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1.       Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. 

2.       The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a.       respect for the rights or reputations of others; or

b.       the protection of national security, public order, or public health or morals. 

3.       The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 

4.       Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 

5.       Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.




The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression met for the first time in London on the 26th of November 1999 under the auspices of ARTICLE 19

·                     We recall that freedom of expression is a fundamental international human right and a basic component of a civil society based on democratic principles.  

·                     An independent and pluralistic media is essential to a free and open society and accountable government. Respect for freedom of the media in our Member States, although very different from country to country, leaves much to be desired.  

·                     Certain States have continued to exert and allow impermissible pressure on the media in their respective countries. The levels of harassment might be different but the general aim is the same: to suppress pluralism and open debate on issues of concern to citizens. 

·                     Freedom of expression is not only a fundamental human right in and of itself, but it has ramifications for economic development as well. The media has a “corrective” function by bringing to the public’s attention corruption and inequitable practises. The absence of free media can lead to economic stagnation and improper practises by both governments and businesses. 

·                     Implicit in freedom of expression is the public’s right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people’s participation in government would remain fragmented.  

·                     The media should refrain from any advocacy of national, racial or religious hatred that constitutes incitement to violence or to any other similar action.  

·                     In many countries laws are in place, such as criminal defamation laws, which unduly restrict the right to freedom of expression. We urge States to review these laws with a view to bringing them into line with their international obligations.  

·                     We affirm that States must ensure an effective, serious and impartial judicial process, based on the rule of law, in order to combat impunity of perpetrators of attacks against freedom of expression.


Abid Hussain
UN Special Rapporteur on
Opinion and Expresion            
Freimut Duve
OSCE Representative on Freedom
of the Media
Santiago Canton
OAS Special Rapporteur
 on Freedom of Expression




The President: 

          The purpose of this draft law is to modify the provisions of the National Civil and Criminal Codes related to crimes of slander and libel, so as to bring them in line with the principles protecting the right to freedom of expression contained in the National Constitution and in International Human Rights Treaties.  This come about in the context of a proposed friendly settlement which the Argentine Government compromised itself to carry on with the Journalists’ Association [Asociación Periodistas] at the hearing held on October 1, 1999, in case 12,128 of the Inter-American Commission on Human Rights (hereinafter IACHR). 

          At that hearing, the Argentine State pledged look for a solution to do away with restrictions to freedom of expression inherent in their legal system.  It was this type of agreement that made it possible to abolish the crime of desacato [crime of insulting or causing injury to a public official] from the criminal code in 1993.     

          The proposed provisions, which were drafted and discussed together with the members and advisors of the Journalists’ Association, follow in part the arguments developed by Argentina’s Supreme Court of Justice in several of its judgments, in which it set forth certain principles which confirm the essential role of freedom of expression in sustaining a democratic system of government, but which are also meant to protect the right of persons to have their honor and reputation respected. These rights are also expressly recognized in Articles 11 and 13 of the American Convention on Human Rights.  In addition, consideration was given to the interpretation given to human rights conventions by different international courts, which should serve as a basis for interpreting domestic laws, pursuant to the High Court’s opinion handed down in the “Giroldi”, “Bramajo,” and “Acosta” cases.  

          The proposed text is therefore based on the fundamental premise that the honor of public officials and public figures deserves a very different type of protection from that offered to private persons. 

          As far as public officials and figures are concerned, it seems clear that the circumstance of having voluntarily placed themselves in the public eye, a defining characteristic of their function, means that it is reasonable to believe that their right to have their honor respected would merit less protection than that of private persons.  Furthermore, the fact that public officials and public entities generally have easy access to the media, and that this enables them to challenge any affronts to their honor and personal reputation, is another reason to provide less legal protection for their honor. 

          On this point, the proposed text has followed uncontested case law of the Supreme Court, which has held the view that lesser legal protection for the honor of public officials and public figures is vital to the subsistence of a democratic republic (refer to the “Costa” case, for instance, Judgment 310:508). 

          Consequently, an attempt was made to apply this principle in the various sections of the proposed text, as you will see from what follows. 

