«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
Over the past 10 years, there has been a dramatic growth in formal recognition of the right to freedom of information. Numerous 5 See ARTICLE 19, Centre for Policy Alternatives, Commonwealth Human Rights Initiative and Human Rights Commission of Pakistan, Global Trends on the Right to Information: A Survey of South Asia (London: 2001), under 2.8.1 India, The MKSS Movement, pp. 72-75.
6 Who Wants to Forget? Truth and Access to Information about Past Human Rights Violations (London:
ARTICLE 19, 2000), p. 5. Online at www.article19.org/docimages/869.htm
v Freedom of Information: A Comparative Legal Survey
international bodies, including the UN and all three regional systems for the protection of human rights, have recognised the fundamental importance of this right, along with the need for legislation to guarantee it in practice. Many newly democratic countries have adopted new constitutions which explicitly recognise this right. In other countries, superior courts have interpreted long-standing constitutional guarantees of freedom of expression as embracing the right to freedom of information.
Perhaps most significant, however, is the veritable wave of freedom of information laws sweeping the globe. Such laws have been adopted by countries in every region of the world over the past 10 years, with the possible exception of the Middle East, and in many more countries, laws are in an advanced stage of preparation.7 Notwithstanding their natural tendency towards secrecy, governments are realising that they can no longer resist the imperative to pass legislation guaranteeing a right to access the information they hold.
The laws which have been adopted certainly vary considerably in terms of the extent to which they guarantee the right of access in practice.
Some, like the Zimbabwean Access to Information and Protection of Privacy Act,8 serve more as fronts for repressive media legislation than to ensure access to public information. Most, however, are inexorably forcing the governments to which they apply to be more open.
This study begins with an overview of the international basis for the right to freedom of information. This overview considers both authoritative international statements, as well as relevant national developments, as evidence of global acceptance of this right. The next section describes the best practice standards to which freedom of information legislation should aspire.
These sections are followed by analyses of the laws of 10 different countries from all regions of the world, namely Bulgaria, India, Japan, Mexico, Pakistan, South Africa, Sweden, Thailand, the United Kingdom and the United States. The choice of countries was based on a number of factors including geographic distribution, progressive and/or longstanding legislation and the familiarity of the author with the country/legislation. Each country section is organised under the same set 7 David Banisar reports that as of July 2002, over 40 countries had adopted laws and another 30 were in the process of doing so. Freedom of Information and Access to Government Records Around the World, online at: http://www.freedominfo.org/survey/, Overview.
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of headings. A brief introduction is followed by headings on the right of access - subdivided into definitions and process - the duty to publish, exception, appeals and promotional measures.
The study also analyses the policies of two intergovernmental organisations, the UNDP and the World Bank. The former follows the same format as the country analyses, given its relative similarity in structure, while the analysis of the World Bank uses unique headings, given fundamental differences in the nature of its policy.
The country/intergovernmental organisation sections are followed by a comparative analysis which draws out the main similarities and differences between the various laws/policies. This analysis is supplemented by a table setting out the different exceptions in the different laws/polices, provided at Annex 1.
CHAPTER 1International Standards and Trends A number of international bodies with responsibility for promoting and protecting human rights have authoritatively recognised the fundamental and legal nature of the right to freedom of information, as well as the need for effective legislation to secure respect for that right in practice. These include the UN, Commonwealth, OAS, COE and AU. This is supplemented by growing consensus at the national level of the importance of freedom of information as a human right and as a fundamental underpinning of democracy, as reflected in the inclusion of a right to freedom of information in many modern constitutions, as well as a dramatic increase in the number of countries which have adopted legislation giving effect to this right in recent years. Collectively, this amounts to clear international recognition of freedom of information as a human right.
This chapter sets out the evidence for a right to information, describing the various international statements as well as related developments in various sectors, such as the environment and information about human rights. It also outlines key developments at the national level, including jurisprudence reaffirming the right, constitutional guarantees and legislative moves.
The United Nations Within the UN, freedom of information was recognized early on as a fundamental right. In 1946, during its first session, the UN General
Assembly adopted Resolution 59(1), which stated:
Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the UN is consecrated.9 In ensuing international human rights instruments, freedom of information was not set out separately but as part of the fundamental right 9 14 December 1946 Freedom of Information: A Comparative Legal Survey of freedom of expression, which includes the right to seek, receive and impart information.
The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948,10 is generally considered to be the flagship statement of international human rights. Article 19, binding on all States as a matter of customary international law, guarantees the right
to freedom of expression and information in the following terms:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty, was adopted by the UN General Assembly in 196611 and, as of December 2002, had been ratified by some 149 States.
The corresponding provision in this treaty, also Article 19, guarantees the right to freedom of opinion and expression in very similar terms to the UDHR.
