International access developments

Friday, March 16, 2001

The past year was a positive one for freedom of information around the world. A number of countries approved laws and many others began the process of drafting and adopting them. Today, there are now nearly 40 countries with FOI laws.

Regionally, there have many countries advancing toward laws for anti-corruption and freedom of press efforts. In Asia, a number of countries are following the lead of Japan and Thailand, including Indonesia, India, Nepal, and Mongolia. In Pakistan, the military government recently proposed a code of access.

More gradually, many African nations also are debating the adoption of access laws. In January 2000, South Africa became the first in that region to adopt an FOI law. There are now well-developed efforts in Kenya and Nigeria. Journalist groups also are leading such efforts in Uganda, Tanzania, and Namibia.

In Latin America, many countries have constitutional rights to access but they have been adopting laws more slowly.

Finally in Europe, there have been developments both on the international and at the national government levels. Unfortunately, the European Union has promoted restrictions on access to records held by EU organizations. On the national level, there is more positive news. After 20 years, the United Kingdom finally has an FOI law. There also are efforts to adopt laws in Switzerland and Germany. Many countries in Eastern and Central Europe are following the lead of Hungary and the Czech Republic: All of the Baltic nations now have acts; Slovakia and Bulgaria adopted acts in the past year; and Poland, Georgia, Moldova, Albania and Bosnia are also considering acts.

There also have been developments in the substance of the laws. One of the most interesting is the inclusion of a “public interest test” found in the new U.K. act and in the pending Bosnian bill. This provision requires that information or materials otherwise found to be exempt may be released if “public benefit in knowing the information outweighs any harm that may be caused from disclosure.”

Another interesting development is the growing trend toward extending FOI laws in countries to include non-governmental bodies such as companies and nongovernment organizations (NGOs) that receive public money to do public projects. This is frequently used to cover hospitals but could have broader affects.

There have also been new developments on oversight. The national Hungarian, and Canadian and German provincial models show a new trend of placing the national data protection authority also in charge of overseeing freedom of information. The new U.K. and Estonian laws include this provision, too. It remains to be seen if these countries will be given sufficient resources to enforce the laws.

Bosnia and Herzegovina
In July 1999, Carlos Westendorp, the high representative for Bosnia and Herzegovina, ordered that a Freedom of Information bill be developed. The draft was released in June 2000. The draft act covers “all government and administrative departments, agencies and related bodies, the courts, and bodies set up by statue 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: “It would cause “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. According to the OCSE, “the public interest test requires the public authority to release information, even though it has claimed
an exemption, if the public benefit in knowing the information outweighs any harm that may be caused from disclosure.” An information ombudsman will be created to hear appeals. Requestors can also appeal internally and challenge decisions in court.

The Law for Access to Information to provide access to government records was enacted in June 2000 and took effect in July. The law allows for access to records except in cases of state
security or personal privacy. Minor fines are anticipated against officials who unlawfully withhold documents.

The Government of Canada 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. A final report will be released in the fall of 2001, which will analyze the administrative and
legislative aspects of Access to Information and provide recommendations for improvement.”

The Public Information Act was approved in November 2000 and took effect in January 2001. The act covers state and local agencies, legal persons in public law and private entities that are conducting public duties including educational, health care, social or other public services.

The act also includes significant provisions on electronic access. Government departments and other holders of public information have an affirmative duty to post an extensive list of information on the web, and e-mail requests must be treated as official requests for information. State secrets are broadly exempted. The act is enforced by the Data Protection Inspectorate.

European Union
Currently, access to documents held by European Union bodies is governed by the 1993 Code of Conduct Concerning Public Access to Council and Commission documents (93/730/EC). The code allows for access to documents held by the Council of Ministers and the European Commission. Requestors can either view the documents or be charged a reasonable fee.

Documents can be withheld for the following reasons: protecting the public interest including public security, international relations, monetary stability, court proceedings, inspections and investigations; privacy, commercial and industrial secrecy, the Community’s financial interest, protection of confidentiality and the protection of an institution’s interest in the confidentiality of its proceedings. Requestors can file complaints with the European Ombudsman if their requests are denied.

The European Union is currently developing legislation on a right of access. Under Article 255 of the Treaty of Amsterdam, they must have a new right in place by May 2001:

Article 255 (ex Article 191a)

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and
Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.

In January 2000, the Commission released a proposed regulation on access to documents following a secret process in which no drafts or public consultations were officially released. There has been considerable controversy about the proposal and subsequent amended versions because the regulation would severely limit access to many records. The regulation maintains the current exemptions under the 1993 code and additional exemptions for materials including documents that would impede the “effectiveness of the institution’s decision-making process.”

Graham Watson, 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 is “both excessive and unnecessary in a modern public administration.” Jacob Söderman, the European Union ombudsman, described the commission’s proposal as “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.” Currently there
is an unusual “trialogue” between the European Parliament, the European Commission and the Council of Ministers on developing an agreement. The new Swedish Presidency of the E.U. has promised to back openness.

Two laws in France provide for a right to access government records. The laws were amended in April 2000 to clarify access to legal documents and also identify the civil servant processing the request. The Commission d’accèss aux documents administratifs is charged with enforcing the acts. It handled 4,000 inquiries per year between 1996 and 1999.

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 Coalition for Information Freedom, a group of 17 NGOs, released a draft freedom of information act in February 2001. They are planning to present it to Parliament in the next month.

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. Government bodies have an obligation to maintain and disseminate information. Information can be withheld for reasons of law enforcement, intellectual property, national defense and security, health and safety of a person or the public or for protecting private confidentiality.

