«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
The Right of Access The Act provides that every citizen shall have the freedom of information, defined as the right to obtain information from public authorities, subject to the Act.167 The Act extends to the whole of India,168 apart from the State of Jammu and Kashmir, for particularly constitutional reasons.169 A very positive aspect of the Act is that its disclosure provisions take precedence over secrecy laws, and the Official Secrets Act, 1923, is specifically mentioned in this regard.170 Definitions The Act defines information as "material in any form relating to the administration, operations or decisions of a public authority".171 This definition is broad in terms of the type of information but limits the scope of the Act to information relating to the official work of the public authority in question. This could be problematical, for example where an authority disputed that information it held fell within the scope of this definition. The Act also defines a record as any document, microfilm, microfiche or any material reproduced by any device.
165 Bill No. 98-C of 2000. Available at: http://www.freedominfo.org/news/india/foi2002.doc.
166 See Indian Express Newspapers (Bombay) Pvt. Ltd.v. India, (1985) 1 SCC 641.
167 Section 3.
168 Subsection 1(2).
169 Article 370 of the Constitution of India confers a "special status" on Jammu and Kashmir State and Parliament may make laws for it only with the concurrence of that State.
170 Section 14.
171 Subsection 2(d).
Freedom of Information: A Comparative Legal Survey
The Act defines 'public authority' as any body established under the Constitution or by any law, as well as any body "owned, controlled or substantially financed by funds provided directly or indirectly" by government.172 This would appear to be a broad definition, although its scope has not yet been tested. However, security bodies, as listed in the Schedule, which mentions some 19 organisations, are excluded from the ambit of the Act, along with any information supplied by them to the central government.173 Process Requests must be made in writing, although where individuals have difficulties with this, the Public Information Officer is required to provide "all reasonable assistance" to them.174 Requests which are too general and which, given the volume of material involved, would unreasonably divert the resources of a public authority or would interfere with its activities, may be rejected, provided that the Public Information Officer must provide reasonable assistance to assist the requester to narrow the request.175 Requests must be dealt with as expeditiously as possible and, in any event, within 30 days. Requests may be accepted subject to the payment of a fee or rejected where the information requested falls within the scope of an exception or the request is otherwise deemed invalid. A unique provision in the Indian law is that where the information in question concerns the life or liberty of a person, it must be provided within 48 hours.176 Fees may be charged for processing requests and the Act provides for further fees, "representing the cost of providing the information", for which a deposit may be demanded. No rules relating to such fees are specified in the Act, but provision is made for rules relating to such fees to be adopted by various authorities.177 The period between a request for fees and the fees being paid shall not be counted within the 30-day period for satisfying requests.178 172 Subsection 2(f).
173 Section 16. Provision is also made for amending, either by adding to or deleting from, the Schedule.
174 Section 6.
175 Subsection 9(a).
176 Subsection 7(1).
177 Sections 17-19.
The Act includes a number of provisions concerning information provided by third parties. Where a request relates to information supplied in confidence by a third party, that party shall, within 25 days of the original request, be contacted and given an opportunity to make representations within 20 further days, provided that where the overall public interest is served by disclosure, the information shall be disclosed notwithstanding these representations. Regardless of the time limits relating to third parties, a decision regarding disclosure shall be made within 60 days of the original request.179 Where a request for information is rejected, the requester is entitled to be informed of the reasons for the rejection, the period within which an appeal may be lodged and relevant information about the appellate authority.180 The Act provides indirectly for a right to request the form of disclosure by defining freedom of information as the right to obtain information by various means, including inspection, certified copy or electronic means.181 This definition is then given force through a subsequent provision which provides that information shall normally be provided in the form requested, unless that would "disproportionately divert the resources" of the public authority or be "detrimental to the safety or preservation" of the record itself.182
179 Section 11.
180 Subsection 7(3).
181 Subsection 2(c).
182 Subsection 7(4).
Freedom of Information: A Comparative Legal Survey (v) the details of facilities available to citizens for obtaining information; and (vi)the name, designation and other particulars of the Public Information Officer.183 These bodies are also required to publish all relevant facts relating to important decisions and policies, concurrently with the announcement of the policy or decision, to give reasons to anyone affected by an administrative or quasi-judicial decision and, before initiating any project, to publish to those likely to be affected any information which, in the "best interests of natural justice and promotion of democratic principles", they should know.184
All exceptions apart from the first one listed above are absolutely limited to 25 years, after which all information must be disclosed.
However, where a dispute arises as to the date from which the 25 years needs to be measures, the decision of the government on this matter shall be final.185 Section 9 further exempts information which is required by law to be published, where the information is likely to be published within 30 days of the request, information that has already been made available in published form and information the disclosure of which would involve an "unwarranted invasion of privacy".
Where part of the information requested is exempt, the Act provides for the disclosure of the remaining information where it may "reasonably be severed" from the exempt information. In this case, the requester must be informed that part of the information has been withheld, along with the provision of the Act under which this is being justified.186 Appeals A requester may lodge an internal appeal against any decision of a Public Information Officer within 30 days to "such authority as may be prescribed". The Law stipulates that the relevant governing authorities may make rules relating to this authority.187 A second appeal may be made within 30 days of a decision in the original appeal, to the central government or other relevant authority, depending on the circumstances.
