«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
Many countries include all three branches of government administrative, legislative and judicial - while others restrict the scope of the law to the first of these. There is no reason in principle why the legislative and judicial branches should not be covered, as long as the regime of exceptions protects legitimately secret information, and experience in those countries that do cover all three branches of government supports this view. In some countries, such as Thailand, coverage of the courts is limited to their administrative function.
Mexico has adopted a novel approach to the question of coverage, providing for a detailed very set of obligations for administrative bodies, and then placing the legislative and judicial branches of government under a generic obligation effectively to do their best to meet the same set of obligations, without setting these out in the same detail. If this proves to be successful, which remains uncertain, it could prove a good model for other countries.
Another area of divergent practice is with respect to public corporations, and private bodies which receive funding through public contracts. The Indian law, for example, includes all bodies "owned, controlled or substantially financed by funds provided directly or
Freedom of Information: A Comparative Legal Survey
indirectly" by government (see Subsection 2(f)). Other countries, however, such as Japan, do not include these bodies.
South Africa is unique among the countries surveyed and, to the best of the author's knowledge, in the world, in placing private bodies, defined as commercial entities, under an obligation to disclose information needed for the exercise or protection of any right. Private bodies hold a wealth of information which should be accessible in the public interest.
At the same time, the scope of access and modalities by which this should be exercised are different than for public bodies and there have been some teething problems in South Africa.442 More thought on these matters may be required to ensure that the obligation to disclose is effectively and appropriately extended to cover private bodies.
Process There are some variations in terms of the processing of requests for information, but this is an area where, on balance, the various laws demonstrate a relatively high degree of consistency. All provide for requests in writing, some also in oral form, which require the requester to specify his or her name and contact details, as well as a sufficiently detailed description of the information sought to enable it to be identified.
Many laws require public bodies to appoint information officers, who are then required to assist requesters as necessary in honing their requests. In some cases, such as South Africa, the law makes specific provision for assistance to people who cannot make a written request either because they are illiterate or due to disability.
Most laws provide for time limits for a response, ranging from around 14 days (Bulgaria) to around 30 days (various), and a number require the information to be provided as soon as possible, with the time limit as a maximum. Almost all allow for an extension of the time limit, for example where the request is complex or requires third party notice.
The UK law has a special set of time limits where the public interest override is under consideration and some laws, for example that of Japan, have different time limits where third party notice is required.
Most laws also require a public body to give written notice, along with reasons, whenever a decision is made not to disclose information.
This allows the requester to determine whether or not to pursue any appeal options, and also provides a basis for the appeal, should one be 442 For example, private bodies have complained of the cost of producing guides on how to access information they hold.
brought. Various laws also require public bodies to take appropriate steps to locate information, and to inform the requester if it is not found, as well as to transfer requests where the information in question is held by another public body.
In some cases, the law sets out circumstances in which a request does not have to be processed. For example, in Mexico, 'offensive' requests may be rejected, while in the UK 'vexatious' or repetitive requests do not have to be processed.
Various systems apply to fees. There are four main costs involved in the provision of information, namely the cost of searching for the information, any costs associated with preparing or reviewing the information, the cost of reproducing or providing access to the information and the cost of sending the information to the requester, where this applies. Some laws, such as the Mexican law, restrict fees to the cost of reproducing the information. In the UK, all costs may be charged, but draft regulations restrict costs to 10% of the cost of locating and retrieving the information, plus the reproduction and postage costs. A different system of fees, however, will apply to more expensive requests.
Many laws make provision for a central body to set the schedule of fees, for example in Japan, where this is set by Cabinet Order. This avoids a patchwork of fee structures at different public bodies and also tends to limit inflationary fee pressures.
In some countries, different fee regimes apply to different sorts of information. For example, in Mexico, access to personal data is free. The US law contains detailed provisions relating to fees, distinguishing between commercial requesters, which may be charged for search, duplication and review of documents, educational or scientific institutions, which may be charged only for duplication, and other requesters, who may be charged for search and duplication. For the latter two groups, there is a waiver for the first two hours of search and first 100 pages of copying. Finally, fees are effectively waived for public interest requests, which covers the media and many NGOs.
Many countries allow requesters to select from among a number of forms of access, such as inspection of the document, a transcript, an electronic copy or photocopies, although in many countries the form specified may be refused in certain cases, for example where this would harm the record or unreasonably divert the resources of the public body.
Sweden is unique in requiring public bodies to prepare a register of all documents they hold, with a few exceptions, for example, documents Freedom of Information: A Comparative Legal Survey which are obviously of little importance. The registers themselves are normally public documents and they are increasingly available online.
This clearly facilitates information requests enormously.
Duty to Publish Most, but not all, of the laws surveyed impose a duty on public bodies to publish certain key information, even in the absence of a request. This is in recognition of the fact that the right to know goes beyond passive provision of information in response to requests and includes a duty to proactively promulgate information which is likely to be of interest to a wide range of individuals.
