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ANNEXES ARTICLE
13 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS 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.
INTERNATIONAL
MECHANISMS FOR PROMOTING FREEDOM OF EXPRESSION 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.
LEGAL
FOUNDATION
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.”
“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.]
PREAMBLE
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. PRINCIPLES 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. THE
PUBLIC'S RIGHT TO KNOW June 1999 PREFACE
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. BACKGROUND 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. PRINCIPLE
1. MAXIMUM DISCLOSURE 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. Definitions 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.
PRINCIPLE
2. OBLIGATION TO PUBLISH 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:
PRINCIPLE
3. PROMOTION OF OPEN GOVERNMENT 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. PRINCIPLE
4. LIMITED SCOPE OF EXCEPTIONS 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.
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. PRINCIPLE
5. PROCESSES TO FACILITATE ACCESS 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. Appeals 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.
PRINCIPLE
6. COSTS 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. PRINCIPLE
7. OPEN MEETINGS 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. PRINCIPLE
8. DISCLOSURE TAKES PRECEDENCE 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. PRINCIPLE
9. PROTECTION FOR WHISTLEBLOWERS 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. [ Table of Contents | Previous ]
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