FOI UPDATE 2000: International laws
By David Banisar
There are an increasing number of countries around the world that have adopted or are considering adopting freedom of information acts. More than 40 countries now have laws that require the disclosure of government records and dozens more are considering acts. Many countries that have recently created or updated their constitutions have specific rights to freedom of information in their constitution. In other countries, the courts have found an implicit right to FOI as an element of free speech.
Article 43 of the Constitution, enacted in 1994, provides a right of habeas data for individuals to obtain information held about them by government agencies: "Every person may file an action to obtain knowledge of the data about them and its purpose, whether contained in public or private registries or databases intended to provide information; and in the case of false data or discrimination, to suppress, rectify, make confidential, or update the data. The privacy of news information sources may not be affected." The Supreme Court is currently reviewing a case involving Habeas Data.
In November 1998, the City of Buenos Aires approved a law on access to information. The law gives all persons the right to ask for and to receive information held by the local authorities and creates a right of judicial review. Individuals have the right under habeas data to update, rectification, confidentiality or suppression of information.
The federal Freedom of Information Act 1982 provides for access to government records. The Commonwealth Ombudsman promotes the Act and handles complaints about procedural failures. Merits review (appeals) of adverse FOI decisions is provided by the Administrative Appeals Tribunal, with the possibility of further appeals on points of law to the federal court. Budget cuts have severely restricted the capacity of the attorney general's department and Ombudsman to support the Act and there is now little central direction, guidance or monitoring. The government has announced an extension of the Act to cover contracted service providers, but a bill has not yet been introduced.
The Auskunftspflichtgesetz is a Freedom of Information law that obliges federal authorities to answer questions regarding their areas of responsibility. However, it does not permit citizens to access documents, just to receive answers from the government on the content of information. The nine Austrian Provinces have laws that place similar obligations on their authorities.
There are freedom of information laws on the right of access to administrative documents on the national and local and regional levels. Each jurisdiction has a Commission d'accès aux documents administratifs which oversees the act.
The Freedom of Information Act was approved in 1994. The law provides for general access to documents held by government departments except for courts and the Office of the Governor General. The definition of documents include "public contracts, grants or leases of land, or any written or printed matter, any map, plan or photograph, and any article or thing that has been so treated in relation to any sounds or visual images that those sounds or visual images are capable, with or without the aid of some other device, of being reproduced from the article or thing, and includes a copy of any such matter, map, plan, photograph, article or thing, but does not include library material maintained for reference purposes." Documents affecting national security, defense, international relations, and cabinet proceedings are exempt. Requests can be appealed to an Ombudsman who can force the disclosure of some documents but not those determined to be exempt. The losing party may appeal to the Supreme Court.
Article 5 (14) of the 1988 Constitution of Brazil states that "access to information is ensured to everyone and confidentiality of the source is protected whenever necessary for the professional activity." Individuals have a constitutional right of Habeas Data to access information about themselves held by public agencies which has been adopted into law.
The Bulgarian Constitution of 1991 Article 41 states, "(1) Everyone shall be entitled to seek, obtain and disseminate information. This right shall not be exercised to the detriment of the rights and reputation of others, or to the detriment of national security, public order, public health and morality. (2) Citizens shall be entitled to obtain information from state bodies and agencies on any matter of legitimate interest to them which is not a state or other secret prescribed by law and does not affect the rights of others."
As part of the Bulgaria 2001 program, the Bulgarian government committed in February 1998 to enacting a Law for Access to Information to provide access to government records. A draft bill is pending before the Judiciary Committee in the Parliament. The Bulgarian National Bank announced in July 1999 that it would be the first state institution to open up its archive of documents from the Communist era, starting in September. The 1997 Access to Documents of the Former State Security Service Act regulates the access, proceedings of disclosure and use of information kept in the documents of the former State Security Service.
