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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 ...»

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Freedom of Information: A Comparative Legal Survey for granting private persons access to information according to regulations or agreements of a general nature that comply with the principles and deadlines established in this Law." They are specifically required, within a year, to set up a number of systems and bodies for this purpose, including a liaison section and procedures for access to information. They are also required to submit an annual report on the activities undertaken to ensure access to information.223 Duty to Publish Article 7 of the Law provides for a broad duty to publish, subject to the regime of exceptions (classified or confidential information). It provides that subjects must, in accordance with the regulations promulgated by the Federal Institute of Access to Information (Institute) (for agencies and entities; other subjects must establish or designate their own institutes), publish 17 categories of information in a manner that is accessible and comprehensible. The categories include information about the general operations of the body, the services they offer, procedures and forms, subsidy programmes, contracts entered into, reports made and opportunities for participation. Article 12 further provides that subjects must publish information regarding the amounts and recipients of any public resources they are responsible for, reflecting the preoccupation with corruption which was an important motivation for this Law.

The Law includes precise stipulations about how this information must be made available. It must be provided in remote and local electronic means, including through a computer available to members of the public which includes printing facilities, and support must be provided to users where needed.224 The Law also includes a number of specific directions regarding the publication of information. Pursuant to Article 8, the judicial branch must make public any rulings, although individuals may object to the disclosure of their personal information. Agencies and entities must publish all rules and formal administrative arrangements, 20 days prior to their being adopted, unless this could frustrate their success. Reports by political parties and groups to the Federal Electoral Institute, as well as any formal audits of these bodies, must be published as soon as they are finalised.225 223 Articles 62 and Transitory Fourth.

224 Article 9.

225 Articles 10-11.

–  –  –

Exceptions The Law includes a clear and narrow system of exceptions, operated largely through a system of classification, along with confidential information, although there are some potential loopholes in this system.

There is no public interest override. There is, however, a strict system of time limits to classification under Articles 13 and 14, of 12 years, albeit without prejudice to other laws. This time limit may, exceptionally, be extended where the grounds for the original classification still pertain.

Article 14 also contains an exceptional and extremely positive provision prohibiting the classification of information "when the investigation of grave violations of human rights or crimes against humanity is at stake."

This should facilitate human rights and humanitarian work.

Articles 13 and 14 set out the categories of information that may be classified. The Institute is tasked with establishing criteria for classification and declassification of information, as well as for oversight of the system, while the heads of administrative units, defined as the parts of the subjects that hold information, are responsible for actual classification. The Institute may, at any time, have access to classified information to ascertain whether it has been properly classified. Finally, the administrative units are required to produce, biannually, an index of the files they have classified, indicating which unit produced the document, and the date and length of classification. This index may not, itself, be classified.226 Specific exceptions under Article 13 include information the disclosure of which would compromise national or public security or defence, impair ongoing negotiations or international relations, including by divulging information provided on a confidential basis by other States or international organisations, harm financial or economic stability, pose a risk to the life, security or health of an individual, or severely prejudice law enforcement, including the prevention, investigation and prosecution of crime, collection of taxes or immigration operations.

Article 14 adds to these exceptions information expressly required by another law to be confidential, commercial or industrial secrets, prior investigations, judicial files or proceedings against civil servants prior to a ruling and internal deliberative processes prior to the adoption of a final decision.

Article 18 refers to confidential information, being personal information or information provided by individuals in confidence. This is 226 Articles 15-17.

Freedom of Information: A Comparative Legal Survey bolstered by a whole chapter on protection of personal data, which reiterates the prohibition on disclosing personal information and also gives a right to correct it.227 Information already published does not need to be provided, but the liaison section must assist the requester to locate the published information.228 Appeals Appeals lie in the first instance to the Institute and from there to the courts. The appeal must be lodged within 15 days of the notice of refusal of access, where information has otherwise not been provided, either in full or in part, where correction of personal information is refused or to review timeliness, cost or form of access.229 The appeal must contain the name of the agency or entity, the person making the appeal and any third parties, the date the cause of the complaint arose, the action being appealed, the arguments and a copy of any formal documents relating to the case (such as a notice of refusal of access).230 A commissioner must investigate the claim and report to the whole body within 30 working days, and a decision must be made within another 20 days, although these time limits may be doubled for justifiable cause. An unusual provision stipulates that failure to rule within the time limit will be understood as an acceptance of the appeal, prompting the Institute to keep to the rules. The Institute may accept or reject the claim, or modify it, and their ruling shall include time limits for compliance.231 The requester, but not the agency or entity, may appeal from the Institute's decision to the federal courts.232 Promotional Measures The Law sets out its aims in Article 4, which include ensuring that everyone has access to information through simple and expeditious procedures, making the administration transparent, protecting personal information, ensuring accountability and citizen oversight, improving information management and generally promoting democratisation in 227 See Articles 21 and 25.





228 Article 42.

229 Article 50.

230 Article 54.

231 Articles 55-56.

232 Article 59.

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Mexico. Article 6 deals with interpretation, providing that interpretations which favour the principle of openness must be preferred.

