OAS » IACHR » Special Rapporteurship for Freedom of Expression » 5 - Chapter IV - Report on Access to Information in the Hemisphere

Freedom of Expression

5 - Chapter IV - Report on Access to Information in the Hemisphere

[1]

             A.         Introduction

 

1.         The Office of the Special Rapporteur for Freedom of Expression has engaged in continuous efforts to ensure and expand access to information in the Americas, in the understanding that its effective implementation constitutes a touchstone for the consolidation of the right to freedom of expression, and provides a framework for the establishment of policies of transparency necessary to strengthen democracies. 

 

2.         In this spirit, and in pursuance of the mandates issued by the Heads of State and Government at the Third Summit of the Americas, held in Quebec City, Canada, in April 2001,[2] the Special Rapporteur for Freedom of Expression of the IACHR has undertaken to conduct an annual exercise to monitor the adoption of new laws and regulatory systems pertaining to the guaranteeing of the right to freedom of information in the OAS member States.

 

3.         To this end, the Office published in 2001 a “Report on Action with respect to Habeas Data and the Right of Access to Information in the Hemisphere.”[3]  This report contains an account of existing legislation and practices within the OAS member States with respect to the right of access to information and the action of habeas data.  The report was based on the information provided by the member States in response to the official questionnaires issued by the Office of the Special Rapporteur, as well as on information gathered from national and international nongovernmental organizations (NGOs).  In the 2001 Report, the Special Rapporteur concluded, in the light of the information obtained, that “practices contributing to a culture of secrecy with respect to state-held information continue to be followed in most countries, because of insufficient awareness of the specific provisions regulating this exercise, or because, given the vague, general language used in the provision, agents in possession of such information opt in favor of denying it, out of fear of punishment,” and further stressed that these practices “represent a threat to the constitutional democratic system, permitting a greater incidence of corruption.”[4]  In the 2001 report, the Special Rapporteur for Freedom of Expression also recommended that the following measures be taken to guarantee the rights to freedom of information and habeas data in accordance with international standards:

 

            1.             The promulgation of laws permitting access to state-held information and supplemental provisions regulating the exercise of such access, as well as the promulgation of laws providing for the right of individuals to obtain access to personal data through the action of habeas data, taking international standards into account in this regard.

               

                2.             The existence of avenues of recourse for independent review to determine whether restrictions established for reasons of national defense are balanced, taking into account the protection of other fundamental rights consistent with international standards in the area of human rights and the right of a society to be informed, inter alia, about matters of public interest.

 

                3.             The introduction of legislation on civil society participation and consensus-building.

 

                4.             Policies promoting and disseminating information on these individual and collective rights as legal tools for achieving transparency in government, protecting personal privacy against the arbitrary or illegitimate handling of personal data, and promoting accountability to and participation by society.[5]

 

4.         On December 11 and 12, 2002, the Office of the Special Rapporteur for Freedom of Expression of the IACHR cooperated with the Inter-American Dialogue[6] in a conference on access to information held in Buenos Aires, Argentina, with the aim of collaborating in the Inter-American Dialogue´s efforts to further democracy in Latin America.  Local co-organizers were the Association for Civil Rights (Asociación por los Derechos Civiles) and the Center for Legal and Social Studies (Centro de Estudios Legales y Sociales, CELS).  In attendance were leading decision makers and members of institutions working on access to information issues throughout Latin America, the United States, and the United Kingdom.  The conference brought together academics, civil society organizations, journalists, lawmakers, and members of public and private entities with expertise in the areas of enacting, enforcing, or interpreting access to information laws throughout the region.[7]

 

            5.         In June 2003, the General Assembly of the OAS recognized the importance of access to information with the adoption of Resolution AG/Res. 1932 (XXXIII-O/03).[8]  In this Resolution, the General Assembly reaffirmed the statement of Article 13 of the American Convention in that everyone has the freedom to seek, receive, and impart information and held that access to public information is a requisite for the very exercise of democracy.[9]  Further, the General Assembly reiterated that states are obliged to respect and promote respect for everyone’s access to public information and to promote the adoption of any necessary legislative or other types of provisions to ensure its recognition and effective application.[10]  Paragraph 6 of the Resolution resolved to "instruct the Inter-American Commission on Human Rights, through the Special Rapporteur for Freedom of Expression, to continue including in its annual report a report on access to public information in the region."  As a consequence, this chapter will summarize the current situation of the member States in relation to the right to freedom of information, in an effort to record the development of the States in this area.