          The basic concept underlying the proposed text’s attempt to obtain the correct results from the “weak” legal protection afforded to public officials and similar such persons in the event of criticism of any kind concerning their work is that only civil sanctions would apply to cases of false information given with actual malice, in the sense given to this offense in the rulings of the United States Supreme Court (i.e., “New York Times v. Sullivan” [376 U.S. 254]) which, at least in some cases, have been received by our High Court. 

          It is therefore proposed that four new paragraphs, which reflect the doctrine summarized in the preceding paragraphs, be added to Article 1089 of the Civil Code pertaining to defamation, libel and slander. 

          In this regard, reference should be made to several reservations or exceptions included in the new provisions.  The first two new paragraphs (2º and 3º of Art. 1089, Civil Code) contain the rules pertaining to false or incorrect information, which, in the event actual malice is proven, provide for redress or reparations, while the third paragraph (4º of Art. 1089, Civil Code) excludes liability in the case of value judgments of any kind.  In fact, the criticism and debate of public affairs easily lead to causticity, asperity, and even insults, which are frequently manifestations of indignation, a key ethical driving force for maintaining and developing a democratic system. 

          Finally, the fourth paragraph to be added to the law (5º of Art. 1089, Civil Code) provides for separate treatment for cases involving the faithful reproduction of information from another source in which the source is exempt from any civil liability, when the source is given.  

          This represents an effort to establish specific legal provisions to reflect the National Supreme Court’s doctrine as first adopted in the “Campillay” case (Judgment 308:789). According to that doctrine, the faithful reproduction of information derived from an official source does not create liability, even if that information proves to be incorrect and could adversely affect the honor of an individual.  This doctrine was later applied by the Supreme Court to cases in which the information source was private (on this point, see the “Acuña” case, “Argentine Case Law”, journal of 9/7/97). 

          Following the arguments established in the Supreme Court’s case law, the draft carefully draws a distinction between the “Campillay” doctrine and the doctrine on which the U.S. case “New York Times v. Sullivan” is based, known as the doctrine of “actual malice.” 

          Thus, pursuant to “Campillay”, whether or not the information is true or false is irrelevant to the purpose for obtaining constitutional protection.  It is enough that the informant has faithfully reproduced information from a source and has specifically cited it to absolve that person from any responsibility.  

          The doctrine of “actual malice,” however, applies to the assumption of incorrect information by the informant, which does not result in the liability of the informant unless it is proven that in providing the false information, the person acted with criminal intent or gross fault. 

          Thus, this last doctrine was included in a separate section of the draft provisions from the one containing the “Campillay” doctrine, to highlight the aforesaid difference between the two. 

          As for criminal law, it was decided that cases related to the exercise of freedom of criticism would be excluded from criminal provisions.  To this end, the present Article 111 of the Criminal Code is deleted, as it is incompatible with the constitutional principles on the subject.  It is replaced by a new text that establishes impunity in the case of information, value judgments, and humorous expressions published by the media on topics of public interest referring to public officials or similar such persons. 

          In this regard, the IACHR has maintained as follows: “The state’s obligation to protect the rights of others is fulfilled by establishing statutory protection from intentional attacks on the honor and reputation of persons based on civil action, and by promulgating laws that guarantee the right of rectification or reply.  In this regard, the state shall guarantee protection of the private life of all individuals, without abusing its coercive powers to repress an individual’s freedom of thought and expression. 

          In conclusion, the Commission understands that the use of such powers to limit the expression of ideas lends itself to abuse, as a means of silencing unpopular opinions and ideas, to restrict a debate that is fundamental to the effective operation of democratic institutions.  Any laws that penalize the expression of ideas that do not incite to anarchic violence are incompatible with freedom of expression and thought as established in Article 13, and with the fundamental objective of the American Convention to protect and guarantee a pluralistic and democratic society.” (cf., IACHR Report, 1994, published February 1995, OAS General Secretariat) 

          Of course, whenever the circumstances referred to in the new Art. 111 of the Criminal Code do not apply, slander and libel continues to be punishable by law, as will their dissemination by the media.  This is specified in the first paragraph of the new text to replace the present Article 113 of the Criminal Code, along with a second explanatory paragraph. 

          The purpose of the third paragraph of the new Article 113 is to make it clear that the right to freely criticize and publicly censure public officials and similar persons is designed to cover all inhabitants of the country, so that the free exercise of that right, whether by the media or others, is expressly guaranteed.

