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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Right to Access to Information

Lana Ofak

Subject(s):
Right to access to information — Right to privacy — Economic, social, and cultural rights — Environmental rights

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Definition of the Right to Access to Information, its Origin and Evolution

1.  The right to access to information is the right of the individual to have access to information held by the public authorities. Peled and Rabin identified four major justifications for the constitutional protection of the right to access to information: the political-democratic justification, the instrumental justification, the proprietary justification and the oversight justification (Peled and Rabin 359–370).

2.  The right to access to information is a precondition for the proper conduct of democracy (the political-democratic justification) (Peled and Rabin 360–363). The ability of citizens to effectively engage in mechanisms of democratic public participation depends on their ability to obtain relevant information, including information held by public authorities. If they do not know what is happening in their society, if the actions of those who rule them are hidden, they cannot take a meaningful part in the affairs of that society (ARTICLE 19 (1990) 1).

3.  Moreover, the right to access to information is ‘a foundational human right, upon which other rights depend’ (Mendel (2003) 1). In order for the people to be able to protect their rights, they must have the tools for such protection. Access to information is one of the essential conditions for the exercise of all the rights established by law as well as for their protection (the instrumental justification) (Peled and Rabin 364).

4.  An additional justification for the constitutional protection is that information held by public authorities is created or gathered by civil servants who carry out their duties by means of taxes paid by the public. Thus, ‘the owners of the information, those who financed its collection, should have access to it’ (the proprietary justification) (Peled and Rabin 365).

5.  The right to access to information is also an important tool for discovering and preventing government corruption and bribery (the oversight justification—transparency) (Peled and Rabin 366). It is necessary for holding the governments accountable and preventing their wrongdoings.

6.  The world’s first legal rules of a constitutional nature concerning access to official documents were enacted on 2 December 1766 by the Swedish parliament in the form of His Majesty’s Gracious Ordinance Relating to Freedom of Writing and of the Press (Mustonen 4). This Ordinance abolished the political censorship of most publications and granted public access to documents held by public authorities. Although the main focus of the Ordinance was on the freedom of the press, the inherent connection between this freedom and the right of access to official documents was also recognized (Riekkinen and Suksi 6). For the purpose of enabling citizens to write and print materials concerning the government, the courts and the parliament, it was necessary to grant them access to documents as well as the right of copying such documents (see His Majesty’s Gracious Ordinance: 2 December 1766, para. 10 (Swed), translation by Hogg in Mustonen, The World’s First Freedom of Information Act Anders Chydenius’ Legacy Today 14). Today, this constitutional principle of access to any document held by public authorities is expressed in Chapter 2 of the Freedom of Press Act (Tryckfrihetsförordningen, SFS 1949:105, last amended in 2014 (SFS 2014:1370) (Swed)), which is one of the four basic laws that form the Constitution of Sweden. The second Chapter of the Freedom of Press Act carries the heading ‘On the Public Nature of Official Documents’ and contains detailed procedural rules governing the access. The right to free access to official documents is guaranteed to every Swedish citizen, in order to encourage the free exchange of opinion and the availability of comprehensive information (Art. 1).

7.  At the time of the adoption of His Majesty’s Gracious Ordinance Finland was a part of the Kingdom of Sweden. After the separation of Finland from Sweden in 1809, the recognition of the right of access to official documents at the level of the Finnish constitution did not occur immediately. Although such right was regulated by the Act on the Publicity of Official Documents in 1951 (Lakiyleistenasiakirjainjulkisuudesta, 9.2.1951/83 (Fin)), it was not introduced in the Constitution of Finland until the reform of the rules concerning fundamental rights in 1995 (Constitution of Finland: 17 July 1919 (as Amended on 17 July 1995, Section 10, para. 2 (Fin)) (Riekkinen and Suksi 21).

8.  Between 1766 and 1951 Colombia was the only other country that enacted the code (Código de Organización Política y Municipal, 1888 (Colom)) that allowed citizens to request public documents from government agencies and archives, unless release of these documents was specifically forbidden by another law (Banisar 58). Constitutional recognition of the right of access to public documents in Columbia took place in 1991 (Constitution of the Republic of Colombia: 5 July 1991, Art. 74 (Colom)). As oppose to Colombia, Costa Rica has yet to adopt access to information legislation even though this right has been constitutionally guaranteed since 1949 (Constitution of the Republic of Costa Rica: 7 November 1949, Art. 30 (Costa Rica)).

9.  The modern development of legislation on the right to access to information—in terms of the global trend—began in the second half of the 20th century along with the intensive development of civil society and human rights movements, strengthening of the freedom of the media, but also in response to the decline in confidence in institutions (Musa 15).

