Freedom of Information: An Internationally protected Human Right

Toby MENDEL ^*

1. Introduction

Freedom of information has been recognized not only as crucial to participatory democracy, accountability and good governance, but also as a fundamental human right, protected under international and constitutional law. Authoritative statements and interpretations by a number of international bodies, including the United Nations (UN), the Organization of American States (OAS), the Council of Europe (COE) and the Commonwealth, as well as national developments in countries around the world, amply demonstrate this.

Freedom of information has been recognised in Swedish law for more than two hundred years, but it is only in the last quarter of a century that it has gained widespread recognition, at both the national and the international levels. During this period governments all over the world, as well as intergovernmental organisations (IGOs) and international financial institutions, have implemented this right through the adoption of laws and policies.

The right to freedom of information refers primarily to the right to access information held by a wide range of public bodies. It reflects the principle that public bodies do not hold information on their own behalf, but rather for the benefit of all members of the public. Individuals should thus be able to access this information, unless there is an overriding public interest reason for denying access. However, the right to freedom of information goes beyond the passive right to access documents upon request, and includes a second element, a positive obligation by States to publish and widely disseminate key categories of information of public interest.

A third aspect of the right to freedom of information is starting to emerge, namely the right to truth. This refers to States' obligation to ensure that people know the truth about serious incidents of human rights abuse and other traumatic social events, such as a major rail disaster or sickness. In such cases, it is not enough for public authorities simply to provide access to their files, or even to actively publish key documents they hold. It is incumbent on the State to ensure that the matter is fully investigated and that the results of that investigation are made public. The most high-profile means of doing this is through a truth commission but numerous other means are also available, including commissions of inquiry.

The primary human rights or constitutional source of the right to freedom of information is the fundamental right to freedom of expression, which includes the right to seek, receive and impart information and ideas, although some constitutions also provide separate, specific protection for it. In a more general sense, it can also be derived from the recognition that democracy, and indeed the whole system for protection of human rights, cannot function properly without freedom of information. In that sense, it is a foundational human right, upon which other rights depend.

It is now clear that the right to freedom of information can only be effective if it is guaranteed by law, and if the modalities by which it is to be exercised are set out clearly in legislation or, for international governing bodies, in binding policy statements. Over time, authoritative statements, court decisions and national practices have elaborated certain minimum standards which such laws and policies must meet. These include, among other things:

a strong presumption in favour of disclosure (the principle of maximum disclosure);

broad definitions of information and public bodies;

positive obligations to publish key categories of information;

clear and narrowly drawn exceptions, subject to a harm test and a public interest override; and

effective oversight of the right by an independent administrative body.

The main section of this paper considers the growing body of authoritative statements and decisions recognising the right to information, including at the UN, OAS, COE and Commonwealth, as well as in relation to specific areas such as the environment. A short section on national developments - jurisprudential, constitutional and legislative - as well as the adoption of information disclosure policies by IGOs, follows. Finally, an analysis of the specific content of the right to freedom of information, as derived from these various developments, is provided.

2. International Standards

A number of international bodies with responsibility for promoting and protecting human rights have authoritatively recognised the fundamental and legal nature of the right to freedom of information, as well as the need for effective legislation to secure respect for that right in practice. These include the UN, the OAS, the COE and the Commonwealth. Collectively, this amounts to clear international recognition of freedom of information as a human right.

A. The United Nations

Within the UN, freedom of information was recognized early on as a fundamental right. In 1946, during its first session, the UN General Assembly adopted Resolution 59(1), which stated: "Freedom of information is a fundamental human right and... the touchstone of all the freedoms to which the UN is consecrated".¹

In ensuing international human rights instruments, freedom of information was not set out separately but as part of the fundamental right of freedom of expression, which includes the right to seek, receive and impart information.

The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948,² is generally considered to be the flagship statement of international human rights. Article 19, binding on all States as a matter of customary international law, guarantees the right to freedom of expression and information in the following terms: "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".

The International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty, was adopted by the UN General Assembly in 1966.³ The corresponding provision in this treaty, also Article 19, guarantees the right to freedom of opinion and expression in very similar terms to the UDHR.