The Access to Information Act provides individuals with a right of access to information held by the federal public sector. The Act gives Canadians and other individuals and corporations present in Canada the right to apply for and obtain copies of federal government records. "Records" include letters, memos, reports, photographs, films, microforms, plans, drawings, diagrams, maps, sound and video recordings, and machine-readable or computer files. The Act is overseen by the Office of the Information Commissioner of Canada. The Commissioner can investigate and issue recommendations but does not have power to issue binding orders. The Canadian Federal Court has ruled that government has an obligation to answer all access requests regardless of the perceived motives of the requesters. Similarly, the commissioner must investigate all complaints even if the government seeks to block him from so doing on the grounds that the complaints are made for an improper purpose. Each of the provinces also has a freedom of information law.
The 1991 Constitution provides for a right of access to government records. Colombia has a long history of FOIA. In 1888, the Code of Political and Municipal Organization allowed for individuals to request documents held in government agencies and archives, unless it was specifically forbidden by another law. In 1985, the Law Ordering the Publicity of Official Acts and Documents was approved. The law allows any person to examine the actual documents held by public agencies and obtain copies. Exceptions are for documents protected by the Constitution, another law, national defense or security. After 30 years, all secrecy is removed and the document becomes a public record. Requests must be responded to in 10 days. If a document request is denied, the petitioner can appeal to an Administrative Tribunal.
According to experts, "enforcement of the law is haphazard and the FOIA bureaucracy charged with processing requests does not yet exist."
The Parliament approved the Freedom of Information Law in May 1999. The law is based on the U.S. FOIA and provides for citizens access to all government records held by State bodies, local self-governing authorities and certain other official institutions, such as the Chamber of Lawyers or the Chamber of Doctors except for classified information, trade secrets or personal data.
In April 1996, the Parliament approved a law that allows any Czech citizen to obtain his or her file created by the Communist-era secret police (StB). Non-Czech citizens are not allowed to access their records. The Interior Ministry holds 60,000 records but it is estimated that many more were destroyed in 1989. In October 1998, there was a controversy over the rumors that the records showed that former Vienna Mayor Helmut Zilk, who was about to receive an award from Czech President Vaclav Havel, was a collaborator with the StB. It was suspected that the Office for the Documentation and Investigation of the Crimes of Communism was the source of the documents.
The Access to Information Act and the Access to Public Administration Files Act govern access to government records. There is currently an effort to replace the acts with a new law based on E.U. Directive 95/46.
The Publicity (of Public Actions) Act went into effect on December 1, 1999, replacing the Publicity of Official Documents Act of 1951. It provides for a general right to access any document created by a government agency, or sent or received by a government agency, including electronic records. Finland is a country that has traditionally adhered to the Nordic tradition of open access to government files. In fact, the world's first freedom of information act dates back as far as the Riksdag's (Swedish Parliament) 1766 "Access to Public Records Act." This Act also applied to Finland, then a Swedish-governed territory.
Two laws in France provide for a right to access government records. All records are available except those involving internal government deliberations, state security, personal information protected by the law on data protection, commercial secrets and other documents protected by law. The law does not apply to documents held by the Conseil d'Etat or the courts. The Commission d'accèss aux documents administratifs is charged with enforcing the acts.
There is no general federal freedom of information act in Germany. The federal government is discussing the necessity of a FOIA between the federal and the state governments and waiting for the Council of Europe to finish its recommendations on freedom of information.
Since 1990, a law allows for access to the files of the Stasi, East Germany's former security service, by individuals and researchers. The law created a Federal Commission for the Records of the State Security Services of the Former GDR (the Gauck Authority) which has a staff of 3,000 piecing together shredded documents and making files available. There have been 1.6 million requests from individuals for access to the files and 2.7 million requests for background checks since the archives became available. Many of the files were destroyed in 1989 but sometime in 1990, the U.S. Central Intelligence Agency was able to obtain the names, aliases and payment histories of 4,000 spies who worked in various countries for Stasi of informers from the Soviet Union. The U.S. Government is refusing to give the files to the German government, claiming that it would harm the people in the files.
