«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
This is given effect in Section 50 of the Promotion of Access to Information Act.64 These provisions effectively secure individual access to any information the State holds regarding human rights and human rights abuse. ARTICLE 19, however, has long argued that States are under a substantive positive obligation in this area, including to ensure the availability of information about human rights violations. We have, for example, argued that the right to freedom of expression, "long recognised as crucial in the promotion of democratic accountability and participation, also places an obligation upon governments to facilitate the uncovering of information about past human rights violations."65 In other words, it is not enough for individuals simply to have access to whatever information the State already holds. The State must also ensure that information about past human rights violations is readily available, including by collecting, collating, preserving and disseminating it, where necessary.
National Developments The proposition that the right to information is a fundamental human right finds strong support in a number of national developments. A number of countries provide for constitutional recognition of this right through specific constitutional provisions while in others, leading courts have interpreted the general guarantee of freedom of expression as encompassing a right to information. The latter is of particular significance as national interpretations of constitutional guarantees of freedom of expression are of some relevance to understanding the content of their international counterparts. The importance of freedom of information is also reflected in a massive global trend towards adoption of national laws giving effect to this right.
Constitutional Interpretation A number of senior courts in countries around the world have held that the right to access information is protected by the general 64 Act No. 2, 2000.
65 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
International Standards and Trends
constitutional guarantee of freedom of expression. For example, as early as 1969, the Supreme Court of Japan established in two high-profile cases the principle that shiru kenri (the "right to know") is protected by the guarantee of freedom of expression in Article 21 of the Constitution.66 In 1982, the Supreme Court of India ruled that access to government information was an essential part of the fundamental right to freedom of
speech and expression in Article 19 of the Constitution:
The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.67 In South Korea, the Constitutional Court ruled in two seminal cases in 1989 and 1991 that there was a "right to know" inherent in the guarantee of freedom of expression in Article 21 of the Constitution, and that in certain circumstances the right may be violated when government officials refuse to disclose requested documents.68 In some countries, notably the United States, national courts have been reluctant to accept that the guarantee of freedom of expression includes the right to access information held by the State. The US Supreme Court has held that the First Amendment of the Constitution, which guarantees freedom of speech and of the press, does not "[mandate] a right to access government information or sources of information within government's control."69 However, this may be because the First Amendment is cast in exclusively negative terms, requiring Congress to refrain from adopting any law which abridges 66 Repeta, Lawrence, Local Government Disclosure Systems in Japan, National Bureau of Asian Research, Paper Number 16, October 1999, p. 3.
67 S.P. Gupta v. President of India  AIR (SC) 149, p. 234.
68 Sung Nak-in, Korea Country Report (English summary), presented at the Asian Conference on Civil Society and Access to Government-Held Information, Tokyo, Japan, 13-14 April 2001.
69 Houchins v. KQED, Inc., 438 US 1 (1978), p. 15.
Freedom of Information: A Comparative Legal Survey freedom of speech.70 International, and most constitutional, protection for freedom of expression is more positive, recognising that in some cases State action is necessary to ensure respect in practice for this key democratic right.
Specific Constitutional Provisions A number of countries specifically include the right to information among the constitutionally guaranteed human rights. Sweden is an interesting example, as the whole of its Freedom of the Press Act, adopted in 1766, has constitutional status. This Act includes comprehensive provisions on freedom of information. During the last decade, many countries which have recently adopted multi-party systems, or are otherwise in transition to democracy, have explicitly included the right to freedom of information in their constitutions. Examples include Bulgaria (Article 41), Estonia (Article 44), Hungary (Article 61(1)), Lithuania (Article 25(5)), Malawi (Article 37), Moldova (Article 34), the Philippines (Article III(7)), Poland (Article 61), Romania (Article 31), the Russian Federation (Article 24(2)), South Africa (Section 32) and Thailand (Section 58).
In Latin America, constitutions have tended to focus on one important aspect of the right to information, namely the petition of habeas data, the right to access information about oneself, whether held by public or private bodies and, where necessary, to update or correct it.
For example, Article 43 of the Constitution of Argentina states:
Every person shall have the right to file a petition (of habeas data) to see any information that public or private data banks have on file with regard to him and how that information is being used to supply material for reports. If the information is false or discriminatory, he shall have the right to demand that it be removed, be kept confidential or updated, without violating the confidentiality of news sources.
Freedom of Information Legislation Freedom of information laws, giving practical effect to the right to access information, have existed for more than 200 years, but very few are 70 The relevant part of the First Amendment states: "Congress shall make no law abridging the freedom of speech, or of the press, or of the right of the people to peacefully assemble, and to petition the Government for a redress of grievances."
more than 20 years old. However, there is now a veritable wave of freedom of information legislation sweeping the globe and, in the last ten years, numerous such laws have been passed, or are being developed, in countries in every region of the world. The growing imperative to pass freedom of information legislation is indicative of its status as a human right.
The history of freedom of information laws can be traced back to Sweden where, as noted above, freedom of information has been protected since 1766. Another country with a long history of freedom of information legislation is Colombia, whose 1888 Code of Political and Municipal Organization allowed individuals to request documents held by government agencies or in government archives. The USA passed a freedom of information law in 196771 and this was followed by legislation in Australia,72 Canada73 and New Zealand,74 all in 1982.
