In 1990, only 13 countries had laws recognizing a right to access information held by public bodies, which has variously been called the right to know and freedom of information, among other things. As of the time of writing, the number is approaching 70 countries, and many of the new constitutions adopted since 1990 recognize access to information as a fundamental human right. Numerous intergovernmental bodies, particularly financial institutions like the World Bank, have also adopted policies on the disclosure of information. This explosion in legal and policy recognition has been accompanied by a similar growth in authoritative international statements on the importance of access to information, the key focus of this article.
The UN has yet to adopt a treaty or other document explicitly guaranteeing a right to access information held by public authorities, although it is increasingly seen as part of the general right to freedom of expression, which includes the right to “seek, receive and impart” information and ideas. In its “observations” on the regular reports states are required to submit to it every five years, the UN Human Rights Committee, the official body tasked with implementation of the International Covenant on Civil and Political Rights, has expressed concern with unduly broad secrecy laws on a number of occasions (for example in relation to Armenia , Uzbekistan , and the United Kingdom ). The committee has not, however, gone so far as to specifically call on states to adopt access-to-information legislation.
The UN special rapporteur on freedom of opinion and expression, a special mandate established by the UN Commission on Human Rights in 1993, has been far more categorical. In his 1998 annual report to the commission, the special rapporteur stated clearly that the right to freedom of expression includes the right to access information held by the state. His views on this were welcomed by the commission, which requested him to follow up on the issue. The special rapporteur significantly expanded his commentary on freedom of information in his 2000 annual report, noting its fundamental importance not only to democracy and freedom, but also to the right to participate and to realization of the right to development. At the same time, the special rapporteur elaborated in detail on the specific content of the right to information, identifying nine key characteristics.
These characteristics include the following: that access to information laws should be based on the principle of maximum disclosure; that public bodies have an obligation to routinely disseminate information, even in the absence of a request; that exceptions to the right of access should be clearly and narrowly drawn; that procedural and cost guarantees should be put in place that facilitate access; and that protection should be afforded to whistleblowers, i.e., individuals who release information on wrongdoing.
In December 2004, the UN special rapporteur issued a joint declaration with his counterparts at the Organization for Security and Cooperation in Europe (the OSCE representative on freedom of the media) and the Organization of American States (the OAS special rapporteur on freedom of expression), stating: “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.”
The right to information has also been explicitly recognized in declarations or recommendations adopted by authoritative human rights bodies in all three regional systems for the protection of human rights, in Africa, the Americas, and Europe. The African Commission on Human and Peoples’ Rights adopted a Declaration of Principles on Freedom of Expression in Africa at its thirty-second session in October 2002. Principle IV of that declaration sets out the key principles that apply to this right. These include, among others: the idea that public bodies hold information not for themselves but as custodians of the public good and that everyone has a right to access this information; the need for a right to appeal to an independent body against any refusal to provide information; the need for proactive publication of key information; and the need to reform secrecy laws to bring them into line with the principles underpinning the right to information.
Similarly, within the inter-American system, the Inter-American Commission on Human Rights approved the Inter-American Declaration of Principles on Freedom of Expression at its hundred-and-eighth regular session in October 2000. The principles unequivocally recognize a right to access information held by the state, as both an aspect of freedom of expression and a fundamental right on its own.
Within Europe, the Committee of Ministers of the Council of Europe adopted a Recommendation on Access to Official Documents in February 2002. The recommendation provides generally for member states to guarantee “the right of everyone to have access, on request, to official documents held by public authorities.” The rest of the recommendation goes on to elaborate in some detail the principles that should apply to this right. Key among these are that exceptions should be limited to the protection of selected overriding public and private interests and apply only where disclosure of the information would cause harm to those interests. Importantly, even where harm would ensue, the information should still be provided where this serves the overall public interest (see Principle IV).