In 1993, the UN Commission on Human Rights⁴ established the office of the UN Special Rapporteur on Freedom of Opinion and Expression, and appointed Abid Hussain, a post he has held since that time.⁵ Part of the Special Rapporteur's mandate is to clarify the precise content of the right to freedom of opinion and expression and he has addressed the issue of freedom of information in each of his annual reports since 1997. After receiving his commentary on the subject in 1997, the Commission called on the Special Rapporteur to "develop further his commentary on the right to seek and receive information and to expand on his observations and recommendations arising from communications".⁶

In his 1998 Annual Report, the Special Rapporteur stated clearly that freedom of information includes the right to access information held by the State: "[T]he 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...".⁷ His views were welcomed by the Commission.⁸

In November 1999, the three special mandates on freedom of expression - the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression - came together for the first time under the auspices of Article 19. They adopted a Joint Declaration which included the following statement:

Implicit in freedom of expression is the public's right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people's participation in government would remain fragmented.⁹

The UN Special Rapporteur significantly expanded his commentary on freedom of information in his 2000 Annual Report to the Commission, noting its fundamental importance not only to democracy and freedom, but also to the right to participate and realisation of the right to development.¹⁰ He also reiterated his "concern about the tendency of Governments, and the institutions of Government, to withhold from the people information that is rightly theirs".¹¹

Importantly, at the same time, the Special Rapporteur elaborated in detail on the specific content of the right to information. After noting the fundamental importance of freedom of information as a human right, the Special Rapporteur made the following observations:

44. On that basis, the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles. Among the considerations of importance are:

1. Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; "information" includes all records held by a public body, regardless of the form in which it is stored;

2. Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public;

3. As a minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information; the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government;

4. A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify nondisclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest;

5. All public bodies should be required to establish open, accessible internal systems for ensuring the public's right to receive information; the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s);

6. The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself;

7. The law should establish a presumption that all meetings of governing bodies are open to the public;

8. The law should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions; the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it;

9. Individuals should be protected from any legal, administrative or employment related sanctions for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body.¹²

The UN has also recognised the fundamental right to access information held by the State through its administration of the territory of Bosnia and Herzegovina. In 1999, the UN High Representative to Bosnia and Herzegovina¹³ required the various governments under his authority to adopt freedom of information legislation in accordance with the highest international standards, in order to implement in practice the right to freedom of expression.¹⁴

B. Organization of American States

Article 13 of the American Convention on Human Rights (ACHR),¹⁵ a legally binding treaty, guarantees freedom of expression in terms similar to, and even stronger than, the UN instruments. In a 1985 Advisory Opinion, the Inter-American Court of Human Rights, interpreting Article 13, recognised freedom of information as a fundamental human right, which is as important to a free society as freedom of expression. The Court explained:

Article 13 ... establishes that those to whom the Convention applies not only have the right and freedom to express their own thoughts but also the right and freedom to seek, receive and impart information and ideas of all kinds. [Freedom of expression] requires, on the one hand, that no one be arbitrarily limited or impeded in expressing his own thoughts. In that sense, it is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.¹⁶

The Court also stated: "For the average citizen it is just as important to know the opinions of others or to have access to information generally as is the very right to impart his own opinion", concluding that "a society that is not well-informed is not a society that is truly free".¹⁷

In 1994, the Inter-American Press Association, a regional NGO, organised the Hemisphere Conference on Free Speech, which adopted the Declaration of Chapultepec, a set of principles on freedom of expression.¹⁸ The principles explicitly recognise freedom of information as a fundamental right, which includes the right to access information held by public bodies:

2. Every person has the right to seek and receive information, express opinions and disseminate them freely. No one may restrict or deny these rights.

3. The authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector...

Although the Declaration of Chapultepec originally had no formal legal status, as Dr. Santiago Canton, the OAS Special Rapporteur for Freedom of Expression, has noted, it "is receiving growing recognition among all social sectors of our hemisphere and is becoming a major point of reference in the area of freedom of expression".¹⁹ To date, the Heads of State or Governments of 22 countries in the Americas, as well as numerous other prominent persons, have signed the Declaration.²⁰

The Special Rapporteur, whose Office was established by the Inter-American Commission on Human Rights in 1997,²¹ has frequently recognised that freedom of information is a fundamental right, which includes the right to access information held by public bodies. In his 1999 Annual Report to the Commission, he stated:

The right to access to official information is one of the cornerstones of representative democracy. In a representative system of government, the representatives should respond to the people who entrusted them with their representation and the authority to make decisions on public matters. It is to the individual who delegated the administration of public affairs to his or her representatives that belongs the right to information. Information that the State uses and produces with taxpayer money.²²

In October 2000, in an important development, the Commission approved the Inter-American Declaration of Principles on Freedom of Expression,²³ which is the most comprehensive official document to date on freedom of information in the Inter-American system. The Preamble reaffirms the aforementioned statements on freedom of information: "Convinced that guaranteeing the right to access to information held by the State will ensure greater transparency and accountability of government activities and the strengthening of democratic institutions...".

The Principles unequivocally recognise freedom of information, including the right to access information:

3. Every person has the right to access information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.

4. Access to information held by the state is a fundamental right of every individual. States have obligations to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.

It is, therefore, clear that in the Inter-American system, freedom of information is protected as a human right.

C. Council of Europe

The Council of Europe (COE) is an intergovernmental organisation, composed of 43 Member States. It is devoted to promoting human rights, education and culture. One of its foundational documents is the European Convention on Human Rights (ECHR),²⁴ which guarantees freedom of expression and information as a fundamental human right in Article 10. Article 10 differs slightly from guarantees found in Articles 19 of the UDHR and ICCPR, and Article 13 of the ACHR, in that it protects the right to "receive and impart", but not the right to "seek", information.

The European Court of Human Rights has considered claims for a right to receive information from public bodies in at least three key cases, Leander v. Sweden,²⁵ Gaskin v. United Kingdom²⁶ and Guerra and Ors. v. Italy.²⁷ In each case, the Court found that the guarantee of freedom of expression did not include a right to access the information sought. The following interpretation of the scope of Article 10 from Leander features in similar form in all three cases:

[T]he right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, in circumstances such as those of the present case, confer on the individual a right of access... nor does it embody an obligation on the Government to impart... information to the individual.²⁸

By using the words, "in circumstances such as those of the present case", the Court has not ruled out the possibility of a right to freedom of information under Article 10. However, given the specific nature of the requests which were rejected in these three cases (see details below), it would be a very limited right.

The Court did not, however, refuse to recognise a right of redress in these cases. Rather, in all three cases, it found that to deny access to the information in question was a violation of the right to a private and family life under Article 8 of the Convention.

In the first case, Leander, the applicant was dismissed from a job with the Swedish government on national security grounds, but was refused access to information about his private life, held in a secret police register, which had provided the basis for his dismissal. The Court held that the storage and release of the information, coupled with a refusal to allow the applicant an opportunity to refute it, was an interference with his right to respect for private life. The interference was, however, justified as necessary to protect Sweden's national security.²⁹

The Leander ruling was followed by Gaskin and then Guerra. In the former, the applicant, who as a child had been under the care of local authorities in the United Kingdom, had applied for but was refused access to case records about him held by the State. In Guerra, the applicants, who lived near a "high risk" chemical factory, complained that the local authorities in Italy had failed to provide them with information about the risks of pollution and how to proceed in event of a major accident.

In both Gaskin and Guerra, the Court held that there was no interference with the right to respect for private and family life, but that Article 8 imposed a positive obligation on States to ensure respect for such rights:

[A]lthough the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life.³⁰

In Gaskin, the Court held that the applicant had a right to receive information necessary to know and understand his childhood and early development, although that had to be balanced against the confidentiality interests of third parties who contributed information. Significantly, this placed a positive obligation on the government to establish an independent authority to decide whether access should be granted if a third party contributor is not available or withholds consent. Since it had not done so, the applicant's rights had been breached.³¹

In Guerra, the Court held that severe environmental problems may affect individuals' well-being and prevent them from enjoying their homes, and thereby interfere with their right to private and family life. As a result, the Italian authorities had a positive obligation to provide the applicants with the information necessary to assess the risks of living in a town near a high risk chemical factory. The failure to provide the applicants with that essential information was a breach of their Article 8 rights.³²

Although these decisions of the European Court did recognize a right of access to information, they are problematic. First, the Court has proceeded cautiously, making it clear that its rulings were restricted to the facts of each case and should not be taken as establishing a general principle.³³ Second, and more problematical, relying on the right to respect for private and family life places serious limitations on the scope of the right to access information. This is clear from the Guerra case, where it was a considerable leap to find, as the Court did, that severe environmental problems would affect the applicants' right to respect for their private and family life. Although the Court made that leap in Guerra, due to the clear demands of justice and democracy, it is far from clear that this will always be possible. In effect, the Court has backed itself into a corner. It would have been far more logical and coherent if the Court had simply recognised freedom of information as part of the right to freedom of expression.

In a separate set of developments, the political bodies of the Council of Europe have made important moves towards recognising the right to freedom of information as a fundamental human right. In 1981, the Committee of Ministers, the political decision-making body of the Council of Europe (composed of the Ministers of Foreign Affairs from each Member State) adopted Recommendation No. R(81)19 on the Access to Information Held by Public Authorities, which stated: "I. Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities...".³⁴

In 1994, the 4th European Ministerial Conference on Mass Media Policy adopted a Declaration recommending that the Committee of Ministers consider "preparing a binding legal instrument or other measures embodying basic principles on the right of access of the public to information held by public authorities".³⁵ Instead, the Committee of Ministers opted for a recommendation on access to information, which is expected to be finalised in spring 2002. The latest draft includes the following provisions:

III General principle on access to official documents

Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including national origin.

