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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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Ombudsman. 112 However, there are also problems with the Regulation. For example, some key exceptions are not subject to a public interest override.113 Furthermore, the Regulation allows a Member State to require other States not to disclose documents without its prior approval.114 112Articles 7 and 8.

113Article 4(1).

114Articles 4(5) and 9. The Regulation has been harshly criticised by some freedom of information watchdog groups. See, for example, European Citizens Action Service, European Environmental Bureau, European Federation of Journalists, the Meijers Committee, and Statewatch, "Open letter from civil society on the new code of access to documents of the EU institutions," 2 May 2001.

CHAPTER 2

Features of an FOI Regime As the survey in this book indicates, the various freedom of information laws and policies around the world vary considerably as to their content and approach. At the same time, they all have a common goal of promoting access to information held by public bodies. This chapter describes the international and comparative standards that should underpin freedom of information legislation.

ARTICLE 19 has published a set of principles, The Public's Right To Know: Principles on Freedom of Information Legislation (the ARTICLE 19 Principles),115 setting out best practice standards on freedom of information legislation. These Principles are based on international and regional law and standards, evolving state practice (as reflect-ed, inter alia, in national laws and judgments of national courts) and the general principles of law recognised by the community of nations. ARTICLE 19 has also published A Model Freedom of Information Law,116 which translates the Principles into legal form. Both of these publications are reproduced here as, respectively, Annex 1 and Annex 2.

A number of the international standards and statements noted above provide valuable insight into the precise content of the right to freedom of information, over and above simply affirming its existence. In his 2000 Annual Report, the UN Special Rapporteur on Freedom of Opinion and Expression set out in detail the standards to which freedom of information legislation should conform (UN Standards).117 The 2002 Recommendation of the Committee of Ministers of the Council of Europe (COE Recommendation) is even more detailed, providing, for example, a list of the legitimate aims which might justify exceptions to the right of access.118 Other useful standard-setting documents include the principles adopted by the Commonwealth Law Ministers (Commonwealth 115 (London: 1999).

116 (London: 2001).

117 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. 44.

118 Recommendation R(2002)2 the Committee of Ministers to Member States on access to official documents, adopted on 21 February 2002. See Principle IV. The Recommendation is reproduced in Annex 3.

Freedom of Information: A Comparative Legal Survey Principles),119 the Declaration of Principles on Freedom of Expression in Africa (African Principles),120 and the Aarhus Convention.121 Despite the fact that legislation in different countries varies considerably, there are some common themes which can be identified as regular features of a freedom of information regime. Furthermore, certain mechanisms or standards in national legislation can be identified as best practice approaches, justified by the principle of maximum disclosure, which should be promoted in other countries.

It was argued in the previous chapter that freedom of information, and particularly the right to access information held by public bodies, is a fundamental human right, part of the right to freedom of expression.

The ARTICLE 19 Principles also draw on established jurisprudence regarding the right to freedom of expression, which includes the right to information. As noted above, this right permits of some restrictions. For example, Article 19(3) of the International Covenant on Civil and

Political Rights (ICCPR),122 states:

The exercise of the rights provided for in paragraph 2 of this article [the right to freedom of expression] carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as

are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Similar rules on restrictions are recognised in regional human rights treaties and many national constitutions. Pursuant to this provision, restrictions must meet a strict three-part test.123 International jurisprudence makes it clear that this test presents a high standard which any interference must overcome. The European Court of Human Rights,

for example, has stated:

119 Communiqué, Meeting of Commonwealth Law Ministers (Port of Spain: 10 May 1999).

120 32nd Ordinary Session of the African Commission on Human and Peoples' Rights, 17-23 October 2002, Banjul, The Gambia.

121 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.





122 UN General Assembly Resolution 2200A(XXI), 16 December 1966, in force 23 March 1976.

123 See, Mukong v. Cameroon, views adopted by the UN Human Rights Committee on 21 July 1994, No.

458/1991, para. 9.7.

Features of an FOI Regime

Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.124 First, the interference must be provided for by law. This requirement will be fulfilled only where the law is accessible and "formulated with sufficient precision to enable the citizen to regulate his conduct."125 Second, the interference must pursue a legitimate aim, such as those listed in Article 19(3) of the ICCPR. Third, the restriction must be necessary to secure one of those aims. The word "necessary" means that there must be a "pressing social need" for the restriction. The reasons given by the State to justify the restriction must be "relevant and sufficient" and the restriction must be "proportionate to the aim pursued."126 In the area of freedom of information, this three-part test implies that the law should conform to the principle of maximum disclosure. The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only where there is an overriding risk of harm to a legitimate interest. It also implies that systems and processes should be established which ensure that members of the public can in practice access information and that public bodies should make all reasonable efforts to facilitate this access.

This chapter is organised around 9 headings, based on the 9 principles set out in The Public's Right To Know.

Principle 1. Maximum Disclosure Freedom of information legislation should by guided by the principle of maximum disclosure The principle of maximum disclosure encapsulates the basic rationale underlying freedom of information legislation and a version of this is explicitly stated as an objective in a number of national laws. An 124 See, for example, Thorgeirson v. Iceland, 25 June 1992, Application No.13778/88, 14 EHRR 843, para. 63.

