«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
Sweden Introduction Sweden was the first country in the world to adopt a law granting citizens the right to access information held by public bodies, having adopted its Freedom of the Press Act in 1776.289 The Act, part of the Swedish Constitution, guarantees the right of access through Chapter 2 On the Public Nature of Official Documents. Despite the title, the right is available to everyone, not just the press.
The Right of Access Article 1 of Chapter 2 of the Act states that "every Swedish subject shall have free access to official documents." In practice, however, anyone can claim this right and Sweden has developed a reputation, for example, for being a good country to access European Union documents.
The right to access, and to correct, personal data is provided for by the Personal Data Act, 1998.
Definitions Chapter 2 of the Swedish Act devotes quite a lot of attention to describing precisely what does, and what does not, qualify as an official document. The form of documents is defined broadly to include any "record which can be read, listened to, or otherwise comprehended only by means of technical aids".
Article 3 limits the scope of official documents to documents which are, "in the keeping of a public authority, and if it can be deemed under the terms of Article 6 or 7 to have been received, prepared, or drawn up by an authority" A record is considered to be "kept" by a public authority if it is available to the authority for transcription, which would include practically everything they hold. The Act specifically notes that letters and other communications addressed to civil servants which refer to official matters are official documents.290 Article 6 deals with which documents have been received by a public authority, including when they have arrived at such an authority or are in the hands of a competent official from that authority. Entries for competitions and tenders in sealed envelopes are not deemed to have been 289 Available at: http://www.oefre.unibe.ch/law/icl/sw03000_.html.
290 Articles 3 and 4.
Freedom of Information: A Comparative Legal Survey received before the time fixed for their being opened. Furthermore, measures taken solely as part of the technical processing of documents by a public authority do not qualify the document as having been received by that authority. This applies primarily to electronic records. However, this definition is still quite broad.
Article 7 provides that a document has been drawn up by a public authority only if the matter to which it relates has been "finally settled by the authority", "finally checked and approved" or "finalized in some other manner". The effect of this rule is modified somewhat by exceptions relating to ledgers or lists kept on an ongoing basis and court rulings which have been pronounced. A third exception relates to records and memoranda which have been checked and approved, excluding however, "records kept by committees of the Parliament or the General Assembly of the Church, by the Auditors of the Parliament or by auditors of local authorities, by Government commissions, or by local authorities in a matter dealt with by the authority solely in order to prepare the matter for decision".
These provisions have the effect of excluding a range of working documents from the application of the Act, although most are subject to disclosure after the matter to which they relate has been determined. Still, preparatory documents not used in the final version may never be disclosed under this rule.
Documents which have been handed over to another public authority are also considered not to have been received or drawn up.
Memoranda which have not been sent are not official documents, unless accepted for filing or where they contain factual information. For this purpose, a memorandum is an aide memoiré or other notation made for the purpose of preparing a case or matter. Likewise, preliminary outlines or drafts are not official documents unless they have been accepted for filing. This is analogous to the internal working document exception found in many freedom of information laws, but it is not subject to a harm test. Documents kept in technical storage for another body are also not official documents of the authority which stores them.291 Article 11 sets out a number of categories of documents which are not
official documents, including the following:
letters, telegrams and the like drawn up by a public authority and intended solely for communication purposes;
291 Articles 9-10.
Process An application for access to a document should be made to the body which holds it, which shall normally decide upon the request. In cases relating to documents of "key importance to security", a statutory order may limit consideration of any requests to a particular authority. A public authority may not inquire as to an individual's motivation for requesting a document, except where this is necessary to ascertain whether or not the document is subject to disclosure.294 This might be the case, for example, where information is secret but if the requester only wants to use it for certain purposes, there is no risk of harm (see below under Exceptions).
Any official document subject to disclosure must be made available for inspection forthwith at the place where it is kept, in a manner that enables it to be read, viewed, etc., free of charge, to anyone who wishes 292 Public Access to Information and Secrecy with Swedish Authorities, Chapter 2.1.
294 Article 14.
Freedom of Information: A Comparative Legal Survey to view it. Where necessary, this includes making equipment available for such purposes. The document may also be copied or otherwise reproduced for a fixed fee, although public authorities are not obliged to make electronic documents available other than via a print out.
Applications for transcripts shall be dealt with "promptly" although specific timelines are not set out. These obligations does not, however, apply where it "presents serious difficulty" or where the requester can be provided access, without serious inconvenience, at a public authority "located in the vicinity".295 A particular feature of the Swedish freedom of information system, set out in Chapter 15 of the Secrecy Act, 1981, is the requirement for all public authorities to register all documents held. There are four
exceptions to this rule:
1. documents which are obviously of little importance, such as press cuttings;
2. documents which are not secret and which are kept in a manner which makes it easy to ascertain whether they have been received or drawn up by a public authority;
3. documents found in large numbers which have been exempted; and
4. electronic records kept in a central registry.296 In general these registers are open for public inspection and an effort is now underway to ensure that they are available electronically.297 Exceptions The exceptions are set out in Article 2 of Chapter 2 of the Act although, as noted above, the definition of whether a document is official also serves to limit access. Article 2(1) provides for restrictions which "are necessary having regard to" a number of interests. This can be seen as a form of harm test and it is consistent with the language used under international law for restrictions on freedom of expression.