Finally, it is important to clarify that the present Article 114 of the Criminal Code is meant to be interpreted in accordance with the proposed reform, taking special account of the provisions of Articles 111 and 113.  

          Although it would have been advisable to reform that article, it proved to be impossible, since the National Congress is not the local legislature for the City of Buenos Aires and the national territories no longer exist, and so it does not have jurisdiction to establish laws that restrict or regulate freedom of the press. 

          As is evident, the proposed text is designed to adapt domestic laws to international  law, with a view to guaranteeing the maximum freedom of expression, naturally within the framework defined by human rights conventions. 

          This will allow for cooperation with regard to the friendly settlement which the national government is committed to seek, and will prevent our Republic from incurring international liability for failure to observe the mandates it has assumed upon signing international human rights treaties, pursuant to the opinions given by our Supreme Court (Judgment 315:1492).    

          This proposed text is therefore presented on the understanding that as legislators of the Argentine State, we have the duty to “guarantee” the free and full exercise of the rights established in constitutionalized human rights conventions, since “to guarantee entails a duty by the state to adopt all the measures required to remove any obstacles in the way so that individuals can enjoy the rights recognized under the Convention.” (Advisory Opinion of the Inter-American Court on Human Rights No 11/90 of August 10, 1990 –“Exceptions to exhaustion of domestic remedies” (Supreme Court of Justice of the Nation, “Giroldi” case, judgment of April  7, 1995). On these grounds, I request a debate on and subsequent approval of this proposed text. 

ARTICLE 1°.- The following text shall be included as the second, third, fourth, and fifth paragraphs of Article 1089 of the Civil Code: 

“Civil liability shall not be incurred as a result of the formulation or dissemination of truthful information on events of public interest referring to public officials, public figures, or private persons, whenever the latter have been voluntarily involved in issues of public interest. 

“Civil liability shall not be incurred as a result of the dissemination by any of the media of incorrect information on events or facts of public interest that may be detrimental to the honor of persons, whenever such information refers to public officials or public figures and private persons, provided the latter were voluntarily involved in matters of public interest.  In these cases, civil liability shall be incurred if the party affected by the information proves that it was untrue and that there was criminal intent or gross fault and negligence on the part of the author.  These conditions shall be considered as having been met only in the event that the offended party succeeds in demonstrating the misrepresentation or untruth of the information, and the actual malice with which the information was disseminated, despite the fact that the author knew it was untrue or acted in rash disregard for the truth. 

“The formulation or dissemination by any of the media of value judgments referring to public officials or public figures and to private persons, whenever the latter are involved in matters of relevant public interest, shall be exempt from civil liability.  Value judgments shall be understood to include humorous expressions as well.

“In the cases set forth in the second, third, and fourth paragraphs, any persons whose action is confined to the faithful reproduction of information already disseminated by other media or by public officials or intermediate entities of any kind, and even by private persons, if the source is given, shall be exempt from civil liability.  If the source is kept in reserve, the provisions of the second, third, and fourth paragraphs of this article shall apply.”

ARTICLE 2°.- Article 111 of the National Criminal Code shall be replaced by the following text: 

“The dissemination by any of the media of information or value judgments pertaining to acts or events of public interest related to public officials or figures or private persons, provided the latter have been voluntarily involved in matters of relevant public interest, shall not be punished under the law.  Value judgments shall be understood to cover humorous expressions as well.” 

ARTICLE 3°.- Article 113 of the National Criminal Code shall be replaced by the following text: 

“Whoever in any way reproduces slander or libel inferred by another, with full knowledge of its libelous or slanderous nature, shall be punished as the author of the slander or libel in question, except in the circumstances stipulated in Article 111.

Any persons who faithfully reproduce information or value judgments on acts or events of public interest already disseminated by other media or by public officials or intermediate entities of any kind, or by a private person, shall not be punished under the law. 

Critical statements made in public by any person shall not be punished under Articles 109 and 110, provided said statements are consistent with the other terms and conditions contained in Article 111 of the Criminal Code.” 

          ARTICLE 4.  [end of text.] 





