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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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Freedom of Information: A Comparative Legal Survey The Commonwealth Secretariat has taken some concrete steps to promote freedom of information in member countries. It is in the process, for example, of drafting model laws on freedom of information, personal information and privacy.

Regional Standards All three main regional systems of human rights - within the Americas, Europe and Africa - have formally recognised the importance of freedom of information as a human right. The following section describes the development of these standards.

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30 Adopted at San José, Costa Rica, 22 November 1969, entered into force 18 July 1978.

31 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985, para. 30.

32 Ibid., paras. 32, 70.

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33 Mexico City, 11 March 1994.

34 Annual Report of the Inter-American Commission on Human Rights 1998, Volume III, Report of the Office of the Special Rapporteur for Freedom of Expression, 16 April 1999, OEA/Ser.L/V/II.102, Doc. 6 rev., Chapter III.

35 The countries are Argentina, Bolivia, Belize, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Uruguay and the United States of America.

36 See IACHR Press Release No. 2/98, 6 March 1998, paras. 14-15.

Freedom of Information: A Comparative Legal Survey

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Council of Europe The Council of Europe (COE) is an intergovernmental organisation, composed of 43 Member States. It is devoted to promoting human rights, education and culture. One of its foundational documents is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),39 which guarantees freedom of expression and 37 Note 34, p. 24.

38 108th Regular Session, 19 October 2000.

39 E.T.S. No. 5, adopted 4 November 1950, entered into force 3 September 1953.

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information as a fundamental human right at Article 10. Article 10 differs slightly from guarantees found in Articles 19 of the UDHR and ICCPR, and Article 13 of the ACHR, in that it protects the right to "receive and impart", but not the right to "seek", information.

The political bodies of the Council of Europe have made important moves towards recognising the right to freedom of information as a fundamental human right. In 1981, the Committee of Ministers, the political decision-making body of the Council of Europe (composed of Member States' Ministers of Foreign Affairs) adopted Recommendation No. R(81)19 on Access to Information Held by Public Authorities, which


I. Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities. …40 In 1994, the 4th European Ministerial Conference on Mass Media Policy adopted a Declaration recommending that the Committee of Ministers consider "preparing a binding legal instrument or other measures embodying basic principles on the right of access of the public to information held by public authorities."41 Instead, the Committee of Ministers opted for a Recommendation on access to official documents, adopted on 21 February 2002.42 A copy of this recommendation is provided in Annex 4. The Recommendation provides for a general guarantee of the right to access official documents, noted below, as well

as specific guidance on how this right should be guaranteed in practice:

III General principle on access to official documents Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including national origin.

African Union Developments on freedom of information at the African Union have been a more modest. However, the African Commission on Human and 40 25 November 1981, p. 2.

41 Declaration on Media in a Democratic Society, DH-MM (95) 4, 7-8 December 1994, para. 16.

42 R(2002)2.

Freedom of Information: A Comparative Legal Survey

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International Jurisprudence Only the European Court of Human Rights has so far directly considered claims for a right to receive information from public bodies.

It has looked at this issue in at least four key cases, Leander v. Sweden,44 Gaskin v. United Kingdom,45 Guerra and Ors. v. Italy46 and McGinley and Egan v. United Kingdom.47 In the first three cases, the Court found that the guarantee of freedom of expression did not include a right to access the information sought. The following interpretation of the scope

of Article 10 from Leander features in similar form in all three cases:

[T]he right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access… nor does it embody an obligation on the Government to impart… information to the individual.48 By using the words, "in circumstances such as those of the present case", the Court has not ruled out the possibility of a right to freedom of information under Article 10. However, given the specific nature of the requests which were rejected in these three cases (see details below), it would be a very limited right.

The Court did not, however, refuse to recognise a right of redress in these cases. Rather, in all four cases, it found that to deny access to the information in question was a violation of the right to private and family life, under Article 8 of the Convention.

In the first case, Leander, the applicant was dismissed from a job with the Swedish government on national security grounds, but was refused access to information about his private life, held in a secret police register, which had provided the basis for his dismissal. The Court held that the storage and use of the information, coupled with a refusal to allow the applicant an opportunity to refute it, was an interference with his right to respect for private life. The interference was, however, 44 26 March 1987, Application No. 9248/81, 9 EHRR 433.

45 7 July 1989, Application No. 10454/83, 12 EHRR 36.

46 19 February 1998, Application No. 14967/89.

47 9 June 1998, Application Nos. 21825/93 and 23414/94.

48 Leander, para. 74.

Freedom of Information: A Comparative Legal Survey justified as necessary to protect Sweden's national security.49 It is interesting to note that it ultimately transpired that Leander was in fact fired for his political beliefs and he was offered an apology and compensation by the Swedish government.