10.  From the middle of the 1960s to the beginning of the 1990s there have been different developments in the field of access to information regulation. In certain countries the constitutions did not establish any explicit constitutional right to this effect. The legislative bodies have, nonetheless, adopted national access to information legislation with the United States of America being the prime mover (US (1966), Den (1970), Nor (1970), Fr (1978), Neth (1978), Austl (1982), Can (1982), NZ (1982), Colom (1985), Austria (1987) and It (1990)). Out of the mentioned countries, some of them inserted the right of public access to government-held documents or information in their constitutions at a later date (Constitution of the Kingdom of Norway: 17 May 1814 (as Amended on 29 October 2004) Art. 100 (Nor), Constitution of the Kingdom of the Netherlands: 17 February 1983, Art. 110 (Neth), Constitution of the Republic of Colombia: 5 July 1991, Art. 74 (Colom)). Italy is a specific case since it did not directly intervene in its constitution. Until 2005, the general right of access to information held by public authorities was not considered as a constitutionally guaranteed right. However, the amendments made to Law no. 241/1990, Art. 22, para. 2 (It) by the Law no. 15/2005 (It) (Legge 11 febbraio 2005, n. 15 ‘Modificheedintegrazioniallalegge 7 agosto 1990, n. 241, concernentinormegeneralisull’azioneamministrativa’) brought the relevant changes in a way that the general right of access to administrative documents now constituted a constitutionally protected right, guaranteed by Art. 117, paragraph 2, letter (m) of the Constitution of the Italian Republic. The said provision of the Constitution stipulates that the State has exclusive legislative powers with respect to the determination of the essential levels of well-being concerning civil and social rights which must be guaranteed on the entire national territory (Constitution of the Italian Republic: 22 December 1974 (As Amended to 20 April 2012) (It)).

11.  Furthermore, in the period between the 1970s and the beginning of the 1990s the right to access to information did enjoy a constitutional protection in several countries (Phil (1973), Greece (1975), Mex (1977), Guat (1985), Nicar (1986), Port (1989) and Nepal (1990)) (Constitution of the Republic of the Philippines: 17 January 1973, Art. IV, Section 6 (Phil), Constitution of the Hellenic Republic: 7 June 1975, Art. 10 (Greece), Political Constitution of the United Mexican States: 5 February 1917 (as Amended on 6 December 1977), Art. 6 (Mex), Constitution of the Republic of Guatemala: 31 May 1985, Art. 30 (Guat), Political Constitution of the Republic of Nicaragua: 19 November 1986, Art. 66 (Nicar), Constitution of the Portuguese Republic: 2 April 1976 (as Amended by the Second Revision on 8 July 1989) Art. 268, para. 2 (Port), and Constitution of the Kingdom of Nepal: 9 November 1990, Art. 16 (Nepal)). However, this protection has not been followed by a concrete legislation until several or many years after the constitutional recognition (Greece (1986), Port (1993), Mex (2002), Nepal (2007), Nicar (2007) and Guat (2008)). Philippines still has not adopted access to information legislation.

12.  The next wave of enactment of legislation governing the right of access to information began in the middle of the 1990s. It included the promotion of access to information and transparency as the constituent elements of good governance in the fight against corruption. The adoption of legislation on access to information in transition countries, especially post-socialist countries (socialism), was one of the instruments for overcoming the culture of secrecy and a prerequisite for democratization and institution building. The Promotion of access to information in the fight against corruption as a precondition for the strengthening of economic activities was supported by international organizations such as the World Bank, International Monetary Fund, Organisation for Economic Co-operation and Development, Council of Europe and European Union (Musa 16). The advocacy for transparency is also an important role played by civil society organizations, especially those at the international level such as Transparency International, ARTICLE 19, Access-Info Europe, FOIAnet, Open Society Justice Initiative, Right2INFO.org and freedominfo.org.

B.  Delineation of Overlapping Concepts

1.  Freedom of Information and Freedom of Expression

13.  International human rights treaties have a great influence on spreading of human rights into national constitutions (Ginsburg, Elkins and Simmons 61–95). But as far as the right to access to information is concerned, explicit recognition of such right in international human rights treaties was slow to evolve (McDonagh 28). The first binding international legal instrument to recognize a general right of access to official documents held by public authorities was not signed until 2009 (Council of Europe Convention on Access to Official Documents (not yet in force)).

14.  During its 1st session United Nations General Assembly adopted Resolution 59 (I) ‘Calling of an International Conference on Freedom of Information’ ((14 December 1946) GAOR 1st Session A/RES/59). It stated that ‘[f]reedom of information is a fundamental human right and is a touchstone of all freedoms to which the United Nations is consecrated’. This freedom ‘implies the right to gather, transmit and publish news anywhere and everywhere without fetters’ (UNGA Res 59 (I) ‘Calling of an International Conference on Freedom of Information’). Freedom of information, thus defined, is not the same as the right to access to information held by public authorities.

15.  On the other hand, it should be noted that legislation that governs the right to access to information (the ‘right to information’ (‘RTI’) legislation) is also referred to as ‘freedom of information’ (‘FOI’) legislation, depending on jurisdictions. The latter term has spread from the United States of America where the first modern law that regulated access to government-held information was adopted in 1966 (Freedom of Information Act (‘FOIA’), 5 USC para. 552 (US)).

16.  Regardless of the absence of an explicit acknowledgment in international human rights instruments, the right to access to information has been linked with the freedom of expression in the human rights case law (McDonagh 29–37). The → Universal Declaration of Human Rights (1948) (UNGA Res 3/217A) in its Art. 19 provides that 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. The Universal Declaration served as a model for future legally binding international human rights treaties. Every international human rights treaty protects the freedom of expression (→ European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Art. 10, → International Covenant on Civil and Political Rights (1966) Art. 19, → American Convention on Human Rights (1969) Art. 13, → African Charter on Human and Peoples’ Rights (1981) Art. 9, and Arab Charter on Human Rights (2004) Art. 32). International human rights bodies (the → Human Rights Committee, the → European Court of Human Rights (ECtHR) and the → Inter-American Court of Human Rights (IACtHR)) have accepted the existence of a right to access to information within the framework of the right to freedom of expression (McDonagh 29–37). The basis for the argument for including a right to access to information under the freedom of expression is that access to information is a pre-condition of the full exercise of the right to freedom of expression (Beatson and Cripps). The individuals must have access to government-held information in order to effectively exercise their right to freedom of expression.

