‘Freedom of information is a fundamental right and is the touchstone of all the freedoms to which the United Nations is consecrated.’ United Nations General Assembly 1946, Res 59(I)
The right of access to information has long been accepted as an integral element of the bundle of human rights protected within the framework of the UN. Article 19 of the UDHR adopted in 1948 by the UN General Assembly states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (emphasis added).
Article 19 of the ICCPR adopted by the UN General Assembly in 1966 also guarantees the right to freedom of opinion and expression, in similar terms to Article 19 of the UDHR. The express right to seek, receive and impart information necessarily includes a right to freedom to information.
Freedom of information as a democratic tenet is relevant in itself and for the fulfilment of other rights. Public bodies do not hold information on their own behalf, but for the benefit of the public. The corollary of this is that laws that deny the right of access to public information or that turn public information into the private property of the State, such as the OSA, do not merely negate the individual’s right to freedom of information but also impede the proper fulfilment of the individual’s other rights.
These principles have been consistently emphasised in the UN. In 1995, the UN Special Rapporteur on Freedom of Opinion and Expression (UNSRFOE) stated that, ‘Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.’
In 1999, the UNSRFOE stated that the individual’s right to seek, receive and impart information ‘imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems… subject only to such restrictions as referred to in article 19, paragraph 3 of the International Covenant on Civil and Political Rights.’
The individual’s right of access to information is also a protected principle within the Commonwealth. In 1980, a meeting of the Law Ministers of the Commonwealth declared that, ‘public participation in the democratic and governmental process was at its most meaningful when citizens had adequate access to official information.’ Almost two decades later in 1999, a resolution endorsed by the Commonwealth Law Ministers and subsequently the Commonwealth Heads of Government (including Malaysia’s) declared that:
Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the state, as well as any government owned corporation and any other body carrying out public functions. (emphasis added)
The ASEAN Human Rights Declaration (AHRD), which affirmed all the civil and political rights in the UDHR and which was adopted by heads of member states of ASEAN (including Malaysia) on 18 November 2012, states in Article 23 that:
Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice. (emphasis added)