Article 2(2) also requires any restriction to be "scrupulously specified in the provisions of a special Act of law", under which the government 295 Articles 12-13.
296 Public Access to Information and Secrecy with Swedish Authorities, note 293, Chapter 3.6.1.
297 See Banisar, David, Freedom of Information and Access to Government Records Around the World, under Sweden. Available at: http://www.freedominfo.org/survey/.
These are, by-and-large, common restrictions, apart from the last one, which is somewhat unique. These are the only grounds for restricting access to official documents and, in such cases, a notation must be provided on the document, indicating the provision under which the restriction is authorised.300 The Act also provides for severability of documents where only part of the document is covered by an exception.301 The Act, in conjunction with the Secrecy Act, also envisages that in some cases documents subject to secrecy may be made available subject to certain reservations, 298 The regulations are contained in the Secrecy Ordinance, Swedish Code of Statutes 1980:657, reprinted in 1998:1333.
299 Public Access to Information and Secrecy with Swedish Authorities, note 292, Chapter 3.3.2.
300 Article 16.
301 Article 12.
Freedom of Information: A Comparative Legal Survey such as a prohibition on publication or on any use other than for research, where these would eliminate the risk of harm.302 Similar reservations may be imposed by an individual when waiving their right to personal privacy. Finally, the Secrecy Act does impose limits, ranging from 2 to 70 years, on the withholding of documents.303 Appeals An individual may appeal any refusal to provide, or limits on access.
Appeals must be referred to a higher official within the public authority at the requester's demand. From there, an appeal against a decision of a minister is lodged with the government and against a decision by another public authority with the courts. An appeal against a decision by agencies of the parliament will be governed by special provisions. The special Act authorising such refusal (referred to above under Exceptions) shall "stipulate in detail" how an appeal may be lodged.304There is no provision for appeal to an independent administrative body and appeals to the courts are not available for all types of requests.
302 Public Access to Information and Secrecy with Swedish Authorities, note 292, Chapter 3.5.4.
303 Ibid., Chapter 3.3.3.
304 Article 15.
Thailand Introduction The worst economic crisis in decades, coming to a peak in the late 1990s, had a profound impact on politics in Thailand, leading to the adoption of a new Constitution in October 1997, which guaranteed the right to access information held by public authorities, subject only to limited exceptions.305 Public anger over corruption and the lack of transparency in government, which had contributed to the crisis, had led to the adoption, three months previously, of the Official Information Act,306 which came into effect on 9 December 1997.
The Right of Access The Act does not include a special provision guaranteeing the right of access to public information, outside of the procedural guarantee for this right, at section 11.
Definitions Information is defined very broadly to include any material that communicates anything, regardless of the form that material takes.
Official information is defined simply as information in the possession of a State agency, whether relating to the operation of the State or to a private individual.307 A State agency, the term used for public bodies, is defined broadly as, "central administration, provincial administration, local administration, State enterprise, Government agency attached to the National Assembly, Court only in respect of the affairs unassociated with the trial and adjudication of cases, professional supervisory organisation, independent agency of the State and such other agency as prescribed in the Ministerial Regulation".308 This effectively captures the administrative functions of the legislative and judicial branches of government. It also does not cover private bodies which are substantially publicly funded.
305 Section 58.
306 B.E. 2540 (1997). Available at: http://www.oic.thaigov.go.th/eng/statue/Statue.htm.
307 Section 4.
Freedom of Information: A Comparative Legal Survey Process Anyone may make a request for information not otherwise required to be published or made available for inspection, and the information shall be provided within a reasonable length of time, not actually specified, as long as the request is sufficiently detailed to identify the information in question, unless the request is for an excessive amount of information or requests are made too frequently without reasonable cause. Where the record may be damaged, the State agency may extend the period for providing the information. Information will only be provided where it is held in a form appropriate for distribution, or where it may be transferred electronically. A State agency may, notwithstanding that it holds the information, advise a requester to transfer a request to another State agency.309 The Act contains reasonably detailed provisions for third party notice. Third parties must be given 15 days notice and an opportunity to provide objections in writing. Where an objection is provided, it must be considered and the author provided with notice of the decision. Actual disclosure of the information must also be delayed for 15 days during which an appeal may be lodged.310 Duty to Publish The Thai Act provides for both a duty to publish information in the Government Gazette and for a duty to make certain information available for inspection, although neither of these obligations apply to information which is required by law to be disseminated or disclosed.311 These obligations are restricted in scope to information which came into existence after the Act came into force. The former obligation, found at section 7, covers information about the structure and organisation of the body, a summary of its main powers, duties and operational methods, contact details for the purpose of making requests, by-laws, regulations and policies, and such other information as may be determined by the Official Information Board.
Section 9 requires State agencies to make the following information,
subject to the regime of exceptions, available for inspection:
a decision which has a direct effect on a private individual;
309 ISections 11 and 12.
310 Section 17.
311 Section 10.
Exceptions Section 3 of the Act provides that all laws which are inconsistent with it shall, to the extent of that inconsistency, be replaced by it. However, section 15(6) provides that information protected by law against disclosure is exempt. It must, therefore, be assumed that section 3 does not apply to exceptions.