18 International and Regional Instruments of Right to Information

Prof. Abhishek Sudhir

epgp books

 

 

Table of Contents

1. Learning Outcomes

2. Introduction

3. International and Regional Instruments on the Right to Information

3.1 Universal Declaration on Human Rights and International Covenant on Civil and Political Rights

3.2 American Convention on Human Rights

3.3 European Convention on Human Rights

4. Domestic Freedom of Information Laws

4.1 United States

4.2 United Kingdom

4.3 South Africa

5. Conclusion

 

1. Learning Outcomes

  • To give students an overview of the different international and regional declarations, conventions and charters guaranteeing the right to information;
  • To introduce students to the right to information laws in countries with a constitutional culture is similar to that of India’s.

2. Introduction

The right to freedom of information is a right that has grown out of the right to free speech and expression. It imposes a positive obligation on the State to facilitate access to information. This module will first introduce to the right to information provisions in the Universal Declaration on Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR). Then, similar provisions in the American Convention on Human Rights (ACHR) and the European Convention on Human Rights (ECHR) will be explored in greater detail. Finally, landmark right to information laws in the United States, United Kingdom and South Africa will be considered.

3. International and Regional Instruments on the Right to Information

3.1 Universal Declaration on Human Rights and International Covenant on Civil and Political Rights

In the first session of the General Assembly of the United Nations the Assembly by its Resolution No. 59(1) acknowledged freedom of information as a fundamental human right. The resolution stated that freedom of information implied the right to gather, transmit and publish news anywhere and everywhere without fetters.

According to Article 19 of the Universal Declaration of Human Rights, 1948

“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”.

According to Article 19(2) of the ICCPR

“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.”

Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. Under the ICCPR the obligation to respect freedoms of opinion and expression, and therefore the freedom of information is binding on every State party as a whole.

All branches of the State (executive, legislative and judicial) and other public or governmental authorities, at whatever level, national, regional or local, are in a position to engage the responsibility of the State party. The designation of such bodies may also include other entities when such entities are carrying out public functions. The right of access to information includes a right whereby the media has access to information on public affairs.

With regard to the obligations of the State parties toward securing its citizens freedom of information, the Human Rights Committee has stated:

“To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation.”

The procedures established should also provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Further authorities should provide reasons for any refusal to provide access to information and arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requests.

3.2 American Convention on Human Rights (ACHR)

Article 13(1) of the ACHR safeguards the right to freedom of information:

“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.”

In October 2000, the Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression at its 108th regular sessions in October 2000. This declaration drafted by the Office of the Special Rapporteur for Freedom of Expression constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights. Principle 4 of the declaration states:

“Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.”

The Inter-American Court of Human Rights has pointed out that “a society that is not well-informed is not a society that is truly free.” Based on this principle, access to information held by the State is a fundamental right of individuals and States have the obligation to guarantee it. In terms of the specific objective of this right, it is understood that individuals have a right to request documentation and information held in public archives or processed by the State; in other words, information considered to be from a public source or official government documentation.

The State must also ensure that, in a situation of national emergency, denial of information held by the State shall be imposed only for the time period strictly necessary under the circumstances and should be changed once the emergency situation has passed. The Special Rapporteur has recommended that information considered classified should be reviewed by an independent legal entity capable of weighing the interest of protecting civil rights and freedoms against national security concerns.

3.3 European Convention on Human Rights

Article 10 of the ECHR states as follows:

“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”

In Leander v. Sweden with regard to the right to receive information under Article 10 the European Court of Human Rights held that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 does not, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.”

4. Domestic Freedom of Information Laws

4.1 United States

The Freedom of Information Act (FOIA) that came into force on 4 July 1966 is the federal freedom of information law in the United States. The statute allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government.

Agencies within the Executive Branch of the federal government, independent regulatory agencies, and some components within the Executive Office of the President, are subject to the FOIA. In order to determine whether a non-governmental entity qualifies as a “government-controlled corporation”, courts are encouraged to consider the following factors:

“…whether the entity performs a governmental function; whether there is substantial government control over the entity’s day to day operations; whether the entity has the authority to make and implement decisions on behalf of the government; whether the entity’s employees are in reality federal employees; the government’s financial involvement with the entity; and whether the entity is federally chartered.”- The Case of Montgomery v. Sanders

The Supreme Court in Forsham v. Harris held data generated by a privately controlled organization which has received federal grants (grantee), but which data had not at any time been obtained by the agency, are not “agency records” accessible under the FOIA.

4.2 United Kingdom

The Freedom of Information Act was adopted in November 2000 and went fully into effect in January 2005.The Act gives any person a right of access to information held by public bodies. The Act contains 13 pages of exemptions in three categories.

Under the absolute exemption category, court records and information that is about the personal life of individuals, relating to or from the security services, where disclosure would constitute a breach of confidence, or protected under another law cannot be disclosed.

Under the “qualified class exemption” category, information can be withheld if it is determined to be within a broad class of exempted information including relating to government policy formulation, safeguarding national security, investigations, royal communications legal privilege, public safety, or was received in confidence from a foreign government.

