Principles

UN Human Rights Declaration: Article 19

“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.”

Federal Constitution of Malaysia: Article 10

“(1) Subject to Clauses (2), (3) and (4) –
(a)every citizen has the right to freedom of speech and expression;
(b)all citizens have the right to assemble peaceably and without arms;
(c)all citizens have the right to form associations.
…”

The Public’s Right To Know: Principles on Freedom of Information Legislation (the ARTICLE 19 Principles)

Extracted from: https://www.article19.org/resources.php/resource/3024/en/international-standards:-right-to-information

PRINCIPLE 1. MAXIMUM DISCLOSURE

“Freedom of information legislation should by guided by the principle of maximum disclosure.”

The principle of maximum disclosure holds that all information held by public bodies should presumptively be accessible, and that this presumption may be overcome only in very limited circumstances.

The principle of maximum disclosure encapsulates the basic rationale of freedom of information legislation, and is explicitly stated as an objective in a number of national laws. An important aspect of this principle, widely reflected in national laws, is that the body seeking to deny access to information bears the burden of proving that it may legitimately be withheld.[19]

Another aspect of this principle is that the scope of the law should be very broad.[20] Everyone, not just citizens, should benefit from the right and an individual requesting access should not have to demonstrate any particular interest in the information or explain the reasons for the request. Information 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.

The scope of the obligation to disclose in terms of the bodies covered should also be broad. All three branches of government should be covered and no public bodies should be excluded from the ambit of the law. 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 information which is needed for the protection or exercise of any right.

PRINCIPLE 2. OBLIGATION TO PUBLISH

“Public bodies should be under an obligation to publish key information.”

Freedom of information implies not only that public bodies should accede to requests for information, but also that they should publish and disseminate widely documents of significant public interest.[21] Otherwise, such information would be available only to those specifically requesting it, when it is of importance to everyone. Moreover, publishing information will often be more economical than responding to multiple requests for the same information.

The scope of the obligation to publish proactively depends to some extent on resource limitations, but the amount of information covered should increase over time, particularly as new technologies make it easier to publish and disseminate information.

PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT

“Public bodies must actively promote open government.”

Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realised. 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.[22]

The best approach to addressing this problem will 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 oversight through annual reports which provide relevant statistics on the functioning of the FOI regime. 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 body overseeing implementation of the law.

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. Another useful tool, provided for in many laws, is the publication of a simple, accessible guide on how to lodge an information request.

A third important aspect of promoting open government is promoting better record maintenance by public bodies.[23] 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. 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 to the right to access information 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 problematic parts of many existing laws. In many cases, otherwise very effective laws are 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 information must relate to a legitimate aim listed in the law;
  • disclosure must threaten to cause substantial harm to that aim; and
  • the harm to the aim must be greater than the public interest in having the information.

The first part of this test means that a complete list of all aims which may justify withholding information should be set out in the law. Which aims are legitimate is a subject of some controversy. Exceptions should at least be drafted clearly and narrowly.[24] The Council of Europe Recommendation lists the following possible grounds for restricting disclosure:

IV. Possible limitations to access to official documents

Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:

i)      national security, defence and international relations;

ii)    public safety;

iii)   the prevention, investigation and prosecution of criminal activities;

iv)   privacy and other legitimate private interests;

v)    commercial and other economic interests, be they private or public;

vi)   the equality of parties concerning court proceedings;

vii)  nature;

viii)    inspection, control and supervision by public authorities;

ix)   the economic, monetary and exchange rate policies of the state;

x)     the confidentiality of deliberations within or between public authorities during the internal preparation of a matter.

It is not, however, legitimate to refuse to disclose information simply because it relates to one of these interests. According to the second part of the test, the disclosure must pose an actual risk of serious harm to that interest.[25]

The third part of the test states the need for a public interest override,[26] which requires that even if disclosure of a piece of information would lead to harm, the information should still be disclosed if withholding it would lead to a greater harm. An example of this would be 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. The need for a public interest override is recognised in Principle IV(2) of the CoE 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.[27]

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.[28] Requests are normally required to be in writing, although the law should also make provision for those who are unable meet this requirement, such as the blind or the illiterate – for example, by requiring the public body to assist them by reducing their request to writing. The law should set out clear timelines for responding to requests, which should be reasonably short. The response to a request should take the form of a written notice stating any fee and, where access to all or part of the information is denied, reasons for that denial along with information about any right of appeal. 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.[29]

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.[30] 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. 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.[31]

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.

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,[32] but practically every law does allow for some charges for access. Different laws take different approaches to fees. Some limit charges to the cost of reproducing documents, perhaps along with a set application fee. Others group requests into different categories, charging less for public interest or personal requests. Still others provide for the provision of a certain amount of information, for example 100 pages, 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.

PRINCIPLE 7. OPEN MEETINGS

“Meetings of public bodies should be open to the public.”

The ARTICLE 19 Principles include the idea of open meetings, 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 access to information law. If the principle of maximum disclosure is to be respected, the access to information law must take precedence over these laws.[33] This should, where possible, be achieved by interpreting these laws in a manner which is consistent with the access to information law. However, where potential conflicts cannot be resolved through interpretation, the provisions of the access to 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 which ensure that information will not be disclosed if doing so would cause unjustifiable harm; so there should be no need for this to be extended by secrecy laws.

Over time, a commitment should be made to review all laws which restrict the disclosure of information, with a view to bringing them into line with the freedom of information law.[34]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.[35] Protection of so-called whistleblowers provides an important information safety valve, ensuring that key information does indeed reach the public. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. In some countries, this protection is set out in a separate law rather than being included in the freedom of information law.

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.

[19] Commonwealth Freedom of Information Principles, agreed by the 11th Commonwealth Law Ministers Meeting, Trinidad and Tobago, May 1999, Principle 2.

[20] See the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 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, Articles 2(2)-(3).

[21] See the African Principles, note 29, Principle IV(2).

[22] See the UN Standards, note 305.

[23] See the Commonwealth Principles, note 318, Principle 4.

[24] See the Commonwealth Principles, note 318, Principle 3.

[25] See the UN Standards, note 305.

[26] See the Aarhus Convention, note 319, Article 4(4).

[27] Note 313.

[28] Id., Recommendation V.

[29] Id., Recommendation VII.

[30] See the Aarhus Convention, note 319, Article 9; African Principles, note 29, Principle IV(2); Commonwealth Principles, note 318, Principle 5; COE Recommendations, note 313, Recommendation IX; and the UN Standards, note 305.

[31] 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.

[32] See COE Recommendations, note 313, Recommendation VIII.

[33] UN Standards, note 305.

[34] See African Principles, note 29, Principle IV(2).

[35] See African Principle IV(2).