2.  Access to Environmental Information

17.  Certain countries guarantee a specific right to access to environmental information in their constitutions (eg Constitution of the Republic of Albania: 21 October 1998 (as Amended to 18 September 2012), Art. 56 (Alb), Charter of Fundamental Rights and Basic Freedoms: 16 December 1992 (as Amended to 12 June 1998), Art. 35, para. 2 (Czech), Constitutional Law no. 2005–204 (1 March 2005) concerning the Charter of the Environment, Art. 7 (Fr), Constitution of the Republic of Montenegro: 19 October 2007 (as Amended to 31 July 2013), Art. 23, paragraph 2 (Montenegro), Constitution of the Kingdom of Norway: 17 May 1814 (as Amended to 1 June 2015), Art. 112, para. 2 (Nor), Constitution of the Republic of Poland: 2 April 1997 (as Amended to 7 May 2009) Art. 74, para. 3 (Pol), Constitution of the Republic of Serbia: 30 September 2006, Art. 74, para. 1 (Serb), Constitution of the Slovak Republic: 1 September 1992 (as Amended to 21 October 2014), Art. 45 (Slovk) and Constitution of Ukraine: 28 June 1996 (as Amended to 21 February 2014), Art. 50, para. 2 (Ukr)). The main justification for granting a right of access to environmental information is that it is essential for ensuring the right to a healthy environment (right to health) and for effective public participation in environmental decision-making. On the international level, the United Nations Economic Commission for Europe (‘UNECE’) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted on 25 June 1998 in Århus (Aarhus), Denmark) is the most important treaty that grants the rights to the public and imposes obligations on public authorities regarding access to environmental information.

3.  The Right to the Truth

18.  In human rights law, the right to the truth refers to the right of the victims of gross violations of human rights and serious violations of international humanitarian law, and their families, ‘to know the truth about the abuses they have suffered, including the identity of perpetrators, the causes that gave rise to the violations, and, if appropriate, the ultimate fate or whereabouts of the forcibly disappeared’ (González and Varney 3). In Peru, the Constitutional Tribunal recognized the right to the truth as a fundamental right that has an autonomous configuration and is protected by the constitution, despite the lack of an explicit constitutional provision (Genaro Villegas Namuche Case No 2488–2002-HC/TC Constitutional Tribunal of Peru (18 March 2004) (Peru)).

4.  Different Types of Rights to Access to Information

19.  Access to information can be broken down in two related rights—the ‘passive’ and the ‘active’ access (UNECE 19). The general right of the public to gain access to existing information upon request is known as ‘passive’ access to information. It concerns ‘the right of the public to seek information from public authorities and the obligation of public authorities to provide information in response to a request’ (UNECE 19). The duties of the government to collect and disseminate information on its own initiative are known as ‘active’ access to information. The ‘active’ access is ‘the right of the public to receive information and the obligation of authorities to collect and disseminate information of public interest without the need for a specific request’ (UNECE 19).

20.  Beers differentiates between four types of access: the official access, the party access, the personal access, and the public access (Beers 178). The official access is the right of public officials to obtain government-held documents. The party access is the access to documents that are of interest to a party involved in a legal procedure (administrative or judicial). The right of personal access refers to access to one’s own personal information, and the public access is the right of all members of the public to access government-held information.

C.  List of Analysed Constitutions

21.  A total of 56 countries have been covered by the analysis (which also included two countries without a written constitution (Isr and UK)). The criteria for the selection were the following:

  • •  Countries with the largest population,

  • •  Countries where the right to access to information originated,

  • •  Countries whose constitutions contain provisions granting the right to access to information,

  • •  Countries where this right has been the subject of judicial interpretation by the highest courts, and

  • •  Countries whose constitutions do not contain such provisions, but have enacted the right to information legislation.

D.  Comparative Description and Assessment

22.  Constitutional recognition of the right to access to information can be realized in two ways. The first method is the explicit introduction of such right in the country’s constitution. The second approach is through judicial recognition of this right accomplished by the courts’ interpretation of human rights and other constitutional principles (Peled and Rabin 373).

1.  Explicit Recognition of the Right in the Constitution

23.  Countries which expressly recognize the right to access to information in their constitutions will be presented by continents.

