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Communication & information

The right to access information

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  • The right to access information, a fundamental right for everyone

    The right to access information (RAI) is the right of an individual or the community to search for, know and make known what goes on in public life.
    Public information includes all of the data, in whatever form, which is accessible to the public and the use of which does not infringe on any legal right or confidentiality obligation.
    It covers all information that can be used by whoever without an authorisation as well as public and official data that governments, public institutions and international organisations produce and make available to the public.
    It must be applied without any discrimination based on the nationality or origin of the person making the request for information. That person does not need to justify the reasons for which they are making the request.
    They don’t even have to provide their identity and can stay anonymous to avoid all forms of discrimination. However, for practical reasons some administrations ask them people identify themselves.

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    Article 19 from the Universal Declaration of Human Rights states 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 Convention of the Council of Europe states that « The right of access applies to both natural and legal persons without any discrimination, including on the basis of nationality, and even to foreigners living outside the territory of a Party to the Convention »

    The Rating scores on Access to information, from the Centre for Law and Democracy and the model law of the African union does not just limit this to natural persons but includes legal entities amongst its beneficiaries

    In the United Kingdom, the law requires the supply of an address and a telephone number to which the request can be oriented: ‘if possible those of a specifically appointed person ».

    Indian law (Right to Information Act) states expressly that the one making the request cannot be asked for other personal information other than that necessary to contact the person making the request.

    Finnish, Swedish as well as Mexican law, authorise anonymous requests, to ensure that there will not be reprisals against the individual.

  • Power and right to acces information

    The right to access information applies to executive and legislative branches of power as well as the judiciary and the consultative administration and every private entity working in a public capacity.

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    The public sector:
    In Sweden, no agency is exempt; even official correspondence of the Prime Minister are accessible.
    Secret services are sometimes object to exceptions in the United Kingdom, India and Peru, but are subject to the law in Sweden and the United States (CIA and FBI)
    Swedish law applies to all levels of the regional and local administration
    In federal countries like the United States, local public authorities must adapt the laws to apply to their sphere of influence. Certain federal laws cover local affairs, like in South Africa and India.
    According to the United Nations Human Rights Committee, the right to access information applies to the public bodies of the three branches of the State and to other publicauthorities at all levels, local, regional and national.
    In the United Kingdom, the 2000 Freedom of Information Act, applies to public authorities. A lot of designated public bodies are covered by this term, nearly 100,000.
    Mexican law has a new approach: it is applicable to the federal judiciary in addition to the federal legislative authority. These bodies have established their own application for the rules and have created bodies responsible for guaranteeing the efficient exercising of people’s right to access information.
    In Peru, the 2002 law on transparency and access to public information also applies to public bodies from all three branches of power. It is the same under the Brazilian law of 2011, the Lei de Acesso à Informação. Laws on access to information usually cover publically owned companies.
    The private sector:
    A majority of laws grant access to information held by private bodies, which have administrative authority, fill public functions or receive public funds.
    Swedish law was amended to cover companies managed or owned by the State, but it is not usually applied in the private sector.
    Finnish law applies to documents help by private companies that carry out public work and exercise public authority: for example pension bodies, forest guards and insurance companies for compulsory insurance.
    According to the 1970 Norwegian law on public access to documents from public administrations, amended in 2003, a private legal body can by considered as an administrative agency, when this body takes individual decisions or circulates regulations.
    An Indian law of 2005 takes into account public functions carried out by private operators. This involves NGOs which are « substantially financed, directly or indirectly » by the State.
    In Estonia, the law applies to every « information holder » and other central or local public bodies. It involves legal entities under public and private law.

  • The right to access information applies to every piece of information written, received or held by public bodies, independently of the format in which it is stored.

    Information in a digital format held by public institutions must be made available to those requesting it in this format when it is requested. Public bodies supply all the details that they posses concerning the information requested and make use of clear easily reproduced standards to send them. The information received can be reused without restrictions or conditions. In certain countries, databases are not considered as documents and are thus not accessible as part of the law. They are sometimes excluded but laws are not always clear.

