Freedom of information
Everyone has the right to freedom of expression and this includes the right to seek, impart and receive information. This right to freedom of information is key to:
- achieving many other rights
- securing democracy
- enabling development.
Governments and public bodies hold masses of important information. They hold it on behalf of the public and should therefore:
- proactively publish information in the public interest
- provide open access to people wanting specific information.
In 1990, only 13 countries had laws which provided such access. Today, more than 95 countries (with over five billion inhabitants) have laws giving a general right to access information held by public bodies. International bodies such as the World Bank and the regional development banks have also adopted information disclosure polices.
Oxygen of democracy
The right to freedom of information is based on the fundamental premise that a government is supposed to serve the people. Information has been called ‘the oxygen of democracy’, essential for openness, accountability and good governance. Information:
- enables people to have informed opinions and to engage in full and open debate
- ensures governments are scrutinised, thereby becoming more open, transparent and accountable and delivering good governance
- enables elections to be free and fair by informing the electorate
- enables journalists and civil society to expose corruption and wrongdoing. U.S. Supreme Court Justice Louis Brandeis famously noted, “A little sunlight is the best disinfectant.”
- enables people to access their own personal information, a valuable part of respecting basic human dignity
- enables people to make effective personal decisions, such as in medical treatment or financial planning
- facilitates the effective business practices by creating a culture of bureaucratic openness and providing information that can be useful for enterprise.
The right to freedom of information is found in Article 19 of the International Covenant on Civil and Political Rights (ICCPR). International bodies have recognised that:
- freedom of information is a fundamental human right
- effective laws are needed to secure freedom of information.
The UN Special Rapporteur on Freedom of Opinion and Expression has covered freedom of information since 1997. In his 1998 Annual Report, the Rapporteur categorically stated that freedom of information is included in the right to freedom of expression, a statement welcomed by the United Nations Human Rights Council (UNHRC)’s predecessor, the Human Rights Commission. In 2000 the Rapporteur argued that information is fundamental to democracy, freedom, the right to participate and the right to development and set out in detail the standards for freedom of information laws.
The Public’s Right To Know: Principles on Freedom of Information Legislation [also available in Arabic, Chinese, French, Indonesian, Russian, Spanish] sets out best practices and international standards on the right to information. They include nine principles for law making:
1. MAXIMUM DISCLOSURE
- Disclosure of information should be the norm
- Anyone should be able to request information, not just a country’s citizens
- People should not have to give any particular interest or reason for their request
- ‘Information’ should include all information held by a public body, regardless of form, creator, date, or classification. Public bodies include executive, legislative and judicial branches of the state, as well as public corporations and publicly-funded bodies
- Restrictions should only apply in very limited circumstances
- It should be the responsibility of the information holder to prove that it is legitimate to deny access
2. OBLIGATION TO PUBLISH
- Public bodies should be legally obliged to publish information
- Public bodies should proactively publish and disseminate information, as well as responding to requests
- The amount of information published proactively should increase over time despite resource limitations.
3. PROMOTION OF OPEN GOVERNMENT
- Public bodies should actively promote open government
- Such openness depends on challenging the practices and attitudes that protect deep-rooted cultures of secrecy:
- Public officials should be trained
- Incentives should be provided,
- Annual reports documenting progress should be published
- People who wilfully obstruct access (for example, by destroying records) should face criminal penalties
- The general public should be made aware of their rights and how to exercise them (for example, through education and the media)
- Public bodies should promote better maintenance of records (in many countries, poor record keeping impedes access)
4. LIMITED SCOPE OF EXCEPTIONS
- Exceptions to the right to information should be clear, narrow and subject to strict ‘harm’ and ‘public interest’ tests
- Exceptions must pass a three-part test:
- The information must relate to a legitimate aim listed in law. Lists should be clear and narrow. The Council of Europe (COE) recommends the following aims: national security, defence and international relations; public safety; preventing, investigating and prosecuting criminal activities; privacy and other legitimate private interests; commercial and other economic interests, private or public; ensuring the equality of parties in court; nature; inspection, control and supervision by public authorities; a state’s economic, monetary and exchange rate policies
- Disclosure of information must threaten to cause substantial harm to an aim (simply being included in the above list is not a legitimate reason)
- If the disclosure of information could lead to harm, any harm to the aim must be greater than the public’s interest in the information.
5. PROCESSES TO FACILITATE ACCESS
- Requests for information should be processed rapidly and fairly.
- An independent review of any refusals should be available
- The law should stipulate clear processes for applications and for decision-making by public bodies
- It is essential that there is an independent appeal body to review decisions, with the opportunity to go to court
- Requests should normally be in writing, although there should be alternative provision (for example, for blind or illiterate people).
- Individuals should not be deterred from making requests for information by excessive costs
7. OPEN MEETINGS
- Meetings of public bodies should be open to the public
8. DISCLOSURE TAKES PRECEDENCE
- Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed
9. PROTECTION FOR WHISTLEBLOWERS
- Individuals who release information on wrongdoing (whistleblowers) must be protected against any legal, administrative or employment-related sanctions
- This protection should apply even where disclosure is in breach of a legal or employment requirement
- Protection from liability should also be provided to people who, reasonably and in good faith, disclose information while carrying out any power or duty under freedom of information legislation.