At the International level, Right to Information and its aspects find articulation as inalienable fundamental human right in most important basic human rights documents, namely, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. At a more regional level, there are numerous other human rights documents, which include this fundamental right. For example, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and People's Rights, etc. The Commonwealth has also formulated principles on freedom of information.
Article 19 of Universal Declaration of Human Rights, 1948 (UDHR) states that : Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19 of the UDHR was given legal status by the binding provisions of The International Covenant of Civil and Political Rights, 1966. Article 9 (2) states that: Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. Article 19 (2) states that : Everyone shall have the right to freedom of expression; 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.
In 1993, the UN Commission on Human Rights appointed a Special Rapporteurto monitor and report on the international implementation of the right to freedom of opinion and expression. In Resolution The UN Special Rapporteur, in a 1998 Report, clarified the meaning of freedom of information under Article 19 of the ICCPR in unequivocal terms as "impos[ing] 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." A 1998 Resolution welcoming this clarification was passed by the Commission. In 2000, the Special Rapporteur endorsed a set of Principles on Freedom of Information, which the Commission noted in a 2000 Resolution.
In 2004, the free expression rapporteurs of the UN, Organization of American States and Organization for Security and Cooperation in Europe issued another Joint Declaration on International Mechanisms for Promoting Freedom of Expression, affirming the right to access information as 'fundamental human right' for all citizens, one which governments should respect by enacting laws 'based on the principle of 'maximum disclosure'. The Special Rapporteurs emphasized the fundamental importance of access to information to ensure democratic participation,accountability in government and to prevent corruption.
UN Principles On Freedom Of Information
Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information; "information" includes all records held by a public body, regardless of the form in which it is stored;
Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest, for example, operational information about how the public body functions and the content of any decision or policy affecting the public;
As a minimum, the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information; the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government;
A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing; a complete list of the legitimate aims which may justify non disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest;
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);
The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself;
The law should establish a presumption that all meetings of governing bodies are open to the public;
The law should require that other legislation be interpreted, as far as possible, in a manner consistent with its provisions; the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws should not be permitted to extend it;
Individuals should be protected from any legal, administrative or employment related sanctions for releasing information on wrongdoing, viz. the commission of a criminal offence or dishonesty, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty or serious failures in the administration of a public body.
Regional Standards: Africa
A draft model law on access to information has been developed for Africa. The Special Rapporteur on Freedom of Expression and Access to Information appointed by the African Commission on Human and Peoples’ Rights mooted this exercise in collaboration with the Centre for Human Rights, University of Pretoria, the Africa Freedom of Information Centre and various organisations, activists and experts working for the promotion of the right to information in different parts of the world. A series of public consultations on the contents of this draft model law will be carried out until the 50th ordinary session of African Commission on Human and Peoples’ Rights in October 2011, when it is excepted to be adopted. This model law will guide African Union member States in their efforts to adopt information access law or review existing ones. Commonwealth Human Rights Initiative (CHRI) has submitted a preliminary analysis of the draft model law along with recommendations for improvement. A summary of the analysis has also been prepared.
Article 9 of the African Charter on Human and People's Rights, 1981 states that:
(1) Every individual shall have the right to receive information.
(2) Every individual shall have the right to express and disseminate his opinions within the law.
In 2002, the African Union's African Commission on Human and Peoples' Rights adopted a Declaration of Principles in a Resolution which recognised that "public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information". Part IV of this Declaration of Principles on Freedom of Expression in Africa deals explicitly with the right to information, and while it is not binding, it has considerable persuasive force representing as it does the will of a sizeable section of the African population.
Summary: African Union Declaration of Principles
Everyone has the right to access information held by public bodies;
Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
Public bodies shall be required, even in the absence of a request, to actively publish important information of significant public interest;
No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or information which would disclose a serious threat to health, safety or the environment; and
Secrecy laws shall be amended as necessary to comply with freedom of information principles.
Regional Standards: Asia Pacific
The Association of South-East Asian Nations' (ASEAN) 1967 Bangkok Declaration states as part of its aims and purposes adherence to the principles of the United Nations Charter, which includes Article 19 of the Universal Declaration of Human Rights.
In 2000, 36 countries in the region officially launched the ADB-OECD Anti-Corruption Initiative, which is underpinned by its main instrument, the ADB-OECD Anti-Corruption Action Plan. To date, 27 countries have formally endorsed the Action Plan and committed to its goals. Pillar 3 of the Action Plan sets out member states' commitment to access to information to: "ensure that the general public and the media have freedom to receive and impart public information and in particular information on corruption matters in accordance with domestic law and in a manner that would not compromise the operational effectiveness of the administration or, in any other way, be detrimental to the interest of governmental agencies and individuals..."
In September 2005, the Commonwealth Parliamentary Association and CHRI held a workshop for parliamentarians and senior government officials from across seven countries in the Pacific Islands region. The Conclusions from the CPA/CHRI Pacific Workshop on Freedom of Information set out twelve key issues highlighted by participants regarding the practical implications of entrenching freedom of information systems across the Pacific.
In October 2005, Leaders of the Pacific Islands Forum endorsed the Pacific Plan, a road map towards strengthening regional cooperation and integration. Point twelve of the Pacific Plan's Good Governance objectives includes the need to develop freedom of information mechanisms (point 12.3) and the upgrading of statistical information systems and databases to involve the promotion of "policies for access, information sharing," and "dissemination of information on poverty" (point 12.4).