            6.         In August 2003, the President of the Permanent Council of the OAS requested the collaboration of the Office of the Special Rapporteur for Freedom of Expression in the presentation of a document containing proposals for the Council's compliance with paragraph 5 of Resolution AG/Res. 1932 (XXXIII-O/03), which instructed the Permanent Council to "promote seminars and forums designated to foster, disseminate, and exchange experiences and knowledge about access to public information so as to contribute, through efforts by the member states, to fully implementing such access."  The Special Rapporteur for Freedom of Expression of the IACHR presented this document, included in the Annex Section of this report, during the session of the Permanent Council held on September 10, 2003.[11]  Many of the proposals suggested here reiterate the considerations made before the Permanent Council.

            7.         Public discussion and debate about access to state-held information can only improve the strength of American democracies.  And yet, the Office of the Special Rapporteur for Freedom of Expression would like to take this opportunity to emphasize to each member State that more focused attention is necessary to achieve compliance with the American Convention.  In fact, a recent study found that 84% of the journalists interviewed, from 18 OAS member States, felt that it was difficult or very difficult to obtain information or documents from public officials in their countries.[12]  In order to correct this situation and adequately guarantee citizens' right to state-held information, States must make concentrated, simultaneous advances on at least three different levels.

            8.         First, the theoretical background of the right of access to information should be widely understood as both deep and broad.  Guaranteeing public access to state-held information is not only a pragmatic tool that strengthens democratic and human rights norms and promotes socioeconomic justice; it is also a human right protected under international law.

            9.         Secondly, this conceptual foundation must be accompanied by an access to information regime that is well-conceived and based on a balanced confluence of procedural coordination, civic activism, and political will.  Only a legislative and regulatory structure that relies on such principles can achieve the degree of openness fostered by Article 13 of the American Convention.

 

            10.       Finally, the adequate provision of the right of access to state-held information requires a specific, clear and transparent system of exceptions.  It is inevitable that states will occasionally encounter a tension between the guarantee of the right of access to information and other valid state interests, such as the protection of individual privacy and the maintenance of national security. Defining and weighing these various interests presents a challenge of enormous delicacy and importance.

 

            11.       Given the practical complexity of providing the right of access to state-held information as guaranteed by Article 13 of the American Convention on Human Rights, the Office of the Special Rapporteur would like to take this opportunity to elaborate requirements and strategies for adequate compliance with the Convention.  This discussion will be followed by a summary of the laws and practices on the right of access to information in each of the OAS member States.

 

            B.        Adequately Guaranteeing Access to Information

 

            1.         Theoretical framework

 

           12.       The value of access to information extends to the promotion of the most important goals in the Americas, including transparent and effective democracies, respect for human rights, stable economic markets, and socioeconomic justice.  Under the Inter-American System, access to state-held information is protected by Article 13.1 of the American Convention, which guarantees “the 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.”  A state must acknowledge all of these factors in order to guarantee sufficiently the right to access information.

 

13.       It is widely acknowledged that without public access to state-held information, the political benefits that flow from a climate of free expression cannot be fully realized.  At the Third Summit of the Americas, the Heads of State and Government recognized that the sound administration of public affairs requires effective, transparent, and publicly accountable government institutions.  They also assigned the highest importance to citizen participation through effective control systems.[13]  In accordance with this view, the Inter-American Court of Human Rights has stated that the "concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole."[14]  Access to information promotes accountability and transparency within the State and enables a robust and informed public debate.  In this way, access to information empowers citizens to assume an active role in government, which is a condition for sustaining a healthy democracy.