          On the threshold of a new millennium, the Americas envision a future rooted in democracy. A political opening has taken hold. Citizens have a heightened awareness of their rights. More than at any time in our history regular elections, governments, parliaments, political parties, labor unions, associations and social groups of every kind reflect the hopes of our people. 

          In this environment of democratization, several developments engender optimism but also suggest prudence. Institutional crises, Inequalities, backwardness, unresolvable frustrations, the search for easy solutions, failure to grasp the nature of democracy and special interest groups constantly threaten the advancements made. They also represent potential hurdles to further progress. 

          That is why we who share this hemisphere, from Alaska to Tierra del Fuego, must consolidate the prevailing public freedoms and human rights. 

          Democratic rule must be embodied in modern institutions that represent and respect the citizenry; it must also guide daily life. Democracy and freedom, inseparably paired, will flourish with strength and stability only if they take root in the men and women of our continent. 

          Without democracy and freedom, the results are predictable: Individual and social life is stunted, group interaction is curtailed, material progress is distorted, the possibility of change is halted, justice is demeaned and human advancement becomes mere fiction. Freedom must not be restricted in the quest for any other goal. It stands alone, yet has multiple expressions; it belongs to citizens, not to government. 

          Because we share this conviction, because we have faith in the creative force of our people and because we are convinced that our principles and goals must be freedom and democracy, we openly support their most forthright and robust manifestation: Freedom of expression and of the press, whatever the medium of communication. 

          The exercise of democracy can neither exist nor be reproduced without these. We, the signatories of this declaration, represent different backgrounds and dreams. We take pride in the plurality and diversity of our cultures, considering ourselves fortunate that they merge into the one element that nurtures their growth and creativity: Freedom of expression, the driving force and basis of mankind’s fundamental rights. 

          A free society can thrive only through free expression and the exchange of ideas, the search for and the dissemination of information, the ability to investigate and question, to propound and react, to agree and disagree, to converse and confront, to publish and broadcast. Only by exercising these principles will it be possible to guarantee individuals and groups their right to receive impartial and timely information. Only through open discussion and unfettered information will it be possible to find answers to the great collective problems, to reach consensus, to have development benefit all sectors, to practice social justice and to advance the quest for equality. We therefore vehemently reject assertions which would define freedom and progress, freedom and order, freedom and stability, freedom and justice, freedom and the ability to govern as mutually exclusive values. 

          Without freedom there can be no true order, stability and justice. And without freedom of expression there can be no freedom. Freedom of expression and the seeking, dissemination and collection of information can be exercised only if freedom of the press exists. 

          We know that not every statement and item of information can find its way into the media. We know that the existence of press freedom does not automatically guarantee unrestricted freedom of expression. But we also know that a free press favors an environment that nurtures freedom of expression and thereby benefits all other public freedoms. 

          Without an independent media, assured of the guarantees to operate freely, to make decisions and to act on them fully, freedom of expression cannot be exercised. A free press is synonymous with free expression. 

          Wherever the media can function unhindered and determine their own direction and manner of serving the public, there is a blossoming of the ability to seek information, to disseminate it without restraints, to question it without fear and to promote the free exchange of ideas and opinions. But wherever freedom of the press is curtailed, for whatever reasons, the other freedoms vanish. 

          After a period when attempts were made to legitimize government control over news outlets, it is gratifying to be able to work together to defend freedom. Many men and women worldwide join us in this task. But opposition remains widespread. Our continents are no exception. There are still counties whose despotic governments abjure every freedom, particularly those freedoms related to expression. Criminals, terrorists and drug traffickers still threaten, attack and murder journalists. 

          But that is not the only way to harm a free press and free expression. The temptation to control and regulate has led to decisions that limit the independent action of the media, of journalists and of citizens who wish to seek and disseminate information and opinions. 

          Politicians who avow their faith in democracy are often intolerant of public criticism. Various social sectors assign to the press nonexistent flaws. Judges with limited vision order journalists to reveal sources that should remain in confidence. Overzealous officials deny citizens access to public information. Even the constitutions of some democratic countries contain elements of press restriction. 

While defending a free press and rejecting outside interference, we also champion a press that is responsible and involved, a press aware of the obligations that the practice of freedom entails.



