What are your legal rights to demand information held by public authorities? In this section we summarise the types of information that you may be entitled to demand, and the principal types of objection that may be raised in response. It is worth bearing in mind:
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:
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:
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.
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:
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
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: