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How do I find out what rights I have?

How do you find out about your rights to demand that public authorities in your country disclose information to you?  In this section we describe the principal sources of Freedom of Information (FoI) laws.

1

International law

Generally, international law does not confer any direct rights on you as a private citizen of a country.  Your own legal entitlements as an individual are primarily set out in the domestic laws of your country, as we explain below.

International laws are useful for two main purposes: to encourage countries to adhere to a broadly consistent approach when deciding what domestic laws to introduce on a given subject, and to enable you (as someone who may wish to challenge the actions of public authorities in your country) to understand the internationally-accepted norms.

The internationally-accepted norms for access to information are set out in the following instruments:

  1. International Covenant on Civil and Political Rights (ICCPR): see in particular Article 19, which was recognised in 2011 by the United Nations Human Rights Council as an independent human right.
  2. United Nations Universal Declaration of Human Rights (UDHR): see in particular Article 19.  Like Article 19 of the ICCPR, this primarily addresses the right to freedom of opinion and expression, but includes reference to the right to seek information.
  3. Joint Declaration on 6 December 2004 by the United Nations, the Organisation of American States (OAS), and the Organisation for Security and Co-operation in Europe (OSCE).
2

Regional law

In addition to these international legal principles, many examples can be found of the right to information in a regional context. In 1981, the Council of Europe published Recommendation No. R(81)19 on Access to Information Held by Public Authorities. Article 13 of the American Convention on Human Rights recognises the right to information as an independent human right. Similarly, the African Union published in 2002 a Declaration of Principles on Freedom of Expression in Africa, with section IV specifically dealing with freedom of information.

3

National/domestic laws

A majority of countries have introduced laws providing for access by citizens to information and data held by the state and public authorities.   Typically these laws entitle citizens to make requests for state-held information to be supplied at little or no cost.

Freedom of information (FoI) laws vary considerably in their scope and utility, but there are a number of common features:

  • Certain types of information are not subject to disclosure, for example information that relates to national security or other protected categories.
  • Companies and other bodies in the private sector are generally excluded from the scope of FoI laws. As the private sector undertakes an increasing number of roles formerly performed by the state, this lack of transparency is a growing concern.
  • A citizen generally does not need to justify his or her demand for the information. Rather, the burden falls onto the state authority to produce the requested information or to demonstrate that the demand falls outside the scope of the citizen’s legal entitlement.

If your country has no specific FoI law, bear in mind that your country’s constitution may confer FoI rights on you. It may also also provide effective grounds for appeal if your request for information is refused.

EXAMPLE:  “Everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights.”  (Constitution of the Republic of South Africa (1996), Article 32, Access to Information)

In addition, your country’s domestic laws governing the media may have rules on access to information, at least for journalists. In this case, the legal definition of “journalist” will be crucial, as will be the way in which public bodies interpret it.

4

Governing principles

Underpinning many of the laws outlined above exists a set of commonly-accepted principles concerning rights to information. These are best articulated by the Article 19 principles mentioned above, and they are as follows:

  1. Maximum disclosure. Unless there is a valid justification, all information held by public bodies is presumed to be accessible.
  2. Obligation to publish. Documents of “significant public interest” should be published without the need for somebody to request them.
  3. Promotion of open government. Governments should take steps to inform the public of their right to information, and to tackle the culture of official secrecy.
  4. Limited scope of exceptions. Exceptions should be justified and should only be available where it is strictly necessary to keep the requested information secret.
  5. Processes to facilitate access. Requests should be processed efficiently and an appeals process for refusals should be available.
  6. Costs. Excessive costs should not prevent individuals from being able to access information.
  7. Open meetings. Governing bodies’ meetings should be open to the public.
  8. Disclosure takes precedence. Laws that are detrimental to the right to information should be amended or repealed in favour of laws that promote the right.
  9. Protection for whistleblowers. Those who expose wrongdoing within government should receive protection from sanction.

If your country’s FoI laws do not make express provision for some of these principles, you may wish to refer to their generally-accepted nature when explaining to the public authorities why you should be entitled to receive the information that you want.

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