13 Dec 2017 18:13 pm

International Standards on the Right to Information

5 Feb 2013 15:03 pm - Asep Saefullah

Universal Declaration on Human Rights (UDHR)

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.

 

International Covenant on Civil and Political Rights (ICCPR)

Article 19 

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

 

“Article 19, paragraph 2 embraces a right of access to information held by public bodies.”

UN Human Rights Committee, General Comment No. 34, 12 September 2011, paragraph 18

 

 

European Convention on Human Rights (ECHR)

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

See: Társaság A Szabadságjogokért v. Hungary, 14 April 2009, Application no. 37374/05 and Kenedi v. Hungary, 26 May 2009, Application no. 31475/05 (European Court of Human Rights)

 

 

African Charter on Human and Peoples’ Rights (ACHPR)

Article 9 

1. Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

 

Declaration of Principles on Freedom of Expression in Africa

Adopted by the African Commission on Human and Peoples’ Rights in 2003

 

Principle IV: Freedom of Information

 

1. Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law.

2. The right to information shall be guaranteed by law in accordance with the following principles:

  • everyone has the right to access information held by public bodies;
  • everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
  • any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
  • public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
  • no one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society; and
  • secrecy laws shall be amended as necessary to comply with freedom of information principles.

3. Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

 

 

American Convention on Human Rights (ACHR)

Article 13. Freedom of Thought and Expression

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or

b. the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

 

“In respect of the facts of the present case, the Court considers that article 13 of the Convention, in guaranteeing expressly the rights to ‘seek’ and ‘receive’ ‘information’, protects the right of every person to request access to the information under the control of the State, with the exceptions recognised under the regime of restrictions in the Convention. Consequently, the said article encompasses the right of individuals to receive the said information and the positive obligation of the State to provide it, in such form that the person can have access in order to know the information or receive a motivated answer when for a reason recognised by the Convention, the State may limit the access to it in the particular case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied.”

Claude Reyes and Others v. Chile, 19 September 2006, Series C, No. 151, paragraph 77 (Inter-American Court of Human Rights)

 

Inter-American Declaration of Principles on Freedom of Expression

Adopted by the Inter-American Commission on Human Rights in 2000

1. Every person has the right to seek, receive and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. All people should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.

3. Every person has the right to access to 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.

 

Principles on the Right of Access to Information

Adopted by the Inter-American Juridical Committee in 2008

THE INTER-AMERICAN JURIDICAL COMMITTEE,

ACKNOWLEDGING the right of information as a fundamental human right which ensures access to the information controlled by public organs, including, within a reasonable timeframe, access to past archives;

CONSCIOUS of the decision of the Inter-American Court on Human Rights in re Claude and others v. Chile of September 19, 2006, in which it was decided that the right to the freedom of expression enshrined in Article 13 of the American Convention on Human Rights comprises the right to access to information;

BEARING IN MIND the resolutions of the OAS General Assembly entitled “Access to public information: strengthening of democracy”, AG/RES.1932 (XXXIII-O/03), AG/RES.2057 (XXXIV-O/04), AG/RES.2121 (XXXV-O/05), AG/RES.2252 (XXXVI-O/06), AG/RES.2288 (XXXVII-O/07), and AG/RES.2418 (XXXVIII-O/08); as well as the Study on Recommendations on Access to Information, submitted to the Commission of Legal and Political Affairs on April 24, 2008 (document CP/CAPJ-2599/08), in a work organized by the Department of International Law pursuant to the provisions contained in Resolution AG/RES.2288 (XXXVIII-O/07);

BEARING IN MIND the main international declarations on the right of access to information adopted by several intergovernmental organs and non-governmental organizations, including, among others, the principles of Article 19, The Right to Public Knowledge, The Lima Principles, The Ten Principles of the Right to Know of the Open Society Justice Initiative and the Atlanta Declaration and Plan of Action for the development of the right of access to information, under the auspices of the Carter Center;

EXPRESSING ITS SATISFACTION in view of the adoption and implementation of legislation on access to information by a growing number of States in the Americas, as well as the efforts by other States to adopt said legislation;

CONSIDERING the need to develop principles related to the right of access to information, particularly to support the drafting and implementation of legislation to make this right effective;

RESOLVES:

To adopt the following principles, which are interrelated and that should be construed in an integrated manner:

