International standards: Right to information

As of 2021, 124 countries have laws and 8 countries have national decrees or regulations  granting individuals a general right to access information held by public bodies, and imposing an obligation on public bodies to provide that information and proactively disclose key types of information.

These access to information laws reflect the fundamental premise that government is supposed to serve the people. There are, however, a number of more practical ideas underlying the widespread recognition of the right to information. ARTICLE 19 has described information as “the oxygen of democracy”;[1] information is essential to democracy at a number of levels. The ability of individuals to participate effectively in decision-making that affects them depends, in obvious ways, on information. Elections can never meet their goal – described under international law as ensuring that “[t]he will of the people shall be the basis of the authority of government”[2] – if the electorate lacks access to information which enables it to form an opinion.

Democracy is also about accountability and good governance. The public has a right to scrutinise the actions of its leaders and to engage in full and open debate about those actions. It must be able to assess the performance of the government and this depends on access to information about the state of the economy, social systems and other matters of public concern. One of the most effective ways of addressing poor governance, particularly over time, is through open, informed debate.

Access to information is also a key tool in combating corruption and wrongdoing. Investigative journalists and watchdog civil society organisations can use the right to access information to expose wrongdoing and help root it out. As U.S. Supreme Court Justice Louis Brandeis famously noted, “Sunlight is said to be the best of disinfectants”.

Data protection laws which include transparency provisions also serve a number of important social goals. The right to access one’s personal information, for example, is part of respect for basic human dignity, but it can also be central to effective personal decision-making. Access to medical records, for example, can help individuals make decisions about treatment, financial planning and so on.

Finally, access to information laws can help facilitate effective business practices. Commercial requesters are, in many countries, one of the most significant user groups of such laws. Public bodies hold a vast amount of information of all kinds, much of which relates to economic matters and which can be very useful for enterprises. The potential for increasing the effectiveness of business is an important benefit of access to information laws, and helps answer the concerns of some governments about the cost of implementing such legislation. Open data is based on the premise that it both facilitates accountability and encourages innovation and business.

The Right of Access: International Standards

Most international human rights bodies have authoritatively recognised the fundamental and legal nature of the right to freedom of information, as well as the need for effective legislation to secure respect for that right in practice. This includes the UN, the Organisation of American States, the Council of Europe, and the African Union.

The United Nations

The right of access to information is recognised under Article 19 of the Universal Declaration of Human Rights and Article 19 of the International Covenant on Civil and Political Rights (ICCPR) as an element of freedom of expression. It is included as the right to seek and receive information. The UN Human Rights Committee in General Comment 34, adopted in 2011, interpreted the scope and limits of the right to information, stating that Article 19 of the ICCPR ensures the right to access information held by public bodies. It requires that states proactively disseminate information in the public interest and ensure that access is “easy, prompt, effective and practical.” The Comment also states that countries must enact “necessary procedures” such as legislation to give effect to the right to information. The Comment further stipulates that fees for access must be limited, responses to requests must be timely, authorities must provide explanations for withholding information, and states need to establish appeals mechanisms.[3]

The Human Rights Committee provided guidance on the right to information under Article 19 of the ICCPR in the case of Toktakunov v Kyrgyzstan,[4] reaffirming that exceptions to the right are limited to only those permitted under Article 19(3) and that information should be provided without requiring a direct interest or explanation.

