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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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Various theories exist as to why this unusual exception has been included;

it is not subject to a harm test.

Subsection (b) requires that any information which may be segregated from exempt material be disclosed. It also requires requesters to be informed about the amount of information deleted and, where technically feasible, the place where the deletion was made.

Finally, subsection (d) provides that the law does not justify nondisclosure of information except as provided for in the Act and that it is not authority to withhold information from Congress.

Appeals Requesters must first appeal any refusal to disclose information to the head of the relevant agency. This internal appeal must be decided within 20 working days and, if the appeal is refused, in whole or in part, the requester must be notified of the possibility of judicial review.402 In 402 Clause (a)(6)(A)(ii).

Country Profiles

unusual circumstances, as outlined above in relation to the original request, this period may be extended by written notice, for a maximum of another 10 days.403 If there is no response within the stipulated time limits, the requester can appeal directly to the courts.

There is no provision for an independent administrative level of appeal. If the internal appeals system has been exhausted, an appeal will lie to various courts, at the choice of the requester.404 Such an appeal will also lie if the time limits for a response have been exceeded, subject to exceptional circumstances (see above, under Process).405 Exceptional circumstances does not include a delay resulting from a predictable workload of requests but any refusal by the requester to modify the scope of a request or to arrange for an alternative timeframe for meeting the request may be taken into account.406 The defendant agency must file a response within 30 days of service of the pleading in the complaint.407 The court may require the agency to produce the record for its examination, in camera if necessary, and require the agency to disclose the record.

The court shall examine the matter de novo, and the burden of proof shall be on the agency to justify non-disclosure. However, the court is required to accord "substantial weight" to an affidavit of an agency concerning, among other things, whether the information falls within the scope of an exception.408 When considering appeals relating to fee waivers, the court shall consider the matter de novo, but based only on the record before the agency.409 The court may, in a case where the complainant "substantially prevails", order the government to pay reasonable lawyers fees and other litigation expenses.410 In case of non-compliance with an order of the court, the responsible officer may be punished for contempt of court.411 403 Clause (a)(6)(B)(i).

404 Subparagraph (a)(4)(B).

405 Clause (a)(6)(C)(i).

406 Clauses (a)(6)(C)(ii) and (iii).

407 Subparagraph (a)(4)(C).

408 Subparagraph (a)(4)(B).

409 Clause (a)(4)(A)(vii).

410 Subparagraph (a)(4)(E).

411 Subparagraph (a)(4)(G).

Freedom of Information: A Comparative Legal Survey

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the number of full-time staff working on access to information.413 The Attorney General must also make all the annual reports available at a central website and notify various Congressional committee representatives of their availability.414 The Attorney General, in consultation with the Director of the Office of Management and Budget, 412 Subparagraph (a)(4)(F). Apparently actions of this sort are extremely rare and even more rarely upheld by the courts.

413 Paragraph (e)(1).

414 Paragraph (e)(3).

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must develop reporting and performance guidelines for the annual reports and he or she must also submit an annual report listing the number of cases arising under the Act, the exception relied upon in each case, the disposition of each case and the cost, fees and penalties assessed.415 Finally, the head of each agency is required to prepare and make publicly available a guide for requesting records including an index of all major information systems, a description of the main information locator systems and a handbook for obtaining various types of public information from the agency.

415 Paragraphs (e)(4) and (5).

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The Right of Access The Policy provides for access in two ways. First, it includes a list of documents that will be disclosed, either when finalised or, in some cases in draft form. This is similar to the approach adopted by other 416 The Policy is available at: http://www.undp.org/csopp/CSO/NewFiles/policiesinfo.html.

417 Para. 3.

418 Bisalo, R., Revision of UNDP's Information Disclosure Policy, 4 June 2001, section 2.3, Policy Revision.

Available at: http://faculty.maxwell.syr.edu/asroberts/foi/library/undp_review_2001.pdf.

International Organisations

intergovernmental organisations. However, the UNDP Policy also provides for a general presumption in favour of disclosure, "in the absence of a compelling reason for confidentiality".419 The documents that will be available are listed in paragraphs 12-14 dealing, respectively, with information about UNDP and its operations, documentation concerning programming, and documentation concerning country-specific activities. Different documents are available either in final form only or, in some cases and "where feasible", in draft form.

Definitions Given the limited applicability of the Policy, definitions do not take on quite the level of importance that they would in national law.

Information is not defined, but it may be presumed that the Policy covers all information held by the UNDP. The Policy notes that it is applicable to all documents created after its adoption, and also to documents created before that date, "unless there are compelling reasons to the contrary".

This appears to distinguish between the two categories of documents, although the same test for confidentiality is applicable to all documents.420 The Policy does not really define its scope in terms of bodies covered, again given that it is primarily applicable simply to the UNDP. However, paragraph 9 notes that the Policy also applies to funds and programmes administered by the UNDP, including "United Nations Development Fund for Women (UNIFEM), the United Nations Capital Development Fund (UNCDF), and the United Nations Volunteers (UNV)."

Process Documents will be made available through the Internet and in hard copy at UNDP headquarters and country and liaison offices.421 Countryspecific information will be available from the relevant country office and documents not available through that office will be sent by post. To facilitate access, Public Affairs Officers will be designated for these offices with a responsibility for ensuring that requests are "adequately addressed". Some information, particularly documents sent to the Executive Board for formal approval, will be available in all six UN 419 Para. 1.