  1. In principle, all information is accessible. Access to information is a fundamental human right which establishes that everyone can access information from public bodies, subject only to a limited regime of exceptions in keeping with a democratic society and proportionate to the interest that justifies them. States should ensure full respect for the right to access to information through adopting appropriate legislation and putting in place the necessary implementation measures.
  2. The right of access applies to all public bodies, including the executive, legislative and judicial branches at all levels of government, constitutional and statutory bodies, bodies which are owned or controlled by government, and organizations which operate with public funds or which perform public functions.
  3. The right to access applies to all significant information, defined broadly to include everything which is held or recorded in any format or medium.
  4. Public bodies should disseminate information about their functions and activities – including, but not limited to, their policies, opportunities for consultation, activities which affect members of the public, their budget, and subsidies, benefits and contracts – on a routine and proactive basis, even in the absence of a specific request, and in a manner which ensures that the information is accessible and understandable.
  5. Clear, fair, non-discriminatory and simple rules should be put in place regarding the processing of requests for information. These should include clear and reasonable timelines, provision for assistance to be given to those requesting information, free or low-cost access, and does not exceed the cost of copying and sending the information, and a requirement that where access is refused reasons, including specific grounds for the refusal, be provided in a timely fashion.
  6. Exceptions to the right to access should be established by law, be clear and narrow.
  7. The burden of proof in justifying any denial of access to information lies with the body from which the information was requested.
  8. Individuals should have the right to appeal against any refusal or obstruction to provide access to information to an administrative jurisdiction. There should also be a right to bring an appeal to the courts on the full merits of the case against the decisions of this administrative body.
  9. Anyone who willfully denies or obstructs access to information in breach of the rules should be subject to sanction.
  10. Measures should be taken to promote, to implement and to enforce the right to access to information including creating and maintaining public archives in a serious and professional manner, training public officials, implementing public awareness-raising programmes, improving systems of information management, and reporting by public bodies on the measures they have taken to implement the right of access, including in relation to their processing of requests for information.

 

 

United Nations Convention against Corruption (UNCAC)

Article 10. Public reporting 

Taking into account the need to combat corruption, each State Party shall, in accordance with the fundamental principles of its domestic law, take such measures as may be necessary to enhance transparency in its public administration, including with regard to its organization, functioning and decision- making processes, where appropriate. Such measures may include, inter alia:

(a) Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public;

(b) Simplifying administrative procedures, where appropriate, in order to facilitate public access to the competent decision-making authorities; and

(c) Publishing information, which may include periodic reports on the risks of corruption in its public administration.

 

Article 13. Participation of society

1. Each State Party shall take appropriate measures, within its means and in accordance with fundamental principles of its domestic law, to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption. This participation should be strengthened by such measures as:

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes;

(b) Ensuring that the public has effective access to information;

(c) Undertaking public information activities that contribute to non- tolerance of corruption, as well as public education programmes, including school and university curricula;

(d) Respecting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption. That freedom may be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary:

(i) For respect of the rights or reputations of others;

(ii) For the protection of national security or ordre public or of public health or morals.

2. Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies, where appropriate, for the re- porting, including anonymously, of any incidents that may be considered to constitute an offence established in accordance with this Convention.

 

 

Council of Europe Convention on Access to Official Documents

(in part)

Section I

Article 1 – General provisions

1. The principles set out hereafter should be understood without prejudice to those domestic laws and regulations and to international treaties which recognise a wider right of access to official documents.

2. For the purposes of this convention:

a. (i) “public authorities” means:

1. government and administration at national, regional and local level; 
2. legislative bodies and judicial authorities in so far as they perform administrative functions according to national law; 
3. natural or legal persons in so far as they exercise administrative authority. 
(ii) Each Party may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that the definition of “public authorities” also includes one or more of the following: 
1. legislative bodies as regards their other activities; 
2. judicial authorities as regards their other activities; 
3. natural or legal persons in so far as they perform public functions or operate with public 
funds, according to national law.

b. “official documents” means all information recorded in any form, drawn up or received and held by public authorities.

 

Article 2 – Right of access to official documents

1. Each Party shall guarantee the right of everyone, without discrimination on any ground, to have access, on request, to official documents held by public authorities.

2. Each Party shall take the necessary measures in its domestic law to give effect to the provisions for access to official documents set out in this convention.

3. These measures shall be taken at the latest at the time of entry into force of this convention in respect of that Party.