In 2022, the UN Office of the High Commissioner for Human Rights, at the request of the Human Rights Council, released a report focusing on good practices for establishing national normative frameworks that foster access to information held by public entities. It includes internet access as a vehicle for promoting access to information and a focus on the importance of the State as a provider of trustworthy information, goods and services and a promoter integrity in public information as a key lesson during Covid-19. It emphasized how measures to keep the public informed should provide information in an accessible manner, including for vulnerable populations. [5]

The UN Special Rapporteurs on Freedom of Opinion and Expression has addressed the issue of freedom of information in each of their annual reports since 1997. After receiving his commentary on the subject in 1997, the Commission on Human Rights called on the Special Rapporteur to “develop further his commentary on the right to seek and receive information and to expand on his observations and recommendations arising from communications.”[6]

The UN Special Rapporteur in his 2013 Annual Report focused on the right to access information and its interrelationships with the right to truth. Frank La Rue emphasised how elucidating past and present human rights violations often requires the disclosure of information held by a multitude of State entities. Ultimately, ensuring access to information is a first step in the promotion of justice and reparation, in particular in the aftermath of periods of authoritarianism.[7] Later in 2017, David Kaye called the UN to adopt an access-to-information policy that applies to every department and specialized agency highlighting the lack of ad hoc standards to provide a response to access to information requests urging all international organisations to adopt robust freedom of information policies.[8]

In their 2004 Joint Declaration, the three special mandates on freedom of expression at the UN, OSCE and OAS stated:

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.[9]

In 2015, the UN Special Rapporteur David Kaye in his report included the protection of whistleblowers under the scope of the right to information. States should adopt laws to protect any person who discloses information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of national or international law, abuse of authority, waste, fraud or harm to the environment, public health or public safety. Upon disclosure, authorities should investigate and redress the alleged wrongdoing without any exception based on the presumed motivations or “good faith” of the person who disclosed the information.[10]

The right to information has been also recognised as a key enabler in environmental protection. In the 1992 Rio Declaration, the world’s leaders agreed in Principle 10 that:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including 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.

The UN Human Rights Committee has reaffirmed the importance of access to environmental information numerous times since the Rio Declaration.[11] The right to information is also found in international treaties and agreements relating to pollution[12]  and climate change.[13]

The right to information has also been recognised in international law relating to social and economic rights. Under international conventions and agreements, the right to information is considered an enabling right, which facilitates people to better achieve other rights and to more effectively participate in public discussions on policy and government activities. The UN has also found the right to information an essential factor in ensuring the right to water,[14]  the right to health,[15] and the right to education.[16] The right to information is also specifically protected in the Convention of the Rights of the Child and the Convention on the Rights of Persons with Disabilities.

In 2015, all 193 UN Member States agreed to adopt Agenda 2030, incorporating the  Sustainable Development Goals (SDG)s, an ambitious effort to improve the lives of the world’s poorest people, globally, within 15 years. But the Agenda is not just about poverty: it sets out ambitious goals to tackle environmental degradation, gender inequality, corrupt governance, and barriers to healthcare, among the 17 goals agreed. One of the SDGs’ most significant commitments is Goal 16, which calls for all countries to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” This includes an important target (16.10.2) committing states to adopt laws and regulations on public access to information.

There are also other important international treaties which require public access to information. Article 10 of the UN Convention Against Corruption (UNCAC) requires states to “take such measures as may be necessary to enhance transparency in its public administration” including:

Adopting procedures or regulations allowing members of the general public to obtain, where appropriate, information on the organization, functioning and decision-making processes of its public administration and, with due regard for the protection of privacy and personal data, on decisions and legal acts that concern members of the public […]

Article 13 of UNCAC requires that states should “[ensure] that the public has effective access to information” and take measures for “[r]especting, promoting and protecting the freedom to seek, receive, publish and disseminate information concerning corruption”. It also requires whistle-blower protections.