(a)  Asia

24.  Out of ten analysed constitutions, four recognize the right of access to information (Indon (Art. 28F), Nepal (Art. 27), Pak (Art. 19A) and Phil (Art. 3, Section 7)). They all guarantee this right in all matters of public importance but only to their citizens, with the exception of Indonesia, which grants the right to everyone. The Constitution of Philippines specifies that citizens have access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development. The analysed constitutions do not provide any procedural rules governing the access to information. They also do not specify limitations of the right, but leave that issue to be addressed and regulated by law. The Constitution of Jordan does not include an explicit right to information, but confers to Jordanians the right to address the public authorities on personal matters affecting them, or on what concerns public affairs in the manner and conditions prescribed by law (Art. 17). The Constitution of Thailand does not contain specific provisions on any of the rights and freedoms, but it only states that human dignity, rights, liberties and equality of the people protected by the constitutional convention and international obligations shall be protected and upheld (Section 4). In its previous Constitution the right to access to public information in possession of a government agency, State agency, State enterprise or local government organization was guaranteed (Constitution of the Kingdom of Thailand (BE 2550): August 24, 2007, Section 57 (Thai)). Of all analysed countries, only Philippines has yet to enact a right to information legislation. Despite that fact, the Supreme Court of the Philippines has ruled in several occasions that the constitutional right to information on matters of public concern is enforceable (self-executing) (Legaspi v Civil Service Commission (GR No L-72119) Supreme Court of the Republic of the Philippines (29 May 1987) (Phil)).

25.  Similarly, the Supreme Court of Nepal has played a supportive role in the development of right to information in Nepal (Aryal 173). As already mentioned, Nepal was among the countries that recognized that right early on, in Art. 16 of the 1990 Constitution. In the Arun III case which was decided in 1994 (ie many years before the enactment of the right to information legislation) the Supreme Court filled a gap that existed in Nepalese law. It issued an eight point guideline for the government that was ‘as good as a Right to Information legislation until the government enacted a separate legislation to this effect’ (Aryal 160). The law regulating the right to information was passed in 2007.

26.  In Pakistan, Art. 19A which explicitly guarantees the right to information was inserted into the Constitution in 2010. However, the Supreme Court protected the citizens’ right to information even before the constitutional amendment. In 1993 the Supreme Court ruled in Muhammad Nawaz Sharif (Muhammad Nawaz Sharif v President of Pakistan and others Supreme Court of Pakistan [1993] PLD 1993 SC 473 (Pak)) that the right to freedom of expression—which is provided for in the Constitution—includes the right to receive information (Idris 14).

(b)  Africa

27.  The analysis of eleven constitutions of African countries determined that only Ghana and Nigeria do not provide for right to access to information. In Ethiopia the right to information of public interest is guaranteed within the freedom of the press (Art. 29, para. 3 (b) (Eth)) and in Mozambique within the freedom of expression and the press, but only to citizens (Art. 48, para. 1 (Mozam)).

28.  The right of access to information as a stand-alone right is recognized in the following countries: Egypt (Art. 68), Kenya (Art. 35), Malawi (Art. 37), Morocco (Art. 27), South Africa (Art. 32), Uganda (Art. 41), and Zimbabwe (Art. 62). This right is guaranteed to everyone in Kenya, Malawi and Zimbabwe, while other countries grant such right to their citizens. Zimbabwe explicitly refers to every Zimbabwean citizen or permanent resident, including juristic persons and the Zimbabwean media (Art. 62, para. 1). The Constitution of Kenya is the only one that additionally prescribes the ‘active’ access to information by imposing a duty to the State to publish and publicize any important information affecting the nation.

29.  The constitutions mostly stipulate that the duty to disclose information is on the State (Egypt, Kenya, Malawi, S Afr, Uganda and Zim). The Constitution of Egypt expressly stipulates that information, data, statistics and official documents are owned by the people. Some constitutions specifically impose the duty to provide information also to any other organ or agency of the State at any level of Government (Malawi, Uganda and Zim) and to public administration, elected institutions and bodies with a public service mission (Morocco). Malawi and Zimbabwe specify the purposes for access to government-held information. The right of access is guaranteed insofar as such information is required for the exercise of person’s rights (Malawi) or in the interests of public accountability (Zim). Furthermore, Kenya, South Africa and Zimbabwe protect the right of access to any information held by any person (not only the State) provided that such information is required for the exercise or protection of any right.

30.  Like in Asia, the constitutions do not provide any procedural rules for obtaining the access. Instead, they stipulate that the relevant issues shall be determined by law. Some constitutions list the reasons for restricting the access to information which must be applied in accordance with the law (Morocco, Uganda and Zim). Of all analysed countries, Egypt, Ghana, Kenya, Malawi and Morocco have not yet enacted the right of information legislation.

31.  Though there is no access to information legislation in Kenya, a number of citizens have used the constitutional provision to access information from the public institutions (African Platform for Access to Information 28). One of the most important cases relates to the first elections held in Kenya on 4 March 2013 under the new Constitution. The High Court gave direct effect to the constitutional right to access public information in the context of documents required for the planned presidential election petition (European Union Election Observation Mission to Kenya 8, African Platform for Access to Information 31). In Nairobi Law Monthly Company Limited v Kenya Electricity Generating Company and Others, the High Court upheld that citizens could access information, but the ruling was limiting because it restricted access to information to natural persons and thus precluded the Nairobi Law Magazine from accessing information as a legal entity (African Platform for Access to Information 31). This case illustrates why a legislative act which clearly defines the conditions of access to information is needed.

33.  In South Africa the Promotion of Access to Information Act was enacted already in 2000, which made it the first country in Africa to pass such legislation. Thus, there is a more extensive case law in this field in South Africa than in other African countries. Some of the recent relevant cases decided by the Supreme Court of Appeal of South Africa are Company Secretary of Arcelormittal South Africa v Vaal Environmental Justice Alliance and Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd. The importance of this right has also been explained by the Constitutional Court of South Africa in Brümmer v Minister for Social Development and Others. In a country which is founded on values of accountability, responsiveness and openness, to give effect to these founding values, the public must have access to information held by the State (paras 62–3).