Both of these appeals must be decided within a further 30 days. Where relevant, third parties shall be given a reasonable opportunity to be heard.188 The Act makes no provision for appeal to an independent authority.
Indeed, it specifically provides that no appeal shall lie from decisions made pursuant to its provisions.189 Promotional Measures Subsection 4(a) requires public authorities to maintain their records, "in such manner and form as is consistent with its operational 185 Subsection 8(2).
186 Subsection 10(1).
187 Sections 17-19.
188 Section 12.
189 Section 15.
Freedom of Information: A Comparative Legal Survey requirements". This is somewhat vague, but will no doubt be clarified to some extent through litigation.
Public authorities are required to appoint Public Information Officers who are responsible for dealing with requests, as well as for providing "reasonable assistance" to requesters.190 Individuals who have acted in good faith pursuant to the Law are protected against sanction.191 190 Section 5.
191 Section 13.
Japan Introduction The introduction of the Law Concerning Access to Information Held by Administrative192 Organs was passed in May 1999, after a long struggle by civil society to have a national law adopted. Access to public information was seen as crucial to exposing the failures of the government, about which there was growing concern in Japan as the economic miracle started to falter, and in addressing the wall of official secrecy faced by the public. This is reflected in the first article, on its purpose, which states that the goal of openness is to ensure, "that the government is accountable to the people for its various operations, and to contribute to the promotion of a fair and democratic administration that is subject to the people's accurate understanding and criticism." By the time the national law was adopted in 1999, over 900 municipalities had already adopted freedom of information laws.193 The national law came into effect in April 2001.
The Right of Access Any person, including non-citizens, may make a request to the head of an administrative organ for the disclosure of administrative documents.194 Upon receiving a request, the head of the administrative organ is required to disclose the information, subject to the regime of exceptions provided for in the law.195 The right to information is also limited by the definitions of administrative documents and administrative bodies.
Definitions The law defines an "administrative document" as any document, drawing or electromagnetic record, prepared or obtained by an employee in the course of his or her duties, if held for "for organizational use by its employees". This is limited as there are may be other forms in which information may be held and also inasmuch as it only covers records held for official purposes. There are also two exclusions. The first relates to 192 Available at: http://www.soumu.go.jp/gyoukan/kanri/translation3.htm.
193 See Repeta and Schultz, Japanese Government Information: New Rules for Access, http://www.gwu.edu/~nsarchiv/nsa/foia/japanfoia.html.
194 Article 3.
195 Article 5.
Freedom of Information: A Comparative Legal Survey
Public corporations, of which there are many in Japan providing, among other things, basic services, are outside the ambit of the law.
However, the law does require a law to be passed governing the disclosure obligations of these corporations within two years of its passage.198 This obligation was fulfilled with the passage of a law to this effect on 2 November 2001.199 Process A request must contain the requester's name (or the name of a representative, for a corporate requester), address and a description of the record sought in sufficient detail to enable it to be found. Where the request is deficient, the administrative organ shall notify the requester and give him or her a suitable amount of time to remedy the problem, while also "endeavouring" to provide assistance.200 Requests may be transferred to another body where there is a "justifiable reason" for doing so, upon written notice being provided to the requester.201 The law includes extensive provisions relating to consultation with a third party to whom the information relates. Such parties are given an opportunity to make representations and they are also required to be given notice 2 weeks before the information is actually disclosed, so that they may appeal the decision.202 196 Article 2(2).
197 Article 2(1).
198 Article 44(2).
199 See Repeta and Schultz, note 193.
200 Article 4.
201 Article 12.
202 Article 13.
A decision to disclose must normally be made within 30 days and the requester must be notified of this decision in writing. Where the request is referred back to the requester for correction or clarification, time spent revising the request is not included in the 30 days. This period may be extended for another 30 days, "when there are justifiable grounds such as difficulties arising from the conduct of business", provided that the requester must be notified of any such extension in writing, along with the reasons therefore.203 Where the request covers a "considerably large amount of administrative documents" and there is a risk that the performance of the administrative organ will be "considerably hindered" by trying to provide all of the information within the 60-day period, the head may simply disclose a "reasonable portion" within that time period, providing the rest within a "reasonable period of time." In this case, the requester must be given written notice, including of the application of this rule and the extended time limit for the remaining documents.204 Requesters may ask to inspect the record, to be provided with copies or for other forms of access to electromagnetic records, as specified by Cabinet Order. Their request should normally be respected, unless this poses a risk of harm to the record.205 Fees may be charged for both processing the request and for providing the information, pursuant to a Cabinet Order, provided that these may not exceed the actual cost of providing the information. The fee structure is required to take into account the desirability of keeping fees to as "affordable an amount as possible" and, again pursuant to a Cabinet Order, the head of the administrative organ may reduce or waive the fee in cases of economic hardship or for other special reasons.
Duty to Publish The Japanese law does not provide for a proactive obligation to publish certain categories of information.
Exceptions The exceptions to the obligation to disclose are set out at Article 5, which contains 6 different exceptions. Most exceptions are subject to a 203 Articles 9 and 10.
204 Article 11.
205 Article 14.