Organization of American States

The OAS Special Rapporteur on Freedom of Expression has frequently recognised that freedom of information is a fundamental right, which includes the right to access information held by public bodies. In his 1999 Annual Report to the Inter-American Commission on Human Rights, he stated:

The right to access to official information is one of the cornerstones of representative democracy. In a representative system of government, the representatives should respond to the people who entrusted them with their representation and the authority to make decisions on public matters. It is to the individual who delegated the administration of public affairs to his or her representatives that belongs the right to information. Information that the State uses and produces with taxpayer money.[17]

In October 2000, the Inter-American Commission on Human Rights approved the Inter-American Declaration of Principles on Freedom of Expression,[18] which reaffirms the right to information in the Preamble:

CONVINCED that guaranteeing the right to access to information held by the State will ensure greater transparency and accountability of government activities and the strengthening of democratic institutions; …

The Principles unequivocally recognise the right to access information:

1. Every person has the right to access information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.
2. Access to information held by the state is a fundamental right of every individual. States have obligations 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 on Human Rights has held that the right to freedom of expression included a right to access information held by public bodies in several occasions[19] and found States like Chile in violation of its obligation to adopt domestic legal provisions to make effective the right to access State-held information.[20]

In October 2020, at its Annual Assembly, the Organisation of American States (OAS) approved the Inter-American Model Law 2.0 on Access to Public Information[21], to include

thematic areas that require updates or further development in the Model Inter-American Law on Access to Public Information adopted by the General Assembly in 2010[22].

This policy framework is of enormous relevance since it incorporates cutting-edge standards and best practices for promoting transparency and the right of access to information. The regulation focuses on key factors such as the nature and functions of the guarantor bodies, the regime of exceptions, the entities bound by the regulation, active transparency and the definitions and scope of the right of access to information. Likewise, it includes as an annex the Inter-American Model Law on Document Management and its implementation guide.

Council of Europe

In 1981, the Committee of Ministers, the political decision-making body of the Council of Europe (composed of Member States’ Ministers of Foreign Affairs) adopted Recommendation No. R(81)19 on Access to Information Held by Public Authorities, which stated:

1. Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities. …[23]

This was followed up by another Recommendation on Access to Official Documents, which includes the following provision:

III. General principle on access to official documents

Member states should guarantee the right of everyone to have access, on request, to official documents held by public authorities. This principle should apply without discrimination on any ground, including national origin.[24]

These initiatives led to The Council of Europe Convention on Access to Official Documents , also known as the Tromsø Convention, that entered into force on 1 December 2020.  It is the first binding international legal instrument which recognises a general right of access to official documents held by public authorities. It includes a core of provisions reflecting national practices in the field of access to official documents and is founded on three main principles:

• Transparency of public authorities;
• Self-development of people and the exercise of their fundamental human rights;
• Public’s confidence in public authorities

The Convention establishes a set of minimum standards and aims to encourage the Parties to reinforce domestic provisions that allow a more extensive right of access to official documents, provided that the minimum core is nonetheless implemented. The Convention also includes review procedures for applicants for access to official documents when access is denied. It also provides for limitations to this right but only in the narrowly circumscribed cases provided for in the Convention.

The European Court of Human Rights (ECtHR) has in its case-law clarified how Article 10 of the European Convention on Human Rights (ECHR) encompasses a right of access to State-held information. In the case of Magyar Helsinki Bizottság v. Hungary [GC][25], the Court clarified its principles in this area and what conditions should exist in order for Article 10 to be applicable:

1. The purpose of the information request: the purpose of the person in requesting access to the information held by a public authority is to enable his or her exercise of the freedom to receive and impart information and ideas to others. It must be ascertained whether access to the information sought was an essential element of the exercise of freedom of expression. Thus, the Court has placed emphasis on whether the gathering of the information was a relevant preparatory step in journalistic activities or in other activities creating a forum for, or constituting an essential element of, public debate.
2. The nature of the information sought: the information, data or documents to which access is sought must generally meet a public-interest test in order to prompt a need for disclosure under the Convention. Public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about.
3. The role of the applicant: the Court he particular role of the seeker of the information in “receiving and imparting” it to the public assumes special importance. he Court has recognised that this role is played by journalists and NGOs whose activities are related to matters of public interest. A high level of protection also extends to academic researchers and authors of literature on matters of public concern.
4. The availability of the information: the Court considers that the fact that the information requested is ready and available ought to constitute an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an “interference” with the freedom to “receive and impart information”.