The Land of Brandenberg adopted a freedom of information law in 1998 to allow citizens access to government records. The act is enforced by the Information and Data Protection Commissioner. More recently, Berlin and Schleswig Holstein have also adopted FOI laws.
Article 5 of the Greek Code of Administrative Procedure (Law No. 2690/1999) is a new freedom of information act that provides citizens the right to access administrative documents created by government agencies. It replaces Law 1599/1986.
The Code on Access to Information requires civil servants to provide records held by government departments unless there are specific reasons for not doing so. Departments can withhold information if it relates to 16 different categories including defense, external affairs, law enforcement and personal privacy. Formal complaints of denials can be filed with the Ombudsman. It is not considered to be very effective.
Article 61 (1) of the Constitution states: "In the Republic of Hungary everyone has the right to the free declaration of his views and opinions, and has the right of access to information of public interest, and also the freedom to disseminate such information."
Act No. LXIII of 1992 on the Protection of Personal Data and Disclosure of Data of Public Interest covers the collection and use of personal information in both the public sector and private sector. It is a combined Data Protection and Freedom of Information Act.
The Parliamentary Commissioner for Data Protection and Freedom of Information oversees the 1992 Act. Besides acting as an ombudsman for both data protection and freedom of information, the Commissioner's tasks include: maintaining the Data Protection Register, and providing opinions on DP and FOI-related draft legislation as well as each category of official secrets. Under the Secrecy Act of 1995, the Commissioner is entitled to change the classification of state and official secrets as well. The Commissioner (along with the two other Parliamentary Commissioners one for human rights in general, the other for the ethnic minorities) was elected for the first time on June 30, 1995, for a six-year term.
The Freedom of Information Act of 1996 (Upplysingalög) governs the release of records. The act was first proposed in 1969 but was never approved. Under the act, individuals, including non-residents, and legal entities have a legal right to documents without having to show a reason for the document. There are exceptions for national security, commercial and personal information. Copyrighted material can be provided to requesters but it is then their responsibility if they republish the materials in a manner inconsistent with the copyright. Denials can be appealed to the Information Committee.
The Supreme Court ruled in 1982 that access to government information was an essential part of the fundamental right to freedom of speech and expression.
There has been debate for several years about adopting a national Freedom of Information law and the government working group drafted a bill in 1997. The draft bill would provide a general right to access information and create a National Council for Freedom of Information and State Councils. In February 1999, President K.R. Narayanan announced that the government plans to bring forward the Freedom of Information Bill. Activists are critical of the draft, saying that it only provides for limited access to records involving schools, colleges, jails, employment exchanges, the public distribution of essential commodities, hospitals, land holdings and court deliberations. There are 20 categories of exemptions. The bill is scheduled to be introduced this year during the first budget session.
In 1997, the state of Tamil Nadu adopted the Act for Right to Information and the states of Gujarat, Rajasthan and Madhya Pradesh have administratively provided access to records.
The Freedom of Information Act was approved in 1997 and went into effect in April 1998. The act creates a presumption that the public can access documents created by government agencies and requires that government agencies make internal information on their rules and activities available. The Office of the Information Commissioner enforces the act. As of April 1999, there were 6,200 requests to government agencies of which 20% were refused. The Commissioner reviewed 330 cases.
The Freedom of Information Law was approved unanimously by the Knesset in May 1998. It provides for broad access to records held by government offices, local councils and government-owned corporations. Requests for information must be processed within 30 days. A court can review decisions to withheld information. A Jerusalem Post study in June 1999 found that many agencies had not began to prepare for the law.
The Act of 241/7.8.1990 provides for general access to government documents. However, it requires that requestors provide a legitimate reason for the request.