A large number of countries have passed freedom of information
laws since then75 including:
Asia: Hong Kong,76 India,77 Japan,78 Pakistan,79 South Korea,80 Thailand.81 Middle East: Israel.82
Americas: Belize,84 Jamaica,85 Mexico,86 Peru87 and Trinidad and Tobago.88 71 USC Title 5, Section 552.
72 Freedom of Information Act, 1982.
73 Access to Information Act, Chapter A-1.
74 Official Information Act, 1982.
75 For an up-to-date overview of these developments see Banisar, David, Freedom of Information and Access to Government Records Around the World, online at: http://www.freedominfo.org/survey/.
76 Code on Access to Information, March 1995.
77 Freedom of Information Act, 2002.
78 Law Concerning Access to Information Held by Administrative Organs, 1999.
79 Freedom of Information Ordinance 2002.
80 Act on Disclosure of Information by Public Agencies, 1998.
81Official Information Act, December1997.
82 Freedom of Information Law, Law 5758-1998, May 1998.
83 Promotion of Access to Information Act, Act No. 2, 2000.
84 Freedom of Information Act, 1994.
85 Access to Information Act, 2002.
86 Federal Transparency and Access to Public Government Information Law, 2002.
87 Freedom of Information Law, 2002.
88 Freedom of Information Act, 1999.
Freedom of Information: A Comparative Legal Survey
Europe: Albania,89 Bosnia and Herzegovina,90 Bulgaria,91 the Czech Republic,92 Estonia,93 Georgia,94 Hungary,95 Latvia,96 Lithuania,97 Moldova,98 Slovakia,99 Russia,100 Ukraine101 and the United Kingdom.102 In addition, a number of States in all regions have prepared and are considering draft freedom of information legislation. There is, therefore, a very significant global trend towards adopting freedom of information legislation.
Intergovernmental Organisations These national developments find their parallel in the adoption of information disclosure policies by a growing number of inter-governmental organisations (IGOs). Many IGOs, which for most of their existence operated largely in secret, or disclosed information purely at their discretion, are now acknowledging that public access to the information that they hold is a right, not a privilege. A significant milestone in this process was the adoption of the 1992 Rio Declaration on Environment and Development, which put enormous pressure on international institutions to implement policies on public participation and access to information.
Since the adoption of the Rio Declaration, the World Bank103 and all four regional development banks - the Inter-American Development Bank,104 the African Development Bank Group,105 the Asian 89 Law No. 8503 on the right to information over the official documents, 1999.
90 The Freedom of Access to Information Act, October 2000.
91 Access to Public Information Act, 2000.
92 Freedom of Information Law, 1999.
93 Public Information Act, 2000.
94 Law of Georgia on Freedom of Information, 1998.
95 Act No. LXIII of 1992 on the Protection of Personal Data and the Publicity of Data of Public Interest.
96 Law on Freedom of Information, 1998.
97 Law on the Right to Receive Information from the State and Municipal Institutions, 2000.
98 The Law on Access to Information, 2000.
99 Act on Free Access to Information and Amendments of Certain Acts (The Freedom of Information Act).
100Law on Information, Disclosure and Protection of Information, 25 January 1995, Act No. 24-FZ.
101Law on Information, 2 October 1992, Law No. 2657-XII.
102Freedom of Information Act, 2000, Chapter 36.
103The World Bank Policy on the Disclosure of Information (Washington, D.C.: World Bank, 1994).
104OP-102 Disclosure of Information, Inter-American Development Bank, December 1994.
105Disclosure of Information Policy, African Development Bank Group.
International Standards and Trends
Development Bank106 and the European Bank for Reconstruction and Development107 - have adopted information disclosure policies.
Although the World Bank's Policy is flawed in important respects, the Bank has taken concrete steps to review it, which have increased the number of documents available. The regional development banks have largely followed the World Bank's lead and the disclosure policies that they have adopted are very similar.
In 1997, the United Nations Development Programme (UNDP) also adopted a Public Information Disclosure Policy, on the basis that information is key to sustainable human development and also to UNDP accountability.108 The Policy enumerates specific documents that shall be made available to the public and provides for a general presumption in favour of disclosure, subject to a number of exceptions. 109 In terms of process, the Policy establishes a Publication Information and Documentation Oversight Panel which can review any refusal to disclose information. The Panel consists of five members - three UNDP professional staff members and two individuals from the not-for-profit sector - appointed by the UNDP Administrator.110 In May 2001, the European Parliament and the Council of the European Union adopted a regulation on access to European Parliament,
Council and Commission documents.111 Article 2(1) states:
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.
The Regulation has several positive features, including a narrow list of exceptions, all of which are subject to a harm test. The Regulation also provides for an internal review of any refusal to disclose information, as well as an appeal to the courts and/or the 106Confidentiality and Disclosure of Information, Asian Development Bank, August 1994.
107Policy on Disclosure of Information, European Bank for Reconstruction and Development, 1996.
108Public Information Disclosure Policy, UNDP, 1997. See para. 3.
109Paras. 6, 11-15.
111Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.
Freedom of Information: A Comparative Legal Survey