African Union

In 2002, the African Commission on Human and Peoples’ Rights adopted a Declaration of Principles on Freedom of Expression in Africa. The declaration was replaced in 2019 with a new declaration with a view of expanding the guidance to States also on access to information with the introduction of a specific section on the right of access to information.[26] The Declaration clearly endorses the right to access information held by public bodies and “relevant private bodies,” which are bodies that are “controlled or financed directly or indirectly by public funds” or that carry out public functions.  It includes new standards  on oversight mechanisms to resolve access to information and a “right to further appeal” a refusal to disclose information.[27] Lastly, individuals cannot be published for “releasing information on wrongdoing or which discloses a serious threat to health, safety or the environment, or whose disclosure is in the public interest,” and calls on States to adopt laws that protect disclosures that are in the public interest.[28]

The Declaration complement the ACHPR’s Model Law for African States on Access to Information and its Guidelines on Access to Information and Elections in Africa.

Features of an FOI Regime

A number of the international standards and statements noted above provide valuable insight into the precise content of the right to freedom of information, over and above simply affirming its existence. In his 2000 Annual Report, the UN Special Rapporteur on Freedom of Opinion and Expression set out in detail the standards to which freedom of information legislation should conform (UN Standards) [29]. The 2002 Recommendation of the Committee of Ministers of the Council of Europe (CoE Recommendation) is even more detailed, providing, for example, a list of the legitimate aims which might justify exceptions to the right of access.[30]

These standards find some support in the various freedom of information laws and policies around the world. Although these vary considerably as to their content and approach, the more progressive laws do have a number of common features which reflect these international standards.

ARTICLE 19 has published a set of principles, The Public’s Right To Know: Principles on Freedom of Information Legislation (the ARTICLE 19 Principles),[31]  setting outbest practice standards on freedom of information legislation. These Principles are based on international and regional law and standards, and evolving State practice. They therefore provide a useful framework in which to discuss the features of access to information legislation.

Principle 1. Maximum Disclosure

“Freedom of information legislation should by guided by the principle of maximum disclosure.”

The principle of maximum disclosure holds that all information held by public bodies should presumptively be accessible, and that this presumption may be overcome only in very limited circumstances.

The principle of maximum disclosure encapsulates the basic rationale of freedom of information legislation, and is explicitly stated as an objective in a number of national laws. An important aspect of this principle, widely reflected in national laws, is that the body seeking to deny access to information bears the burden of proving that it may legitimately be withheld. [32]

Another aspect of this principle is that the scope of the law should be very broad. [33] Everyone, not just citizens, should benefit from the right and an individual requesting access should not have to demonstrate any particular interest in the information or explain the reasons for the request. Information should be defined broadly to include all information held by the body in question, regardless of form, date of creation, who created it and whether or not it has been classified.

The scope of the obligation to disclose in terms of the bodies covered should also be broad. All three branches of government should be covered and no public bodies should be excluded from the ambit of the law. Public corporations should also be covered and many argue that even private bodies which are substantially publicly funded or carry out public functions should be included within the ambit of the law. In South Africa, even private bodies are required to disclose information which is needed for the protection or exercise of any right.

Principle 2. Obligation to Publish

“Public bodies should be under an obligation to publish key information.”

Freedom of information implies not only that public bodies should accede to requests for information, but also that they should publish and disseminate widely documents of significant public interest.[34]  Otherwise, such information would be available only to those specifically requesting it, when it is of importance to everyone. Moreover, publishing information will often be more economical than responding to multiple requests for the same information.

The scope of the obligation to publish proactively depends to some extent on resource limitations, but the amount of information covered should increase over time, particularly as new technologies make it easier to publish and disseminate information.

Principle 3. Promotion of Open Government

“Public bodies must actively promote open government.”

Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realised. In most countries, particularly those which have not yet or have just recently adopted freedom of information laws, there is a deep-rooted culture of secrecy within government, based on long-standing practices and attitudes. Ultimately, the success of a freedom of information law depends on changing this culture since it is virtually impossible to force openness, even with the most progressive legislation.[35]

The best approach to addressing this problem will vary from country to country but, at a minimum, there will be a need to train public officials. A number of other means of promoting openness within government have been tried in different countries, including, for example, providing incentives for good performers and exposing poor performers, and ensuring oversight through annual reports which provide relevant statistics on the functioning of the FOI regime. Another useful tool to tackle the culture of secrecy is to provide for criminal penalties for those who wilfully obstruct access to information in any way, including by destroying records or inhibiting the work of the administrative body overseeing implementation of the law.

The general public also need to be made aware of their rights under the new legislation, and how to exercise them. Public education campaigns are needed, including through the media. Another useful tool, provided for in many laws, is the publication of a simple, accessible guide on how to lodge an information request.

A third important aspect of promoting open government is promoting better record maintenance by public bodies. [36] In many countries, one of the biggest obstacles to accessing information is the poor state in which records are kept. Officials often do not know what information they have or, even if they do know, cannot locate records they are looking for. Good record maintenance is not only important for freedom of information. Handling information is one of the key functions of modern government and doing this well is crucial to effective public management.

Principle 4. Limited Scope of Exceptions

“Exceptions to the right to access information should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests.”

The regime of exceptions is one of the most difficult issues facing those drafting a freedom of information law and one of the most problematic parts of many existing laws. In many cases, otherwise very effective laws are undermined by an excessively broad or open regime of exceptions. On the other hand, it is obviously important that all legitimate secrecy interests are adequately catered to in the law, otherwise public bodies will legally be required to disclose information even though this may cause unwarranted harm.

The presumption in favour of disclosure means that the onus should be on the public body seeking to deny access to certain information to show that it may legitimately be withheld. The ARTICLE 19 Principles set out a three-part test for exceptions as follows:

• the information must relate to a legitimate aim listed in the law;
• disclosure must threaten to cause substantial harm to that aim; and
• the harm to the aim must be greater than the public interest in having the information.

The first part of this test means that a complete list of all aims which may justify withholding information should be set out in the law. Which aims are legitimate is a subject of some controversy. Exceptions should at least be drafted clearly and narrowly.[37]  The Council of Europe Recommendation lists the following possible grounds for restricting disclosure:

1. Possible limitations to access to official documents

Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting:

1. i)      national security, defence and international relations;
2. ii)    public safety;

iii)   the prevention, investigation and prosecution of criminal activities;

1. iv)   privacy and other legitimate private interests;
2. v)    commercial and other economic interests, be they private or public;
3. vi)   the equality of parties concerning court proceedings;

vii)  nature;

viii)    inspection, control and supervision by public authorities;

1. ix)   the economic, monetary and exchange rate policies of the state;
2. x)     the confidentiality of deliberations within or between public authorities during the internal preparation of a matter.

It is not, however, legitimate to refuse to disclose information simply because it relates to one of these interests. According to the second part of the test, the disclosure must pose an actual risk of serious harm to that interest.[38]

The third part of the test states the need for a public interest override,[39] which requires that even if disclosure of a piece of information would lead to harm, the information should still be disclosed if withholding it would lead to a greater harm. An example of this would be information which exposed corruption in the armed forces. Although this may at first sight appear to weaken national defence, eliminating corruption in the armed forces will, over time, actually strengthen it. The need for a public interest override is recognised in Principle IV(2) of the CoE Recommendation, which states:

Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure.[40]

Principle 5. Processes to Facilitate Access

“Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available.”