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    In the United Kingdom, the Protection of Freedoms act includes the explicit right to access databases.
    The Convention of the Council of Europe is clear: « by public documents we mean all information saved in whatever format that might be, produced, received or held by public authorities »
    English law defines the term information as « all information saved in whatever form » held by a public body at the moment when the request is received. The term official information designates recorded information, such as emails, meeting minutes, research or reports.
    The 1996 amendments to American law, opened the term to communication of electronic information and agency databases, detailing that adequate technological means should be made available to those making the requests.
    The law applies to both documents coming from public authorities and those received by said authority but produced from a third party.
    Finnish law leaves the administration free to communicate a preparatory document before a decision is taken but doesn’t establish the right to obtain the information. It is considered necessary to provide access to documents at the preparatory stage of the decision making process to influence it.

  • The procedure to deposit a request must be simple.

    People making requests for documents have the right to make said requests in a written or oral format, using the official languages recognised by their State. To obtain a piece of information, the one making the request must only supply their first name and surname, their address and the description of the piece of information that they would like to get. The person does not have to justify the reasons for which they are making the request.

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    Finnish, Swedish as well as Mexican law, authorise anonymous requests, to ensure that there will not be reprisals against the individual.
    In Sweden and the United States, the law requires administrations to keep an up-to-date register of all of the documents produced and received so that those making the request know exactly what to ask for and that the administrations know exactly what they have. This register is public and it is often used as a starting point to find documents.
    The law in Quebec requires every public body ‘to classify its documents in a way that allows them to be tracked. It must establish and keep an up-to-date list of the classification indicating the order in which the documents are classified. It must be precise enough to facilitate the procedure for accessing data.
    In France, there is an obligation for administrations, which produce or hold public information, to make available to the public a directory of the main documents in which this information appears.
    Any precise directory, for each of the documents recorded, includes, its exact titles, the subject, the date of creation, conditions for its reuse and, when needed, the date and reason for its update. When the administrative authority has an Internet site, it makes the directory available online.
    The model-law from the African Union includes the possibility of making a request orally. In this case, the person responsible for the information must transcribe and provide a copy of the transcription to the one making the request.

  • The procedure to deposit a request must be quick.

    Information requests must be supplied either immediately or within a maximum of 15 working days. Exceptionally, when the request is complicated and after the person making the request has been notified, this period can be lengthened by a further 15 days. It can be lengthened only once.

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    One of the great strengths of the Swedish system is the legal authority of the Ombudsman and the administrative courts which, over the years, have interpreted this idea in hours and days rather than weeks. A request for information is a priority in Sweden compared to other tasks underway.
    Estonian law, in its general principles, establishes that access to information must be ensured for everyone in as quick and easy a way as possible. A request must be dealt with quickly and, at the latest, within 5 working days.
    In Europe: The average period is 14 working days starting from when the request is made and it does not exceed a month. It is 15 days for documents from the European Union, 20 days in the United Kingdom, 20 days in the United States and in Mexico where it can reach 20 additional days in exceptional cases.
    The person making the request must be informed quickly of any delay and the reasons for said delay. European regulations envisage a response time of 15 days which can be extended by 15 working days in duly justified cases.
    In Estonia, a period of 5 days can be added to the 15 days if identifying the information takes a lot of time.
    In Finland it can go up to a month if the number of documents requested is significant or if it includes elements covered by official secrets acts that then has to hidden.
    The model law of the African Union anticipates a shorter period of 48 hours if the information is necessary to preserve the life or freedom of the person. In India and Azerbaijan, the law contains similar measures.
    In the United States, information must be supplied within 10 days, in cases of emergency (threat to life or safety) or if there is an urgent need to inform the public of government activity.
    In numerous countries, the absence of a response in the set time periods is considered as tacit refusal. Mexican law instead includes an innovative measure and the absence of a response is considered as a refusal. As a result considerable pressure is put on the administration to respond quickly.

  • The procedure to deposit a request must be free.

    a)    access to information must be free. People making requests have the right to consult a document containing the information looked for and/or receive it by E-mail free of charge. If payment is required, the cost must not be more than the cost of reproduction and of transferring the information. Equally, when the information is supplied in different formats (e.g.: CD, audiocassette and/or video, etc.) the person making the request must cover the cost of the format and its reproduction.

    Reusing public information, can lead to charges. According to article 6 of the 2003 European directive, paying to reuse public documents cannot go beyond the cost of collecting, producing, reproducing, and circulating it.

    Member States are invited to encourage public sector bodies, which authorise the reuse of documents and public data, to use standard licences for reuse. The directive also envisages that member States or public sector bodies apply lower tariffs, or even provide the service totally free of charge.