 

14.       A transparent mechanism that provides access to state-held information is also essential to foster a climate that is respectful of all human rights.  The right of access to information is also a component of the right to know the truth.  In this respect, the Inter-American Commission has said that "(T)he right to know the truth is a collective right that ensures society access to information that is essential for the workings of democratic systems, and it is also a private right for relatives of the victims, which affords a form of compensation, in particular, in cases where amnesty laws are adopted.  Article 13 of the American Convention protects the right of access to information."[15]  Access to state-held information is similarly necessary to prevent future abuses by government officials and also to ensure that effective remedies against such abuses are guaranteed.

 

            15.       Access to information laws can also constitute a stabilizing force in financial markets:

 

To understand and anticipate market movements, investors require timely and accurate information on company financial indicators and macroeconomic data (…)  Information on price and product standards helps consumers select products. Records of health inspections, school performance, and environmental data help citizens make informed social choices.[16]

 

            16.       This line of argumentation proposes that given the role of access to information in improving the flow of information in these various sectors, increasingly open regimes can benefit the world economy: "because better information flows can improve resource allocation, they may be able to mitigate global financial volatility and crises."[17]

 

            17.       As the Office of the Special Rapporteur elaborated in last year's Report on Freedom of Expression and Poverty, access to information is also a critical tool in the alleviation of socioeconomic injustice.  The poor often suffer from a lack of access to information about the very services that the government offers to help them survive.  Disenfranchised groups need access to information about these services as well as the many other decisions made by government and private agencies that profoundly affect their lives.[18]

 

           18.       The effective exercise of access to information also helps combat corruption, which has been identified by the Organization of American States as a problem requiring special attention in the Americas, given its capability to seriously undermine the stability of democracies.  During the Third Summit of the Americas, the Heads of State and Government recognized the need to step up efforts to combat corruption, and highlighted the need to support initiatives to allow for greater transparency to ensure that the public interest is protected and that governments are encouraged to use their resources effectively for the collective good.[19]  Corruption can be controlled adequately only through joint efforts aimed at raising the level of transparency of government action.[20]  Transparency of government action can be enhanced by creating a legal system that allows society to have access to information and that eliminates or restricts the resistance by governments to releasing information, delays in the processes for granting requested information, and the imposition of unreasonable fees on access.  A recent report on global corruption has noted that "only by insisting on both access to information and greater transparency in every sphere of society, from the local to the intergovernmental, can civil society, business and government hope to forestall and expose corruption, and ensure that the corrupt will run out of places to hide."[21]

19.       Access to information is protected by the American Convention on Human Rights.  Article 13.1 of the Inter-American Convention states that the right to freedom of thought and expression "includes the 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.”

 

            20.       In order to understand the implications of access to information as guaranteed by the Convention, we must look to the guidance offered by the Inter-American Commission on Human Rights and by the Inter-American Court of Human Rights, given their interpretative authority with respect to the rights protected in the American Convention.  As its Statute declares, the Commission was created to "promote the observance and defense of human rights and to serve as consultative organ of the Organization in this matter."[22]  For this reason, the Inter-American Court has written that "(…) if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply with the recommendations of a protection organ such as the Inter-American Commission[.]"[23]  In addition, the General Assembly of the OAS has urged its members to follow all recommendations of the Inter-American Commission.[24]

 

21.       Based on the text of Article 13.1 of the Convention, the Inter-American Commission on Human Rights has affirmed that “the right to freedom of expression includes both the right to disseminate and the right to seek and receive ideas and information.”[25]

 

            22.       The approval by the Inter-American Commission of the Declaration of Principles on Freedom of Expression developed by the Office of the Special Rapporteur for Freedom of Expression affirmed the notion that in order to adequately comply with the obligations set out by the Convention, States must take effective measures to ensure access to state-held information.  Principle 4 states that:

 

Access to information held by the state is a fundamental right of every individual.  States have the obligation to guarantee the full exercise of the right (…).