The Commonwealth has also recognized the fundamental importance of the right to information and elaborated in some detail on the content of that right. The November 1999 Durban Communiqué, for example, recognized the importance of access to information in promoting transparency and accountable governance and in encouraging democratic participation.
Legal recognition of the right to information has been significantly bolstered by two recent cases, one at the Inter-American Court of Human Rights and one at the European Court of Human Rights.
Very significant, from the perspective of international law, is a decision of the InterAmerican Court of Human Rights, Caso Claude Reyes and Others v. Chile, adopted on September 19, 2006, which concerned a refusal by the Chilean authorities to provide access to information regarding their approval of a logging project. The court unanimously held that the refusal to provide the requested information constituted a breach of the right to freedom of expression, guaranteed by Article 13 of the American Convention on Human Rights, stating: “With respect to the facts of the present case, the Court concludes that article 13 of the Convention, which specifically establishes the rights to ‘seek’ and ‘receive’ ‘information,’ protects the right of all persons to request access to information held by the State, with the exceptions permitted by the restrictions regime of the Convention” (para. 77).
States had an obligation to provide a legal framework to insure respect for this right, in other words to adopt an access-to-information law. The court further held that “in a democratic society it is indispensable that state authorities are governed by the principle of maximum disclosure, which establishes the presumption that all information should be accessible, subject to a restricted system of exceptions” (para. 92). The state bears the burden of proving that requested information falls within the scope of the exceptions.
The European Court of Human Rights has been reluctant to recognize a general right to access information based on the right to freedom of expression, although it has found a right of access based on family and/or private life in a number of cases. In a recent case, Matky v. the Czech Republic, the court appears to be taking a more liberal position, holding that the right to freedom of expression may be engaged in certain cases regarding access to information. It remains to be seen how broadly the court will interpret this.
Equally important from the perspective of international law is the preparation, by the Council of Europe, of a binding treaty on the right to information. The Group of Specialists on Access to Official Documents working on elaborating the treaty held its second meeting on this in mid-November 2006 and at the time of writing is expected to finalize the draft shortly.
The right to access information has been developed in a number of thematic areas, including anti-corruption work and protection of the environment and of human rights defenders.
Implementation of the right to access to information is a key requirement imposed on states parties to the UN Convention against Corruption, which came into force in December 2005 (as of December 2006, the convention had 80 states parties). Article 10 of the convention calls on states parties to “take such measures as may be necessary to enhance transparency in [their] public administration.” This may include, among other things, adopting rules giving members of the public a right to obtain information held by public bodies. Article 13 of the convention supports this by requiring states parties to insure “that the public has effective access to information.”
In recent years, there has been increasing recognition that access to information on the environment, including information held by public authorities, 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, Principle 10 of which provides in part: “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. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
In 1998, as a follow-up to the Rio Declaration and Agenda 21, member states of the UN 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). As of December 2006, there were 39 states parties to the Aarhus Convention. The preamble, which sets out the rationale for the convention, refers to Principle 10 of the Rio Declaration and notes that the right to live in a healthy environment depends on access to information.
The convention, which came into force in October 2001, requires state parties to take legal measures to implement the convention’s provisions on access to environmental information. Article 4(1) states: “Each Party shall ensure that . . . public authorities, in response to a request for environmental information, make such information available to the public.” The rest of the article goes on to establish conditions for the release of information, including timelines, exceptions (among them a public interest override), and limits on fees.
There have been moves within the international community to recognize a special aspect of the right to freedom of information in relation to human rights. In 1998, the UN General Assembly adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration on Human Rights Defenders). Article 6 specifically provides for access to information about human rights, including how these rights are given effect in domestic law.
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- Campbell Public Affairs Institute (2003). National security and open government: Striking the right balance. Syracuse, NY: Campbell Public Affairs Institute.
- Mendel, T. (2003). Freedom of information: A comparative legal survey. New Delhi: UNESCO.
- Transparency International (2003). Global corruption report 2003. London: Profile Books.