ARTICLE 19 welcomes the new report by the Office of the United Nations High Commissioner for Human Rights (OHCHR) on access to information (ATI) held by public bodies. The report stands as a commendable effort from OHCHR to assist governments in implementing the right of access to information as protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). The report comes at a pivotal time, as COVID-19 has exacerbated existing barriers and added new challenges for individuals and communities to access information during health emergencies.
The Human Rights Council tasked the OHCHR with preparing the report in its resolution 44/12 on freedom of opinion and expression on 16 July 2020. It was published on 10 January 2022 and was presented during the 49th session of the Human Rights Council. As the first OHCHR report specifically dedicated to the right of access to information, it constitutes an authoritative guidance to state actors on the developments of laws and policies on matters affecting this right. The text of the report focuses on the current situation and good practices including the elements in the design of access to information laws, capacity building and other measures to ensure their effective implementation and access to information during the COVID-19 pandemic.
Positive highlights of the report
ARTICLE 19 welcomes the report for its recognition that the right to information is fully realised when access to governmental information is guaranteed by freedom of information legislation. The report also provides a progressive and detailed elucidation of the elements of national normative frameworks on ATI under international human rights law. This reflects ARTICLE 19’s continuous calls to the UN to set up stronger standards for making the exercise of the right of access to information more effective.
We welcome in particular the inclusion of the principle of maximum disclosure that implies that all information held by public bodies should be subject to disclosure. This is a presumption that may be overcome only in very limited circumstances. We also praise the report’s focus on how States should proactively publish information in the public interest as well as on the right of individuals to access information through requests to public bodies. The report makes a commendable effort to highlight that the procedure for making requests should be simple and readily understandable, allowing for fair and rapid processing and that further steps should be taken to facilitate access for marginalised individuals or groups by including specific provisions for assistance. ARTICLE 19’s work with groups such as indigenous communities, persons with disabilities and women has shown how crucial it is that States increase their efforts to eliminate barriers for accessing information as it applies to them and how this ensures the exercise of other fundamental rights including the right to equality, education, health, land, and work, among others.
The report also reflects ARTICLE 19’s call for States to establish independent and impartial oversight mechanisms with a mandate to monitor and report on the implementation of the right of access to information laws. As we have highlighted, for many countries across the globe, the lack of independence and autonomy of oversight bodies makes void the entire system drawn by access to information laws and ultimately makes it impossible to exercise the right of access to information.
The report’s most innovative aspect is the inclusion of a section on the promotion of access to the Internet and on access to information during the COVID-19 pandemic.
We agree that the Internet affords new opportunities for the realisation of individuals’ rights, including access to information, and that governments should take advantage of new technology by developing appropriate platforms, such as e-government services. As our experience has shown, States should be mindful that major challenges remain when parts of the population might not have access to the internet and specific measures should be put in place to ensure that marginalised groups can effectively exercise the right of access to information online. It is then crucial to develop an appropriate infrastructure and dedicate a significant financial commitment.
As for access to information during COVID-19, ARTICLE 19 has called States, local governments and international organisations to maintain the right to information during the emergency as much as possible and to issue a series of policy recommendations on how States should keep their population informed, which include reporting publicly and regularly on the impact of the pandemic. Some of the measures to keep the public informed about the disease were the creation of dedicated websites on which information on the pandemic is published and continuously updated in all official languages or those that are mostly spoken in the country, holding regular press briefings, producing infomercials and engaging heavily on social media. This ensures that the public at large is aware of the new legal rules and can conduct themselves accordingly.
We praise the report for joining our call in highlighting how the reduction in the public’s right to know about the activities of their governments is counterproductive to the effort in combating the COVID-19 outbreak: the right to information is crucial for ensuring public awareness and trust, fighting misinformation, ensuring accountability as well as developing and monitoring implementation of public policies aimed at solving the crisis. In such context, it is crucial that requests for access to information are processed without delay as circumstances relating to the pandemic may hamper the ability to act expeditiously.
Gaps to be filled in future work
ARTICLE 19 appreciates the efforts of the OHCHR in developing these standards and sharing good practices. We have long asserted that the UN needed to increase efforts to strengthen standards of the right of access to information as a fundamental aspect of the right to freedom of expression. This dedicated report is a crucial step in this regard. However, we highlight the need for future work in this area to address emerging and overlooked issues, such as:
- The scope of access to information laws should be broad. It should include all public bodies, such as bodies that operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organisations), as well as private entities that carry out public functions or hold decision-making authorities or expend public money. No bodies, including defence and security bodies, should be exempt. Inter-governmental organisations should also be subject to right to information regimes.
- There needs to be further guidance on the limited number of exceptions, which are a fundamental part of access to information laws as they include a list of legitimate aims that may justify non-disclosure of the requested information. The exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ (disclosure must threaten to cause substantial harm to that aim) and ‘public interest’ (the harm to the aim must be greater than the public interest in having the information) tests. The list of legitimate aims should include only interests which constitute legitimate grounds for refusing to disclose documents and should be limited to matters recognized under international law such as law enforcement, privacy, national security, commercial and other confidentiality, public or individual safety, and the effectiveness and integrity of government decision-making processes. They should be based on the content, rather than the type, of the information.
- There needs to be robust standards about an individual’s right to appeal against a refusal of access to information. Besides, a process for deciding upon requests for information should be specified at three different levels: within the public body; appeals to an independent oversight body; and appeals to the courts. The procedure by which the independent body processes appeals over requests for information which have been refused should be designed to operate rapidly and cost as little as is reasonably possible. Courts should have the full power to review the case on its merits and not be limited to the question of whether the body has acted reasonably. This will ensure that due attention is given to resolving difficult questions and that a consistent approach to right to information issues is promoted.
- We would welcome future recommendations in relation to costs that shouldn’t just be “reasonable”. The cost of gaining access to information held by public bodies should not prevent people from demanding information of public interest, given that the whole rationale behind right to information laws is to promote open access to information. Hence, the principle should be that the information is provided at no or low cost and limited to the actual cost of reproduction and delivery. Costs should be waived or significantly reduced for requests for personal information or for requests in the public interest (which should be presumed where the purpose of the request is connected with publication) and for requests from those with incomes below the national poverty.
Read: The Public’s Right to Know: Principles on Right to Information Legislation from ARTICLE 19