420 Para. 10.

421 Para. 9.

Freedom of Information: A Comparative Legal Survey working languages while other documents will only be available in the language in which they were prepared.422 The Policy notes that the UNDP is currently studying best implementation practices, including the idea of "cost-recovery". A report on the Policy in June 2001 notes, however, that the study was never finalised or implemented.423 To keep costs low, a commitment is made to make extensive use of the Internet.424 Requesters must be provided with a response within 30 business days and, in case of refusal, reasons shall be provided.

Duty to Publish The Policy does not explicitly provide for an obligation to publish but the UNDP does in practice actively publish a variety of information.

Furthermore, the Policy makes a commitment to actively use the Internet to facilitate low-cost access, which, almost by definition, implies active publication.

Exceptions The UNDP Policy, as noted above, both lists documents which are subject to disclosure and provides for a general presumption in favour of disclosure for other documents, subject to a set of exceptions.425 Paragraph 2 of the Policy notes the special relationship between the UNDP and programme governments, based on the Standard Basic Assistance Agreements (SBAAs) that are in force. These documents specifically state that the parties shall consult each other regarding publication of project-related information, and that, "information relating to any investment-oriented project may not be released by the UNDP to potential investors, except with the written consent of the government".

Decisions to treat documents as confidential should, according to the Policy, be made by governments and the UNDP at the time the document is designed. Paragraph 15 of the Policy sets out the recognised exceptions. However, the Policy also recognises the possibility of information being kept confidential even where it does not fall within the scope of the exceptions, as long as an explanation is provided. In this case, decisions on confidentiality shall be made by, "weighing the 422 Paras. 16-17.

423 Revision of UNDP's Information Disclosure Policy, note 418, section 2.2 Implementation.

424 Para. 18.

425 Para. 6.

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justification for confidentiality against the need for project and programme quality and public involvement". The provisions of paragraph 2, noted above, are no doubt relevant here.

Paragraph 15 lists 5 sets of exceptions, only one of which is subject to a harm test. There is no public interest override. The first exception in paragraph 15 covers proprietary information, intellectual property in the form of trade secrets and information provided in confidence, the disclosure of which would cause financial or other harm. The second exception relates to internal notes and other documents, unless "these are specifically intended for public circulation". Legally privileged information, including disciplinary information, forms the subject of the third exception. The fourth exception covers personal information, including health or employment-related information, except to the staff member concerned. Finally, the fifth exception deals with information relating to procurement processes that involves "prequalification" information about a bidder, proposals or price quotations.

Appeals The Policy provides for the appointment of a Public Information and Documentation Oversight Panel. The Panel serves as an appeal body and requesters may lodge an appeal with the Panel, stating why they consider their request was inappropriately denied. The Panel is tasked with developing its own operating procedures.426 The Panel consists of five members, three UNDP professional staff and two "highly qualified individuals from the not-for-profit sector, one from a programme country and another from a donor country, appointed in their personal capacity," all appointed by the Administrator.427 The independent of this body is clearly not as well protected as in many national laws but, at the same time, it is encouraging that an intergovernmental organisation has accepted the principle that its decisions should be subject to review.

A long list of qualifications for both the staff members and the notfor-profit representatives is set out in the Policy, including such things as a good understanding of the UNDPs work, ability to balance transparency and confidentiality and access to mechanisms for disseminating information. The Panel appoints its own chair.

426 Paras. 20-23.

427 Paras. 20.

Freedom of Information: A Comparative Legal Survey According to the Policy, the Panel shall normally meet twice a year at UNDP headquarters but, where a case is particularly urgent or more than three appeals are pending, the Chair may call an emergency meeting, either in person or by teleconference. Minutes of the meeting shall be made available on the Internet.428 In practice however, a study on the Policy in 2001 notes that the Panel, while appointed, had never been convened.429 Promotional Measures The Policy provides for a review two years after its adoption.430 The Panel has a number of promotional roles, in addition to its function as an appeals body. It is tasked with reviewing the UNDP's performance in implementing the policy, making recommendations for reform, and participating in the review process.431 428 Chapter III.

429 Revision of UNDP's Information Disclosure Policy, note 418, section 2.2, Implementation.

430 Para. 10. It would appear that no review has taken place, unless the study noted above, note 418, is construed as this review.

431 Chapter III.

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World Bank Introduction The World Bank first began issuing instructions on disclosure to its staff in 1985432 and, in the aftermath of the 1992 Rio Declaration on Environment and Development, adopted a formal, detailed Policy on the Disclosure of Information in 1993.433 The Bank took concrete steps to review its policy - in 1995, 1997, 1998 and 1999 - resulting in progressively more openness and an increase in the number of documents subject to disclosure. A new World Bank Policy on Disclosure of Information was adopted in 2001, which came into force in January 2002.434 Overview of the Policy The World Bank Policy is fundamentally different from the other laws and policies described in this book. Like the other laws and policies,

it contains a general presumption in favour of disclosure, stating:

"[T]here is a presumption in favour of disclosure, subject to the provisions of this statement."435 Indeed, the Policy sets out four main rationales for openness relating to the different functions of the Bank, as follows: to promote effective operations as a development organisation, to promote accountability as an organisation owned by its member countries, to help attract investment as a borrower and to help staff carry out their responsibilities as an employer.436 However, the substance of the Policy is a list of documents that may be disclosed once certain conditions are met. Information that is not specifically listed in the Policy is not subject to disclosure. In practice, then, the Policy actually creates a presumption against disclosure, subject to a number of listed exceptions, namely documents that will be disclosed.

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