«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
A final, difficult issue relating to exceptions is their relationship with secrecy laws. In most countries, the freedom of information law leaves in place secrecy laws, although in a few, such as South Africa and India, the freedom of information law has overriding force. The Indian law specifically mentions that it takes precedence over the Official Secrets Act, 1923. A compromise solution has been adopted in Sweden, where only one secrecy law, the Secrecy Act, is recognised as legitimate. This has the virtue of being transparent and also of ruling out the many secrecy provisions that lurk in older laws in most countries. The US law provides that secrecy laws remain in place, but only where they leave no discretion as to the non-disclosure of the information in question.
Appeals Most, but not all, of the freedom of information laws provide for an ultimate appeal to the courts. Exceptions are India and the UK. Even where appeals are specifically precluded by the law, however, courts will assume some jurisdiction under the rules of administrative law, for example in relation to ultra vires actions and compliance with the rules of natural justice. Significantly, in Mexico, only requesters, and not public bodies, may prefer an information appeal to the courts. This prevents public bodies from using their power to delay or prevent information disclosure.
A number of laws also specifically provide for some form of internal appeal, either to a higher authority within the same body which originally refused the request, or to some other public body.
Less common, however, is provision for appeal to an independent administrative body. As noted previously, this is central to the effective functioning of a freedom of information regime, as appeals to the courts are too time-consuming and expensive for all but a small minority of applicants.
A number of laws do, however, provide for administrative appeals. In some cases, the law establishes a new body with specific responsibility for information appeals. In Mexico, for example, the law establishes a Federal Institute of Access to Information, which hears appeals from any refusal to disclose information, from a failure to comply with established time limits, against the level of fees charged or from a refusal to disclose the information in the form requested. In other cases, the law allocates the task of hearing appeals to an existing body, for example in Pakistan to the
Freedom of Information: A Comparative Legal Survey
Mohtasib (ombudsman) or to the Federal Tax Ombudsman for cases involving the tax officials.
In general, these bodies are granted the necessary powers to conduct investigations and hearings, including to summon witnesses. Importantly, in most cases, they are empowered to request any information from public bodies, including the information to which access has been refused, which they may consider in camera if necessary.
In some cases, such as the UK, the law also establishes a specialized tribunal, in that case the Information Tribunal, to hear appeals from the administrative body.
Promotional Measures A number of different promotional measures are found in the different laws surveyed. Most common are protections against sanction for civil servants who have acted in good faith pursuant to the freedom of information law, and punishments for those who have acted in a wilful manner to somehow prevent or retard access to information contrary to the law. A gloss on the former in the UK is protection against defamation proceedings for information disclosed pursuant to the law.
Quite a few countries provide for minimum standards for record maintenance. Some countries, like Mexico and the UK, give a mandate to a central body - the Federal Institute of Access to Information in Mexico and the Lord Chancellor (minister of justice) in the UK - to set standards regarding record maintenance, as well as some system for ensuring that public bodies respect these standards. This is a good approach as it ensures strong, uniform standards across the civil service.
In a number of countries, public bodies are required to appoint information officers as a central point of contact for information requests.
These officers may also be given a range of promotional tasks, such as ensuring that the body meets its obligations under the law, training and also developing internal procedures to ensure timely disclosure of information. The administrative oversight body is also allocated promotional tasks in many countries, such as monitoring implementation of the law, providing an annual report to the legislature or government, and training. In some countries, public bodies are required to produce annual reports, providing them either to the oversight body or directly to the parliament. A number of countries also place an obligation on either the oversight body, or each public body, to produce a guide or manual on how to use the law or how to request information.
ConclusionThe right to freedom of information is founded on the idea that public bodies hold information not for themselves but on behalf of the public.
Consistent with this is the principle that individuals should be able to access all such information unless there is an overriding public interest in keeping it secret. There are also powerful democratic principles underpinning the right, including its fundamental role as an underpinning of democratic participation and good governance, and in ensuring respect for all human rights.
The right to freedom of information, and in particular the right to access information held by public bodies, has now gained widespread recognition as a fundamental underpinning of democracy and as a basic human right. This recognition is reflected in a growing body of authoritative international statements on this right, at the UN but also within all three regional systems for the protection of human rights, as well as bodies like the Commonwealth. Importantly, it is also reflected in the adoption by a rapidly growing number of countries of legislation giving effect to this important right.
A number of features are central to any law guaranteeing access to information. Such laws should flow from the principle of maximum disclosure, whereby all information should be subject to disclosure unless there is an overriding public interest in secrecy. A number of key elements must be present in a law if it is to promote the principle of maximum disclosure. It should include broad definitions of both the scope of information and public bodies, consistent with its underlying purpose. It should also set out clear, user-friendly processes for the exercise of the right, as well as a right to appeal any refusal to provide information to an independent administrative body and from there to the courts. Public bodies should be under an obligation to proactively publish key categories of information, even in the absence of a request.
It is essential that the regime of exceptions be clear and narrow, and that all exceptions be subject to a harm test and a public interest override.
Finally, the law should make provision for a range of promotional measures.
Freedom of Information: A Comparative Legal Survey
The laws and policies surveyed in this book all meet, to varying degrees, the principles outlined above. They thus provide important guidance to anyone seeking to promote or develop a freedom of information law. No governing system can claim to be fully democratic if it does not include a guarantee of the right to information. A good freedom of information law will enhance participation and the policy process, lead to greater public accountability and better governance, and generally enrich the relationship between public bodies and the people they serve.
Comparative Table of Exceptions This table compares the main exceptions in nine of the ten laws surveyed, as well as in the UNDP and World Bank policies. The Bulgarian Access to Public Information Act has not been included in this table as it does not include a full regime of exceptions in the law, referring instead to other laws. To include it would, therefore, give the misleading impression that the law did not include many exceptions.
Each box in the table contains two different types of information. First, provides the test used to determine whether information falling within the scope of an exception may be withheld, which may be referred to as the 'harm test'. For example, in some cases information may be withheld only if it is "reasonably expected to harm" the protected interest, or it if is "likely to cause prejudice" to it. In some cases, no harm is required (i.e. the law establishes a class exception in relation to a whole category of information). In that case, the table indicates that there is "no harm test". Then, each box sets out the elements which make up the exception and which effectively define its scope in the relevant jurisdiction. Each box also provides a reference to the section, article or paragraph of the law/policy where the exception in question is found.
In some cases, the law in question does not contain the exception being considered, in which case this is stated in the table. In other cases, the exception effectively included within the scope of other exceptions. In this case, the table notes in the appropriate place that there is no separate exception.
The table does not include a small number of exceptions which are only found in one law and appear to have narrow, country-specific relevance (for example, the South African law excepts certain records of the Revenue Service). As the table shows, there is fairly broad agreement as to which social or personal interests are sufficiently important to overcome the presumption in favour of disclosure of information.