The Disclosure of Information Act was approved by the Diet in May 1999 after 20 years of debate. The law allows any individual or company to request government information in electronic or printed form. A nine-person committee in the Office of the Prime Minster will receive complaints about information which the government refuses to make public and will examine whether the decisions made by the ministries and agencies were appropriate. Government officials will still have broad discretion to refuse requests but requestors will be able to appeal decisions to withhold documents to one of eight different district courts. The law goes into effect in 2001. A survey by Kyodo News in May 1999 found that 31 city and prefectural governments are in the process of adopting legislation consistent with the new law. Sixteen of them are including a principle of "right to know."
The Official Secrets Act, like its namesake in the United Kingdom, places severe restrictions on the dissemination of government information in Kenya. Ministers have broad discretion to classify information as a government secret.
The International Commission of Jurists launched a campaign to adopt a FOI law in August 1999. The members presented a draft proposal for the enactment of a law on freedom of information to the Attorney General and released a detailed report finding support for a law. They conducted a survey of the media, legal professionals and judicial officials, government officials, business sector personalities and the general public and found that 96% supported the idea of a freedom of information act.
The Supreme Court ruled in 1989 that there is a constitutional right to information "as an aspect of the right of freedom of expression, and specific implementing legislation to define the contours of the right was not a prerequisite to its enforcement." The Act on Disclosure of Information by Public Agencies is a freedom of information act that allows Koreans to demand access to government records. It was enacted in 1996 and went into effect in 1998.
The Law on Freedom of Information was adopted by the Saiema in October 1998 and signed into law by the State President in November 1998. It guarantees public access to all information in "any technically feasible form" not specifically restricted by law. Individuals may use it to obtain their own records. Information can only be limited if there is a law; the information is for internal use of an institution; trade secrets; information about the private life of an individual, and certification, examination, project, tender and similar evaluation procedures.
There is no general freedom of information law in Luxembourg. Under the 1960 decree on state archives, the archives are to be open to the public but citizens must make a written request explaining why they want access and ministers have broad discretion to deny requests.
The Government Information (Public Access) Act of 1991 is based on the constitutional right of access to information. It creates a presumption that documents created by a public agency should be available to everyone. Information can be withheld if it relates to international relations of the state, the "economic or financial interest of the state," investigation of criminal offenses, inspections by public authorities or personal privacy. However this must be balanced against the importance of the disclosure. Requesters can appeal denials to an administrative court, which has the final decision.
The Official Information Act 1982 and the Local Government Official Information and Meetings Act 1987 are freedom of information legislation governing the public sector. Enforcement is supervised by the Office of the Ombudsman. There are significant interconnections between this freedom of information legislation and the Privacy Act in subject matter, administration, and jurisprudence, so much so that the three enactments may be viewed, in relation to access to information, as complementary components of one overall statutory scheme.
The Public Access to Documents in the (Public) Administration provides for public access to government records. Under the Act, there is a broad right of access to records. If denied, individuals can appeal to a higher authority under the act and then to a Court.
Freedom of information is constitutionally protected under the right of habeas data. The first case to test the habeas data clause, which reviewed clause 7 of Article 2, was brought in the criminal court system in January 1994. The Supreme Court ruled in March 1994 that the case should not have been brought in the criminal courts, nullified all previous decisions on the case, and ordered it resubmitted to the civil court system. Several cases have allowed the courts to establish their jurisdiction over, and support for, habeas data.
In May 1994, Law Number 26301 was passed in order to set temporary legal standards for the application of habeas data. The Law requires that all habeas data actions be notarized, although reasons for the requested action need not be given, and filed with the legal authority from which information or an action is desired. The Law sets out the time periods and procedures for taking actions under clauses 5, 6 and/or 7 of Article 2 of the Constitution. The Law was updated in June 1995 to give a right of action, provide greater access to records, and to limit its use as a means of censorship.
Article 3, Section 7 of the 1987 Constitution, states: "The right of the people to information of matters of public concern shall be recognized. Access to official records and documents, and papers pertaining to official acts, transactions, or decisions as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law."
