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Some Access to (or Freedom of) Information Info ...


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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