Freedom of information

Guiding principles for access to information laws

Freedom of information is an important element of the international guarantee of freedom of expression which includes the right to seek and receive, as well as to impart, information and ideas. Although included within the guarantee of freedom of expression, freedom of information is not simply the converse of the former, but a separate freedom in its own right. There can be little doubt of the importance of freedom of information. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59 (1) which stated:

Freedom of information is a fundamental human right and Y the touchstone of all freedoms to which the United Nations is consecrated.@ Its importance has also been stressed in a number of reports by the UN Special Rapporteur on Freedom of Opinion and Expression (See, for example, his 1997 Report, UN Doc. E/CN.4/1997/31 and his 1998 Report, UN Doc. E.CN.4/1998/40) Freedom of information is commonly understood as comprising a number of different elements. First, and perhaps most important, it refers to the right of citizens to access information held by public authorities.

Second, there is an obligation on such authorities to facilitate access to information already in the public domain, for example by ensuring that it is available in published form, or through the Internet. Third, freedom of information acts as a constraint on the extent to which civil servants may be prosecuted for disclosing information which has been classified, in particular where this is in the public interest.

Fourth, freedom of information demands that governments do not interfere with the flow of information to journalists and from journalists to the public. This implies that journalists should not be required to disclose the identity of individuals who have provided them with confidential or sensitive information. Access to information laws tend to focus on the first three elements of the broader concept of freedom of information. Such laws generally provide a definition of the public authorities covered and establish a process by which requests for information should be dealt with. They permit requests for information to be refused to protect a limited set of interests, such as the confidential nature of information provided by third parties. Public authorities may be required to publish certain key information as a matter of course. Ideally such laws should not only place an obligation on public authorities to disclose information but also to establish a cheap, efficient mechanism for ensuring that disclosure actually takes place. Thus it is common for such laws to set up administrative bodies which can entertain complaints from individuals who have been refused access to information and compel public authorities to disclose information where appropriate. Experience from many countries illustrates the importance of keeping a number of principles in mind when proposing access to information laws:

• public authority should be broadly defined to include all levels of government including local government, nationalized industries and public corporations, non-departmental bodies, judicial bodies and even private bodies which carry out statutory functions;
• no public authorities should be completely excluded from the ambit of the law; exceptions relating to sensitive information the disclosure of which would harm certain public interests, such as national security or the prevention of crime, are sufficient to protect those interests;
• public authorities should be under an obligation to disclose, upon request, all information they hold, regardless of the form in which they hold it and the source of the information, subject only to exceptions to protect specific interests;
• public authorities should be under a positive obligation to publish or otherwise make broadly available certain information B facts, analysis or other background material B which has been influential in the decision-making process and about the way public services are run;
• the duty to disclose should apply to actual records and not just the information contained in them (to prevent Adoctoring@) and should apply regardless of the date of the document;
• requests for disclosure should be dealt with promptly, within a strict time-limit established in the law; requests which are unclear or excessively broad should be returned to the applicant with an explanation and, where appropriate, instructions as to how to redraft the request so as to ensure proper processing;
• requests may be denied where the information has already been published or is about to be published but in such cases applicants should be informed about how to obtain the publication and its intended publication date;
• the cost of dealing with any request for information should be covered primarily by the public authority or by public funds; any charges that are applied should not be so significant as to act as a barrier to requests; one approach is to charge more for commercial requests; public authorities should be under an obligation to waive all charges where this would be in the public interest; a public interest in disclosure should be presumed where the information is sought by the media for reasons of publication;
• there should be a presumption in favour of disclosure which may be overcome only where the public authority can demonstrate that disclosure would cause substantial harm to an interest specifically recognized in the law; such interests may include national security, law enforcement, privacy, commercial and other confidentiality, public safety and the integrity of government decision-making processes; these interests should, however, be clearly and narrowly defined and the substantial harm test strictly applied;
• prima facie decisions to refuse disclosure should be subject to a further public interest test; this would mean that information should be disclosed where the public interest in disclosure outweighs the threat even of substantial harm to a specified interest;
• written reasons should be given for any decision to refuse disclosure;
• the access to information law should be deemed to be of superior force to existing laws dealing with information disclosure; thus, in case of a conflict between the access to information law and, say, an Official Secrets Act, the former should be applied; the government should undertake to review all such legislation with a view to bringing it into conformity with the access to information law so as to reduce the scope of such conflicts;
• the law should establish an administrative body, such as an Information Commissioner, with the power to deal with complaints about refusals of requests for information or about a failure to publish material; this body should decide such complaints quickly and at little or no cost to the complainant; this body should have the power to order disclosure of any document, to access any records held by public authorities, to review and adjust charges, to order public authorities to publish certain categories of information and to fine public authorities for wilfully failing to comply with the law; the director or senior manager of this body should be appointed in a fashion which ensures independence, community trust and competence;
• individuals should have the right to appeal the decisions of this administrative body to the courts;
• measures should be taken to ensure that public authorities or those working in them do not destroy records; for example, a criminal offence of wilful destruction of public records should be introduced;
• public broadcasters should be granted a limited exception to the disclosure rules where necessary to protect the identity of confidential sources;
• the law should also provide for promoting a culture of openness within government, for example through training, monitoring implementation of the law, reporting on progress and provid-ing incentives for greater openness; this may be achieved through the same administrative body that deals with complaints or through another independent body.

Toby Mendel
Article 19