The Code of Conduct and Ethical Standards for Public Officials and Employees mandates disclosure of public transactions and guarantees access to official information, records or documents. Agencies must act on a request within 15 working days from receipt of the request. Complaints against public officials and employees who fail to act on request can be filed with the Civil Service Commission or the Office of the Ombudsman.
There is no general freedom of information act in Poland. A bill was introduced by the Unia Pracy (Union of Work) Party in 1998 but they are no longer represented in the Parliament and no other party has stepped forward to advance the bill. The Supreme Administrative Court ruled in February 2000 that the public's right to know was not unlimited and allowed city council meetings to remain closed.
Poland enacted the Classified Information Protection Act in January 1999 as a condition to entering NATO. The act covers classified information or information collected by government agencies that disclosure "might damage interests of the state, public interests, or lawfully protected interests of citizens or of an organization."
There have also been efforts to deal with the files and former employees of the communist era secret police. A law creating a National Remembrance Institute to allow victims of the communist era secret police access to records was approved by the Parliament in October 1998. President Aleksander Kwasniewski vetoed the bill saying that it should allow all Poles access to the records but his veto was overridden and he later signed the bill. The Screening Act, which allows a special commission to examine the records of government officials who might have collaborated with the secret police, was approved in June 1997 but was delayed until 1998. In November 1998, the Constitutional Tribunal ruled that the act was constitutional except for two provisions. As of January 1999, the Screening Department of the Appellate Court had received 23,460 screening statements from public officials.
Law Number 65/93, of 26 August 1993 provides for access to government records in any form by any person. Documents can be withheld for "internal or external security," secrecy of justice, and personal privacy. It is overseen by the Commission for Access to Administrative Documents, an independent Parliamentary agency. The CADA can examine complaints, provide opinions on access, and decide on classification of systems.
Article 24 (2) of the Constitution states: "The bodies of state authority and the bodies of local self-government and the officials thereof shall provide to each citizen access to any documents and materials directly affecting his/her rights and liberties unless otherwise stipulated under the law."
The Law of the Russian Federation on Information, Informatization, and Information Protection is a Freedom of Information law. Under the act "Government information resources of the Russian Federation are public; they are generally accessible." Requestors are not required to provide a reason for their request. The law prohibits limits on the following types of information:
- Laws and other regulations which concern the legal position of the government bodies, territorial self-governing bodies, organizations and social associations, or the rights, freedoms and duties of the citizens, and procedures involved.
- Documents which report on unusual events, ecological, meteorological, demographic, health and epidemic-related facts, or contain other information which is of importance for the functioning of supply and production facilities or for the safety of the citizens and the economy.
- Documents which report on activities of the government bodies and territorial self-governing bodies, on use of the budget funds or other governmental and local stocks, on economic situation and supply requirements, except for documents affecting state secrets.
- Documents in the public collections of libraries and archives, information systems of government bodies, territorial self-governing bodies, social associations and organizations, which are of public interest or essential for the exercise of citizens' rights, freedoms and duties.
The law is overseen by the Committee of the State Duma on Information and Informatization and the State Committee on Information and Informatization under the Russian President Authority.
Section 32 of the South African Constitution of 1996 states: "(1) 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; (2) 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 Access to Information Act was approved in February 2000. The bill covers both public and private sector entities and allows for access, rights of correction and limitations on disclosure of information. The Act will be enforced by the Human Rights Commission.
The law of 30/26/11/1992 provides for access to government information if a legal interest is shown. It does not apply to computerized records.
Sweden is a country that has traditionally adhered to the Nordic tradition of open access to government files. The world's first freedom of information act was the Riksdag's (Swedish Parliament) "Freedom of the Press Act of 1766." The Act required that official documents should "upon request immediately be made available to anyone making a request" at no charge. The Freedom of the Press Act is now part of the Constitution and decrees that "every Swedish citizen shall have free access to official documents." Decisions by public authorities to deny access to official documents may be appealed to general administrative courts and ultimately, to the Supreme Administrative Court. The Parliamentary Ombudsman has some oversight functions for freedom of information.
