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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 risk of serious harm to that interest.133 The defence forces hold a lot of information that is tangential to their operations, for example, relating to purchases of food or pens. Access to this information clearly cannot be denied simply on the basis that it relates to defence. The second part of the test thus permits information to be withheld only where disclosure would threaten substantial harm to a legitimate aim.

In some laws, the exceptions are themselves subject to limits to take into account cases where there will be no harm to the legitimate aim.

Examples of how exceptions could be limited would include where the information is already publicly available or where the affected third party has consented to disclosure. This is a good practice as it helps to provide greater clarity to the question of whether or not disclosure would cause harm.

Many freedom of information laws contain exceptions which do not include harm tests, often referred to as class exceptions. In a small number of cases, these may be legitimate because the interest itself already incorporates a harm test. This is the case, for example, with exceptions relating to legally privileged information. However, in almost every other case, class exceptions are not legitimate.

The third part of the test states the need for a public interest override.134 No matter how carefully the regime of exceptions is crafted, there will always be some information that is exempt even though it is in the public interest to disclose it. Even more importantly, circumstances may mean that the overall public interest is served by disclosure even though that disclosure will harm a legitimate aim. An example would be sensitive military information which exposed corruption in the armed forces. Although this may at first sight appear to weaken national defence, eliminating corruption in the armed forces will, over time, actually strengthen it. This is recognised in Principle IV(2) of the Council

of Europe Recommendation, which states:

Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.135 133 See the UN Standards.

134 See the Aarhus Convention, Article 4(4).

135 Ibid.

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Where only part of a record is exempt, the rest of the record should be disclosed where it may reasonably be separated from the whole.

Although not part of the three-part test for exceptions set out above, overall time limits on withholding information are also very useful and these are found in many national laws. Providing for time limits on withholding creates a presumption that information which has been withheld will eventually become subject to disclosure. Given the tendency of most governments to excessive secrecy, these at least ensure that most information is disclosed over time. In general, time limit systems also allow for extensions, but only where the authorities can demonstrate an ongoing risk to a legitimate aim.

Principle 5. Processes to Facilitate Access Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available Effective access to information requires both that the law stipulate clear processes for deciding upon requests by public bodies, as well as a system for independent review of their decisions.136 Processes for accessing information are complex and this normally occupies a large part of existing freedom of information laws. It is useful to require public bodies to appoint an individual as Information Officer, who bears overall responsibility for ensuring that the body meets its obligations under the law. Requests should normally be required to be in writing, although the law should also make provision for those who cannot met this requirement, for example by requiring the public body to assist them. Assistance should also be provided where a request is deficient, for example because it fails adequately to describe the information sought. Receipts should be provided as evidence of a request.

The law should set out clear timelines for responding to requests, which should be reasonably short. In some cases, laws provide for unrealistically short timelines, which are sure to be breached frequently, undermining respect for the law. A Model Freedom of Information Law sets a timeline of 20 working days for responding to requests, subject to 136 COE Recommendation V.

Freedom of Information: A Comparative Legal Survey extension for another 20 days where strictly required. Where the request is for information needed to safeguard life or liberty, the response must be provided within 48 hours.137 The response to a request should take the form of a written notice stating any fee, the form in which access will be provided and, where access to all or part of the information is denied, reasons for that denial along with information about any right of appeal. Where the public body in question does not hold the information requested, it should be required to provide reasonable assistance to the requester to locate it.

It is also desirable and practical for the law to allow requesters to specify what form of access they would like, for example inspection of the record, or a copy or transcript of it.138 It is essential that the law provide for various opportunities to appeal the processes noted above. Many national laws provide for an internal appeal to a higher authority within the same public body to which the request was made. This is a useful approach, which can help address mistakes and ensure internal consistency.





It is, however, crucial that requesters have the right to appeal to an independent body to review decisions made by public authorities, which is reflected in most international standards.139 Otherwise, individuals cannot really be said to have a right to access information held by public bodies and much information, for example revealing corruption or incompetence, will never be disclosed. Review should not be limited to the question of disclosure of information, but should cover all aspects of the process including timelines, fees, form of access, and so on.

Given the importance of rapid, cost-effective access to information, it is highly desirable that appeals should go first to an independent administrative body, and this is provided for in most of the more progressive national laws.140 It does not matter whether the law establishes a new independent body or allocates this task to an existing body, such as the human rights commission or an ombudsman. What is 137 Note 116, section 8.

138 See COE Recommendation VII.

139 See the Aarhus Convention, Article 9, African Principle IV(2), Commonwealth Principle 5, COE Recommendation IX and the UN Standards.

140 South Africa is a notable exception here. Some countries fear the costs of establishing yet another administrative body. However, these costs are arguably low compared to the benefits of a good freedom of information regime, for example in terms of rooting out incompetence and corruption or in promoting more effective decision-making.