IV Possible limitations to access to official documents

1. 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 providing protection on:

i. national security, defence and international relations;

ii. public safety;

iii. 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. equality of parties concerning court proceedings;

vii. nature;

viii. inspection, control and supervision by public authorities;

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

x. confidentiality of deliberations within or between public authorities for an authority's internal preparation of a matter.

2. Access 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.

3. Member states should consider setting maximum time limits beyond which the limitations mentioned in paragraph 1 no longer would apply.

IX Review Procedure

1. An applicant whose request for a document has been refused, whether in part or in full, or dismissed, or has not been dealt with within the time limit set out in principle VI.3 shall have access to a review procedure before a Court of law or another independent and impartial body established by law.³⁶

D. The Commonwealth

The Commonwealth, a voluntary association of 54 countries based on historical links, common institutional and legislative frameworks and shared values, has taken concrete steps during the last decade to recognise human rights and democracy as a fundamental component of its value system. In 1991, it adopted the Harare Commonwealth Declaration which enshrined its fundamental political values, including respect for human rights and the individual's inalienable democratic right to participate in framing his or her society.³⁷

In March 1999, a Commonwealth Expert Group adopted a document setting out a number of principles and guidelines on the right to know and freedom of information as a human right, including the following:

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.³⁸

These principles and guidelines were adopted by the Commonwealth Law Ministers at their May 1999 Meeting.³⁹ The Communiqué from this Meeting was considered by the Committee of the Whole on Commonwealth Functional Co-operation whose report, later approved by the Heads of Government,⁴⁰ stated:

The Committee took note of the Commonwealth Freedom of Information Principles endorsed by Commonwealth Law Ministers and forwarded to Heads of Government. It recognized the importance of public access to official information, both in promoting transparency and accountable governance and in encouraging the full participation of citizens in the democratic process.⁴¹

E. Information on the Environment

During the last decade, there has been increasing recognition that access to information on the environment is key to sustainable development and effective public participation in environmental governance. The issue was first substantively addressed in the 1992 Rio Declaration on Environment and Development, in Principle 10:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes...⁴²

In 1998, as a follow-up to the Rio Declaration, Member States of the United Nations Economic Commission for Europe (UNECE) and the European Union signed the legally binding Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).⁴³ The Preamble, which sets out the rationale for the Convention, states in part:

Considering that, to be able to assert [the right to live in a clean environment] citizens must have access to information...

Recognizing that, in the field of environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns ...

The Convention, which is came into force in October 2001, will require State Parties to take legal measures to implement its provisions on access to environmental information.⁴⁴ Most of those provisions are set out in Article 4, which begins by stating in subsection (1): "Each Party shall ensure that ... public authorities, in response to a request for environmental information, make such information available to the public ... (a) Without an interest having to be stated".

The Convention recognises access to information as part of the right to live in a healthy environment,⁴⁵ rather than as a free-standing right. However, it is the first legally binding international instrument which sets out clear standards on the right to freedom of information.⁴⁶ For example, it requires States to adopt broad definitions of "environmental information" and "public authority",⁴⁷ to subject exceptions to a public interest test,⁴⁸ and to establish an independent body with the power to review any refusal to disclose information.⁴⁹ As such, it represents a very positive development in terms of establishing the right to information.⁵⁰

3. Global Trends

A. National Developments

The proposition that the right to information is a fundamental human right finds support in the constitutional recognition of this right in a number of countries, either through judicial interpretation of general guarantees of freedom of expression or through specific constitutional provisions. The former is of particular significance as national interpretations of constitutional guarantees of freedom of expression are of some relevance to understanding the content of their international counterparts.

a. Constitutional Interpretation

A number of senior courts in countries around the world have held that the right to access information is protected by the general constitutional guarantee of freedom of expression. For example, as early as 1969, the Supreme Court of Japan established in two high-profile cases the principle that shiru kenri (the "right to know") is protected by the guarantee of freedom of expression in Article 21 of the Constitution.⁵¹

In 1982, the Supreme Court of India ruled that access to government information was an essential part of the fundamental right to freedom of speech and expression in Article 19 of the Constitution:

The concept of an open Government is the direct emanation from the right to know which seems implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosures of information in regard to the functioning of Government must be the rule, and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the Court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest.⁵²

In South Korea, the Constitutional Court ruled in two seminal cases in 1989 and 1991 that there was a "right to know" inherent in the guarantee of freedom of expression in Article 21 of the Constitution, and that in certain circumstances the right may be violated when government officials refuse to disclose requested documents.⁵³

