2002 FOI update: International access developments
Governments around the world increasingly are becoming more transparent. More than 40 countries now have adopted comprehensive laws to facilitate access to records and such efforts are pending in 30 others. This growth in transparency is in response to demands by civil society organizations, the media and international lenders.
While freedom-of-information laws existed as far back as Sweden’s 1766 Freedom of the Press Act, the last decade has been the greatest period toward adopting FOI laws around the world. During that period, many new democracies’ constitutions included a specific right of access, which required adoption of new laws, and, other, longer-established democracies finally adopted such legislation. International bodies such as the Council of Europe and the Organization of American States have drafted guidelines or model legislation to promote freedom of information. The World Bank, the International Monetary Fund and others are pressing countries to adopt laws to reduce corruption.
In addition, countries also have adopted other laws that provide limited access, including data protection laws that allow individuals to access their own records held by government agencies and private organizations, specific statutes that give rights of access in certain areas such as health or the environment, and codes of practices.
This trend is not limited to western, industrialized countries. Many countries in Eastern and Central Europe, Africa and Asia are reviewing proposals to adopt comprehensive acts. In Western Europe, only Germany and Switzerland lack such legislation. Nearly all central and eastern European countries have adopted laws as part of their transition into democracies. Nearly a dozen Asian countries have either adopted laws or are on the brink of doing so. In South and Central America, nearly a dozen countries are considering laws. Africa is also catching up; many countries in southern and central Africa are following South Africa’s lead, with varying proposals.
The mere existence of an act does not always mean that access is possible. In many countries, the access and enforcement mechanisms are weak or unenforceable. Governments resist releasing information, causing long delays, or impose large fees. Courts undercut legal requirements. And users give up hope and stop making requests. Independent bodies are weakened by lack of funds. In other countries such as Zimbabwe, laws have been enacted that are more related to censorship than freedom of information.
There has also been some backsliding. Since the tragic events of Sept. 11, there has been an effort on the part of some developed countries to limit access to government information. This has been most profound in the United States and Canada. In the United Kingdom, implementation of the long awaited FOI act has been delayed until 2005.
Article 23 of the 1998 constitution provides a right of access.
The Law on the Right of Information on Official Documents was enacted in June 1999. The law allows all persons to request information in official documents. This includes personal information on people exercising state functions relating to the performance of their duties. Authorities also have an obligation to publish information about their location, functions, rules and methods and procedures. Documents that have been previously released to another requester that the public authority estimates to be important to others, must also be published. There are no exceptions in the law for withholding, and documents can only be withheld if another law restricts their disclosure.
The people’s advocate is in charge of implementation of the law. Under the statute setting up the office, the advocate is an independent office elected by three-fifths of the Parliament for a five-year term. The advocate can receive complaints and conduct investigations. As part of an investigation, he can demand classified information from government bodies. Once he has completed an investigation, the advocate can recommend or propose changes to the government body, a criminal investigation, court actions and the dismissal of officials for serious offenses.
Article 43 of the constitution, enacted in 1994, provides a right of habeas data for individuals to obtain information concerning them by government agencies.
A freedom-of-information bill is currently being developed by the Ministry of Justice. A first draft has been released and public comments were solicited until August 2001. However, because of the political and economic turmoil, the bill is not expected to be adopted in the near future.
The 1982 federal Freedom of Information Act provides for access to government records. The act requires that government departments respond to requests within 30 days. The commonwealth ombudsman promotes the act and handles complaints about procedural failures. Merits review (appeals) of adverse FOI decisions is provided by the Administrative Appeals Tribunal, with the possibility of further appeals on points of law to the Federal Court.
Budget cuts have severely restricted the capacity of the Attorney General’s Department and Ombudsman to support the act, and there is now little central direction, guidance or monitoring.
There are many criticisms of the effectiveness of the act. The Australian Law Reform Commission and the Administrative Review Council released a report in January 1995 calling for substantial changes to be made to the FOIA to improve it. The review called for the creation of an office of FOI commissioner, making the act more pro-disclosure, limiting exemptions, reviewing secrecy provisions, and limiting fees.
In June 1999, the commonwealth ombudsman found “widespread problems in the recording of FOI decisions and probable misuse of exemptions to the disclosure of information under the legislation” and recommended changes to the act and the creation of an oversight agency.
To date, there have been several bills introduced in Parliament but no substantive changes in the act.
Bosnia and Herzegovina
The Freedom of Information Act was adopted in October 2000 in Bosnia-Herzegovina and in Republika Srpska in May 2001 and went into effect in February 2002. The law was adopted after Carlos Westendorp, the high representative for Bosnia and Herzegovina, ordered that a freedom-of-information bill be developed in July 1999. The draft was released in June 2000.