 

            23.       The Commission has supported the States´ obligation to ensure the effective guarantee of the right to know the truth about serious past violations of human rights.  In this respect, the Commission has said that States' obligations under the Convention include "the establishment of investigating committees whose membership and authority must be determined in accordance with the internal legislation of each country, or the provision of the necessary resources so that the judiciary itself may undertake whatever investigation may be necessary."[26] 

 

            24.       The obligation of the States to guarantee access to state-held information is also supported by the Inter-American Court’s interpretation of Article 1.1 of the American Convention on Human Rights.  In the Velazquez Rodriguez case, after considering that “The first obligation assumed by the States Parties under Article 1 (1) is 'to respect the rights and freedoms' recognized by the Convention,”[27] the Court went on to say that:

 

            The second obligation of the States Parties is to "ensure" the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction.  This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.  As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention (...).[28]

 

            25.       In its Advisory Opinion of November 13, 1985, the Inter-American Court further interpreted the provision of Article 13 of the Convention as containing both an individual and a collective right:

 

Those subject to the Convention have not only the right and freedom to express their own thoughts, but also the right and freedom to seek, receive, and impart information and ideas of all kinds… the freedom of expression and information requires, on the one hand, that no one be arbitrarily hindered or prevented from expressing his own thoughts, and therefore represents a right of every individual.  But it also entails a collective right to receive any information and to have access to the thoughts of others.[29]

 

            26.       The importance of an effective right of access to information has a solid basis in international and comparative human rights law.  Although not all countries and international organizations ground the right of access to state-held information in the right to freedom of expression, there is a growing consensus that governments do have positive obligations to provide state-held information to their citizens, since this right is interdependent with other fundamental rights.[30]

 

27.       The Special Rapporteur on Freedom of Opinion and Expression of the United Nations has stated clearly that the right to access information held by public authorities is protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR).[31]  The protection of this right was found to be derived from the right to freedom of expression provided by the Covenant, which states that this right “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice (…).”[32]

 

            28.       Also, it is interesting to note that the right of access to state-held information is recognized more explicitly in the Inter-American System than in the European Human Rights System.  Article 10 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "the European Convention"), says: "Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."  The word "seek" is absent from this formulation of the right to free expression.[33]  But despite this difference, the European Court has held in two recent cases that individuals do have the right to access state-held records, grounding it in the right to private or family life instead of the freedom of expression. Article 13 of the American Convention, by contrast, explicitly protects the "freedom to seek, receive and impart information and ideas of all kinds."[34]  Given that the freedom to receive information should prevent public authorities from interrupting the flow of information to individuals, the word seek would logically imply an additional right.[35]

 

            29.       While the international comparisons mentioned above are useful, there are more concrete legal strategies for arriving at an interpretation of the American Convention.  The Vienna Convention on the Law of Treaties establishes rules for the interpretation of Treaties, and Article 31 of the Vienna Convention says that the ordinary meaning of the terms must be taken into account in their context.  The context includes the preamble, annexes and any agreements or instruments made "in connection with the conclusion of the treaty."[36]   To this end, it is important to note the preamble of the American Convention, where the State parties reaffirmed their "intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man."[37]  Perhaps even more illuminating is Article 29 of the Convention, entitled "Restrictions Regarding Interpretation":

 

No provision of this Convention shall be interpreted as:

 

a.                   permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

 

b.                   restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;

 

c.                    precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or

 

d.                   excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.

 

            30.       The emphasis on choosing the least restrictive interpretation possible and the dramatic importance of representative democracy in these contextual excerpts both suggest that an interpretation of the word "seek" that protects the right of access to state-held information is appropriate.  The Vienna Convention on the Law of Treaties also offers other tools that further support this outcome.[38]

 

            31.       Article 31.3.b of the Vienna Convention establishes that "[t]here shall be taken into account, together with the context…any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation."  In the case of the American Convention on Human Rights, the relevant interpretations in the course of its application are those made by the Inter-American Court and Commission.  The Commission has unambiguously interpreted Article 13 to include a right of access to state-held information, and the Court's jurisprudence seems to support this analysis.  Consequently, guaranteeing access to state-held information must be understood as more than a way of achieving political, fiscal, and socioeconomic advantage; it is also a human right protected by the American Convention.  