    The legitimacy of having people pay to reuse public data, which was created using public funds and therefore already paid for by the taxpayer, is debated by the Opendata movement. Its supporters consider that fixing a fee to reuse public data is against the principles of openness, which the movement works for.

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    In Australia for example, past experience has shown that if the law and its application texts do not fix a maximum fee, many agencies ask for excessive amounts to dissuade people from making requests.
    The Human rights committee of the United Nations states that fees must not represent an unreasonable obstacle to access of information.
    The Convention of the Council of Europe says «the examination of a public document on the premises of a public authority is free. »
    It doesn’t prohibit Parties from fixing prices for services provided by archives and museums.
    The Mexican constitution guarantees access to public information and to personal data, but as in most countries, fees can by requested to cover the costs of photocopying and sending.
    In Sweden the person making the request only has to pay the cost of reproduction.
    Estonian law makes it free if the person making the request needs the information to exercise their rights and freedoms or to fulfil obligations or if the person doesn’t have the means to pay.
    In France “The person making the request chooses how to access administrative documents, within the technical limitations of the administration. They can either consult the document on site or in an Email for free when the document is available in an electronic format. This is on the condition that reproduction does not damage the document. When providing a copy in an identical format to that used by the administration or compatible with it, this process is at the cost of the person making the request. “
    In the United States, the Freedom of Information Act dedicated an entire section to the fees that agencies can ask to be paid to search for and provide copies of information. In the majority of cases, communication is free.
    In the United Kingdom, the majority of requests are free and only require that the costs for making photocopies or delivery by post are covered.
    The Indian law of 2005 makes it free in cases where the administration was not able to respond within the time limits set. It is also free for those making requests that live below the poverty line.
    The model law of the African Union removes the need to pay for the poorest that request information.

  • Public workers are required to help those requesting information

    Each public and private body subject to the law on access to information must dedicate one or several employees to be Information Managers. The Information Manager will receive and deal with requests. They will help those making requests to find the information that they are looking for and will promote the right to access information within their institution.

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    The Convention of the Council of Europe says « public authorities have to make reasonable efforts in helping those requesting information to identify the pertinent public document. This means that the person making the request is not required to have identified the document prior to making the request.
    This help is particularly important when the person making the request is handicapped, illiterate or when they are a foreigner who doesn’t have a solid grasp of the local language.
    The model law of the African Union also includes an article on the requirement to provide assistance to disabled people making requests for information and the possibility of making a request orally. In these cases, the information manager must transcribe and give a copy of the transcription to the person making the request.
    It also provides for a transfer duty. If the information cannot be found or is non-existent, the person making the request must be informed within the shortest period possible and a formal statement or declaration must be sent to them explaining all of the steps taken to try and locate the information.
    English law makes providing assistance to disabled people obligatory.
    Estonian law goes even further since it envisages that ‘if the request cannot be satisfied, there is the requirement to send the person making the request to an appropriate individual or to quickly transfer (within 5 days) the request, informing the person who made the request of this transfer.

  • Principle of maximum information disclosure: secrets and the refusal to make information available are the exception not the rule.

    All information held by administrations, State powers, as well as all private bodies exercising public functions must be disclosed. Refusal to access whatever piece of information must be exceptional and can only be justified on the basis of the exceptions anticipated under laws on access to information. Public interests take priority in these cases. With the aim of ensuring the disclosure of useful information in the public interest, the law establishes measures protecting whistle blowers.

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    The Convention of the Council of Europe says that « all public documents are in principle public and communicable, on the only condition that the rights and legitimate interests of others are protected. »
    This principle is guaranteed in the Mexican Constitution: Article 6 states that « in the interpretation of this right the principle of maximum publicity must prevail. »
    The majority of national laws define information in a broad sense. They set out that public documents are in principle accessible and that non-communicability must be the exception.
    The Mexican law of 2002 (Ley Federal de Transparencia y Acceso a la Información) says that « all pieces of information held by an administration can be accessed by private individuals », and article 6 establishes that in the interpretation of the law, « it is necessary to favour the principle of transparency within public bodies ».

  • Refusal to access information must by limited and motivated by the right reasons.

    The law must establish the principle of partial access. When a document contains requested information which contains information that comes under the exceptions established by law, the public body must separate the restricted information from that which can be provided to the person making the request. It cannot refuse total access to the document. Each body is under the obligation to inform the public and must make an annual report on the way that requests for information have been dealt with for a parliamentary supervisory body.