A free press enables societies to resolve their conflicts, promote their well-being and protect their liberty. No law or act of government may limit freedom of expression or of the press, whatever the medium. 

Because we are fully conscious of this reality and accept it with the deepest conviction, and because of our firm commitment to freedom, we sign this declaration, whose principles follow. 

1.       No people or society can be free without freedom of expression and of the press. The exercise of this freedom is not something authorities grant, it is an inalienable right of the people. 

2.       Every person has the right to seek and receive information, express opinions and disseminate them freely. No one may restrict or deny these rights. 

3.       The authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector. No journalist may be forced to reveal his or her sources of information. 

4.       Freedom of expression and of the press are severely limited by murder, terrorism, kidnapping, intimidation, the unjust imprisonment of journalists, the destruction of facilities, violence of any kind and impunity for perpetrators. Such acts must be investigated promptly and punished harshly. 

5.       Prior censorship, restrictions on the circulation of the media or dissemination of their reports, forced publication of information, the imposition of obstacles to the free flow of news, and restrictions on the activities and movements of journalists directly contradict freedom of the press. 

6.       The media and journalists should neither be discriminated against nor favored because of what they write or say. 

7.       Tariff and exchange policies, licenses for the importation of paper or news-gathering equipment, the assigning of radio and television frequencies and the granting or withdrawal of government advertising may not be used to reward or punish the media or individual journalists. 

8.       The membership of journalists in guilds, their affiliation to professional and trade associations and the affiliation of the media with business groups must be strictly voluntary.

9.       The credibility of the press is linked to its commitment to truth, to the pursuit of accuracy, fairness and objectivity and to the clear distinction between news and advertising. The attainment of these goals and the respect for ethical and professional values may not be imposed. These are the exclusive responsibility of journalists and the media. In a free society, it is public opinion that rewards or punishes. 

10.     No news medium nor journalist may be punished for publishing the truth or criticizing or denouncing the government. 

          The struggle for freedom of expression and of the press is not a one-day task; it is an ongoing commitment. It is fundamental to the survival of democracy and civilization in our hemisphere. Not only is this freedom a bulwark and an antidote against every abuse of authority, it is society's lifeblood. Defending it day upon day is honoring our history and controlling our destiny. To these principles we are committed.



June 1999


           Information is the oxygen of democracy. If people do not know what is happening in their society, if the actions of those who rule them are hidden, then they cannot take a meaningful part in the affairs of that society. But information is not just a necessity for people – it is an essential part of good government. Bad government needs secrecy to survive. It allows inefficiency, wastefulness and corruption to thrive. As Amartya Sen, the Nobel Prize-winning economist has observed, there has never been a substantial famine in a country with a democratic form of government and a relatively free press. Information allows people to scrutinise the actions of a government and is the basis for proper, informed debate of those actions. 

Most governments, however, prefer to conduct their business in secret. In Swahili, one of the words for government means "fierce secret". Even democratic governments would rather conduct the bulk of their business away from the eyes of the public. And governments can always find reasons for maintaining secrecy – the interests of national security, public order and the wider public interest are a few examples. Too often governments treat official information as their property, rather than something which they hold and maintain on behalf of the people. 

That is why ARTICLE 19 has produced this set of international principles – to set a standard against which anyone can measure whether domestic laws genuinely permit access to official information. They set out clearly and precisely the ways in which governments can achieve maximum openness, in line with the best international standards and practice.  

Principles are important as standards but on their own they are not enough. They need to be used – by campaigners, by lawyers, by elected representatives and by public officials. They need applying in the particular circumstances that face each society, by people who understand their importance and are committed to transparency in government. We publish these principles as a contribution to improving governance and accountability and strengthening democracy across the world. 



These Principles set out standards for national and international regimes which give effect to the right to freedom of information. They are designed primarily for national legislation on freedom of information or access to official information but are equally applicable to information held by inter-governmental bodies such as the United Nations and the European Union. 

The Principles are based on international and regional law and standards, evolving state practice (as reflected, inter alia, in national laws and judgments of national courts) and the general principles of law recognised by the community of nations. They are the product of a long process of study, analysis and consultation overseen by ARTICLE 19, drawing on extensive experience and work with partner organisations in many countries around the world.