The Leander ruling was followed by Gaskin, Guerra and then McGinley and Egan. In the first case, the applicant, who as a child had been under the care of local authorities in the United Kingdom, had applied for but was refused access to case records about him held by the State. In Guerra, the applicants, who lived near a "high risk" chemical factory, complained that the local authorities in Italy had failed to provide them with information about the risks of pollution and how to proceed in event of a major accident. In McGinley and Egan, the applicants had been exposed to radiation during nuclear testing in the Christmas Islands, and claimed a right of access to records regarding the potential health risks of this exposure.

In all three cases, the Court held that there was no interference with the right to respect for private and family life, but that Article 8 imposed

a positive obligation on States to ensure respect for such rights:

[A]lthough the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely

compel the State to abstain from such interference:

in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life.50 In Gaskin, the Court held that the applicant had a right to receive information necessary to know and understand his childhood and early development, although that had to be balanced against the confidentiality interests of third parties who contributed information. Significantly, this placed a positive obligation on the government to establish an independent authority to decide whether access should be granted if a third party contributor is not available or withholds consent. Since the government had not done so, the applicant's rights had been breached.51 In Guerra, the Court held that severe environmental problems may affect individuals' well-being and prevent them from enjoying their homes, thereby interfering with their right to private and family life. As a result, the Italian authorities had a positive obligation to provide the 49 Leander, paras. 48, 67.

50 Guerra, para. 58.

51 Gaskin, para. 49.

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applicants with the information necessary to assess the risks of living in a town near a high risk chemical factory. The failure to provide the applicants with that essential information was a breach of their Article 8 rights.52 In McGinley and Egan, the Court held that the applicants did have a right to access the information in question. However, the government had complied with its positive obligations through the establishment of a process by which access to the information could be obtained, which the applicants had failed to use.53 Although these decisions of the European Court recognize a right of access to information, they are problematic. First, the Court has proceeded cautiously, making it clear that its rulings were restricted to the facts of each case and should not be taken as establishing a general principle.54 Second, and more problematical, relying on the right to respect for private and family life places serious limitations on the scope of the right to access information. This is clear from the Guerra case, where it was a considerable leap to find, as the Court did, that severe environmental problems would affect the applicants' right to respect for their private and family life. Although the Court made that leap in Guerra, based on obvious implications of justice and democracy, it is far from clear that this will always be possible. In effect, the Court has backed itself into a corner. It would have been far more logical and coherent if the Court had simply recognised freedom of information as part of the right to freedom of expression.

Information in Specific Areas Information on the Environment During the last decade, there has been increasing recognition that access to information on the environment is key to sustainable development and effective public participation in environmental governance. The issue was first substantively addressed in the 1992 Rio

Declaration on Environment and Development, in Principle 10:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each 52 Guerra, para. 60.

53 McGinley and Egan, paras. 102-103.

54 See, for example, Gaskin, para. 37.

Freedom of Information: A Comparative Legal Survey

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55 UN Doc. A/Conf.151/26 (vol. 1).

56 UN Doc. ECE/CEP/43, adopted at the Fourth Ministerial Conference in the "Environment for Europe" process, 25 June 1998, entered into force 30 October 2001.

57 Ibid., Article 3(1).

58 Ibid., Article 1.

59 Ibid., Articles 2(2)-(3).

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interest test,60 and to establish an independent body with the power to review any refusal to disclose information.61 As such, it represents a very positive development in terms of establishing the right to information.62 Information on Human Rights There have also been moves within the international community to recognise a special aspect of the right to freedom of information in relation to human rights. In 1998, the UN General Assembly adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms [the Declaration on Human Rights Defenders].63 Article 6 specifically provides for access to

information about human rights:

Everyone has the right, individually and in

association with others:

(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how these rights and freedoms are given effect in domestic legislative, judicial or administrative systems;

(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms… Article 6 therefore recognises that the right to seek, obtain and receive information on human rights is fundamental to the effective promotion and protection of human rights.

A right to access information regarding human rights is also found in some national contexts. In South Africa, for example, the obligation to provide access to information has been extended to private bodies where that information is required for the exercise or protection of any right.

Section 32 of the 1996 Constitution of South Africa provides:

60 Ibid., Article 4(4).

61 Ibid., Article 9.

62 For the most part, the standards set out in the Convention are consistent with ARTICLE 19, The Public's Right to Know: Principles on Freedom of Expression Legislation (London: ARTICLE 19, 1999). A summary of the Principles may be found at the end of this section. They are on ARTICLE 19's website in full, see: www.article19.org/docimages/512.htm.

63 Resolution 53/144, 8 March 1999.

Freedom of Information: A Comparative Legal Survey

1. Everyone has the right of access to - … b. any information that is held by another person and is required for the exercise or protection of any rights.

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