The Official Information Act was approved in July 1997 and went into effect in December 1997. The Act allows for citizens to obtain government information such as the result of consideration or a decision which has a direct effect on a private individual, work-plan, project and annual expenditure estimates, and manuals or order relating to work procedure of State officials which affects the rights and duties of private individuals.
The Official Information Commission oversees the act. Individuals can appeal denials to the Commission. According to the OIC, in 1999, there were 113 complaints, 80 of which were solved while the remaining 33 are under processing. There were 32 cases in 1998.
Article 34 of the Constitution guarantees the rights "to freely collect, store, use and disseminate information by oral, written or other means of his or her choice."
Article 29 of the Act "On Information" adopted by Parliament on October 2, 1992 (No2657-XII) prohibits limitation of the right to obtain non-covert information. The Statute provides for procedure of access to information. A government department must determine within ten days if the information can be released. The author of rejected or postponement inquiry has a right to appeal the decision to higher echelon or court.
Article 2 of "On the Order of Dissemination of Information on Public Bodies and Local Governments Activity by Mass-Media" requires public bodies to inform mass media about their activity. The statute guarantees free access to such information for journalists except when prescribed by the statute "On State Secrecy". The Statute prohibits putting pressure upon and interfering with journalists.
There have been efforts for more than 20 years to enact a Freedom of Information Law in the United Kingdom. A 1994 "Code of Practice on Access to Government Information" provides some access to government records but has 15 broad exemptions. Dissatisfied applicants can complain, via a Minister of Parliament, to the Parliamentary Ombudsman if their request is denied.
The government released a draft FOI act for consultation in May 1999. The draft act would allow for access to government records and would create an Information Commissioner (also the Data Protection Commissioner) to enforce the act. An initial draft was strongly criticized by many politicians and nongovernment organizations as being insufficient and weaker than the existing code of practice. A total of 195 Members of Parliament signed a Parliamentary motion calling for major improvements. Two select committees, in the Commons and the Lords, recommended sweeping changes.
The Campaign for Freedom of Information, Charter 88 and 23 other organizations started a campaign to strengthen the law in June 1999. Following the criticism, Home Secretary Jack Straw indicated a willingness to strengthen some of the provisions. The revised bill still has many broad exemptions.
The most controversial exempts the disclosure of all information relating to the "formulation or development of government policy." All information relating to police investigations is exempt from disclosure. All information relating to intelligence agencies or matters is also exempt.
Under the draft, a broad exemption applies to anything which in an authority's reasonable "opinion" would prejudice the "effective conduct of public affairs." The CFOI said that "Giving legal weight to authorities' "opinion" means that most decisions under this vague provision could not be challenged at all."
Another major area of concern is the bill's public interest test. Authorities would have to consider disclosing exempt information in the public interest, but the Commissioner could only recommend disclosure, not require it. Ministers and authorities would always have the final say. A recent survey for the Consumers' Association found that 69% of people did not trust ministers.
Currently, there are several restrictions on FOI in U.K. law. The repressive Official Secrecy Act was used recently against journalist Tory Geraghty for his book The Irish War, which details surveillance techniques used in Northern Ireland and the U.K. by the police and intelligence services.
The Scottish Parliament also promised to enact a stronger Freedom of Information Law as one of its first actions. In November 1999, it issued a consultation document. The draft is considered much stronger than the UK bill. It requires disclosure of facts behind decisions, a stronger balancing test for restricting information (that a disclosure would cause "substantial prejudice") and give the Information Commissioner far greater powers to mandate disclosure of information if it is determined to be in the public interest.
There are a number of other countries and regional organizations that are also considering freedom of information laws, including the European Union and Council of Europe, Republic of Georgia, Moldova, Taiwan, and Trinidad and Tobago.
David Banisar is deputy director of Privacy International and a senior fellow at the Electronic Privacy Information Center. An electronic version of this report with footnotes and other materials relating to FOIA is available on the Privacy International Web site.
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