Article 9 includes a very general rule on the maintenance of records, providing that agencies and entities must handle their information, including putting it online, in accordance with regulations promulgated by the Institute. Article 32 further provides that the Institute must cooperate with the General Archive of the Nation to develop "criteria for cataloguing, categorizing and preserving administrative documents, as well as organizing the archives".

Civil servants who fail to comply with the law in a number of ways, for example by destroying information or intentionally denying access, are administratively liable. They are also liable if they disclose classified or confidential information, one of the few provisions in the law that is likely to impede the development of a culture of openness, prompting officials to err in favour of secrecy.233 The Mexican Law provides for a number of interesting procedural mechanisms to promote effective implementation of the right of access.

Agencies and entities must establish a "liaison section", the analogy of an information officer in some other laws, with a number of duties including to ensure fulfilment of the duty to publish, to receive and process requests for access and to assist requesters, to ensure the request process is respected, to propose internal procedures to ensure efficient handling of requests, to undertake training and to keep a record of requests for information and their outcome. These sections must be established within six months of the law coming into force and they must become operational within a further six months.234 The Law also provides for an Information Committee in each agency and entity, with a few exceptions, composed of a civil servant, the head of the liaison section and the head of the internal oversight body. The Committee is responsible for coordinating and supervising information activities, establishing information procedures, overseeing classification, ensuring, along with the liaison section, that documents containing requested information are found, establishing and overseeing implementation of document maintenance criteria, and ensuring the provision to the Institute of the information it needs to produce its annual report.

233 Article 63.

234 Articles 28 and Transitory Third.

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Article 33 provides for the establishment of the Institute as an independent public body charged with promoting the right to access information, acting as an appeals body for refusals to disclose and protecting personal information. The Law includes a number of provisions designed to promote the independence of the Institute. The five commissioners are nominated by the executive branch, but nominations may be vetoed by a majority vote of either the Senate or the Permanent Commission, as long as they act within 30 days. Individuals may not be appointed as commissioners unless they are citizens, have not been convicted of a crime of fraud, are at least 35 years old, do not have strong political connections and have "performed outstandingly in the professional activities".235 Commissioners hold office for six years, but may be removed for serious or repeated violations of the Constitution or this Law, where their actions or failure to act undermine the work of the Institute or when they have been convicted of a crime subject to imprisonment.236 The Institute has a long list of functions including, in addition to those already noted, interpreting the law as an administrative regulation, monitoring implementation of the Law and making recommendations in case of non-compliance, providing advice to individuals, developing forms for information requests, promoting training and preparing a simple guide on how to use the Law. It must also present an annual report to the Honorable Congress of the Union, which shall include information on requests and how they have been dealt with.

235 Article 35.

236 Article 34.

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Pakistan Introduction The Freedom of Information Ordinance, 2002237 was adopted by the President late in 2002, perhaps ironically, given its democratic problems, making Pakistan the first country in South Asia to have such a law.238 In fact, this is the second such ordinance adopted in Pakistan.

The first was adopted in 1997239 but, as a civilian Ordinance which failed to be introduced as a law in parliament, it lapsed within four months. A second Ordinance was circulated for comment in 2000, but was never adopted. The Ordinance has a number of strong process protections but it is seriously undermined by the highly excessive regime of exceptions.

The Right of Access The Ordinance provides for a right of access to public information, stating that, "notwithstanding anything contained in any other law … no requester shall be denied access to any official record other than exemptions".240 This is a strong statement of the right of access, in particular inasmuch as it means that the disclosure provisions of the Ordinance take precedence over secrecy laws. However, the definition of which records are covered is a bit unclear and the scope of the law is restricted to citizens.241 Definitions The term 'record' is defined in subsection 2(i) as, "record in any form, whether printed or in writing and includes any map, diagram, photography, film, microfilm, which is used for official purpose by the public body which holds the record". It is not clear whether the limitation of being used for an official purpose applies only to maps, diagrams, and so on, or to the whole definition, but the latter interpretation, though more limited, makes more sense.

237 Ordinance No. XCVI of 2002, 27 October 2002.

238 The Indian law, reviewed above, was adopted in December 2002, although it had already been under discussion for some time.

239 Freedom of Information Ordinance, 1997. Available at:

http://www.privacyinternational.org/countries/pakistan/pk-foia-1002.html.

240 Section 3.

241 Section 12.

Freedom of Information: A Comparative Legal Survey However, a 'public record' is defined in section 7 to cover a much narrower range of information. Instead of defining information generally,

section 7 lists the following types of information as public records:

policies and guidelines;

–  –  –

any other record specified by the government as being a public record.

It would appear from the law that the relevant definition is public record,242 although the right of access as spelt out in section 3 refers to 'official records'. This is an extremely narrow definition which excludes a wide range of information of some public importance.

The law extends to the whole territory of Pakistan,243 but it only covers federal bodies. The definition of public body includes ministries, divisions and departments of the Federal Government, the secretariat of the parliament, any office of a board, commission or council, any body established by federal statute, and courts and tribunals.244 It is broader than some freedom of information laws inasmuch as it covers all three branches of government, but narrower inasmuch as it does not appear to cover public corporations or private corporations which are substantially publicly funded.



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