In some countries, notably the United States, national courts have been reluctant to accept that the guarantee of freedom of expression includes the right to access information held by the State. The US Supreme Court has held that the First Amendment of the Constitution, which guarantees freedom of speech and of the press, does not "[mandate] a right to access government information or sources of information within government's control".⁵⁴ However, this may be because the First Amendment is cast in exclusively negative terms, requiring Congress to refrain from adopting any law which abridges freedom of speech.⁵⁵ International, and most constitutional, protection for freedom of expression is more positive, recognising that in some cases State action is necessary to ensure respect in practice for the right to freedom of expression.

b. Specific Constitutional Provisions

A number of countries specifically include the right to information among the constitutionally guaranteed human rights. Sweden is an interesting example, as the whole of its Freedom of the Press Act, adopted in 1766, has constitutional status. This Act includes comprehensive provisions on freedom of information. During the last decade, many countries which have recently adopted multi-party systems, or are otherwise in transition to democracy, have explicitly included the right to freedom of information in their constitutions. Examples include Bulgaria (Article 41), Estonia (Article 44), Hungary (Article 61(1)), Lithuania (Article 25(5)), Malawi (Article 37), Moldova (Article 34), the Philippines (Article III(7)), Poland (Article 61), Romania (Article 31), the Russian Federation (Article 24(2)), South Africa (Section 32) and Thailand (Section 58).

In Latin America, constitutions have tended to focus on one important aspect of the right to information, namely the petition of habeas data, the right to access information about oneself, whether held by public or private bodies and, where necessary, to update or correct it. For example, Article 43 of the Constitution of Argentina states:

Every person shall have the right to file a petition (of habeas data) to see any information that public or private data banks have on file with regard to him and how that information is being used to supply material for reports. If the information is false or discriminatory, he shall have the right to demand that it be removed, be kept confidential or updated, without violating the confidentiality of news sources.

c. Freedom of Information Legislation

Freedom of information laws, giving practical effect to the right to access information, have existed for more than 200 years, but very few are more than 20 years old. However, there is now a veritable wave of freedom of information legislation sweeping the globe and, in the last ten years, numerous such laws have been passed, or are being developed, in countries in every region of the world. The history of freedom of information laws can be traced back to Sweden where, as noted above, freedom of information has been protected since 1766. Another country with a long history of freedom of information legislation is Colombia, whose 1888 Code of Political and Municipal Organization allowed individuals to request documents held by government agencies or in government archives. The USA passed a freedom of information law in 1967⁵⁶ and this was followed by legislation in Australia,⁵⁷ Canada⁵⁸ and New Zealand,⁵⁹ all in 1982.

A large number of countries have passed freedom of information laws since then including:

Asia: Hong Kong,⁶⁰ the Philippines,⁶¹ South Korea⁶² and Thailand.⁶³

Middle East: Israel.⁶⁴

Africa: South Africa.⁶⁵

Americas: Peru,⁶⁶ the Autonomous Government of the City of Buenos Aires,⁶⁷ Belize,⁶⁸ and Trinidad and Tobago.⁶⁹

Europe: Albania,⁷⁰ Bosnia and Herzegovina,⁷¹ Bulgaria,⁷² the Czech Republic,⁷³ Estonia,⁷⁴ Georgia,⁷⁵ Hungary,⁷⁶ Latvia,⁷⁷ Lithuania,⁷⁸ Moldova,⁷⁹ Slovakia,⁸⁰ Russia,⁸¹ Ukraine⁸² and the United Kingdom.⁸³

In addition, a number of States in all regions have prepared and are considering draft legislation. There is, therefore, a very significant global trend towards adopting freedom of information legislation.

B. Intergovernmental Organisations

These national developments find their parallel in the adoption of information disclosure policies by a growing number of inter-governmental organisations (IGOs). Many IGOs, which for most of their existence operated largely in secret, or disclosed information purely at their discretion, are now acknowledging that public access to the information that they hold is a right, not a privilege. A significant milestone in this process was the adoption of the 1992 Rio Declaration on Environment and Development, which put enormous pressure on international institutions to implement policies on public participation and access to information.

Since the adoption of the Rio Declaration, the World Bank⁸⁴ and all four regional development banks - the Inter-American Development Bank,⁸⁵ the African Development Bank Group,⁸⁶ the Asian Development Bank⁸⁷ and the European Bank for Reconstruction and Development⁸⁸ - have adopted information disclosure policies. Although the World Bank's Policy is flawed in important respects, the Bank has taken concrete steps to review it - in 1995, 1997, 1998, 1999 and 2001 - resulting in progressively more openness and an increase in the number of documents subject to disclosure. The regional development banks have largely followed the World Bank's lead and the disclosure policies that they have adopted are very similar.

