendel published by UNESCO, the first being Public Service Broadcasting: A Comparative Legal Survey.1 His published work covers a wide range of free expression issues including broadcasting, freedom of information, defamation, the rights of the child, public service broadcasting and false news. He has an honours BA in mathematics from McGill University, a first class LLB (law) from Dalhousie University, and is currently completing a PhD in international law at Cambridge University.

The author is responsible for the choice and the presentation of the facts contained in this book and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the organisation.

The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.

Published in 2003 by the United Nations Educational Scientific and Cultural Organisation, Regional Bureau for Communication and Information UNESCO House, B-5/29 Safdarjung Enclave, New Delhi 110029, India www.unesco.org/webworld Composited and printed by Macro Graphics Pvt. Ltd.

UNESCO 2003 1 (Malaysia: UNESCO and the Asia Pacific Institute for Broadcasting Development, 2000).

Acknowledgements I would like to thank David Banisar, Deputy Director, Privacy International, London, UK, Mukelani Dimba, Open Democracy Advice Centre, Capetown, South Africa, Abha Joshi, Commonwealth Human Rights Initiative, New Delhi, India, and Maurice Frankel, Director, London, UK, Campaign for Freedom of Information, for their valuable comments and feedback on, respectively, the draft chapters on the United States, South Africa, India and the United Kingdom. I also like to thank UNESCO for inspiring me to write this comparative assessment and in particular to Mr. Wijayananda Jayaweera, Communication and Information Adviser for Asia Toby Mendel

–  –  –

The free flow of information and ideas lies at the heart of the very notion of democracy and is crucial to effective respect for human rights.

In the absence of respect for the right to freedom of expression, which includes the right to seek, receive and impart information and ideas, it is not possible to exercise the right to vote, human rights abuses take place in secret, and there is no way to expose corrupt, inefficient government.

Central to the guarantee in practice of a free flow of information and ideas is the principle that public bodies hold information not for themselves but on behalf of the public. These bodies hold a vast wealth of information and, if this is held in secret, the right to freedom of expression, guaranteed under international law as well as most constitutions, is seriously undermined.

The importance of the right to access information held by public bodies, sometimes referred to as the right to know, has been recognised in Sweden for over 200 years. Importantly, however, over the last ten years it has gained widespread recognition in all regions of the world.

This is reflected in authoritative statements signalling the importance of this right by a number of international bodies, including various UN actors and all three regional human rights systems, in specific guarantees for this right in many of the new constitutions adopted in countries undergoing democratic transitions and in the passage of laws and policies giving practical effect to this right by a rapidly growing number of countries and international organisations.

A fundamental value underpinning the right to know is the principle of maximum disclosure, which establishes a presumption that all information held by public bodies should be subject to disclosure unless there is an overriding public interest justification for non-disclosure. This principle also implies the introduction of effective mechanisms through which the public can access information, including request driven systems as well as proactive publication and dissemination of key material.

i Freedom of Information: A Comparative Legal Survey

A number of questions face those tasked with drafting and/or promoting legislation guaranteeing the right to know in accordance with the principle of maximum disclosure. How should the regime of exceptions be crafted so as to strike an appropriate balance between the right to know and the need for secrecy to protect certain key public and private interests? How extensive should the obligation to publish and disseminate information be and how can the law ensure that this obligation grows in line with technological developments which significantly reduce publication costs? What procedures for requesting information can balance the need for timely, inexpensive access against the pressures and resource constraints facing civil servants? What right of appeal should individuals have when their requests for information have been refused? Which positive measures need to be taken to change the culture of secrecy that pervades the public administration in so many countries, and to inform the public about this right?





This book on Freedom of Information by Toby Mendel helps to answer some of these questions by describing the international standards which have been established in this area and some of the key features of effective freedom of information legislation. Importantly, it illustrates the way in which ten countries and two international organisations have dealt with these difficult issues. An attempt has been made to ensure that all regions of the world are represented, with a focus on those countries with effective legal guarantees for the right to information. The two intergovernmental organisations - the United Nations Development Programme (UNDP) and the World Bank - have been selected in part because of their longstanding policies on freedom of information and in part because of their leadership role in promoting this right among similar intergovernmental organisations.

I believe that this book makes a significant contribution to the existing literature on freedom of information and that it will be a valuable resource to the many people all over the world who wish to promote effective legal guarantees for the right to information. It provides an authoritative and yet accessible account of the law and practice regarding freedom of information, providing invaluable analysis of what is working and why. We urge readers to use this book to promote global acceptance of the principle of maximum disclosure and to ensure that it is effectively guaranteed in practice.