The act covers “all government and administrative departments, agencies and related bodies, the courts, and bodies set up by statute that perform a public function.” It also provides for a broad right of access by any person or legal entity, both in and outside of Bosnia.
Information can be withheld for three reasons:
- For causing “substantial harm” to the “legitimate aim” of foreign policy, defense, or security interests, monetary policy, the protection of public safety, crime prevention or investigation, or the protection of the deliberative process”;
- to “protect sensitive commercial information or trade secrets that a public authority may have access to for whatever reason”;
- and to protect personal privacy.
A “public interest test” will be applied to any exemption. The public interest test requires the public authority to release information, even though it has claimed an exemption, if the public benefit in disclosure of the information outweighs any harm that may be caused from disclosure.
An information ombudsman will be created to hear appeals. Requesters can also appeal internally and challenge decisions in court.
Article 41 of the Bulgarian Constitution of 1991 provides for a right of information.
The Access to Public Information Act was enacted in June 2000. The law allows for access to records held by state institutions and other entities funded by the state budget. Requests must be reviewed within 14 to 30 days. Government bodies have a duty to publish information.
Information that can be withheld includes personal information about an individual, state or official secrets, confidential material, or draft and pre-decisional materials. Denials can be appealed to the regional court of the Supreme Administrative Court. Minor fines can be levied against government officials who do not follow the requirements of the act.
In February 2002, Bulgarian president Georgi Purvanov declassified minutes of the National Security Consultative Council relating to the 1997 political crisis.
The Access to Information Act enacted in 1983 was amended as part of the Terrorism Act in November 2001. The original government proposals would have authorized the attorney general of Canada to “at any time personally issue a certificate that prohibits the disclosure of information for the purpose of protecting international relations or national defence or security.” There would be no review of this order by the information commissioner or the federal courts.
This provision was strongly criticized by the federal and provincial information commissioners, press groups, and the Canadian Bar Association. It was described by general counsel of the information commissioner as “unprecedented in common law.”
The final amendments allow the attorney general to prevent release of information ordered by the IC with limited judicial review. The information commissioner testified in December 2001 that he believed that the amendments did not resolve his concerns that it could be used to prevent investigations and described the review as “so limited as to be fruitless for any objector and demeaning to the reviewing judge.”
The information commissioner has become increasingly critical of the government’s efforts on access to information. He began his 1999-2000 annual report with “Mayday — Mayday.” The commissioner issued detailed recommendations in his 2000-2001 report on improving the act. He pointed out that while the act still could be considered a success, there were persistent problems in the areas of delay, excessive secrecy and improprieties such as improper records-handling practices, using fees as barriers to access, inadequate searches and political interference.
There is also concern about the growing number of quasi-government organizations that have been created by the government to perform public functions but which operate outside the law.
The government established an Access to Information Review Task Force in August 2000. According to the Justice Ministry, the task force will “have a mandate to review all components of the Access to Information framework, including the Act, Regulations, policies and procedures.” The task force has released a series of papers and is expected to release a final report shortly.
Council of Europe
The Council of Europe released its “Recommendations to member states on access to official documents” in February 2002. The recommendations call for member countries of the CoE to guarantee the right of access by the public to government bodies and others providing public functions.
The access should be to all information linked to an administrative or public function except for drafts recorded “in any form drawn up, received and held by public authorities and linked to any administrative function.” Fees should be limited to the cost of copying the document and access at the agency to the original should be free of charge.
Access would be denied to protect national security, defense and international relations, public safety, investigation of criminal activities, privacy, commercial interests, court proceedings, nature, inspection control and supervision by public authorities, economic monetary and exchange rate policies and the confidentiality of deliberations during preparation of a matter. The state should require that harm is shown and that there is no overriding public interest in the disclosure.
The recommendations call for access to a review process “before a court of law or another independent and impartial body” but do not call for the creation of independent commissions that are available in many countries to oversee and enforce the acts.
Countries should also inform the public of their rights, train public officials, manage documents efficiently, set clear rules for preservation and promote release of information and make information public on its own initiative.
In Article 255 of the Treaty of Amsterdam, there is a general right of access to documents. The new regulations on access under Article 255 were issued in May 2001 and went into effect in December 2001 following a contentious and controversial “trialogue” process between the Council, Commission and Parliament.