In 1997, the United Nations Development Programme (UNDP) also adopted a Public Information Disclosure Policy, on the basis that information is key to sustainable human development and also to UNDP accountability.⁸⁹ The Policy enumerates specific documents that shall be made available to the public and provides for a general presumption in favour of disclosure, subject to a number of exceptions.⁹⁰ In terms of process, the Policy establishes a Publication Information and Documentation Oversight Panel which can review any refusal to disclose information. The Panel consists of five members - three UNDP professional staff members and two individuals from the not-for-profit sector - appointed by the UNDP Administrator.⁹¹

In May 2001, the European Parliament and the Council of the European Union adopted a regulation on access to European Parliament, Council and Commission documents.⁹² Article 2(1) states: "Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation."

The Regulation has several other positive features, including a narrow list of exceptions, all of which are subject to a harm test. The Regulation also provides for an internal review of any refusal to disclose information, as well as an appeal to the courts and/or the Ombudsman.⁹³ However, there are also problems with the Regulation. For example, some key exceptions are not subject to a public interest override.⁹⁴ Furthermore, the Regulation allows a Member State to require other States not to disclose documents without its prior approval.⁹⁵

4. The Content of the Right to Information

It is now clear that individuals do have a human right to freedom of information. The specific content of that right has been elaborated by a number of authoritative sources, including the detailed statements of the UN Special Rapporteur on Freedom of Opinion and Expression,⁹⁶ as well as the draft Recommendation of the Council of Europe.⁹⁷ The content can also be derived from the Aarhus Convention, the many national laws on freedom of information and the policies and guidelines of IGOs.

The exceptions are often the most controversial aspect of a freedom of information law or policy and an excessively broad or subjective exceptions regime can fundamentally undermine an otherwise good law. A table setting out the exceptions regime in access to information systems of different countries and bodies - the UK, Japan, South Africa, the World Bank Australia, Canada, Ireland, New Zealand, the USA - is found in the Appendix. If some countries manage effectively without a given exception, the legitimacy or necessity of it in other countries needs to be questioned.

Article 19 has set out the international standards and best practice on freedom of information legislation in The Public's Right to Know: Principles on Freedom of Expression Legislation.⁹⁸ These standards were endorsed by the UN Special Rapporteur in his 2000 Annual Report.⁹⁹ The OAS Special Rapporteur has also endorsed them, describing them as "the fundamental basis and criteria to secure effective access to information".¹⁰⁰ The Principles may be summarised as follows:

Nine Principles Underpinning Freedom of Information Legislation

Principle 1: Maximum Disclosure - Freedom of Information (FOI) legislation should be guided by the principle of maximum disclosure, which involves a presumption that all information held by public bodies is subject to disclosure and that exceptions apply only in very limited circumstances. Exercising the right to access information should not require undue effort and the onus should be on the public authority to justify any denials.

Principle 2: Obligation to Publish - Freedom of information requires public bodies to do more than accede to requests for information. They must also actively publish and disseminate key categories of information of significant public interest. This obligation covers information about the public body, including operational information, finances, information on complaints, procedures for public input and any decisions affecting the public.

Principle 3: Promotion of Open Government - FOI legislation needs to make provision for informing the public about their access rights and promoting a culture of openness within the government. At a minimum, the law should make provisions for public education and dissemination of information regarding the right to access information, the scope of information available and the manner in which rights can be exercised. In addition, to overcome the culture of secrecy in government, the law should require training for public employees and encourage the adoption of internal codes on access and openness.

Principle 4: Limited Scope of Exceptions - Requests for information should be met unless the public body shows that the information falls within a narrow category of exceptions. The exceptions regime should conform to the following three-part test:

-The information must relate to a legitimate aim listed in the law;

-Disclosure must threaten substantial harm to that aim; and

-The harm must be greater than the public interest in disclosure.

Principle 5: Processes to Facilitate Access - All requests for information should be processed quickly and fairly by individuals within the public bodies responsible for handling requests. In the case of denial, a procedure for appeal to an independent administrative body, and from there to the courts, should be established.

Principle 6: Costs - The cost of access to information should never be so high that it deters requests. Public interest requests should be subject to lower fees, while higher fees may be charged for commercial requests.

Principle 7: Open Meetings - FOI legislation should establish the presumption that all meetings of governing bodies are open to the public, so that the public is aware of what the authorities are doing and is able to participate in decision-making processes. Meetings may be closed, but only where this can be justified and adequate reasons are provided. To facilitate attendance, adequate notice of meetings should be provided.

Principle 8: Disclosure Takes Precedence - Other legislation should be interpreted in a manner that renders it consistent with the disclosure requirements of the FOI legislation. In particular, in case of a conflict between the FOI law and a secrecy law, the former should prevail.