Freedom of information legislation should by guided by the principle of maximum disclosure 

The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances (see Principle 4). This principle encapsulates the basic rationale underlying the very concept of freedom of information and ideally it should be provided for in the Constitution to make it clear that access to official information is a basic right. The overriding goal of legislation should be to implement maximum disclosure in practice. 

Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information. Everyone present in the territory of the country should benefit from this right. The exercise of this right should not require individuals to demonstrate a specific interest in the information. Where a public authority seeks to deny access to information, it should bear the onus of justifying the refusal at each stage of the proceedings. In other words, the public authority must show that the information which it wishes to withhold comes within the scope of the limited regime of exceptions, as detailed below. 


Both ‘information’ and ‘public bodies’ should be defined broadly. ‘Information’ includes all records held by a public body, regardless of the form in which the information is stored (document, tape, electronic recording and so on), its source (whether it was produced by the public body or some other body) and the date of production. The legislation should also apply to records which have been classified, subjecting them to the same test as all other records. 

For purposes of disclosure of information, the definition of ‘public body’ should focus on the type of service provided rather than on formal designations. To this end, it should include all branches and levels of government including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organisations), judicial bodies, and private bodies which carry out public functions (such as maintaining roads or operating rail lines). Private bodies themselves should also be included if they hold information whose disclosure is likely to diminish the risk of harm to key public interests, such as the environment and health. Inter-governmental organisations should also be subject to freedom of information regimes based on the principles set down in this document. 

Destruction of records 

To protect the integrity and availability of records, the law should provide that obstruction of access to, or the willful destruction of records is a criminal offence. The law should also establish minimum standards regarding the maintenance and preservation of records by public bodies. Such bodies should be required to allocate sufficient resources and attention to ensuring that public record-keeping is adequate. In addition, to prevent any attempt to doctor or otherwise alter records, the obligation to disclose should apply to records themselves and not just the information they contain.



Public bodies should be under an obligation to publish key information 

Freedom of information implies not only that public bodies accede to requests for information but also that they publish and disseminate widely documents of significant public interest, subject only to reasonable limits based on resources and capacity. Which nformation should be published will depend on the public body concerned. The law should establish both a general obligation to publish and key categories of information that must be published. 

Public bodies should, as a minimum, be under an obligation to publish the following categories of information: 

  • operational information about how the public body functions, including costs, objectives, audited accounts, standards, achievements and so on, particularly where the body provides direct services to the public;

  • information on any requests, complaints or other direct actions which members of the public may take in relation to the public body;  

  • guidance on processes by which members of the public may provide input into major policy or legislative proposals;

  • the types of information which the body holds and the form in which this information is held; and

  • the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision.


Public bodies must actively promote open government 

Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realised. Indeed, experience in various countries shows that a recalcitrant civil service can undermine even the most progressive legislation. Promotional activities are, therefore, an essential component of a freedom of information regime. This is an area where the particular activities will vary from country to country, depending on factors such as the way the civil service is organised, key constraints to the free disclosure of information, literacy levels and the degree of awareness of the general public. The law should require that adequate resources and attention are devoted to the question of promoting the goals of the legislation. 

Public education 

As a minimum, the law should make provision for public education and the dissemination of information regarding the right to access information, the scope of information which is available and the manner in which such rights may be exercised. In countries where newspaper distribution or literacy levels are low, the broadcast media are a particularly important vehicle for such dissemination and education. Creative alternatives, such as town meetings or mobile film units, should be explored. Ideally, such activities should be undertaken both by individual public bodies and a specially designated and adequately funded official body – either the one which reviews requests for information, or another body established specifically for this purpose. 

Tackling the culture of official secrecy 

The law should provide for a number of mechanisms to address the problem of a culture of secrecy within government. These should include a requirement that public bodies provide freedom of information training for their employees. Such training should address the importance and scope of freedom of information, procedural mechanisms for accessing information, how to maintain and access records efficiently, the scope of whistleblower protection, and what sort of information a body is required to publish. 

The official body responsible for public education should also play a role in promoting openness within government. Initiatives might include incentives for public bodies that perform well, campaigns to address secrecy problems and communications campaigns encouraging bodies that are improving and criticising those which remain excessively secret. Another possibility is the production of an annual report to Parliament and/or Parliamentary bodies on remaining problems and achievements, which might also include measures taken to improve public access to information, any remaining constraints to the free flow of information which have been identified and measures to be taken in the year ahead. 