Features of an FOI Regime

important is that the body be adequately protected against political interference.

The procedures before this administrative appeals body should be designed to operate as quickly, fairly and cheaply as possible. It should have full powers to review any document held by a public body, in camera if necessary, as well as powers of investigation and to compel witnesses and the like. It should also have the power to issue binding decisions, enforceable through the courts where necessary.

Finally, the law should provide for the right to appeal from the administrative body to the courts. Only the courts really have the authority to set standards of disclosure in controversial areas and to ensure the possibility of a full, well-reasoned approach to difficult disclosure issues. In some national laws, this right is limited to the requester, to avoid a situation where public bodies abuse this right to delay access or to deter all but the most determined and well-off requesters.

Principle 6. Costs Individuals should not be deterred from making requests for information by excessive costs Fees are a controversial issue in freedom of information laws. It is widely accepted that fees should not be so high as to deter requests,141 but practically every law does allow for some charges for access. There are a number of costs to public bodies which may theoretically be charged, including searching for documents, preparing them, reviewing whether or not they are covered by an exception and the actual cost of providing access, for example by duplication.

Different laws take different approaches to fees. Some limit charges to the cost of duplication, perhaps along with a set application fee. Others group requests into different categories, charging less for public interest or personal requests. Still others allow requesters to occupy a certain amount of public time, for example 2 hours, for free and then start to charge after that. Regardless of the approach, it is desirable for fee structures and schedules to be set by some central authority, rather than be each public body separately, to ensure consistency and accessibility.

141 See COE Recommendation VIII.

Freedom of Information: A Comparative Legal Survey Principle 7. Open Meetings Meetings of public bodies should be open to the public The ARTICLE 19 Principles include the idea of open meeting, although in practice it is extremely rare for this to be dealt with in a freedom of information law. Some countries have separate laws on this.

The reason it was included in the Principles is that the underlying rationale for freedom of information applies not only to information in documentary form, but also to meetings of public bodies.

Principle 8. Disclosure Takes Precedence Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed Most countries have a range of secrecy laws on their books, many of which are not legitimate or which include illegitimate provisions which are inconsistent with the freedom of information law. If the principle of maximum disclosure is to be respected, indeed, if the culture of secrecy is to be addressed, the freedom of information law must take precedence over these laws.142 This should, where possible, be achieved by interpreting these laws in a manner which is consistent with the freedom of information law. However, where potential conflicts cannot be resolved through interpretation, the provisions of the freedom of information law should overrule those of conflicting secrecy laws.

This is not as controversial as it sounds, at least in substance. A good freedom of information law will include a comprehensive set of exceptions, so there should be no need for this to be extended by secrecy laws. Some system of resolving conflicts is necessary to avoid placing civil servants in a position where they are prohibited from divulging information under a secrecy law and yet required to do so under the freedom of information law. Resolving this in favour of openness is clearly consistent with the basic presumption underlying freedom of information.

Over time, a commitment should be made to review all laws which restrict the disclosure of information, with a view to bringing them into 142 UN Standards.

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line with the freedom of information law.143 This is particularly important in legal systems where it is not possible to provide for the dominance of one law over others.

Principle 9. Protection for Whistleblowers Individuals who release information on wrongdoing whistleblowers - must be protected A freedom of information law should protect individuals against any legal, administrative or employment-related sanctions for releasing information on wrongdoing.144 Even the best system of exceptions will be unable to address every situation where disclosure is warranted and individuals seeking to disclose information in the public interest should not be required to undertake a complex balancing of different public interests. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement.

Wrongdoing in this context should include commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It should also include exposure of a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing.

In some countries, this protection is set out in a separate law rather than being included in the freedom of information law. Some countries also condition this protection on a requirement that the individual in question first approach certain individuals or oversight bodies, so that problems can be addressed through official channels rather than through the media. Although this is legitimate in theory, in practice where there is a problem with corruption or other wrongdoing, official channels are often implicated and therefore ineffective. Also, many individuals may be reluctant to use official channels, where they can be identified and 143 See African Principle IV(2).

144 See African Principle IV(2).

Freedom of Information: A Comparative Legal Survey potentially targeted in subtle ways. As a result, any conditioning of this protection should ensure that the potential problems with official channels are taken fully into account.

Protection from liability should also be provided to individuals who, reasonably and in good faith, disclose information in the exercise of any power or duty under freedom of information legislation. This effectively protects civil servants who have mistakenly, but in good faith, released information. This protection is important to change the culture of secrecy; civil servants should not have to fear sanctions for disclosing information or they will tend to err in favour of secrecy.

CHAPTER 3



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