A “public interest test” applies and provides that information can be withheld only when the public interest in maintaining the exemption outweighs the public interest in disclosure. The third category is a more limited exemption where the government body must show prejudice (harm) to specified interests to withhold information. This includes information relating to defense, international relations, economy, crime prevention, commercial interests, or information that would prejudice the effective conduct of public affairs or inhibit the free and frank provision of advice. The public interest test also applies to information in this category.

4.3 South Africa

Section 32 of the South African Constitution of 1996 states:

  • Everyone has the right of access to – (a) any information held by the state, and; (b) any information that is held by another person and that is required for the exercise or protection of any rights;
  • National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

The Promotion of Access to Information Act (PAIA) was approved by Parliament in February 2000 and went into effect in March 2001. It implements the constitutional right of access and is intended to “Foster a culture of transparency and accountability in public and private bodies by giving effect to the right of access to information” and “Actively 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.”

Under the Act, any person can demand records from government bodies without showing a reason. State bodies currently have 30 days to respond. The Act also includes a provision that allows individuals and government bodies to access records held by private bodies when the record is “necessary for the exercise or protection” of people’s rights. Bodies must respond within 30 days. The Act does not apply to records of the Cabinet and its committees, judicial functions of courts and tribunals, and individual members of Parliament and provincial legislatures.

There are a number of mandatory and discretionary exemptions for records of both public and private bodies. Most of the exemptions require some demonstration that the release of the information would cause harm. The exemptions include personal privacy, commercial information, confidential information, safety of persons and property, law-enforcement proceedings, legal privilege, defence, security and international relations, economic interests, and the internal operations of public bodies.

Many of the exemptions must be balanced against a public-interest test that require disclosure if the information show a serious contravention or failure to comply with the law or an imminent and serious public safety or environmental risk.

In Institute for Democracy in South Africa (IFDSA) v. African National Congress the IFDSA, filed seeking to establish the principle that political parties were obliged to give details of substantial private donations under the Act. The Court found that political parties are not public bodies under the Act and alternatively that the information was not required for the proper exercise of the right to vote, such that the political parties as private bodies were under no disclosure obligation under the law.

Additionally Public and private organizations must publish manuals describing their structure, functions, contact information, access guide, services and description of the categories of records held by the body. The manuals are submitted to the South African Human Rights Commission and published in the Government Gazette.

The National Intelligence Agency was exempted in June 2003 from having to publish a manual until 2008 and the South African Secret Service received a similar exemption. 707 Government bodies must also publish a list of categories of information that is accessible without requiring an access request.

The South African Human Rights Commission (SAHRC) has been designated to oversee the functioning of the Act. It was required under the law to issue a User’s Guide on the Act in all official languages. It must also submit annual reports to Parliament, and can promote the Act, make recommendations, and monitor its implementation.

5. Conclusion

This module has demonstrated how the right to information has emerged as a key civil and political right in the 21st Century, the age of information. The right, as has been shown, has been given effect in not only international instruments but also the domestic laws of various developed and developing nations. The right to information is now at the very centre of the movement to affix responsibility and accountability within the government machinery. From the U.S. to the U.K and South Africa, the right to information has been given pride of place in the pantheon of human rights. There are exceptions to this right and it is by no means absolute. However, the judiciary has played a key role in ensuring that the exception does not eat up the rule, and the right to information can only be curtailed in the public interest.

you can view video on International and Regional Instruments of Right to Information

Reference

  • In the first session of the General Assembly of the United Nations the Assembly by its Resolution No. 59(1) acknowledged freedom of information as a fundamental human right.
  • In addition to the Freedom of Information Act, States in the U.S. Federation may have their own freedom of information statutes that govern information controlled by the state government.
  • The Supreme Court of Appeal in South Africa limited the right of individuals to obtain information from private bodies, ruling in March 2006 that a hospital was not required to provide information to the wife of a deceased patient who was trying to obtain more information about his death as part of a potential lawsuit against the hospital since that information would not be conclusive.
  • Siraj, Mazhar. Exclusion of Private Sector from Freedom of Information Laws: Implications from a Human Rights Perspective, Journal of Alternative Perspectives in the Social Sciences ( 2010) Volume 2, No 1, 211-226
  • Banisar, David. FREEDOM OF INFORMATION AROUND THE WORLD 2006: A Global Survey of Access to Government Information Laws , 2006
  • Birkinshaw, Patrick. Freedom of Information: The Law, the Practice and the Ideal. Cambridge University Press, 2010
  • Christopher L. Henry. Freedom of Information Act Nova Science Pub Inc (April 2003)
  • David Banisar. Implementing Access to Information: A practical guide for operationalising freedom of information laws Commonwealth Human Rights Initiative (CHRI)2006.
  • Human Rights Committee, International Covenant on Civil and Political Rights, General comment No. 34 (http://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf)
  • What is the Freedom of Information Act?(http://ico.org.uk/for_organisations/freedom_of_information/guide/act)
  • FOIA Legislative History (http://www2.gwu.edu/~nsarchiv/nsa/foialeghistory/legistfoia.htm)
  • The Guide on how to use the Promotion of Access to Information Act (http://www.sahrc.org.za/home/21/files/Reports/PAIA%20GUIDE%20english.pdf)