Public bodies should be encouraged to adopt internal codes on access and openness. 


Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public interest" tests 

All individual requests for information from public bodies should be met unless the public body can show that the information falls within the scope of the limited regime of exceptions. A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test. 

  • the information must relate to a legitimate aim listed in the law; 

  • disclosure must threaten to cause substantial harm to that aim; and  

  • the harm to the aim must be greater than the public interest in having the information.

No public bodies should be completely excluded from the ambit of the law, even if the majority of their functions fall within the zone of exceptions. This applies to all branches of government (that is, the executive, legislative and judicial branches) as well as to all functions of government (including, for example, functions of security and defence bodies). Non-disclosure of information must be justified on a case-by-case basis. 

Restrictions whose aim is to protect governments from embarrassment or the exposure of wrongdoing can never be justified. 

Legitimate aims justifying exceptions 

A complete list of the legitimate aims which may justify non-disclosure should be provided in the law. This list should include only interests which constitute legitimate grounds for refusing to disclose documents and should be limited to matters such as law enforcement, privacy, national security, commercial and other confidentiality, public or individual safety, and the effectiveness and integrity of government decision-making processes. 

Exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest. They should be based on the content, rather than the type, of the document. To meet this standard exceptions should, where relevant, be time-limited. For example, the justification for classifying information on the basis of national security may well disappear after a specific national security threat subsides.  

Refusals must meet a substantial harm test 

It is not sufficient that information simply fall within the scope of a legitimate aim listed in the law. The public body must also show that the disclosure of the information would cause substantial harm to that legitimate aim. In some cases, disclosure may benefit as well as harm the aim. For example, the exposure of corruption in the military may at first sight appear to weaken national defence but actually, over time, help to eliminate the corruption and strengthen the armed forces. For non-disclosure to be legitimate in such cases, the net effect of disclosure must be to cause substantial harm to the aim. 

Overriding public interest 

Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. In such cases, the harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information. 


Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available 

A process for deciding upon requests for information should be specified at three different levels: within the public body; appeals to an independent administrative body; and appeals to the courts. Where necessary, provision should be made to ensure full access to information for certain groups, for example those who cannot read or write, those who do not speak the language of the record, or those who suffer from disabilities such as blindness. 

All public bodies should be required to establish open, accessible internal systems for ensuring the public’s right to receive information. Generally, bodies should designate an individual who is responsible for processing such requests and for ensuring compliance with the law. 

Public bodies should also be required to assist applicants whose requests relate to published information, or are unclear, excessively broad or otherwise in need of reformulation. On the other hand, public bodies should be able to refuse frivolous or vexatious requests. Public bodies should not have to provide individuals with information that is contained in a publication, but in such cases the body should direct the applicant to the published source.

The law should provide for strict time limits for the processing of requests and require that any refusals be accompanied by substantive written reasons. 


Wherever practical, provision should be made for an internal appeal to a designated higher authority within a public authority who can review the original decision. 

In all cases, the law should provide for an individual right of appeal to an independent administrative body from a refusal by a public body to disclose information. This may be either an existing body, such as an Ombudsman or Human Rights Commission, or one specially established for this purpose. In either case, the body must meet certain standards and have certain powers. Its independence should be guaranteed, both formally and through the process by which the head and/or board is/are appointed. 

Appointments should be made by representative bodies, such as an all-party parliamentary committee, and the process should be open and allow for public input, for example regarding nominations. Individuals appointed to such a body should be required to meet strict standards of professionalism, independence and competence, and be subject to strict conflict of interest rules. 

The procedure by which the administrative body processes appeals over requests for information which have been refused should be designed to operate rapidly and cost as little as is reasonably possible. This ensures that all members of the public can access this procedure and that excessive delays do not undermine the whole purpose of requesting information in the first place. 

The administrative body should be granted full powers to investigate any appeal, including the ability to compel witnesses and, importantly, to require the public body to provide it with any information or record for its consideration, in camera where necessary and justified.  