Abdul Waheed Khan Assistant Director-General for Communication and Information

UNESCO

7, Place de Fontenoi 75352 Paris 07 SP, France ii

Introduction

The right to freedom of information, commonly understood as the right to access information held by public bodies, is now widely recognised as a fundamental human right. There is a massive global trend towards legal recognition of this right as countries around the world that aspire to democracy either have adopted, or are in the process of preparing, freedom of information laws. This represents an enormous change from even ten years ago, when less than one-half of the freedom of information laws now in place had been adopted.

There are a number of good reasons for growing acceptance of freedom of information as a human right. If anything, it is surprising that it has taken so long for such an important underpinning of democracy to gain widespread recognition as a right. Public bodies hold information not for themselves but as custodians of the public good. As such, this information must be accessible to members of the public in the absence of an overriding public interest in secrecy. In this respect, freedom of information laws reflect the fundamental premise that government is supposed to serve the people.

There are, however, a number of more utilitarian goals underlying widespread recognition of the right to information. The international human rights NGO, ARTICLE 19, Global Campaign for Free Expression, has described information as, "the oxygen of democracy".2 Information is essential to democracy at number of levels. Fundamentally, democracy is about the ability of individuals to participate effectively in decisionmaking that affects them. Democratic societies have a wide range of participatory mechanisms, ranging from regular elections to citizen oversight bodies, for example of the public educational and/or health services, to mechanisms for commenting on draft policies or laws.

Effective participation at all of these levels depends, in fairly obvious ways, on information. Voting is not simply a technical function. For elections to fulfil their proper function - described under international law 2 The Public's Right to Know: Principles on Freedom of Information Legislation (London: June 1999), Preface.

–  –  –

as ensuing that "[t]he will of the people shall be the basis of the authority of government"3 - the electorate must have access to information. The same is true of participation at all levels. It is not possible, for example, to provide useful input to a policy process without access to the policy itself, as well as the reasons it is being proposed.

Democracy is also about accountability and good governance. The public have a right to scrutinise the actions of their leaders and to engage in full and open debate about those actions. They must be able to assess the performance of the government and this depends on access to information about the state of the economy, social systems and other matters of public concern. One of the most effective way of addressing poor governance, particularly over time, is through open, informed debate.

Freedom of information is also a key tool in combating corruption and wrongdoing in government. Investigative journalists and watchdog NGOs can use the right to access information to expose wrongdoing and help root it out. As U.S. Supreme Court Justice Louis Brandeis famously noted: "A little sunlight is the best disinfectant."4 Commentators often focus on the more political aspects of freedom of information but it also serves a number of other important social goals.

The right to access one's personal information, for example, is part of basic human dignity but it can also be central to effective personal decision-making. Access to medical records, for example, often denied in the absence of a legal right, can help individuals make decisions about treatment, financial planning and so on.

Finally, an aspect of freedom of information that is often neglected is the use of this right to facilitate effective business practices. Commercial users are, in many countries, one of the most significant user groups.

Public bodies hold a vast amount of information of all kinds, much of which relates to economic matters and which can be very useful for businesses. This is an important benefit of freedom of information legislation, and helps answer the concerns of some governments about the cost of implementing such legislation.

These rationales for freedom of information legislation apply equally, if not with more force, to developing countries as to more developed 3 Universal Declaration of Human Rights, UN General Assembly Resolution 217 A (III), 10 December 1948, Article 21.

4 Other People's Money, and How the Bankers Use It (New York: Frederick A. Stokes Company, 1914).

p. 92.

–  –  –

countries. Democracy is not the preserve of a few select countries but a right of citizens everywhere. Every country in the world needs adequate checks and balances on the exercise of public power, including through freedom of information and the public oversight this enables. Freedom of information can be particularly effective in exposing corruption where there are few other safeguards, as grassroots experience in India with this right has amply demonstrated.5 Freedom of information is most commonly understood primarily as a right to access information held by public bodies upon request. This is a central aspect of the right, but it clearly goes beyond that. One further element, addressed in most freedom of information laws, is the obligation on public bodies to publish, even in the absence of a request, key information, for example about how they operate, their policies, opportunities for public participation in their work and how to make a request for information.

One further aspect of this right is starting to emerge. Unlike the other two aspects of the right, which relate to information already held by public bodies, this third aspect posits a positive obligation on States to ensure that certain key categories of information are available.

International NGOs like ARTICLE 19, for example, have argued that States are under a substantive positive obligation to ensure that citizens have access to information about human rights violations.6 This is of particular importance in the aftermath of a period of serious human rights violations, as part of a renewed commitment to democracy and to respect rights.

In such cases, it may not be enough simply to provide access to information already held by public bodies; it may be necessary to go further and collect and compile new information to ascertain the truth about the past abuses. The importance attached to this is reflected in the truth commissions appointed in a number of countries. It is essential that information about past abuses is readily available in an accessible form if the nation as a whole is to be able to deal with those abuses and move on.



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