In 2001, the Commission issued its proposal without public consultation. Jacob Söderman, the European Union ombudsman, called the Commission’s proposal “a list of exemptions from access without precedent in the modern world … there probably won’t be a document in the EU’s possession that couldn’t legally be withheld from public scrutiny.”
Graham Watson, the chair of the Committee on Citizens’ Freedoms and Rights in the European Parliament described the effectiveness exemption as “effectively a double exclusion of internal documents” and as “both excessive and unnecessary in a modern public administration.”
The new regulation limits access to many records under exemptions in the 1993 code and creates additional exemptions for materials, including documents that would impede the “effectiveness of the institution’s decision-making process.”
In July 2000, the Council imposed new security regulations proposed by Javier Solana, the EU High Representative for common foreign and security policy and secretary-general of the Council of the European Union. The new regulations severely limited access to records relating to security, defense, military and non-military crises management. The Dutch government announced that it would challenge the decision in the European Court of Justice.
In March 2001, the Council adopted a proposal to change the Council’s classification codes to those set by NATO. The European Parliament challenged the Council’s regulation in July 2001 for violating Article 255.
The ombudsman issued a number of decisions in 2001 critical of EU bodies for failing to release information, including a report in December 2001 critical of the Council of Ministers’ failure to provide access to documents related to justice and home affairs.
There is no general federal freedom-of-information act in Germany. A draft bill was introduced in 2001. The Ministry of Interior is hosting a discussion forum on its Web site.
A 1990 law allows for access to the files of the Stasi, East Germany’s former security service, by individuals and researchers. The law created a Federal Commission for the Records of the State Security Services of the Former GDR (the Gauck Authority), which has a staff of 3,000 piecing together shredded documents and making files available.
The Land of Brandenberg adopted a freedom-of-information law in 1998 to allow citizen access to government records. The act is enforced by the information and data protection commissioner.
More recently, Berlin, Schleswig Holstein and North Rhine-Westphalia have also adopted FOI laws. The parliaments in Baden-Württemberg, Bavaria, Hesse and Saxony have voted against FOI laws.
The Supreme Court ruled in 1982 that access to government information was an essential part of the fundamental right to freedom of speech and expression.
A draft Freedom of Information Act was introduced into the Parliament in July 2000. The bill would provide a general right to access information and create a National Council for Freedom of Information and State Councils. It contains seven broad categories of exemptions. The draft was heavily criticized by campaigners who said that the bill provided only limited access to government records. The National Centre for Advocacy Studies said, “Many of the aspects towards information availability have been left completely in the hands of bureaucrats, which defeats the very purpose of the bill.” The bill is still pending.
Many of the states in India have enacted FOI acts since 1997. These include Goa, Tamil Nadu, Madhya Pradesh, Karnataka, Gujarat, Maharashtra, Delhi and Rajasthan. Uttar Pradesh has adopted a Code of Practice on Access to Information.
State Minister for Communication and Information Syamsul Mu’arif said in December 2001 that the government was drafting a transparency and freedom-of-information bill that would be submitted to the Parliament in early 2002. He said the bill would penalize officials who refused to provide information to the public.
Government Regulation 68/1999 requires state administrators who receive requests for information to disclose it. However, this has been described by commentators as having so many loopholes to the point of allowing the Attorney General’s Office to claim that it does not include anything written on official stationery.
The Coalition for Information Freedom, a group of 17 non-government organizations, released a draft FOI act in February 2001. The draft act sets broad rights for access by any person to information held by government agencies, legislative and judicial bodies, state-owned companies, NGOs getting public funding for activities and private companies conducting government activities.
The Parliament is currently considering the Access to Information Act, 2001. It creates a general right of access to records created within seven years of its enactment. Security and intelligence services are excluded. Appeals are heard internally and then go to an Appeal Tribunal. The draft also allows for ministers to issue a “conclusive certificate” to withhold information that could not be appealed to a court.
A Federal Law of Transparency and Access to the Information was presented to the Parliament by the secretariat of government on Nov. 30, 2001. The law would allow for access to records held by government bodies and create an independent body to oversee the act.
During his election campaign, President Vicente Fox called for FOI. On his radio program on Oct. 27, 2001, he said that the government wanted “total transparency” and supported a FOI law.
Article 34 of the constitution provides for a right of access to information. In addition Article 37 on the environment also provides for a right to information.
The “Law on Access to Information” was approved by the Parliament in May 2000 and went into force in August 2000. Under the law, “Any person has the right to seek, obtain and publish information of any kind.” Institutions must respond within 15 days.