Principle 9: Protection for Whistleblowers - FOI legislation should include provisions protecting individuals from legal, administrative or employment-related sanctions for releasing information on wrongdoing.

5. Conclusion

As this paper has shown, freedom of information is now widely recognised as a fundamental human right, most commonly as an aspect of the right to freedom of expression. This is clear from the numerous authoritative statements to this effect, as well as the policy and practice of national governments, IGOs and international financial institutions. Freedom of information most prominently includes the right to access information held by public bodies, upon request. However, it is now clear that it goes beyond this, placing a positive obligation on public bodies to actively publish and widely disseminate key categories of information. Human rights are not, however, static, and freedom of information is increasingly being understood as including a right to truth, which imposes a positive obligation on States to ensure that citizens know the truth about serious incidents of human rights abuse and other traumatic social events.

No democratic government can now seriously seek to deny members of the public the right to freedom of information. Indeed, the rapid proliferation of freedom of information laws among IGOs, and in countries in all regions of the world, is a dramatic global trend and one of the most important democratic developments of recent times.

Notes:
* Article 19, London, U.K.
1 14 December 1946.
2 Resolution 217 A (III), 10 December 1948.
3 Resolution 2200 A (XXI), 16 December 1966, entered into force 23 March 1976.
4 The Commission was established by the UN Economic and Social Council (ECOSOC) in 1946 to promote human rights and is composed of 53 representatives of the UN Member States, rotating on a three-year basis. It is the most authoritative UN human rights body and meets annually for approximately six weeks to discuss and issue resolutions, decisions and reports on a wide range of country and thematic human rights issues.
5 Resolution 1993/45, 5 March 1993.
6 Resolution 1997/27, 11 April 1997, para. 12(d).
7 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1998/40, 28 January 1998, para. 14.
8 Resolution 1998/42, 17 April 1998, para. 2.
9 26 November 1999.
10 Report of the Special Rapporteur, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/2000/63, 18 January 2000, para. 42.
11 Ibid., para. 43.
12 Ibidem, para. 44.
13 A mandate established by UN Security Council Resolution 1031, 15 December 1995, in accordance with the Dayton Peace Agreement.
14 Decision of the High Representative, Decisions on the restructuring of the Public Broadcasting System in BiH and on freedom of information and decriminalisation of libel and defamation, 30 July 1999. The Freedom of Access to Information Act was adopted by the Bosnia and Herzegovina State Government in October 2000, by the Republika Srpska Government in May 2001, and by the Government of the Bosnia and Herzegovina Federation in June 2001.
15 Adopted at San José, Costa Rica, 22 November 1969, entered into force 18 July 1978.
16 Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985, para. 30.
17 Ibidem, paras. 32, 70.
18 Mexico City, 11 March 1994.
19 Annual Report of the Inter-American Commission on Human Rights 1998, Volume III, Report of the Office of the Special Rapporteur for Freedom of Expression, 16 April 1999, OEA/Ser.L/V/II.102, Doc. 6 rev., Chapter III.
20 The countries are Argentina, Bolivia, Belize, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Uruguay, and the USA.
21 See IACHR Press Release No. 2/98, 6 March 1998, paras. 14-15.
22 Note 19, p. 24.
23 108th Regular Session, 19 October 2000.
24 E.T.S. No. 5, adopted 4 November 1950, entered into force 3 September 1953.
25 26 March 1987, Application No. 9248/81, 9 EHRR 433.
26 7 July 1989, Application No. 10454/83, 12 EHRR 36.
27 19 February 1998, Application No. 14967/89.
28 Leander, para. 74.
29 Leander, paras. 48, 67.
30 Guerra, para. 58.
31 Gaskin, para. 49.
32 Guerra, para. 60.
33 See, for example, Gaskin, para. 37.
34 25 November 1981, p. 2.
35 Declaration on Media in a Democratic Society, DH-MM (95) 4, 7-8 December 1994, para. 16.
36 Draft Recommendation No R (...) of the Committee of Ministers to Member States on access to official information, adopted by the CDHH at its 52nd meeting, 6-9 November 2001.
37 Commonwealth Heads of Government Meeting, 20 October 1991, paras. 4 and 9. See also the Millbrook Commonwealth Action Programme, Commonwealth Heads of Government Meeting, 12 November 1995.
38 Quoted in "Promoting Open Government: Commonwealth Principles and Guidelines on the Right to Know", background paper for the Commonwealth Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development, London, 30-31 March 1999.