It creates a Central Information Commission and regional information commissions to oversee the act. The commission can overrule a withholding of information if there is a greater public
interest to disclose the information.

The Law on Provision of Information to the Public was amended in December 2000. Article 6 states that “Every individual shall have the right to obtain from State and local authority institutions
and agencies and other budgetary institutions public information regarding their activities, their official documents (copies), as well as private information about himself.” State and local
governments must provide the information under the Law On the Right to Obtain Information from State and Local Government Institutions. Information must be provided within a week.

In June 2000, a delegation of journalists presented Jaya Prakash Prasad Gupta, Nepal’s Information and Communication minister, a draft freedom of information bill, and asked him to present it to Parliament. The bill provides for a broad right of access to official information and also information on performance of political parties, NGOs and companies. The bill also requires officials to periodically disclose information and keep systematic records. Officials who refuse to comply with requests can be fined $75.

A Freedom of Information Act was introduced in the House of Representatives by two legislators in 1999. The bill provides for a right of access to government records and those held by private
bodies “carrying out public functions.” It was developed by the Media Rights Agenda with the assistance of Article 19 and other Nigerian NGOs.

The bill has gone through two readings in the House of Representatives and is pending in the House Committee on Information. It was scheduled to have a third reading and be approved by the House in late February 2001. According to the Media Rights Agenda, a press and freedom of expression association in Nigeria, President Olusegun Obasanjo has agreed to approve the bill,
and it is expected to be enacted this summer.

The federal minister for information released a draft Freedom of Information Ordinance in August 2000. The draft, which is based on a 1997 ordinance that was never adopted, provides for broad exemptions including the notes officials put on files, minutes of meetings, interim orders, classified records (with no limits on classification), and records relating to the personal privacy of any individual. Government officials have broad discretion to determine if the requester is “fit” to obtain the record and there are no penalties for refusing to comply.

The draft has been heavily criticized by commentators. Council of Pakistan Newspaper Editors President Arif Nizami said that the revisions make the already weak 1997 ordinance even weaker. The International Press Institute wrote that, “the Ordinance is a lack-lustre attempt at providing a freedom of information law in Pakistan and displays little commitment on the part of the ruling authorities to practice open and honest government.”

The Polish Journalists’ Union and the Adam Smith Centre developed a freedom-of-information bill and met in May 2000 with Prime Minister Jerzy Buzek, who agreed that the law should be adopted.
The groups presented the bill to Parliament in June 2000 and urged the government to adopt the bill in the current session.

The Law of the Russian Federation on Information, Informatization, and Information Protection provides for limited rights of access. A more extensive freedom-of-information bill entitled “Federal Law on the Right to Access Information” is pending in the Duma. The bill creates a presumption that information is “available and open,” “reliable and complete,” and “must be timely disclosed.” Agencies must respond within 30 days. Information can be withheld if it is a “national, commercial, official, professional or banking secret” or related to a “valid investigation and fact-finding proceedings.” If information is withheld, the person can appeal to the agency, then to a court and the human rights ombudsman.

The Act on Free Access to Information was approved by the Parliament in May 2000. It sets broad rules on disclosure of information held by the government. There are limitations on information
that is classified, that is a trade secret, that would violate privacy, or was obtained “from a person not required by law to provide information, who upon notification of the Obligee instructed the Obligee in writing not to disclose information,” or that “concerns the decision-making power of the courts and law enforcement bodies.” Appeals are made to higher agencies and can be reviewed by a court. There are separate requirements for disclosure of environmental information that covers private organizations. The act became effective January 1, 2001.

South Africa
The Access to Information Act was approved in February 2000. It covers both public and private sector entities, allowing for access, rights of correction, and limitations on disclosure of information. Originally introduced as the Open Democracy Bill, the proposed legislation also included comprehensive data protection and whistleblower provisions. However, those provisions were removed by the parliamentary committee in November 1999 and are being reviewed separately.

Draft regulations were proposed in May 2000 and several sections of the act took effect in September 2000.

In October 2000, the Supreme Court upheld an order by the Official Information Commission to disclose school entrance exam results demanded by parents of children who were rejected by an elite elementary school. According to news reports, in November, the Cabinet approved a measure that prohibits confidentiality clauses in government contracts.

United Kingdom
The Freedom of Information Act 2000 was approved in November 2000 after nearly 20 years of effort.

The act will not take effect for major government departments until April 2002. The act contains many exemptions and received considerable criticism from many NGOs and politicians across the political spectrum as being insufficient and weaker than the existing code of practice. Information can be limited if it is determined to be within a broad class of information. This includes policy formulations, ministerial communications, investigations and proceedings, and “the effective conduct of public affairs,” factual information, its analysis, research findings, scientific assessments, evidence of health hazards, reports on overseas practice, cost data, technical assumptions, consultants’ studies and untested assertions fed into the system by lobbyists. Statistics about an undecided matter can be suppressed.

There is also a more limited “Prejudice Exemption” where the government body must show prejudice (harm) to specified interests. These include areas relating to defense, international relations, economy, crime prevention, and immigration.

One important safeguard is the inclusion of a “public interest test” which provides that information can only be withheld where public interest in maintaining the exemption outweighs the public interest in disclosure.

The law will create a new office, that of the information commissioner, who will oversee both the Freedom of Information regime and the Data Protection Act 1998. However, the minister of the
department can overrule the commissioner’s decision.

An electronic version of this report, containing more details on freedom of information laws from around the world, is available on the Privacy International Web site.

David Banisar, an attorney in the Washington, D.C., area specializing in information issues, is deputy director of Privacy International, based in the United Kingdom, and counsel to the Transactional Records Access Clearinghouse at Syracuse University (