 

Article 3 – Possible limitations to access to official documents

1. Each Party may limit the right of access to official documents. Limitations shall be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:

a. national security, defence and international relations; 
b. public safety; 
c. the prevention, investigation and prosecution of criminal activities; 
d. disciplinary investigations; 
e. inspection, control and supervision by public authorities; 
f. privacy and other legitimate private interests; 
g. commercial and other economic interests; 
h. the economic, monetary and exchange rate policies of the state; 
i. the equality of parties in court proceedings and the effective administration of Justice; 
j. environment; or 
k. the deliberations within or between public authorities concerning the examination of a matter.

Concerned states may, at the time of signature or when depositing their instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that communication with the reigning Family and its Household or the Head of State shall also be included among the possible limitations.

2. Access to information contained in an official document may be refused if its disclosure 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. The Parties shall consider setting time limits beyond which the limitations mentioned in paragraph 1 would no longer apply.

 

Article 4 – Requests for access to official documents

1. An applicant for an official document shall not be obliged to give reasons for having access to the official document.

2. Parties may give applicants the right to remain anonymous except when disclosure of identity is essential in order to process the request.

3. Formalities for requests shall not exceed what is essential in order to process the request.

 

Article 5 – Processing of requests for access to official documents

1. The public authority shall help the applicant, as far as reasonably possible, to identify the requested official document.

2. A request for access to an official document shall be dealt with by any public authority holding the document. If the public authority does not hold the requested official document or if it is not authorised to process that request, it shall, wherever possible, refer the application or the applicant to the competent public authority.

3. Requests for access to official documents shall be dealt with on an equal basis.

4. A request for access to an official document shall be dealt with promptly. The decision shall be reached, communicated and executed as soon as possible or within a reasonable time limit which has been specified beforehand.

5. A request for access to an official document may be refused:

(i) if, despite the assistance from the public authority, the request remains too vague to allow the official document to be identified; or 
(ii) if the request is manifestly unreasonable.

6. A public authority refusing access to an official document wholly or in part shall give the reasons for the refusal. The applicant has the right to receive on request a written justification from this public authority for the refusal.

 

Article 6 – Forms of access to official documents

1. When access to an official document is granted, the applicant has the right to choose whether to inspect the original or a copy, or to receive a copy of it in any available form or format of his or her choice unless the preference expressed is unreasonable.

2. If a limitation applies to some of the information in an official document, the public authority should nevertheless grant access to the remainder of the information it contains. Any omissions should be clearly indicated. However, if the partial version of the document is misleading or meaningless, or if it poses a manifestly unreasonable burden for the authority to release the remainder of the document, such access may be refused.

3. The public authority may give access to an official document by referring the applicant to easily accessible alternative sources.

 

Article 7 – Charges for access to official documents

1. Inspection of official documents on the premises of a public authority shall be free of charge. This does not prevent Parties from laying down charges for services in this respect provided by archives and museums.

2. A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs of reproduction and delivery of the document. Tariffs of charges shall be published.

 

Article 8 – Review procedure

1. An applicant whose request for an official document has been denied, expressly or implied, whether in part or in full, shall have access to a review procedure before a court or another independent and impartial body established by law.

2. An applicant shall always have access to an expeditious and inexpensive review procedure, involving either reconsideration by a public authority or review in accordance with paragraph 1.

 

Article 9 – Complementary measures

The Parties shall inform the public about its right of access to official documents and how that right may be exercised. They shall also take appropriate measures to:

a. educate public authorities in their duties and obligations with respect to the implementation of this right; 
b. provide information on the matters or activities for which they are responsible; 
c. manage their documents efficiently so that they are easily accessible; and 
d. apply clear and established rules for the preservation and destruction of their documents.

 

Article 10 – Documents made public at the initiative of the public authorities

At its own initiative and where appropriate, a public authority shall take the necessary measures to make public official documents which it holds in the interest of promoting the transparency and efficiency of public administration and to encourage informed participation by the public in matters of general interest.

 

Special International Mandates on Freedom of Expression

United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, Organization of American States (OAS) Special Rapporteur on Freedom of Expression and African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information

Joint Declaration of 26 November 1999

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.