In 1993, the UN Commission on Human Rights12 established the office of the UN Special Rapporteur on Freedom of Opinion and Expression.13 Part of the Special Rapporteur's mandate is to clarify the precise content of the right to freedom of opinion and expression and he has addressed the issue of freedom of information in each of his annual reports since 1997. After receiving his commentary on the subject in 1997, the Commission called on the Special Rapporteur to "develop further his commentary on the right to seek and receive information and to expand on his observations and recommendations arising from communications."14 In his 1998 Annual Report, the Special Rapporteur stated clearly that the right to freedom of expression includes the right to access information held by the State: "[T]he right to seek, receive and impart information 10 Resolution 217 A (III), 10 December 1948.
11 Resolution 2200 A (XXI), 16 December 1966, entered into force 23 March 1976.
12 The Commission was established by the UN Economic and Social Council (ECOSOC) in 1946 to promote human rights and is composed of 53 representatives of the UN Member States, rotating on a three-year basis. It is the most authoritative UN human rights body and meets annually for approximately six weeks to discuss and issue resolutions, decisions and reports on a wide range of country and thematic human rights issues.
13 Resolution 1993/45, 5 March 1993.
14 Resolution 1997/27, 11 April 1997, para. 12(d).
International Standards and Trends
imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems. …"15 His views were welcomed by the Commission.16 In November 1999, the three special mandates on freedom of expression - the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression - came together for the first time under the auspices of the human rights NGO, ARTICLE 19, Global Campaign for Free Expression. They adopted a Joint Declaration
which included the following statement:
Implicit in freedom of expression is the public's right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people's participation in government would remain fragmented.17 The UN Special Rapporteur significantly expanded his commentary on freedom of information in his 2000 Annual Report to the Commission, noting its fundamental importance not only to democracy and freedom, but also to the right to participate and to realisation of the right to development.18 He also reiterated his "concern about the tendency of Governments, and the institutions of Government, to withhold from the people information that is rightly theirs".19 Importantly, at the same time, the Special Rapporteur elaborated in detail on the specific content of the right to information.20 The UN has also recognised the fundamental right to access information held by the State through its administration of the territory of Bosnia and Herzegovina. In 1999, the UN High Representative to Bosnia and Herzegovina21 required the various governments under his authority to adopt freedom of information legislation in accordance with the 15 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1998/40, 28 January 1998, para. 14.
16 Resolution 1998/42, 17 April 1998, para. 2.
17 26 November 1999.
18 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 42.
19 Ibid., para. 43.
20 Ibid., para. 44. See the chapter on Features of an FOI Regime.
21 A mandate established by UN Security Council Resolution 1031, 15 December 1995, in accordance with the Dayton Peace Agreement.
Freedom of Information: A Comparative Legal Survey highest international standards, in order to implement in practice the right to freedom of expression.22 This has now been done and a freedom of information law is in place in Bosnia and Herzegovina.23 The Commonwealth The Commonwealth has taken important concrete steps during the last decade to recognise human rights and democracy as fundamental component to the system of shared values which underpin the organisation. In 1991, it adopted the Harare Commonwealth Declaration which enshrined its fundamental political values, including respect for human rights and the individual's inalienable democratic right to participate in framing his or her society.24 The importance of freedom of information, including the right to access information held by the State, has been recognised by the Commonwealth for more than two decades. In 1980, the Law Ministers of the Commonwealth, meeting in Barbados, stated that "public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information."25 More recently, the Commonwealth has taken a number of significant steps to elaborate on the content of that right. In March 1999, the Commonwealth Secretariat brought together a Commonwealth Expert Group to discuss the issue of freedom of information. The Expert Group adopted a document setting out a number of principles and guidelines on the right to know and freedom of information as a human right, including
Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial 22 Decision of the High Representative, Decisions on the restructuring of the Public Broadcasting System in BiH and on freedom of information and decriminalisation of libel and defamation, 30 July 1999.
23 The Freedom of Access to Information Act was adopted by the Bosnia and Herzegovina State Government in October 2000, by the Republika Srpska Government in May 2001, and by the Government of the Bosnia and Herzegovina Federation in June 2001.
24 Commonwealth Heads of Government Meeting, 20 October 1991, paras. 4 and 9. See also the Millbrook Commonwealth Action Programme, Commonwealth Heads of Government Meeting, 12 November 1995.
25 Quoted in "Promoting Open Government: Commonwealth Principles and Guidelines on the Right to Know", background paper for the Commonwealth Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development (London: 30-31 March 1999).
26 Quoted in Promoting Open Government: Commonwealth Principles and Guidelines on the Right to Know, background paper for the Commonwealth Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development (London: 30-31 March 1999).
27 Communiqué, Meeting of Commonwealth Law Ministers (Port of Spain: 10 May 1999).
28 The Durban Communiqué (Durban: Commonwealth Heads of Government Meeting, 15 November 1999), para. 57.
29 Communiqué, Commonwealth Functional Co-operation Report of the Committee of the Whole (Durban: Commonwealth Heads of Government Meeting, 15 November 1999), para. 20.