(c)  North America

34.  The constitutions of the United States of America and Canada do not contain provisions concerning the right to access to information. All other analysed countries recognize such right (Costa Rica (Art. 30), Guat (Art. 30), Mex (Art. 6), Nicar (Art. 66) and Pan (Art. 43)), and are Parties to the American Convention on Human Rights. The right to access to information is guaranteed to everyone in Costa Rica, Mexico and Panama, and to all interested parties in Guatemala. The Constitution of Nicaragua grants the right to truthful information only to Nicaraguans and stipulates that this right comprises the freedom to seek, receive and disseminate information and ideas. The right to truthful information, thus defined, refers more to the freedom of information than to the right to access to information.

35.  Certain constitutions specify that the right of access to information relates to information on matters of public concern (Costa Rica), to all the acts of administration including reports, copies, reproductions, and certifications (Guat), and to available information or information of general interest stored in data banks or registries administered by public servants or by private persons providing public services (Pan). Those constitutions do not regulate any of the issues regarding the procedure for obtaining the access except Mexico and Panama. The Constitution of Panama provides for a writ of habeas data in order to enforce the right of access to public or freely accessible information (Art. 44, para. 2). Mexico is a unique example of detailed constitutional provisions concerning the right of access to information which are the result of the constitutional amendment enacted in February 2014 that was partly motivated by an attempt to remove huge differences between state’s transparency laws (Ruelas and Mora). There are several particularities of the Mexican Constitution. It is explicitly stated that everyone, without necessity to prove their interest or to justify their use, will have free access to public information. The authorities and entities that are obliged to provide information are listed in detail. All the information held by any authority, entity, organ and body of the Executive, Legislative and Judicial Powers, autonomous organs, political parties, public trusts and funds, as well as by any natural or juridical person or trade-union that receives and exercises public resources or realizes acts of authority in the federal, state and municipal domain, is public and may only be temporarily reserved for reasons of public interest and national security, in the terms that the laws establish. Furthermore, it is stipulated that in the interpretation of this right the principle of maximum publicity must prevail (Art. 6, A, para. 1).

36.  The Mexican Constitution even regulates the right of ‘active’ access. The obligated subjects must preserve their documents in administrative updated archives and publish, through available electronic media, the information complete and updated concerning the exercise of the public resources and the indicators that permit rendering account of the fulfilment of their objectives and of the results obtained (Art. 6, A, para. 1). The constitutional amendment is also significant in that it gave constitutional autonomy to the Federal Institute for Access to Public Information and Data Protection that is responsible for guaranteeing the fulfilment of the right of the access to public information and to the protection of the personal data (data protection).

37.  In addition to the access to government-held information, the Mexican Constitution guarantees the right of access to the technologies of information and communication, as well as to the services of broadcasting and telecommunications, including that of broadband and the internet (Art. 6, para. 3).

38.  Of all analysed countries, only Costa Rica has yet to enact the right of information legislation. Although a lack of enforcement mechanisms under current law undermines the efficacy of the access to information, the courts through their judgments acknowledge governments’ obligations to enforce the right to information (ELLA (2 May 2012) 5). In case Navarro Gutierrez v Lizano Fait the Constitutional Chamber of the Supreme Court of Costa Rica held that

the State must guarantee that information of a public character and importance is made known to the citizens and, in order for this to be achieved, the state must encourage a climate of freedom of information … In this way, the State ... is the first to have an obligation to facilitate not only the access to this information, but also its adequate disclosure and dissemination, and towards this aim, the State has the obligation to offer the necessary facilities and eliminate existing obstacles to its attainment (para. VII) (OAS Special Rapporteur for Freedom of Expression 159).

39.  A case Director of Magazine Proceso v Congress of Mexico that was decided by the Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) also illustrates the importance of granting the constitutional status to the right of access to information because it enables the competent courts (supreme or constitutional) to review the constitutionality of the provisions of legislation and other regulations. The mentioned case related to a denial of access to documents from a preliminary investigation in criminal proceedings on the basis of certain provisions of the Federal Code of Criminal Procedure, the Federal Transparency and Access to Public Government Information Act and the Transparency and Access to Information Regulation of the National Human Rights Commission. According to the Supreme Court, Art. 6 of the Constitution provides that the public interest, privacy, and personal data are limitations on the right of access to information; however, for a restriction on this right to be constitutional, it must be defined by a law and meet the requirements of a proportionality test. The Supreme Court held ‘that the provisions requiring secrecy for all information that is part of preliminary investigations in criminal proceedings may not be applied in deciding the plaintiff’s request for information, because their excessively broad scope makes them unconstitutional’ (Global Freedom of Expression). The absolute secrecy of all information in preliminary investigations does not meet the requirement for proportionality sensustricto, as it does not ‘seek an appropriate balance between ... the right of access to information and the end objective sought by the restriction’ (Global Freedom of Expression para. 199).

(d)  South America

40.  Out of nine analysed constitutions, only the constitutions of Argentina and Chile do not contain an explicit provision concerning the right to access to information. Other countries may be divided in two groups.

