How do “rights to information” work?

Access to information is a human right that can be exercised by anyone, meaning that everyone has the “freedom to seek, receive and impart information and ideas of all kinds”. – Article 19 of the United Nations International Covenant on Civil and Political Rights (ICCPR)

In many countries there is a general presumption that citizens should have access to all information held by the state unless there are important, legally-recognised reasons to withhold it. This creates an appropriate context in which the following policy motivations can be promoted:

1. Proper governance. This encompasses several things, including anti-corruption, transparency, and respect for the rule of law. If citizens are given the ability to analyse government decisions and the reasons for these decisions, they will be in a better position to ensure these decisions are being made in their best interest and to pursue a course of action where they are not.
2. Freedom of expression. As mentioned above, the right to information was once considered to be a part of the right to freedom of expression. Although this is no longer the case, the two rights are still closely related. Freedom of expression provides that people are free to hold their own opinions and to express them, and it by access to information that this can best be done
3. Consumer and investors’ rights. This applies only to those countries which extend the right to information to the private sector. However, they are important economic rights.

This general presumption can be found in the laws of many countries, but it takes different forms and is found in different types of law.  For example, in Belgium and South Africa, the presumption is clearly entrenched in the Constitutions of those countries. However, in other countries, such as New Zealand and the United Kingdom, the presumption is articulated in those countries’ freedom of information legislation.

This does not mean that you have an absolute right to information held by the state or by other parties. There are some generally-accepted reasons for the state to decline to provide some categories of information. These are often grouped into four main categories:

1. Where the information requested falls into a particular category of protected information. (For example, information relating to issues of national security are generally seen to be justifiably kept confidential.)
2. Where the information requested, if published, would cause some kind of harm. (For example, the information requested might pertain to an ongoing criminal investigation or be harmful to somebody’s commercial interests.)
3. Where publication of the information requested would cause a breach of existing law, such as a law on data protection.
4. Where the administrative burdens of open access would be disproportionate. For example, if the cost of retrieving and publishing a piece of information far exceeds the wider benefit in doing so, in some countries this is a valid reason for refusing to publish it.

Most countries’ freedom of information laws provide access only to information held by public authorities, not companies and other bodies in the private sector. However, there is a minority of countries whose laws also provide, to varying degrees, for access to information held by companies. This minority reflects changes in modern society in which more private bodies are seen to perform public functions, and disclosure regimes are increasingly seen as unsatisfactory.

It is worth bearing in mind that even if your local laws entitle you to demand information from companies (and not merely from the state), this right is limited. This is for a number of reasons, including the following.

• The provision of information by companies is likely to be of a primarily economic nature, and its disclosure is therefore seen as less important from a human rights perspective than information held by the state that affects citizens’ civil and political rights.
• The right to demand information from companies could increase the financial burden of collecting, storing and permitting access to information held by private entities.
• Finally, the disclosure of private sector information is sometimes less useful to the layman than information held by the state, as companies often use technical and industry-specific language and jargon in their internal documents.

Public authorities often refuse demands for access to information on the basis that permitting access would be contrary to the “public interest”.  In many countries, the courts are not willing to accept the validity of such a general refusal.  In such countries it is necessary for public authorities to go further, and justify any “public interest” refusal with more specific reasons.

The precise requirements that public authorities of any given country must satisfy are stipulated in the laws of that country.  However, there are a number of commonly-accepted principles that restrain public authorities in many countries from issuing generically-expressed refusals.  You may wish to use these in challenging the public authorities in your country:

1. Any “public interest” refusal must have a clear and precise legal foundation,
2. It must also must respond to a legitimate purpose; and
3. Finally, the use of that “public interest” justification must be necessary in a democratic society to satisfy a compelling public interest, and must be proportionate to this aim.

This balance is reflected in different ways in the information-access legislation enacted in almost one hundred countries. A vital principle that underpins the access laws enacted in some of the states is “maximum disclosure”: the assumption that all state-held information should be made available to the public, save where the retention of that information is

• necessary to prevent harm to a legitimate public or state interest and
• there is no overriding public interest in the disclosure of the information.

Unfortunately, there is often a gap between (a) the principles embedded in a state’s information access laws and (b) the extent to which those laws are implemented and given effect in that country via efficient procedures for the fulsome and prompt disclosure of state-held information.

Some of the most frequent barriers to accessing information in practice include:

1. Cost. In most jurisdictions, it is unlawful for a body to charge a fee for submitting a freedom of information request, but the party may be expected to pay the cost of copying and mailing the document (as was confirmed in Peru, for example, by the court in Jenny Cabrera v Ministry of Justice). However, this varies from country to country. For more information, see the discussion in the chapter on “Practical guide to filing information requests”.
2. “Silent” refusal. This is what happens when you get no reply from the agency and it is taken as a refusal that is open to appeal. See the heading ‘What happens if you don’t get a reply?’ in section 6: Exceptions and refusals.
3. Failure to abide by deadlines. Where a response is given, it is possible that this will take more time than is prescribed by law. This can be a source of unexpected delays.  You should anticipate this, and therefore you should make any freedom of information requests as early as possible, in order to allow for this possibility of delay.