During the latter half of the twentieth century, the world’s established democratic nations – along with those nations seeking to adopt democratic principles – experienced a sea change in governance with the rise of transparency, the idea that the workings of government should be visible. This global movement is grounded in the accountability principle of a representative democracy – namely, that in an open and democratic society citizens must have a right of access to government-held information so they can hold government responsible for its actions, and make informed decisions pertaining to selfrule. As of 2006, a public right of access to the vast stores of information gathered by governmental administrative bodies has been created in 68 nations under the general rubric of “freedom of information” laws.
The general principle of transparency can be traced to the eighteenth century. Sweden was the first nation in the world to recognize openness as a constitutional right when it created its Freedom of the Press Act in 1766, which granted a right of access to official government documents. The notion that public officials and bureaucrats should be accountable to the public was explicitly stated in the Netherlands in its 1795 Declaration of the Rights of Man, which declared that the public has the right to require that “each functionary of public administration” disclose “an account and justification of his conduct.” The legal bases for the modern right to freedom of information today vary widely from nation to nation. In some countries, freedom of information is embodied in laws that protect freedom of expression and freedom of the press. In other nations, it is a separate and distinct right. Some nations contain constitutional provisions for access to public records and documents, while others provide for transparency by legislation or in a statute. For example, the United States Supreme Court has ruled that a right of public and press access to government information and facilities does not have constitutional protection, unlike freedom of speech and freedom of the press. America’s right of freedom of information was created by Congress in 1966 in the Freedom of Information Act (FOIA). Additionally, open-records laws have been approved by legislatures in each of the 50 states and by the District of Columbia. On the other hand, many nations, such as Austria, Belgium, the Dominican Republic, Georgia, and Slovenia, to name a few, recognize a general principle of public access to information in their constitutions.
Transparency Laws Vary
Typically, constitutional protection for freedom of information is stated in only general terms or as a principle. Therefore, nations with constitutional protection for freedom of information have also enacted a statute or other form of legislation that sets forth specific procedures to implement and enforce the constitutionally protected public right of access. Procedural examples include requirements that the government set deadlines so that agencies respond to information requests in a timely fashion; promulgate administrative rules and regulations in a widely circulated official publication or on the Internet; and enumerate specific exemptions under which information can be withheld.
The United States has led the way in fostering the philosophy of freedom of information throughout the world and providing a model for an effective public records statute. The global spread of public access laws was slow, however. By 1986, 20 years after the US FOIA was enacted, fewer than a dozen nations had adopted a similar law. After the Soviet Union’s collapse in 1989 and the emergence of fledgling democracies in Latin America and Africa, freedom of information laws began to proliferate. By 2006, when the US FOIA marked its 40th anniversary, 68 nations had enacted open government statutes.
Generally, an effective freedom of information paradigm in the twenty-first century has several fundamental characteristics. The first and guiding principle behind a freedom of information law is a presumption of openness supported by a policy that the law is intended to provide full disclosure. The Republic of South Africa’s public right of access, embodied in its 1996 Constitution, is one of the most progressive in the world because of the “profound mistrust the apartheid era instilled in people regarding government” (Mendel 2003). The stated purpose of South Africa’s Promotion of Access to Information Act is to foster “a culture of transparency and accountability” and to “promote a society in which the people of South Africa have effective access to information to enable them to fully exercise and protect all of their rights.”
Second, the right of access should be available to “any person” and for “any purpose”; the reason for a request should be irrelevant. “Any person” is granted a right of access to public records and documents under the US FOIA, Japan’s Law Concerning Access to Information Held by Administrative Organs (1999), Bulgaria’s Access to Public Information Act (2000), and Denmark’s Access to Public Administration Files Act (1985), among many others. The Croatian constitution (1990) provided journalists with a right of access to information, but it was not until the Act on the Right of Access to Information was approved in 2003 that “any person” had a right to obtain government-held information. Some nations impose restrictions regarding who can gain access to information.
For example, the Parliament of India enacted the Right to Information Act in 2005. The legislation applies to records held by the central government and also to public agencies under state and local jurisdictions, but India’s right of access is granted only to Indian citizens. Likewise, Canada’s Access to Information Act (1983) is limited to Canadian citizens, permanent residents, and Canadian corporations. Similarly, in Israel, the Freedom of Information Law (1999) allows any citizen or resident access to government-held information, but it limits access to non-citizens and non-residents to matters related to their rights in Israel.