41.  The first group includes Bolivia whose Constitution grants to Bolivians the right to access to information, to interpret, analyse and communicate it freely (Art. 21) without specifying that this right concerns the access to government-held information.

42.  The second group consists of Brazil, Colombia, Ecuador, Paraguay, Peru and Venezuela who expressly recognize the right to access to information (Braz (Art. 5, point XXXIII), Colom (Art. 74), Ecuador (Art. 18), Para (Art. 28), Peru (Art. 2, point 5) and Venez (Art. 28)). In all of these countries the right is guaranteed to everyone and not only to citizens. The responsibility to provide information is given to public agencies (Braz), to public institutions or private institutions that handle State funds or perform public duties (Ecuador) and to any public entity (Peru). Constitutions of Brazil, Colombia, Paraguay and Venezuela stipulate that the access relates to information in the private interest or of collective or general interest (Braz), to public documents (Colom), to public sources of information (Para) and to documents of any nature containing information of interest to communities or group of persons (Venez). The Constitution of Peru explicitly states that the person has the right to request information without cause. None of the constitutions regulate the procedure of obtaining the access. This issue, as well as the exceptions to the access to information, shall be established by law (although some of the restrictions are already stipulated in the constitutions).

43.  Venezuela denounced the American Convention on Human Rights on September 10, 2012 and has not yet passed legislation concerning access to information. All other analysed countries are Parties to the American Convention. Article 13 of the American Convention on Human Rights, together with Article 19 of the International Covenant on Civil and Political Rights and the right of access to public information enshrined in Article 28 of the Constitution of Paraguay, was the basis for an action of the Office of Ombudsman (ombudsman) which was brought before the Supreme Court on behalf of a Paraguayan citizen. The Office of Ombudsman brought this action following the city of San Lorenzo’s refusal to disclose the salary information pertaining to a number of its public officials (Office of the Ombudsman v Municipality of San Lorenzo 1306 Supreme (Court of Final Appeal) of Paraguay (15 October 2013) (Para)). The Supreme Court of Justice of Paraguay ‘reversed the dismissal by taking into account the growing trend in democratic societies that public officials’ financial information must be disclosed in order to ensure government credibility and accountability. While acknowledging that the right of access to State-held information admits limitations, the instant refusal did not meet all the necessary conditions set forth by the Inter-American Commission on Human Rights for legitimate restrictions by States’ (Global Freedom of Expression).

(e)  Europe

44.  The constitutions of Austria, Denmark, France and Germany do not contain provisions concerning the right to access to information. All other analysed constitutions explicitly recognize such right (Fin (Section 10, para. 3), Greece (Art. 5A, para. 1 and Art. 10, para. 3), It (Art. 117, para. 2, (m))), Net (Art. 110), Nor (Art. 100, para. 5), Pol (Art. 61), Port (Art. 268, para. 2), Rom (Art. 31), Swed (Freedom of the Press Act) and Turk (Art. 74, para. 3). Constitutions of Spain and the Russian Federation guarantee the right to receive information (Spain (Art. 20, para 1, (d)) and Russ (Art. 29, para. 4)), but not, explicitly, a right to receive information from public authorities.

45.  The right to access to information is generally guaranteed to everyone except for Poland and Portugal which provide it only to their citizens. On the other hand, the Constitution of Portugal guarantees a specific right to information to consumers (Art. 60, para. 1; consumer protection). The particularity of the Constitution of Greece is that it entitles all persons to participate in the Information Society (Art. 5A, para. 2). Facilitation of access to electronically handled information, as well as of the production, exchange and diffusion thereof constitutes an obligation of the State.

46.  The analysed constitutions state that the access relates to documents and recordings in the possession of the authorities (Fin), to documents of the State and municipalities (Nor), to activities of organs of public authority, persons discharging public functions and self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury (Pol), to administrative files and records (Port) and to information concerning public affairs (Rom). The constitutions, further, stipulate the possibility of exceptions to the right of access that shall be regulated by law.

47.  As is the case on other continents, the constitutions of European countries do not contain detailed provisions regarding the issue of exercising the right of access, but leave this matter to be regulated by law. The exception is the Constitution of Greece which prescribes that the deadline for providing the requested information must not exceed 60 days, as specified by law. In case this deadline elapses without action or in case of unlawful refusal, in addition to any other sanctions and consequences at law, special compensation is also paid to the applicant, as specified by law (Art. 10, para. 3). Furthermore, Sweden is a unique example whose Freedom of Press Act, that regulates the procedure of obtaining access to official documents, forms a part of the Constitution.

(f)  Australia

48.  The Australian Constitution does not include a Bill of Rights.

2.  Judicial Recognition of the Right to Access to Information

49.  In countries whose constitution does not include an explicit right to access public information, it is possible that such constitutional right is recognized by the courts. Judicial interpretation of the country’s constitution as including the right to information occurred in Kaneko v Japan (Supreme Court of Japan (Saikō-Saibansho)), SP Gupta v President of India (Supreme Court of India) and Forests Survey Inspection Request Case—Petitioner v Supervisor of County of Ichon (Constitutional Court of South Korea). Instead of a formal written constitution, Israel has enacted a series of basic laws that make no mention of the right to access to information. Yet, this right was given a constitutional status in rulings of the Supreme Court of Israel (Beit Ha Mishpat Ha Elyon) (Shalit v Peres (Peled and Rabin 375)). The right to information in all the mentioned cases was considered to be a right that is derived from the freedom of expression. The same was in the Chilean jurisprudence. The Chilean Constitutional Court held that, although it is not explicitly recognized, there is an implicit right to access information of a public nature that arises from Constitution’s guarantee of freedom of expression and the constitutional principle of a democratic republic (Casas Cordero et al v Servicio Nacional de Aduanas (The National Customs Service)).