Joint Declaration of 6 December 2004

On Access to Information

  • The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.
  • Public authorities should be required to publish pro-actively, even in the absence of a request, a range of information of public interest. Systems should be put in place to increase, over time, the amount of information subject to such routine disclosure.
  • Access to information is a citizens’ right. As a result, the procedures for accessing information should be simple, rapid and free or low-cost.
  • The right of access should be subject to a narrow, carefully tailored system of exceptions to protect overriding public and private interests, including privacy. Exceptions should apply only where there is a risk of substantial harm to the protected interest and where that harm is greater than the overall public interest in having access to the information. The burden should be on the public authority seeking to deny access to show that the information falls within the scope of the system of exceptions.
  • Public authorities should be required to meet minimum record management standards. Systems should be put in place to promote higher standards over time.
  • The access to information law should, to the extent of any inconsistency, prevail over other legislation.
  • Those requesting information should have the possibility to appeal any refusals to disclose to an independent body with full powers to investigate and resolve such complaints.
  • National authorities should take active steps to address the culture of secrecy that still prevails in many countries within the public sector. This should include provision for sanctions for those who wilfully obstruct access to information. Steps should also be taken to promote broad public awareness of the access to information law.
  • Steps should be taken, including through the allocation of necessary resources and attention, to ensure effective implementation of access to information legislation.

 

On Secrecy Legislation

  • Urgent steps should be taken to review and, as necessary, repeal or amend, legislation restricting access to information to bring it into line with international standards in this area, including as reflected in this Joint Declaration.
  • Public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control. Other individuals, including journalists and civil society representatives, should never be subject to liability for publishing or further disseminating this information, regardless of whether or not it has been leaked to them, unless they committed fraud or another crime to obtain the information. Criminal law provisions that don’t restrict liability for the dissemination of State secrets to those who are officially entitled to handle those secrets should be repealed or amended.
  • Certain information may legitimately be secret on grounds of national security or protection of other overriding interests. However, secrecy laws should define national security precisely and indicate clearly the criteria which should be used in determining whether or not information can be declared secret, so as to prevent abuse of the label “secret” for purposes of preventing disclosure of information which is in the public interest. Secrecy laws should set out clearly which officials are entitled to classify documents as secret and should also set overall limits on the length of time documents may remain secret. Such laws should be subject to public debate.
  •  “Whistleblowers” are individuals releasing confidential or secret information although they are under an official or other obligation to maintain confidentiality or secrecy. “Whistleblowers” releasing information on violations of the law, on wrongdoing by public bodies, on a serious threat to health, safety or the environment, or on a breach of human rights or humanitarian law should be protected against legal, administrative or employment-related sanctions if they act in “good faith”.

 

Joint Declaration of 3 February 2010

  1. Limits on the Right to Information

Over the past ten years, the right to information has been widely recognised as a fundamental human right, including by regional human rights courts and other authoritative bodies. Laws giving effect to this right have been passed in record numbers and this positive trend continues, with some 50 laws having been passed in the last ten years. However, major challenges remain. We are particularly concerned about:

  1. The fact that a majority of States have still not adopted laws guaranteeing the right to information.
  2. The weak laws in place in many States.
  3. The massive challenge of implementing the right to information in practice.
  4. The lack of openness around elections, when the need for transparency is particularly high.
  5. The fact that many intergovernmental organisations have not given effect to the right to information in relation to the information they hold as public bodies.
  6. The application of secrecy laws to journalists and others who are not public officials, for example to impose liability for publishing or further disseminating information which has been leaked to them.

 

2000 Annual Report of UN Special Rapporteur

B.  Access to information

 

42. In resolution 1999/36, the Commission on Human Rights invited the Special Rapporteur “to develop further his commentary on the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, and to expand on his observations and recommendations arising from communications”.  With this in mind, the Special Rapporteur wishes to state again that the right to seek, receive and impart information is not merely a corollary of freedom of opinion and expression; it is a right in and of itself.  As such, it is one of the rights upon which free and democratic societies depend.  It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to, for example, the realization of the right to development.

 

43. Clearly, there are a number of aspects of the right to information that require specific consideration.  The Special Rapporteur wishes to emphasize in this report, therefore, his continuing concern about the tendency of Governments, and the institutions of Government, to withhold from the people information that is rightly theirs in that the decisions of Governments, and the implementation of policies by public institutions, have a direct and often immediate impact on their lives and may not be undertaken without their informed consent.  The Special Rapporteur therefore endorses the set of principles that have been developed by the non‑governmental organization Article 19 - the International Centre against Censorship (see annex II).  These principles, entitled “The Public’s Right to Know:  Principles on Freedom of Information Legislation”, are based on international and regional law and standards, evolving State practice, and the general principles of law recognized by the community of nations.

 

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:

  • 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;
  • 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;
  • 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;
  • 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 non‑disclosure 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;
  • 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);
  • 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;
  • The law should establish a presumption that all meetings of governing bodies are open to the public;
  • 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;
  • 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.