 

            2.         Implementation of Access to Information regimes

 

            32.       Achieving an access to information regime that complies with the requirements of the American Convention on Human Rights is much more complex than simply declaring that the public may have access to state-held information.  There are specific legislative and procedural characteristics that must be exhibited by any compliant access to information regime, including: a principle of maximum disclosure, a presumption of publicity with respect to meetings and key documents, broad definitions of the type of information that is accessible, reasonable fees and deadlines, independent review of denials, and sanctions for noncompliance.  Even given all of these qualities, an access to information law could still never be successful without the presence of strong political will to implement it, along with an active civil society.

 

            33.       The foundation of any compliant access to information law is a presumption that all information held by public bodies should be subject to disclosure, which is sometimes referred to as the "principle of maximum disclosure."[39]  Of course, information held by public authorities is not acquired for the benefit of the officials that control it, but for the public as a whole.[40]  For this reason, an access to information law must ensure that "[p]ublic bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information.[41]  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."[42]  New access to information regimes will need to openly promote this principle of maximum disclosure, through public dissemination of information regarding the right of access to information, its scope and its attendant procedures.  Training within State organs is equally important, and should address how to maintain and access records efficiently, as well as the importance and legal protection of access to information.[43]

 

            34.       Another essential element in the provision of the right of access to information is the presumption of openness with respect to certain important government functions.  First, there should be a presumption that all meetings of governing bodies are open to the public.  This tenet should affect any meeting involving the exercise of decision-making power, including administrative proceedings, court hearings, and legislative proceedings.  Meetings may only be closed in accordance with established procedures and where adequate justifications exist, and the decision itself must always be public.[44]  Second, public bodies should be under obligation to publish key information, including:

 

·                     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.[45]  

 

           35.       The right of access to information as protected by the American Convention implicitly contains a broad understanding of the word "information," and States must match this breadth in their own laws.  The public should have access to all records held by a public body, regardless of the source; the information may have been produced by a different body but should still be accessible.  The date of production is also irrelevant.  In addition, "information" encompasses all types of storage or retrieval systems, including documents, film, microfiche, video, photographs, and others.[46]

 

            36.       The cost of searching and duplication can be significant for certain requests, so access to information laws may include provisions about charging a reasonable fee to those who request information.  However, the cost of gaining access to information must never be high enough to deter potential applicants.  Some states differentiate between commercial requests and private or public interest requests to address this problem.[47]

 

            37.       Access to information laws must also establish a reasonable but strict deadline, requiring States to respond in a timely manner.  In order to avoid putting an undue burden on the public body, some laws may choose to have a short time limit in which the State must acknowledge receipt of the request, and then up to several more weeks to substantively comply with the request.  Requests should be handled promptly on a "first come, first served" basis, except when an applicant indicates an urgent need for the information, in which case the documents should be provided immediately.[48]

 

            38.       Every adequate access to information regime must also protect an individual's right to appeal any decision in which information is denied.  The independent administrative body charged with hearing this appeal can be an existing body such as an Ombudsman or Human Rights Commission or one established for this purpose.  It should be composed of independent persons who are appointed by representative bodies, and required to meet standards of competence and follow strict conflict of interest rules.  The body should have full powers to investigate any appeal, and to dismiss the appeal or require the body to disclose the information. When faced with a negative decision by the administrative body, both the applicant and the public body should have the right to appeal to the courts.[49]

 