The various national laws approach this issue in two different ways.
Some provide a list of the categories of documents that must be published, such as information about their general operations, about services provided and about how to request information. This has the virtue of being clear and consistent across all public bodies. The Bulgarian law is innovative, requiring public bodies to publish information where this may prevent a threat to life, health, security or property, or where this is in the overall public interest. Other laws require public bodies to come up with publication schemes or proposals, which may then need to be approved by an independent body. This is more flexible, and allows for change over time, but may also lead to differences in the scope of information published by different public bodies.
The Thai law has an interesting dual publication scheme, whereby certain information must be published in the Government Gazette while other information must be made available for inspection. The idea of a sort of triage for the duty to publish is interesting, although publication in the Government Gazette may not be the best way to reach a broad audience. In the US, by contrast, information covered by the duty to publish must be made available electronically. Furthermore, under the US law, any information which has been released pursuant to a request and which is likely to be the subject of another request must be made available electronically, along with an index of such records.
This provides a built-in mechanism for ensuring that popular information regularly becomes available. The Mexican law goes even further, requiring public bodies to make certain categories of information available electronically, and also to make a computer available to the public for this purpose, along with a printer and technical support where needed.
Exceptions Most freedom of information laws include a comprehensive list of exceptions, or grounds for refusing to disclose information. Indeed, in many cases, the list of exceptions is unduly long, or broad, and this is a serious problem in many freedom of information laws. In a small minority of cases, such as Bulgaria, the law does not actually list exceptions, referring instead to existing secrecy laws for this purpose.
This is quite controversial and could potentially seriously undermine the openness regime (see below).
The three-part test for exceptions has been noted above, namely that information must be disclosed unless the public body can show that it is covered by an exception listed in the law, that disclosure would pose a risk of substantial harm to the protected interest and that this harm outweighs the overall public interest in the disclosure of the information.
Few of the laws surveyed in this book strictly conform to all three parts of this test, but many incorporate most of it. An large overall majority of the exceptions in the various laws are subject to a harm test of one sort or another, or have built-in harm tests - as is the case, for example, with legally privileged information - but, at the same time, most laws have a least some exceptions that do not have a harm test and some, like the UK law, have numerous class exceptions.
Unfortunately, a majority of the laws do not provide for a public interest override, although a substantial minority do. In some cases, for example in South Africa, the public interest override is limited to information which discloses evidence of a breach of the law or a serious risk to public safety or the environment. This has the advantage of being clear, but it is also relatively narrow in scope.
It is not proposed to list specific exceptions here - a detailed list is provided in the table of exceptions in Annex 3. A few laws do contain rare or peculiar exceptions. The laws of the UK and Thailand, for example, contain exceptions relating to the royal family, while South Africa has an exception relating to the Internal Revenue Service. The US law contains an exception relating to information about oil wells, according to rumour because the president at the time, Lyndon B.
Johnson, was from Texas.
A few exceptions, while common, are also problematical. For example, most laws have an exception relating to internal decisionmaking, or deliberative, processes. This is legitimate as government
Freedom of Information: A Comparative Legal Survey
needs to be able to run its internal operations effectively. In particular, the
following harms may need to be prevented:
prejudice to the effective formulation or development of government policy;
frustration of the success of a policy, by premature disclosure of that policy;
undermining of the deliberative process in a public body by inhibiting the free and frank provision of advice or exchange of views; or undermining of the effectiveness of a testing or auditing procedure.
At the same time, if this exception is phrased in excessively broad terms, it can seriously undermine the principle of maximum disclosure. It is, as a result, particularly important that the exception be clearly and narrowly drawn, that it be limited to protecting the specific interests noted above and that it be subject to a public interest override.
Another problematical exception is one protecting good relations with other States or intergovernmental organisations. In principle, this is legitimate. At the same time, it is extremely difficult for someone not involved in the specific relationship, such as a judge or information commissioner, to assess whether or not the disclosure would harm that relationship. This means that the scope of the exception largely depends on the interpretation given to it by civil servants, an obviously problematical situation.
This exception has potentially very serious implications when used by intergovernmental organisations, since it embraces practically all of the information they hold. It may, in such cases, lead to a situation where both parties are denying access to the information on the basis that disclosure would harm relations with the other party, a clearly unacceptable situation.
National security is another problematical exception, which led ARTICLE 19 to produce a set of principles on this subject, The Johannesburg Principles: National Security, Freedom of Expression and Access to Information.443 As with inter-governmental relations, it is difficult for outside actors to assess the extent to which the disclosure of information may affect national security. Furthermore, this is an area where the problem of excessive secrecy is normally at its zenith.
Unfortunately, the reaction of many States to the problem of terrorism has 443 ARTICLE 19 (London: 1996).
been to increase secrecy, rather than to bolster democracy through openness.