Under the law, officials can withhold information for respecting other people’s rights and reputation; protection of national security or public order, as well as public health or morals; information falling under the category of state secrets, regulated by organic law and qualified as information protected by the state and related to its military, economic, technical-scientific, foreign policy, intelligence, counterintelligence and investigation activities; confidential business information submitted to public institutions under conditions of confidentiality; personal data, personal and medical files whose disclosure may be considered as interference with one’s private life, which is protected by the current legislation; information related to the investigative activity of the corresponding bodies; information that represents the final or intermediary results of scientific and technical research; and information whose disclosure may affect the environment, as provided by law.
Denials or delays can be appealed “with hierarchically superior bodies, parliamentary advocates, as well as in court.”
The Centre for Promotion of the Freedom of Expression and Access to Information released a survey in November 2001 describing the act as a “dead letter.”
Article 61 of the constitution provides a right of access and mandates that the Parliament enact a law setting out this right.
The Parliament approved the Law on Public Information in August 2001. It went into effect in January 2002.
Poland enacted the Classified Information Protection Act in January 1999 as a condition to entering NATO. The act prohibits disclosure of classified information or information collected by government agencies that “might damage interests of the state, public interests, or lawfully protected interests of citizens or of an organization.”
There have also been efforts to deal with the files and former employees of the communist-era secret police. A law creating a National Remembrance Institute (IPN) to allow victims of the communist-era secret police access to records was approved by the Parliament in October 1998. President Aleksander Kwasniewski vetoed the bill saying that it should allow all Poles access to the records, but his veto was overridden and he later signed the bill.
The Screening Act, which allows a special commission to examine the records of government officials who might have collaborated with the secret police, was approved in June 1997 but was delayed until 1998. In November 1998, the Constitutional Tribunal ruled that the act was constitutional except for two provisions.
Article 31 guarantees the right of the public to access to information of a public interest.
The law regarding free access to information of public interest was approved in October 2001. It allows for any person to ask for information from public authorities. Authorities must respond in 10 days.
Government officials must publish a wide variety of basic information about their structures and activities. Denials of information can be appealed to a court.
The Romanian Parliament approved the Law on Protecting Classified Information on Feb. 25, 2002. It is now pending before the Senate.
There is no federal freedom-of-information law in Switzerland. The Justice Ministry is currently working on a project for a “federal law for administrative transparency.” A working group was set up in July 1998. A public consultation was started in April 2000 and completed in March 2001. There was general public support for the right of access but state companies such as the post office and Swisscom opposed access to their records because they feared it would affect their ability to compete. Media companies also were concerned that the proposals would limit their access to information. In October 2001, the Conseil federal announced that it would delay until Spring 2002 a discussion of the project.
There are also efforts on the Canton (state) level to adopt FOI legislation. The Canton of Bern adopted legislation in 1995, and Geneva did so in October 2001. There are also plans in the next several years to adopt legislation in Neuchâtel, Vaud, Solothurn, Jura, and Ticino.
The government announced in November 2001 that provisions of the Freedom of Information Act 2000 that allow for citizens to demand information would not be implemented until 2005. It announced that all local departments would implement the legislation in a “big bang,” rather than phasing it in.
Publication schemes for central government departments will go into effect in November 2002 and will be phased in for other national and local departments following that.
A 1994 “Code of Practice on Access to Government Information” provides some access to government records but has 15 broad exemptions. Dissatisfied applicants can complain, via a member of Parliament, to the parliamentary ombudsman if their request is denied.
In November 2001, the former home secretary, Jack Straw, had refused to comply with one ombudsman’s rulings under the open-government code.
The Freedom of Information (Scotland) Bill was introduced in the Scottish Parliament in September 2001 following a consultation starting in November 1999. The draft is considered much stronger than the UK bill. It requires disclosure of facts behind decisions, a stronger balancing test for restricting information that a disclosure would cause “substantial prejudice,” and gives the Scottish information commissioner far greater powers to mandate disclosure of information if it is determined to be in the public interest.
The Parliament has held three hearings and is currently reviewing the bill in the second reading.
The Parliament approved the Access to Information and Privacy Bill in January 2002. While the bill does include limited provisions on access and privacy, the main thrust is to give the government more powers for media censorship and control before the upcoming election. It was strongly criticized by media groups and governments around the world.
As of the end of February 2002, the bill had not been signed by President Robert Mugabe.
David Banisar is a Research Fellow at the Kennedy School of Government at Harvard University. He is researching and writing on global developments relating to access to information and privacy. A more extensive version of this report, reviews from previous years, and copies of legislation and country reports is available at http://www.privacyinternational.org/issues/foia/.