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    A public authority can refuse to deal with a request to access a public document for two reasons:
    1. The request is too vague to allow the identification of the public document searched for, or because the request is clearly unreasonable (if the request requires a disproportionate level of research or inspection).

    2. When the request is clearly abusive (systematic requests sizeable enough to hinder the work of the administration, repeated requests of the same document in a very short period of time by the same person), it can be refused.
    The best laws make opening public documents the rule and secrecy the exception. It is legitimate that laws recognise these exceptions to protect the private life and superior interests of the State, but this must be detailed in a limited way and their interpretation must be restricted.

    Two categories of interests, which must be protected:
    1)    Public interest:
    These include, national defence, international relations, public security and order as well as monetary, financial and economic policy. This is in addition to information concerning legal proceedings, the carrying out of investigations, inspections and controls, and the drafting of government decisions.
    The Convention of the Council of Europe details that « the notion of national security must be used in moderation. It must not be used to protect information, which could reveal violations of Human rights, corruption within the public authority, administrative errors, or information, which is embarrassing for public workers or authorities. »

    2) Private interests:
    Professional interests, business confidentiality, commercial interests and personal data.
    Certain exceptions are absolute and protect data such as legal archives and the personal data of third parties.
    Communications between ruling families, their homes, or the Head of State are sometimes also included amongst possible limitations. It is the case for the United Kingdom and the Convention of the Council of Europe envisages this possibility.
    Certain laws, from Latin America in particular, envisage the superior and absolute interest of the public, which cannot be the object of an exception
    Mexican law says that: No exception can be applied « when searching for serious violations of fundamental human rights or crimes against humanity. » This information must be communicated even in cases where is might risk State security or which affect the interests of the State.
    The Uruguayan law of 2008 states that no reserves can made, « when the information requested deals with violations of Human rights or is useful in researching, preventing or avoiding violations of these rights. »
    The Indian law of 2005 establishes the same principle that the exception made for secret and security services does not apply to information concerning allegations of corruption or violations of Human rights.
    Estonian law forbides classifying certain information involving surveys, statistics, the state of the environment, consumer rights, the work of information holders, as well as information, which carries a risk to their reputation

  • Every person has the right to appeal when refused access to information or in the absence of a response to the information request made.

    Both the lack of a response and the refusal to access information might be contested through a free solution within a monitoring body or through legal proceedings. With the aim of assisting citizens in their efforts, civil society organisations and those interested in the circulation of information must be allowed to form civil parties. Refusals incompatible with the law must be punished, thus helping to improve RAI (Requests to Access Information) efficiency. Following regular audits, and with the aim of improving the system, monitoring bodies can impose sanctions even without there having been a refusal to access information.

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    The Convention of the Council of Europe envisages that « a public authority which refuses access to all or part of a public document must give the reasons on which this decisions was based. The person making the request has the right to receive, when requested, written justification for the refusal of this public authority. » They must always have access to a quick and cheap review procedure.
    •    Hierarchical appeal:
    European regulations from 2001 explicitly provide an internal administrative solution for every decision to refuse access to a document.
    Every refusal requires the person who made the request be informed. It also requires that the person making the request be able to demand a confirmation 15 working days after reception.
    English law states that if refused, the person making the request must first make an appeal to a superior body in the hierarchy.
    If the person making the request is not satisfied with the response received, they can then request the public authority to subject themselves to an internal revision.
    A supervisor who is not involved in the initial decision must then take care of the case and provide the results within 20 working days.
    •    Legal appeal
    In Sweden and Finland there is not a special appeals body and citizens must first turn to the administrative tribunal or the supreme administrative tribunal when appealing. These proceedings are seen as a question of public interest, the cost of which should not stop them being investigated. It is the same in South Africa.
    In France, legal proceedings are not possible unless it has already been before CADA (the Commission on access to administrative documents). The person making the request has a period of two months to bring it before a judge. The judge can then request the administration investigate the production of all the necessary documents in the case, in particular the documents that had access refused.

  • Public bodies have to proactively make essential and useful public information available without the need of making a request.

    All public bodies must, proactively and without the public needing to request it, make available a register of all the documents that they hold. They must ensure easy and free access to information on their functions, responsibilities and every significant piece of information relating to them. The information in question must be up-to-date, clear and written in an easily understood way, accessible to all kinds of public. Sanctions must be imposed when regulations on proactive information production are not respected.