39 Communiqué, Meeting of Commonwealth Law Ministers, Port of Spain, 10 May 1999, para. 21.
40 The Durban Communiqué, Commonwealth Heads of Government Meeting, Durban, 15 November 1999, para. 57.
41 Communiqué, Commonwealth Functional Co-operation Report of the Committee of the Whole, Commonwealth Heads of Government Meeting, Durban, 15 November 1999, para. 20.
42 UN Doc. A/Conf.151/26, vol. 1.
43 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.
44 Ibidem, Article 3(1).
45 Ibidem, Article 1.
46 See The Public's Right to Know: Principles on Freedom of Expression Legislation. The Principles may be found in the Appendix to this Report.
47 Ibid., Articles 2(2)-(3).
48 Ibid., Article 4(4).
49 Ibid., Article 9.
50 For the most part, the standards set out in the Convention are consistent with The Public's Right to Know: Principles on Freedom of Expression Legislation. A summary of the Principles may be found at the end of this section. They are on Article 19's website in full, see: www.article19.org/docimages/512.htm.
51 Repeta, L., Local Government Disclosure Systems in Japan, National Bureau of Asian Research, Paper Number 16, October 1999, p. 3.
52 S.P. Gupta v. President of India [1982] AIR (SC) 149, p. 234.
53 Sung Nak-in, Korea Country Report (English summary), presented at the Asian Conference on Civil Society and Access to Government-Held Information, Tokyo, Japan, 13-14 April 2001.
54 Houchins v. KQED, Inc., 438 US 1, 1978, p. 15.
55 The relevant part of the First Amendment states: "Congress shall make no law ... abridging the freedom of speech, or of the press, or of the right of the people to peacefully assemble, and to petition the Government for a redress of grievances".
56 USC Title 5, Section 552.
57 Freedom of Information Act, 1982.
58 Access to Information Act, Chapter A-1.
59 Official Information Act, 1982.
60 Code on Access to Information, March 1995.
61 Code of Conduct and Ethical Standards for Public Officials and Employees, Republic Act 6713, 1987.
62 Act on Disclosure of Information by Public Agencies, 1998.
63 Official Information Act, December 1997.
64 Freedom of Information Law, Law 5758-1998, May 1998.
65 Promotion of Access to Information Act, Act No. 2, 2000.
66 Law N 26301, 2 May 1994, implementing the constitutional right to habeas data.
67 Law No. 104, 1998.
68 Freedom of Information Act, 1994.
69 Freedom of Information Act, 1999.
70 Law No. 8503 on the right to information about official documents, 1999.
71 The Freedom of Access to Information Act, October 2000.
72 Access to Public Information Act, 2000.
73 Freedom of Information Law, 1999.
74 Public Information Act, 2000.
75 Law of Georgia on Freedom of Information, 1998.
76 Act No. LXIII of 1992 on the Protection of Personal Data and the Publicity of Data of Public Interest.
77 Law on Freedom of Information, 1998.
78 Law on the Right to Receive Information from the State and Municipal Institutions, 2000.
79 The Law on Access to Information, 2000.
80 Act on Free Access to Information and Amendments of Certain Acts (The Freedom of Information Act).
81 Law on Information, Disclosure and Protection of Information, 25 January 1995, Act No. 24-FZ.
82 Law on Information, 2 October 1992, Law No. 2657-XII.
83 Freedom of Information Act, 2000, Chapter 36.
84 The World Bank Policy on the Disclosure of Information, World Bank, Washington, D.C., 1994.
85 OP-102 Disclosure of Information, Inter-American Development Bank, December 1994.
86 Disclosure of Information Policy, African Development Bank Group.
87 Confidentiality and Disclosure of Information, Asian Development Bank, August 1994.
88 Policy on Disclosure of Information, European Bank for Reconstruction and Development, 1996.
89 Public Information Disclosure Policy, UNDP, 1997. See para. 3.
90 Paras. 6, 11-15.
91 Paras. 20-23.
92 Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.
93 Articles 7 and 8.
94 Article 4(1).
95 Articles 4(5) and 9. The Regulation has been harshly criticised by some freedom of information watchdog groups. See, for example, European Citizens Action Service, European Environmental Bureau, European Federation of Journalists, the Meijers Committee, and Statewatch, "Open letter from civil society on the new code of access to documents of the EU institutions," 2 May 2001.
96 Quoted above. See note 10, para. 44.
97 Note 36.
98 Article 19, London, June 1999. Online at www.article19.org/docimages/ 512.htm.
99 Note 10, para. 43.
100 Annual Report of the Inter-American Commission on Human Rights 1999, Volume III, Report of the Office of the Special Rapporteur for Freedom of Expression, 13 April 2000, OEA/Ser.L/V/II.106, Doc. 3. rev, p. 27.