Third, an effective freedom of information paradigm allows the government to refuse disclosure only if the requested information falls under clearly stated and narrowly drawn exemptions. Narrowly crafted exemptions are necessary in order to limit discretion by officials. Exemptions vary considerably from nation to nation. Although nations’ exemptions vary, the most common exceptions to disclosure fall under the categories of national defense, personal privacy, law enforcement investigations, information that may jeopardize an individual’s safety or life, and proprietary business interests and trade secrets. Under the United Kingdom’s Freedom of Information Act (2000), for example, there are three general categories of exemptions and twenty specific exemptions. The United States FOIA lists nine exemptions. Mexico’s Federal Law of Transparency and Access to Public Government Information (2002) parses its exemptions into five categories of documents and records that can be withheld if disclosure would harm the public interest – and separate exemptions for other kinds of information such as trade secrets, and some judicial and administrative records. Albania is unusual in that its Law on the Right to Information for Official Documents (1999) contains no exceptions; the government can withhold documents only if disclosure is restricted under other laws, such as laws on privacy or classified information.
Exemptions to Disclosure
Fourth, a freedom of information law should provide for an independent review when government refuses to disclose information. In Germany, an appeal can be made internally to the agency denying disclosure. If that appeal fails, requesters can go to a federal commission on freedom of information. Requesters can also appeal to the courts. France and Bulgaria are examples of nations that have no internal appeals process. In France, complaints go directly to a national commission that is charged with freedom of information oversight; disputes must be decided by this national commission before an appeal can be made to the courts. In Bulgaria, appeals go directly to the courts. Under the US model, appeals are made internally to the agency, and, if unsuccessful, requesters can then go to the courts.
A review and appeals process should comprise a two-step analysis. First, a determination must be made to confirm that the requested information does, in fact, fall under the exemption claimed by the government. Second, a balancing test must be conducted to weigh the harm of disclosure against the public interest in disclosure. Harm standards vary. Ideally, the degree of harm should be substantial harm.
A fifth characteristic is an affirmative duty to publish certain information without the need for a request. The US FOIA, for example, requires that agencies publish – both in the widely available Federal Register and on the Internet – their organizational plans, regulations, annual reports, statements of agency rules and policy, and instructions on how to use the FOIA. The rationale behind affirmative disclosure is to guard against the development of agency “secret law” – rules and regulations known to government officials but not to the general public.
Finally, in keeping with the spirit of a right of access to “any person,” fees for copying records must be reasonable. Otherwise, information would be accessible only to those who can afford it. (A right of public access to meetings of official bodies is also an essential component of open government. However, provisions for the public to attend meetings of administrative bodies usually are covered under separate statutes, and are beyond the scope of this article.)
One of the most significant recent advances in freedom of information is the development of a public right of access to information pertaining to the environment. More than 40 nations, mostly European, signed the Aarhus (Denmark) Convention in June 1998. It was sponsored by the United Nations Economic Commission for Europe (UNECE) and went into effect in October 2001. The Aarhus Convention provides a public right of access to environmental information. It has also been ratified by the European Union, which has begun applying Aarhus principles in its legislation.
An increasing problem in terms of gaining access to government-held information is the clash between the equally legitimate and important rights of public access, on the one hand, and personal privacy, on the other. This conflict arises when someone’s need for a government record results in the disclosure of private information about an individual who is identified in the record. Privacy concerns have mushroomed as technological advances make it possible to gather personal, even intimate, information about people. Identity theft and the Internet’s potential for the instant and mass dissemination of information that could invade one’s privacy have also inflamed concern. Governments with freedom of information laws nearly all contain exemptions protecting personal privacy. The problem is that an administrative agency can withhold information that is embarrassing to the government, or information that contains evidence of inefficiency or corruption, under the guise of protecting someone’s privacy.
Perhaps the most challenging obstacle to implementing a broad philosophy of full disclosure by governments is the scourge of terrorism worldwide. After the terrorist attacks of September 11, 2001, for example, the US government removed huge amounts of potentially sensitive information from the websites of dozens of agencies. Some of this information was of high public interest because it pertained to public health and safety.
Despite obstacles, freedom of information worldwide is on an upward trajectory. Increasingly, economic reasons are the bases for more freedom of information laws; as more developing nations seek to participate in international trade, they will be encouraged – if not required – by prospective trade partners or the World Bank and the International Monetary Fund to make the workings of their governments visible. Nonetheless, the spread of government transparency will remain a process for a long time as both established and developing democracies seek to break free of the outmoded presumption of secrecy and replace it with a presumption of openness.
- Banisar, D. (2006). Freedom of information around the world 2006: A global survey of access to government information laws. At www.privacyinternational.org/foi/foisurvey2006.pdf, accessed August 20, 2007.
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- Halstuk, M. (2000). Speed bumps on the information superhighway: A study of federal agency compliance with the Electronic Freedom of Information Act of 1996. Communication Law and Policy, 5, 423 – 468.
- Mendel, T. (2003). Freedom of information: A comparative legal survey, UNESCO. At www.article19.org/docimages/1707.pdf, accessed August 20, 2007.
- Roberts, A. (2006). Blacked out: Government secrecy in the information age. Cambridge: Cambridge University Press.