            39.       In addition to these remedies, there must be a system of sanctions in place, in the event that an agency fails or refuses to comply with the access to information law.  The independent administrative body that hears appeals should have the power to fine public bodies for obstructive behavior.  It should also have the power to refer certain cases to the court system, if the proceedings disclose evidence of criminal activity, such as damaging or destroying records, using documents for an illegal purpose, or criminal obstruction of access.[50]

 

            40.       Finally, a successful access to information regime is absolutely dependent on the substantial political will necessary to implement it.  For example, there must be a willingness to allocate public funds toward the establishment of an independent appellate body as well as educational programs to inform the public.  Public officials must also be willing to adjust their day-to-day practices to consistently reflect a culture of openness.  Perhaps most importantly, civil society must be willing and able to capitalize on the right of access to information in favor of the public interest.  Non-governmental organizations and individual citizens can do this by participating in the debate surrounding the formation, implementation, and utilization of the laws that guarantee access to information, and then by using these laws to participate more fully in their democracies. 

 

3.                  Exceptions to the Presumption of Publicity

 

            41.       Access to state-held information must be subject to certain exceptions, since there are legitimate state goals that could be harmed by the publication of particularly sensitive information.  In Resolution AG/RES 1932 (XXXIII-0/33), the General Assembly of the Organization of American States recognized that “the goal of achieving an informed citizenry must sometimes be rendered compatible with other societal aims such as safeguarding national security, public order, and protection of personal privacy, pursuant to laws passed to that effect” and urged member States “to take into consideration the principles of access to information in drawing up and adapting national security laws.”

            42.       Article 13.2 of the American Convention on Human Rights provides for circumstances under which States can deny public access to sensitive information and still comply with their obligations under international law.  In this respect, the Convention states that restrictions must be expressly defined in the law and be "necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of the national security, public order, or public health or morals."[51]  As was recently pointed out,[52] it follows from this principle that exceptions must be provided by legislation which is carefully drafted and widely publicized, and approved by the formal mechanisms established in the legal systems.[53]  Consequently, exceptions that are not expressly defined by law or do not fit reasonably into one of these categories are not acceptable.  The Inter-American Court wrote in 1985 that limitations to the rights granted in Article 13 "must meet certain requirements of form, which depend upon the manner in which they are expressed. They must also meet certain substantive conditions, which depend upon the legitimacy of the ends that such restrictions are designed to accomplish."[54]

            43.       The list of materials or documents that might be subject to public knowledge or classified as “secret” by the States generally comprise those related to personal privacy; national defense; external relations; prevention, prosecution, and punishment of illegal conduct (even criminal behavior); the functioning of public administration; and the economic interests of the State.[55]

            44.       The JohannesburgPrinciples on National Security, Freedom of Expression and Access to Information are guidelines that the Commission, like other international authorities, considers to provide authoritative guidance for interpreting and applying the right to freedom of expression in such situations.[56]  

            45.       It is consistent with the Johannesburg Principles[57] that when one of the criteria provided by Article 13 of the American Convention is used to justify a restriction on the disclosure of state-held information, the burden of proof is on the State to show that the restriction is compatible with the standards of the Inter-American System of Human Rights.  To meet this burden, the government must show that the information meets a strict three-part test:

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

2.                  disclosure must threaten to cause substantial harm to that aim; and

 

3.                  the harm to the aim must be greater than the public interest in having the information.[58]

             

            46.       In fulfilling the first requirement of this test, the aim is only legitimate if it is compatible with the limited exceptions listed in Article 13.2 of the American Convention.  In addition, the aims that are listed in the law should be defined narrowly and precisely, both in terms of content and duration.  For example, the justification for classifying information on the basis of national security should no longer be available when the threat subsides.[59]  All exceptions listed in the law should be based on the content, rather than the type, of document requested.[60] 

            47.       In fulfilling part two of the above test by assessing whether the harm threatened is "substantial," States must consider both the short and long term consequences of the disclosure. As an example, exposing a pattern of bribery in the legislature may have negative consequences for the stability of the public body in the short term. However, in the long term it will help eliminate corruption and strengthen the legislative branch. Thus, the overall effect of disclosure must be substantially harmful in order to justify an exception.[61]

            48.       Finally, part three of the test involves an explicit balancing of the harm in question with the public interest in releasing the information.  In the above example, the state-held information that exposes bribery may be private in nature, but the public interest in exposing corruption among democratic representatives should outweigh the legitimate aim of privacy.  Thus, in order to protect the fundamental right of its citizens to access to state-held information, every justification given by a State must do more than relate to one of the aims in Article 13.2.  The justification must also threaten to cause substantial harm to the aim, and this harm must be greater than the public interest in having the information.