125 The Sunday Times v. United Kingdom, 26 April 1979, Application No.13166/87, 2 EHRR 245, para. 49 (European Court of Human Rights).

126 Lingens v. Austria, 8 July 1986, Application No.9815/82, 8 EHRR 407, paras. 39-40 (European Court of Human Rights).

Freedom of Information: A Comparative Legal Survey

important aspect of this principle, also widely respected in national laws, is that the body seeking to deny access to information bears the onus of proving that it may legitimately be withheld, central to the idea of a presumption of openness.127 Another aspect of this principle is that the scope of the law should be broad.128 Everyone, not just citizens, should benefit from the right and an individual requesting access should not have to demonstrate any particular interest in that information. Information, or records, should be defined broadly to include all information held by the body in question, regardless of form, date of creation, who created it and whether or not it has been classified. This is also respected in most national laws, apart from classified information, which some national laws do admit as an exception.

More controversial is the scope of the obligation to disclose in terms of the bodies covered. No public bodies should be excluded from the ambit of the law; every legitimate secrecy interest can be addressed through an appropriate regime of exceptions. Many laws do not include the courts or legislative bodies, but the experience of those that do shows that this is perfectly possible. Given the rationale of freedom of information legislation, it is hard to justify excluding these bodies or, indeed, any public bodies. Public corporations should also be covered and many argue that even private bodies which are substantially publicly funded or carry out public functions should be included within the ambit of the law. In South Africa, even private bodies are required to disclose certain information.

Principle 2. Obligation to Publish Public bodies should be under an obligation to publish key information It is not enough for the law simply to require public bodies to accede to requests for information. Effective access for many people depends on these bodies actively publishing and disseminating key categories of information even in the absence of a request.129 The scope of this obligation depends to some extent on resource limitations, but the amount 127 See Commonwealth Principle 2.

128 See the Aarhus Convention, Articles 2(2)-(3).

129 See the African Principles IV(2).

–  –  –

of information covered should increase over time, particularly as new technologies make it easier and cheaper to publish and disseminate information.

Principle 3. Promotion of Open Government Public bodies must actively promote open government In most countries, particularly those which have not yet or have just recently adopted freedom of information laws, there is a deep-rooted culture of secrecy within government, based on long-standing practices and attitudes. Ultimately, the success of a freedom of information law depends on changing this culture since it is virtually impossible to force openness, even with the most progressive legislation.130 The best approach to addressing this problem with vary from country to country but, at a minimum, there will be a need to train public officials.

A number of other means of promoting openness within government have been tried in different countries, including, for example, providing incentives for good performers and exposing poor performers and ensuring legislative oversight through annual reports. The law should at least allocate responsibility for ensuring that this need is actively addressed, for example to an information commissioner, human rights commission or ombudsman.

Another useful tool to tackle the culture of secrecy is to provide for criminal penalties for those who wilfully obstruct access to information in any way, including by destroying records or inhibiting the work of the administrative oversight body. Prosecutions under provisions of this sort tend to be rare in those countries which do have them, but it sends a clear signal that obstruction will not be tolerated.

The general public also need to be made aware of their rights under the new legislation and how to exercise them. Public education campaigns are needed, including through the media. The broadcast media can play a particularly important role in countries where newspaper distribution is low or illiteracy widespread. Another useful tool, provided for in many laws, is the publication of a simple, accessible guide on how 130 See the UN Standards.

Freedom of Information: A Comparative Legal Survey to lodge an information request. Again, it is best if the freedom of information law at least allocate responsibility for this to an oversight body.

A third important aspect of promoting open government is promoting better record maintenance by public bodies.131 In many countries, one of the biggest obstacles to accessing information is the poor state in which records are kept. Officials often do not know what information they have or, even if they do know, cannot locate records they are looking for. A number of national laws address this in different ways, for example by giving a minister or the administrative oversight body a mandate to set and enforce standards for record maintenance. Good record maintenance is not only important for freedom of information. Handling information is one of the key functions of modern government and doing this well is crucial to effective public management.

Principle 4. Limited Scope of Exceptions Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public interest" tests The regime of exceptions is one of the most difficult issues facing those drafting a freedom of information law and one of the most problematical parts of many existing laws. In many cases, otherwise very effective laws are largely undermined by an excessively broad or open regime of exceptions. On the other hand, it is obviously important that all legitimate secrecy interests are adequately catered to in the law, otherwise public bodies will legally be required to disclose information even though this may cause unwarranted harm.

The presumption in favour of disclosure means that the onus should be on the public body seeking to deny access to certain information to show that it may legitimately be withheld. The ARTICLE 19 Principles

set out a three-part test for exceptions as follows:

The three-part test the information must relate to a legitimate aim listed in the law;

disclosure must threaten to cause substantial harm to that aim; and 131 See Commonwealth Principle 4.

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132 See Commonwealth Principle 3.



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