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    The Convention of the Council of Europe encourages proactive publication policies, in article 10 it states; « Of their own initiative and when this proves appropriate, public authorities should take the necessary measures to make the public documents they hold available in the interest of promoting transparency, administrative efficiency and to encourage the well informed participation of the public in public interest issues ».
    The report gives examples of information to be made public: « information on their structure, staff, budget, activities, rules, policies, decisions, the delegation of authority, information on the right to access information and the procedure to request public documents, as well as all other information in the public interest. »
    The ways of making information available to the public are detailed: « This is done regularly and in formats including the use of new IT technologies (for example on Websites open to the public), in reading rooms or public libraries, so as to guarantee easy and wide spread access ».
    The Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is even more detailed, article 2 gives a list of the categories of information to be made public (in particular information on the state of the air, the atmosphere, water, the soil, the ground, the countryside, natural sites, bio-diversity and its components, including genetically modified organisms, energy, noise and radiation, the state of Human health, security, and living conditions, etc.) and it even authorises the public to directly access environmental databases.

  • The right to access information must be guaranteed by an independent body.

    As in the majority of countries which already have laws on accessing information, a specific, independent agency or commission must be created to revise refusals to access information and in the absence of responses to requests. This body will also be responsible for promoting the right to access information to the wider public as well as encouraging its development within the society.

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    Appealing to an independent body:
    Their independence and authority must be guaranteed; commissioners must be appointed without political interference.
    The mandate length must be determined in advance to avoid having their work arbitrarily cut short.
    Their budget must be approved by Parliament, in such a way that their financial independence is guaranteed. There should be a similar guarantee for their independence when recruiting staff. They must have sufficient human and material means to complete their mission.
    The commissions on access to administrative documents (CADA) in France, Italy and Portugal only work on documents and do not guarantee the protection of personal data.
    France was one of the first countries to have two independent administrative authorities in 1978: The National Commission for Information and Freedoms (CNIL) ensures the protection of personal data and has judicial authority. The Commission on access to administrative documents (CADA) is a light collegiate body, which facilitates access to administrative documents and public archives. It just has a consultative role.

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    • You would like to access public information, you are required to:
    • You are in the United Kingdom and you would like to get some public information, you should give your phone number.
    • According to article 19 of the Universal Declaration of Human Rights every individual has the right to:
    • According to the United Nations Human Rights committee, the right to access information should be applied to which type of power?
    • You are in Finland. You have the right to access information…
    • You are in India. You can access information on an NGO financed with public funds.
    • The right to access information applies to all storage formats?
    • Documents supplied by public bodies must be …
    • Is there an obligation to supply data in an usable format?
    • A request to access information can be made in any language?
    • This request can be...
    • When making the request it is necessary to provide:
    • Ideally, when a simple request for information is made, the information should be communicated…
    • Documents supplied by public bodies must be…
    • n Mexico, the absence of a response from the administration is considered as a refusal.
    • You would like to get some public information…
    • Europe, the reuse of information can lead to paying enough money that covers the costs…
    • In Sweden consultation of public information is…
    • An information manager must manage...
    • According to the Convention of the Council of Europe, the person making the request is required to have already identified the document requested.
    • According to the model law of the African Union, when a person making a request is disabled, the authority must:
    • Refusal to make information available must be the rule and not the exception.
    • According to the Convention of the Council of Europe, what can justify the refusal to communicate public information?
    • According to Mexican law, what must prevail when dealing with requests for information?
    • During a request concerning a document containing accessible and protected information, the authority…
    • The authority can refuse access to public information when…
    • National defence, international relations, safety and public order as well as monetary, financial and economic policy justify refusing to fulfil an information request.
    • You have been refused access to public information.
    • Several methods can be used to ensure that the authority respects its obligation to supply public information.
    • France, legal proceedings are only possible if the case has already been before the Commission on access to administrative documents.
    • A public authority doesn’t need to provide documents containing public information unless a request is made for it.
    • Communicating public information by the administration must be…
    • According to the Aarhus Convention, which category of information on the environment must be made public.
    • To guarantee respect for the right to access information, it is necessary to create a body…
    • The supervisory body must have a predefined mandate to avoid arbitrary dissolution.
    • To fully carry out its role, the supervisory body must have…

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