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When can an information request be refused?

In this section we outline the types of situation in which information requests can be refused legitimately.

1

Common reasons for refusal

In no country is the right to access to information absolute. There are always limitations on the right to demand the disclosure of information. While these exceptions differ from country to country, typically information can be refused if disclosure would harm interests such as:

  • National security, defence or public safety
  • Privacy
  • Fair competition, business secrets
  • Relations with foreign governments and international organisations
  • Economic or central financial policy
  • The fairness of legal proceedings
  • The effectiveness of inspections and other controls
  • The effectiveness of criminal investigations
  • The “space to think” that public bodies need while formulating a draft policy or law
2

Further safeguards in some countries

Some countries have more progressive access to information laws which acknowledge that the mere existence of one of these criteria is not (by itself) sufficient as a basis to refuse disclosure. Under these laws, the body that wishes to refuse access should have to show that disclosure would cause actual harm to the interest concerned, and that this harm outweighs the importance of transparency.

France has a well-established system for restricting refusals of information requests:

EXAMPLE: In France, the general rule, according to Loi n°78-753 du 13 juillet 1978 (“portant diverses mesures d’amélioration des relations entre l’administration et le public et diverses dispositions d’ordre administratif, social et fiscal”), is that all citizens can demand access to administrative documents. The Loi n°78-753 du 13 juillet 1978 also establishes an independent administrative body to oversee this access. This is the Commission d’Accès aux Documents Administratifs (Commission for the Access of Administrative Documents).

The Commission reviews access to information requests and ensures that they are only denied when disclosure would cause harm to the interest concerned. Documents containing information on physical people, as opposed to so-called “legal” persons such as companies and corporations, are only accessible by those physical people in questions or individuals that they have mandated. This helps preserve their right to privacy and medical secrecy. For more information, see the discussion on the CADA website.

The European Union also stipulates for controls on the proportionality of denials of information requests.

EXAMPLE: Under European Union Law, citizens have a right to information. This right is established in Article 42 of the Charter of Fundamental Rights and Article 15 of the Treaty of the Functioning of the European Union (TFEU).

Under Article 15 TFEU any “citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right of access to documents of the Union institutions, bodies, offices and agencies, whatever the medium”.

This right to access information can be qualified “on the ground of public or private interest”. However, a key principle of EU law is that of “proportionality”. This means that, in order to deny someone their right to Freedom of Information, it must be shown that this denial is proportional. It may be deemed proportional to avoid harm to the interest concerned. To be proportional, it must be shown that this harm outweighs the importance of transparency.

3

The "public interest" test

Another common feature of progressive information disclosure laws is a public interest test – in other words, a clause stating that a request for information must be honoured if the public interest in that disclosure is greater than the harm it may cause.

This means that whilst there is a general right of access to the information held by public authorities, there can be exceptions to this right on grounds such as security, confidentiality and international relations. However, these exemptions can be subject to a public interest test. This means that the decision-maker must take into account public interest considerations when deciding whether to release information even though an exemption applies.

EXAMPLE: Under Canadian law there are several mandatory exceptions to disclosure, such as when disclosure would be an unreasonable invasion of a third party’s privacy. These exceptions can, however, be overridden if disclosure is in the public interest (Section 32 FOIP Act).

This means that although a request for access to information may at face value seem like it will be denied, it is important to note that it may still succeed if it can be proven that disclosure is in the public interest in jurisdictions where such a test applies.

TIP:   When you make a request for access to information, analyse which exceptions may be applicable. Explain in your request letter why there is a high public interest in disclosure.

4

Partial access and masking

Sometimes the documents you request may contain some legitimately confidential information, such as someone’s private telephone number or other private details. Access to information laws usually provide that confidential information should be separated as far as possible from the rest of the text to be disclosed. Typically, this is done by masking or blacking out confidential parts.

In practice, public bodies are sometimes keen to save time and will refuse access to a document in its entirety if it contains some confidential information. When writing your request, expressly state that if a document contains some confidential information, you would like the remainder to be disclosed.

5

In which form should the refusal be presented?

Normally a refusal to disclose information should be provided in writing, and should indicate the reasons on which the refusal is based. If the body informs you orally that your request is being refused, ask for written confirmation of this, along with the reasons. A written refusal may make it easier for you to formulate your appeal.

6

What happens if you don’t get a reply?

This often happens. So-called “silent” refusals are a widespread problem. In many cases, even though a body may be under a legal duty to respond to a request for information, it will not do so within the deadline or will not do so at all.

In most countries, a failure to respond within the deadline is interpreted as a refusal to disclose the information. You can lodge an appeal against such a refusal. However, there is a practical problem. Unless you have received a written decision which explains the reason for the refusal, you will not know on what grounds the body concerned intends to justify its refusal in any subsequent appeal.   In such circumstances you may find it hard to assess the prospects for success of any appeal.

TIP: If you receive no written response to your request, send a formal written reminder. If you still receive no response, send a formal letter indicating your intention to appeal and demanding a response by a fixed date.

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