50.  In Argentina, similarly, the Supreme Court of Justice ruled that the right of access to public information is provided for in the Constitution which gives international treaties ratified by Argentina precedence over national laws (Asociaciónpor los Derechos Civiles (ADC) v PAMI—Instituto Nacional de Servicios Socialespara Jubilados y Pensionados). The Court quoted from the decision of the Inter-American Court of Human Rights in the case of Claude Reyes et al v Chile and from reports produced by the Office of the Special Rapporteur on Freedom of Expression of the Inter-American Commission of Human Rights.

51.  In France, the Council of State (the highest administrative jurisdiction) found that the right of access to administrative documents is a fundamental right granted to citizens for the exercise of their civil liberties within the meaning of Art. 34 of the Constitution (Case No. 237203).

52.  A limited constitutional status of some aspects of the right to information right is recognized by the Supreme Court of Canada (Coursuprême du Canada) (Ontario (Public Safety and Security) v Criminal Lawyers’ Association). Section 2 (b) of the Canadian Charter of Rights and Freedoms guarantees freedom of expression, but it does not guarantee access to all documents in government hands. According to the Supreme Court, ‘[t]o demonstrate that there is expressive content in accessing these documents, a claimant must establish that the denial of access effectively precludes meaningful public discussion on matters of public interest.’

3.  Countries without a Recognized Right to Access Information Held by Public Authorities

53.  There is a group of countries which neither afford constitutional protection to the right to access to government-held information nor the courts recognize such right at present, although they have adopted the right to information legislation (Austral, Austria, China, Den, Ger, Ghana, Nigeria, Spain, Thai, UK and US).

54.  In spite of the fact of not containing a Bill of Rights, the High Court of Australia held that there was an implied freedom of political communication in the Constitution, basing the decision on the democratic system of government (Australian Capital Television v Commonwealth, High Court of Australia (30 September 1992) 177 CLR 106 (Austl)). Furthermore, in the judgment of Lange v Australian Broadcasting Corporation, the High Court noted that the Constitution protects the freedom of communication allowing people to exercise a free and informed choice as electors (elections). However, it does not confer personal rights on individuals. Rather it precludes the curtailment of the protected freedom by the exercise of legislative or executive power. In other words, the implied freedom of communication was considered to be a negative right that operated as a restraint on executive and legislative power.

55.  The Austrian Constitution has a unique provision of prescribing the principle of official secrecy (Amtsverschwiegenheit) (Art. 20, para. 3) according to which all functionaries entrusted with Federal, Länder and municipal administrative duties as well as the functionaries of other public law corporate bodies are, save as otherwise provided by law, pledged to confidentiality about all facts of which they have obtained knowledge exclusively from their official activity and which have to be kept confidential in the interest of the maintenance of public peace, order and security, of comprehensive national defence, of external relations, in the interest of a public law corporate body, for the preparation of a ruling or in the preponderant interest of the parties involved. Official secrecy does not exist for functionaries appointed by a popular representative body if it expressly asks for such information. The principle of ‘official secrecy’ is complemented with an obligation for functionaries to disclose information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain confidentiality (Art. 20, para. 4).

56.  German Basic Law guarantees that everyone has the right to freely express and disseminate his or her opinions in speech, writing, and pictures and to inform himself or herself from publicly available sources without hindrance (Art. 5, para. 1). According to the jurisprudence of the German Federal Constitutional Court (Leipziger-Volkszeitung 1 BvR 46/65 (3 October 1969) BVerfGE 27, 71 and BvR 1352/85 (30 January 1986) BVerfG NJW 1986, 1243 (Ger)) and the German Federal Administrative Court (6 A 5.13 (27 November 2013) BVerwG NJW 2014, 1126 (Ger)) this provision does not contain the right of access to information held by public authorities. It only guarantees the right to inform oneself from publicly available sources. The files and information held by public authorities are not considered to be such sources.

57.  The Constitution of Spain stipulates that the law shall make provision for the access of citizens to administrative files and records, except to the extent that they may concern the security and defence of the State, the investigation of crimes and the privacy of persons (Art. 105, (b); right to privacy). Thus, access to information held by public authorities in Spain is a statutory right which is defined and regulated by infra-constitutional legislation.

58.  In the United Kingdom, there is no such constitutional or fundamental right of access to information. However, the UK Supreme Court’s judgment in Kennedy v Charity Commission (Secretary of State for Justice and Others Intervening) illuminates how such a right can be given effect by the common law. The Kennedy judgment establishes that, at least for the time being, the right of access to information may be found in the common law duties of openness, transparency and accountability of public authorities and not in the domestic application of Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (O’Byrne 290–291).

59.  In the United States of America, since the Bill of Rights does not include the right to access to information, the question is whether this right could be derived from the constitutional right to obtain information based on the freedom of expression that is guaranteed in the First Amendment. The primary Supreme Court case concerning a constitutional right of access to government-held information is Houchins v KQED Inc in which the Court held that ‘[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control’.