            49.       This process of evaluation required to adequately justify a denial of access to state-held information takes on particular urgency and importance when the legitimate aim in question is that of protecting national security.  Restrictions to access to information on these grounds must be highly scrutinized in order to determine whether they are legitimate.  In the Report of the Inter-American Dialogue it was noted that:

[T]he standards of the inter-American system—whereby rights can be restricted only under certain rules—may provide an appropriate foundation for the legislatures to embrace the principle of strict scrutiny in matters of national security.  One such rule holds that the restriction must be equal to the objective sought.  Since Article 13 of the American Convention on Human Rights does indeed include information access rights, the principle of strict scrutiny may in fact be considered to apply.[62]

 

            50.       In its Report on Terrorism and Human Rights, the Inter-American Commission on Human Rights highlighted the importance of the Johannesburg Principles with the objective of creating a balance between the public's right to information and the state's legitimate need to protect keep information secret in order to protect national security.[63]  In this report, the Commission points out that the Principles confirm that "[a]ny restriction on the free flow of information may not be of such nature as to thwart the purposes of human rights and humanitarian law.  In particular, governments may not prevent journalists or representatives of intergovernmental or non-governmental organizations with a mandate to monitor adherence to human rights or humanitarian standards from entering areas where there are reasonable grounds to believe that violations of human rights or humanitarian law have been committed".[64]  Further, the Report stresses that any exemption provided in access to information laws "must not only serve to protect the national security or ability to maintain public order, it must also require that the information should be disclosed unless the harm to one of these legitimate interests would be substantial."[65]

 

            51.       The JohannesburgPrinciples define legitimate national security interests, stating:

(a)             A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose or demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government.

 

(b)           In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.[66]

 

            52.       The Johannesburg Principles acknowledge that, when facing a lawfully declared state of emergency, States may have to impose additional restrictions on access to information, but "only to the extent strictly required by the exigencies of the situation and only when and for so long as they are not inconsistent with the government's other obligations under international law."[67]  In such cases, States bear the burden of proof in showing that the restrictions are not excessive in light of the exigencies of the situation.  States that are under lawfully declared emergency situations and considering suspending any guarantees under Article 13 of the Convention should take into account the importance of freedom of expression for the functioning of democracy and guaranteeing other fundamental rights.

 

            53.       To the extent that access to information must be restricted in times threatening public order or national security, the State must carefully balance the threat with the public interest, and define the exceptions in a way that does not intensify the precarious status of human rights obligations.  Thus, the Johannesburg Principles dictate that "[a]ny restriction on the free flow of information may not be of such a nature as to thwart the purposes of human rights and humanitarian law.  In particular, governments may not prevent journalists or representatives of intergovernmental or non-governmental organizations with a mandate to monitor adherence to human rights or humanitarian standards from entering areas where there are reasonable grounds to believe that violations of human rights or humanitarian law are being, or have been, committed."[68]  Indeed, governments may not restrict the entry of the above parties even into areas that are known to be experiencing violent conflict, unless doing so would pose "a clear risk to the safety of others."[69]

 

            54.       It is equally important that restrictions on access to information do not thwart the guarantee of fundamental human rights in the aftermath of threats to national security.  As such, any restrictions based on national security should be bounded by a reasonable time limit. The Inter-American Commission acknowledged this principle in its 1998 Annual Report:

 

The administration of swift and effective justice, especially in exposing, sanctioning, and providing remedy for atrocities or grave violations of human rights by agents of the state, often requires reference to documents that have been classified as secret or inaccessible for reasons of national security. Maintaining State secrecy in such cases perpetuates impunity and erodes State authority, inwardly and outwardly. Such legal and administrative obstacles must be removed, and the way cleared for the Commission to establish state and individual responsibility for such reprehensible conduct, with all of the legal and moral consequences it entails, by opening the archives and declassifying documents requested by appropriate national as well as international authorities.[70]

 

55.       Finally, it is important that modern democracies establish a series of constitutional checks on the “official secrets.”  Keeping a record on secret information is necessary to ensure that it exists in accordance with legislation.  In some cases, a public organ is created to this effect, and other times it is the Judicial Power which exerts this control.[71]  In every case, it must be evaluated whether the restrictions imposed outweigh the importance of the public’s right to information.

 

C.        Access to Information in the Member Countries

 

1.         Introduction

 

            56.       The General Assembly of the OAS resolved, in Paragraph 6 of Resolution 1932 (XXXIII-0/03), to "instruct the Inter-American Commission on Human Rights, through the Special Rapporteur for Freedom of Expression, to continue including in its annual report a report on access to public information in the region."  Pursuant to this mandate, this section of this report will summarize the current situation of the member States in relation to the right to freedom of information, in an effort to record the developments of the States in this area.

 

57.       To this end, in July 2003, and following the procedure adopted for the 2001 Annual Report, an official questionnaire was issued to the permanent missions of the OAS member States, requesting them to provide information on constitutional and legal provisions as well as facts about jurisprudence and implementation procedures regarding access to information.[72]  The information received from the States has been integrated with research done by media sources and non-governmental organizations in order to provide an overview of the situation in each member State.

 

58.       In this chapter, the Special Rapporteur reports on existing laws and practices in the member States of the Organization of American States with respect to the right of access to information.  This account demonstrates that the topic of access to information has received a remarkable amount of attention during the past two years.  Several states, such as Mexico, Jamaica, Panama, and Peru, have passed laws guaranteeing this right or are currently considering similar legislation, and civil society has been vigilant in observing the States' progress.

 

59.       As of the date of the submission of this report to the Inter-American Commission on Human Rights for its consideration and inclusion in the IACHR’s Annual Report, only the States of Argentina, Chile, Colombia, Honduras, Mexico, Paraguay, Suriname, Uruguay, and Venezuela, out of all the member countries of the Organization of American States, replied to the questionnaire sent by the Special Rapporteur.  The Special Rapporteur greatly appreciates the efforts of these States in gathering the requested information, and encourages all member States of the OAS to collaborate in the preparation of future studies by this Office in order to better take advantage of the conclusions derived from them.  It must be noted that the information provided below for the member States is an update of the information obtained in 2001, based on the information provided by the States in response to the questionnaire sent in July 2003, and complemented by information obtained from other sources such as non-governmental organizations (NGOs).  Also, it must be noted that the excerpts below do not contain all the information submitted by the States, but rather a summary of it.

 

60.       The Special Rapporteur notes that since 2001, the issue of access to information has brought greater debate amongst the civil societies of member States, and several states have adopted positive measures towards the implementation of this right.  However, as expressed in previous reports, the Rapporteur still believes that member States need to display greater political willingness to work toward amending their laws and ensuring that their societies fully enjoy freedom of expression and information.  Democracy requires broad freedom of expression, and that cannot be pursued if mechanisms that prevent its generalized enjoyment remain in force in our countries.  The Special Rapporteur again underscores the need for States to assume a stronger commitment toward that right, in order to help consolidate the Hemisphere's democracies.

 

61.       The following paragraphs present the information gathered with respect to domestic provisions on freedom of information in the member States.

CONTINUE... 

1889 F St. N.W. Washington, DC, U.S.A. 20006 / E-mail: [email protected] / Phone: (202) 370-9000 / Fax: (202) 458-3650