Inter-American Court of Human Rights
Case
of Claude-Reyes et al. v. Chile,
Judgment of September 19, 2006 (http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.pdf)
Par.
91 - The restrictions imposed must be necessary in a democratic society;
consequently, they must be intended to satisfy a compelling public interest. If
there are various options to achieve this objective, that which least restricts
the right protected must be selected. In other words, the restriction must be
proportionate to the interest that justifies it and must be appropriate for
accomplishing this legitimate purpose, interfering as little as possible with
the effective exercise of the right.
Par.
92 - The Court observes that in a democratic society, it is essential that the
State authorities are governed by the principle of maximum disclosure, which
establishes the presumption that all information is accessible, subject to a
limited system of exceptions.
European Court of Human Rights
Társaság A Szabadságjogokért
(Hungarian Civil Liberties Union) v Hungary,
14th April, 2009 (http://www.right2info.org/resources/publications/case-pdfs/echr_hclu-v.-hungary_dec_eng )
The
Court found that especially when the state has a monopoly over information of
public interest in its possession, denying access to such information is
tantamount to a form of censorship (para. 36). The Court remarked that “it is
difficult to derive from the Convention a general right of access to
administrative data and documents” but that its case law had gradually advanced
nevertheless “towards the recognition of a right of access to information”
(para. 35).
The Principle of Proactive Disclosure
“The
presumption of disclosure also means that agencies should take affirmative
steps to make information public. They should not wait for specific requests
from the public. All agencies should use modern technology to inform citizens
about what is known and done by their Government. Disclosure should be timely.”
– (http://www.nfoic.org/proactive-disclosure-of-government-information)
Article 19 document (http://www.article19.org/data/files/pdfs/standards/righttoknow.pdf ) Exceptions should be clearly and narrowly
drawn and subject to strict “harm” and “public interest” tests.
All
individual requests for information from public bodies should be met unless the
public body can show that the information falls within the scope of the limited
regime of exceptions. A refusal to disclose information is not justified unless
the public authority can show that the information meets a strict three-part
test.
The
three-part test
·
The information must relate to a legitimate aim listed in the law;
·
Disclosure must threaten to cause substantial harm to that aim; and
·
The harm to the aim must be greater than the public interest in having the information.
UN Special Rapporteur on Freedom of
Opinion and Expression
In
his 1998 Annual Report to the UN Commission on human rights, the Special
Rapporteur stated clearly that the right to freedom of expression includes the
right to access information held by the State: “[T]he right to seek, receive
and impart information imposes a positive obligation on States to ensure access
to information, particularly with regard to information held by Government in
all types of storage and retrieval systems…”
The
UN Special Rapporteur significantly expanded his commentary on the right to
information in his 2000 Annual Report to the Commission - The right to seek,
receive and impart information is not merely a corollary of freedom of opinion
and expression; it is a right in and of itself.
As such, it is one of the rights upon which free and democratic
societies depend. It is also a right
that gives meaning to the right to participate which has been acknowledged as
fundamental to, for example, the realization of the right to development. All
public bodies should be required to establish open, accessible internal systems
for ensuring the public’s right to receive information; the law should provide
for strict time limits for the processing of requests for information and
require that any refusals be accompanied by substantive written reasons for the
refusal(s).
South
African FoI Case
Claase v. Information Officer of South
African Airways - The Supreme
Court of Appeal ruled that the pilot had established sufficiently the existence
of the record sought and the necessity of its disclosure to protect his right;
and that the airline had not provided the specific relief sought and must do
so. (http://www.right2info.org/resources/publications/case-pdfs/south-africa_claase-v.-information-officer-of-south-african-airways )
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