4.  Limitations on the Right of Access to Information

60.  The right of access to information is not absolute and may be subject to limitations to protect certain types of information from disclosure. Public authorities can limit the disclosure of information, but they have to meet certain standards in order to justify non-disclosure. As was mentioned, only a small number of constitutions list the reasons for restricting the access to information. The great majority leave that issue to be regulated by law.

61.  The general guarantee of the right of access to information under the freedom of expression in international human rights treaties establishes a general presumption in favour of the disclosure of information (Mendel (2008) 29). However, the right to information is subject to a number of exceptions recognized in those treaties. Pursuant to the provisions on restrictions, they must meet a three-part test (Mendel (2008) 30). First, any restriction on the right to information must be provided for by law. The legality principle ensures that all restrictions have a legal basis and that they do not occur as a result of administrative discretion. Second, the restriction must pursue a legitimate aim. The human rights treaties prescribe an exhaustive list of legitimate aims for exceptions to the guaranteed right or freedom. Generally, the exceptions are national security, territorial integrity, public safety, ordre public (public policy), protection of public health or public morals, protection of the rights or reputations of others, preventing the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary. Third, the restriction must be necessary in a democratic society to ensure protection of the legitimate aim. A public authority can only withhold the information if the public interest in maintaining the restriction outweighs the public interest in disclosure (the public interest test). In countries where the right of access to information has been the subject of judicial interpretation by the highest courts there are noticeable similarities in the application of the exceptions to the right of access. These similarities may be explained by the influence of the case law of international human rights bodies which have accepted the existence of a right of access to information under the freedom of expression.

62.  State secrets and national security is the most common exception to the right of access to information prescribed by access to information legislation. Cases which involved these exemptions have been decided by the international human rights bodies on several occasions—egGomes Lund et al v Brazil (Inter-American Court of Human Rights), Toktakunov v Kyrgyzstan (UN Human Rights Committee), and Kenedi v Hungary and Youth Initiative for Human Rights v Serbia (European Court of Human Rights). Relevant cases can also be found in the national case law of the highest courts. In Ministry of Defence v Gisha Legal Center for Freedom of Movement the Supreme Court of Israel ruled that the Ministry had not sufficiently elaborated on the reasons for sensitivity of requested information nor had it adequately considered the possibility of providing partial disclosure (Right2INFO.org). In the case of The Prosecution in the Trial of Ríos Montt v Ministry of National Defence the Constitutional Court of Guatemala ruled that the Ministry of National Defence must release four military operational plans to the prosecution in the genocide trial of José Efraín Ríos Montt (Right2INFO.org).

63.  Commercial confidentiality is another very common exception. One recent case that illustrates the conflict between the public interest to receive information and the protection of commercial confidentiality is Giustiniani v Yacimientos Petroliferos Fiscales (YPF) SA which was decided by the Supreme Court of Argentina (Corte Suprema de Justicia de la Nación). The case related to the access to a copy of the Project Investment Agreement regarding the exploitation of hydrocarbon and oil resources. The Supreme Court ruled in favour of access and ordered YPF to disclose the contract (Right2INFO.org). The Court rejected the claim that the investment agreement should be private under the disclosure exceptions (trade or scientific secrets). The Court found that YPF invoked this exception without substantiating how public access to the contract would impact any of the interests protected by those exceptions. It ruled that if it were to grant an exception based on a vague claim, it would effectively ‘leave the guarantee of access to public information to the arbitrary discretion of those obligated to comply’ (Right2INFO.org). The case law shows that a mere reference to national security or to some other form of confidentiality is not enough to justify non-disclosure.

E.  Conclusion

64.  The comparative analysis of 56 countries shows that the vast majority have adopted constitutions in which the access to information is guaranteed or that the highest courts have ruled in favour of recognizing the constitutional right to access to information. The situation in the European countries which do not recognize a right to access to government-held information might change in the future under the influence of the developments in the case law of the European Court of Human Rights regarding the right to freedom of expression and information (European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)Art. 10).

65.  In countries where there is no access to information legislation, the lack of the enabling legislation impedes the access to information, since there are no fixed procedures for applying for information, providing the information, etc. However, the analysis discovered several countries where right to access information from the public authorities is enforceable (Costa Rica, Kenya, Nepal, Phil). In these countries the constitutional recognition of the right of access to information provided the opportunity for the highest courts to protect this right in individual cases despite the absence of legislation.

66.  In countries that have enacted the legislation, if a right to access to information has also a constitutional status, it may be less susceptible to restrictions through changes in legislation. This especially relates to those countries in which the highest courts may declare laws and other regulations that restrict the right to access information as unconstitutional (eg Director of Magazine Proceso v Congress of Mexico).

67.  Endowing the right to access to information with constitutional status, either explicitly or by judicial recognition, does not necessarily mean that the country’s government is open and transparent. However, the constitutional protection can be a transformative step toward achieving that goal. When a certain right is based on constitutional provisions, there are additional possibilities for its protection before the highest courts depending on the powers that are granted to them within a given jurisdiction. The constitutional status of a certain matter can provide the foundations for lodging a constitutional complaint or an appeal to the highest courts (constitutional or supreme). The analysis identified extensive case law in which the highest courts ruled in favour of the right of access to information.

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