Effective access to information requires both that the law stipulate clear processes for deciding upon requests by public bodies, as well as a system for independent review of their decisions.[41]  Requests are normally required to be in writing, although the law should also make provision for those who are unable meet this requirement, such as the blind or the illiterate – for example, by requiring the public body to assist them by reducing their request to writing. The law should set out clear timelines for responding to requests, which should be reasonably short. The response to a request should take the form of a written notice stating any fee and, where access to all or part of the information is denied, reasons for that denial along with information about any right of appeal. It is also desirable and practical for the law to allow requesters to specify what form of access they would like, for example inspection of the record, or a copy or transcript of it.[42]

It is essential that the law provide for various opportunities to appeal the processes noted above. Many national laws provide for an internal appeal to a higher authority within the same public body to which the request was made. This is a useful approach, which can help address mistakes and ensure internal consistency.

It is, however, crucial that requesters have the right to appeal to an independent body to review decisions made by public authorities, which is reflected in most international standards.[43]  Otherwise, individuals cannot really be said to have a right to access information held by public bodies and much information, for example revealing corruption or incompetence, will never be disclosed. Given the importance of rapid, cost-effective access to information, it is highly desirable that appeals should go first to an independent administrative body, and this is provided for in most of the more progressive national laws.[44]

Finally, the law should provide for the right to appeal from the administrative body to the courts. Only the courts really have the authority to set standards of disclosure in controversial areas and to ensure the possibility of a full, well-reasoned approach to difficult disclosure issues.

Principle 6. Costs

“Individuals should not be deterred from making requests for information by excessive costs.”

Fees are a controversial issue in freedom of information laws. It is widely accepted that fees should not be so high as to deter requests,[45]  but practically every law does allow for some charges for access. Different laws take different approaches to fees. Some limit charges to the cost of reproducing documents, perhaps along with a set application fee. Others group requests into different categories, charging less for public interest or personal requests. Still others provide for the provision of a certain amount of information, for example 100 pages, for free and then start to charge after that. Regardless of the approach, it is desirable for fee structures and schedules to be set by some central authority, rather than be each public body separately, to ensure consistency and accessibility.

Principle 7. Open Meetings

“Meetings of public bodies should be open to the public.”

The ARTICLE 19 Principles include the idea of open meetings, although in practice it is extremely rare for this to be dealt with in a freedom of information law. Some countries have separate laws on this. The reason it was included in the Principles is that the underlying rationale for freedom of information applies not only to information in documentary form, but also to meetings of public bodies.

Principle 8. Disclosure Takes Precedence

“Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed.”

Most countries have a range of secrecy laws on their books, many of which are not legitimate or which include illegitimate provisions which are inconsistent with the access to information law. If the principle of maximum disclosure is to be respected, the access to information law must take precedence over these laws.[46]  This should, where possible, be achieved by interpreting these laws in a manner which is consistent with the access to information law. However, where potential conflicts cannot be resolved through interpretation, the provisions of the access to information law should overrule those of conflicting secrecy laws. This is not as controversial as it sounds, at least in substance. A good freedom of information law will include a comprehensive set of exceptions which ensure that information will not be disclosed if doing so would cause unjustifiable harm; so there should be no need for this to be extended by secrecy laws.

Over time, a commitment should be made to review all laws which restrict the disclosure of information, with a view to bringing them into line with the freedom of information law.[47]  This is particularly important in legal systems where it is not possible to provide for the dominance of one law over others.

Principle 9. Protection for Whistleblowers

“Individuals who release information on wrongdoing – whistleblowers – must be protected.”

A freedom of information law should protect individuals against any legal, administrative or employment-related sanctions for releasing information on wrongdoing.[48] Protection of so-called whistleblowers provides an important information safety valve, ensuring that key information does indeed reach the public. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. In some countries, this protection is set out in a separate law rather than being included in the freedom of information law.

Protection from liability should also be provided to individuals who, reasonably and in good faith, disclose information in the exercise of any power or duty under freedom of information legislation. This effectively protects civil servants who have mistakenly, but in good faith, released information. This protection is important to change the culture of secrecy; civil servants should not have to fear sanctions for disclosing information or they will tend to err in favour of secrecy.