Upon the conclusion of an investigation, the administrative body should have the power to dismiss the appeal, to require the public body to disclose the information, to adjust any charges levied by the public body, to fine public bodies for obstructive behaviour where warranted and/or to impose costs on public bodies in relation to the appeal. 

The administrative body should also have the power to refer to the courts cases which disclose evidence of criminal obstruction of access to or willful destruction of records. 

Both the applicant and the public body should be able to appeal to the courts against decisions of the administrative body. Such appeals should include full power to review the case on its merits and not be limited to the question of whether the administrative body has acted reasonably. This will ensure that due attention is given to resolving difficult questions and that a consistent approach to freedom of expression issues is promoted.



Individuals should not be deterred from making requests for information by excessive costs 

The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants, given that the whole rationale behind freedom of information laws is to promote open access to information. It is well established that the long-term benefits of openness far exceed the costs. In any case, experience in a number of countries suggests that access costs are not an effective means of offsetting the costs of a freedom of information regime. 

Differing systems have been employed around the world to ensure that costs do not act as a deterrent to requests for information. In some jurisdictions, a two-tier system has been used, involving flat fees for each request, along with graduated fees depending on the actual cost of retrieving and providing the information. The latter should be waived or significantly reduced for requests for personal information or for requests in the public interest (which should be presumed where the purpose of the request is connected with publication). In some jurisdictions, higher fees are levied on commercial requests as a means of subsidising public interest requests. 


Meetings of public bodies should be open to the public 

Freedom of information includes the public’s right to know what the government is doing on its behalf and to participate in decision-making processes. Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public. 

"Governing" in this context refers primarily to the exercise of decision-making powers, so bodies which merely proffer advice would not be covered. Political committees – meetings of members of the same political party – are not considered to be governing bodies. 

On the other hand, meetings of elected bodies and their committees, planning and zoning boards, boards of public and educational authorities and public industrial development agencies would be included. 

A "meeting" in this context refers primarily to a formal meeting, namely the official convening of a public body for the purpose of conducting public business. Factors that indicate that a meeting is formal are the requirement for a quorum and the applicability of formal procedural rules. 

Notice of meetings is necessary if the public is to have a real opportunity to participate and the law should require that adequate notice of meetings is given sufficiently in advance to allow for attendance.  

Meetings may be closed, but only in accordance with established procedures and where adequate reasons for closure exist. Any decision to close a meeting should itself be open to the public. The grounds for closure are broader than the list of exceptions to the rule of disclosure but are not unlimited. Reasons for closure might, in appropriate circumstances, include public health and safety, law enforcement or investigation, employee or personnel matters, privacy, commercial matters and national security. 


Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed 

The law on freedom of information should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions. Where this is not possible, other legislation dealing with publicly-held information should be subject to the principles underlying the freedom of information legislation.  

The regime of exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it. In particular, secrecy laws should not make it illegal for officials to divulge information which they are required to disclose under the freedom of information law. 

Over the longer term, a commitment should be made to bring all laws relating to information into line with the principles underpinning the freedom of information law. 

In addition, officials should be protected from sanctions where they have, reasonably and in good faith, disclosed information pursuant to a freedom of information request, even if it subsequently transpires that the information is not subject to disclosure. Otherwise, the culture of secrecy which envelopes many governing bodies will be maintained as officials may be excessively cautious about requests for information, to avoid any personal risk. 


Individuals who release information on wrongdoing – whistleblowers – must be protected 

Individuals should be protected from any legal, administrative or employment-related sanctions for releasing information on wrongdoing. 

"Wrongdoing" in this context includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It also includes a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. 

In some countries, protection for whistleblowers is conditional upon a requirement to release the information to certain individuals or oversight bodies. While this is generally appropriate, protection should also be available, where the public interest demands, in the context of disclosure to other individuals or even to the media. 

The "public interest" in this context would include situations where the benefits of disclosure outweigh the harm, or where an alternative means of releasing the information is necessary to protect a key interest. This would apply, for example, in situations where whistleblowers need protection from retaliation, where the problem is unlikely to be resolved through formal mechanisms, where there is an exceptionally serious reason for releasing the information, such as an imminent threat to public health or safety, or where there is a risk that evidence of wrongdoing will otherwise be concealed or destroyed.  


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