In a speech by the Secretary General of the Forum Secretariat, preceding the 2006 Pacific Islands Forum Leaders' Summit in October 2006, the Secretary General noted: the Secretariat "is liaising closely with the Commonwealth Human Rights Initiative, the Commonwealth Parliamentary Association, UNDP and the Pacific Centre for Public Integrity on Freedom of Information mechanisms for the region."
In July 2006, the Pacific Media and Communications Facility (PMCF) released the Pacific Information Disclosure Policy Toolkit (which was commissioned from CHRI). The PMCF plans to encourage Pacific Island governments to use the Toolkit to develop information policies in jurisdictions where legislation may only be a more long-term possibility. It is envisaged that the policies will promote more proactive disclosure of government information and support the establishment of effective information dissemination processes.
Regional Standards: Organization of American States
Article 13(1) of the American Convention on Human Rights, 1969 states that: "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."
Paragraphs 2 and 3 of the Inter-American Declaration of Principles on Freedom of Expression adopted in 2000 specifically recognises that "access to information held by the state is a fundamental right of every individual. States have obligations to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democ ratic societies". The Declaration was approved by the Inter-American Commission on Human Rights in October 2000.
On 10 June 2003, the OAS General Assembly adopted a resolution on "Access to Public Information: Strengthening Democracy" (AG/RES. 1932 (XXXIII-O/03)).
In August 2003, the Permanent Council instructed the OAS Special Rapporteur for Freedom of Expression to submit to the Council proposals for operationalising paragraph 5 of the June 2003 Resolution, which instructs the Permanent Council "to promote seminars and forums designed to foster, disseminate, and exchange experiences and knowledge about access to information so as to contribute, through efforts by the member states, to fully implementing such access." Consequently, the Special Rapporteur produced two Reports: the First Report on Access to Information was considered by the Permanent Council on 10 September and the Second Report on Access to Information on 17 December 2003. On 9 February 2004, the Report of the Chair of the General Committee on the Reports of the Special Rapporteur for Freedom of Expression was produced, and is to be considered by the full membership of the Permanent Council.
Chapter IV of the 2003 Annual Report of the OAS Rapporteur for Freedom of Expression specifically discusses access to information throughout the hemisphere.
In October 2006, the Inter-American Court of Human Rights handed down the first decision of any international tribunal to recognise the right to information, holding that Chile had violated Article 13 of the American Convention on Human Rights. In the judgment of Claude Reyes et al v Chile, the Court ordered Chile to establish an effective legal mechanism that guarantees the right of all persons to request and receive information held by government bodies, including defining limited exemptions to the right, setting deadlines for providing information, providing reasons where information is not given, and training public officials on the right to information.
Regional Standards: European Union
Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 states that: "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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises...The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Article 11(1) of the 2000 Charter of Fundamental Rights of the European Union explicitly guarantees the right to receive and impart information and ideas without interference by public authority and regardless of frontiers.
The 1992 Treaty of Maastricht attached to it a declaration (No. 17) on "the right of access to information" which recommended that the European Commission should draft a report on "measures designed to improve public access to the information available to the institutions." On the basis of the declaration, a code of conduct was adopted by the Commission and the Council, detailing the conditions under which access could be requested to information held by these institutions. The code of conduct was then implemented by a Council decision of 1993 and a Commission decision of 1994, both of which remained in force until quite recently.
The 1997 Amsterdam Treaty moved a significant step further by granting, in the newly introduced Article 255 EC Treaty, a right of access to documents which was, however, subject to detailed rules set out in secondary EC legislation. According to Article 255, this secondary legislation was to be adopted within two years of the Treaty of Amsterdam entering into force. The Treaty came into force in 1999 and the Regulation on Freedom of Informationwas passed in 2001. It covers "all documents held by an institution, that is to say, drawn up or received by it and in its possession, in all areas of activity of the European Union". The Regulation obligates both the European Union Commission and the European Parliament to create public registers of documents on the internet and to ensure that references are provided to all documents in the register as soon as they are created.
In 2002, the European Ombudsman promulgated a Code of Good Administrative Behaviour, which applies to all institutions of the EU. Under Article 22 of the Code on access to information, officials are required to "provide members of the public with the information that they request", and if they cannot they must state the reasons for non-disclosure. The Code enjoins officials to deal with requests in a timely fashion, and to take effective steps to inform the public about their rights under it.
See Veerle Deckmyn (ed.) (2002) Increasing Transparency in the European Union? for more.
EU Access to Documents
Other International Standards
ARTICLE 19, Centre For Policy Alternatives, Commonwealth Human Rights Initiative and the Human Rights Commission Of Pakistan published a Model Law on Freedom of Information in 2001.
The The Johannesburg Principles on National Security, Freedom of Expression and Access to Information were adopted in October 1995 by a group of experts in international law, national security, and human rights convened by ARTICLE 19, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, in Johannesburg. The key provisions are as follows:
Principle 1: Freedom of Opinion, Expression and Information:
Everyone has the right to hold opinions without interference.
Everyone has the right to freedom of expression, which includes the 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 or her choice.
The exercise of the rights provided for in paragraph (b) may be subject to restrictions on specific grounds, as established in international law, including for the protection of national security.
No restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government.
Principle 1.1: Prescribed by Law:
Any restriction on expression or information must be prescribed by law. The law must be accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful.
The law should provide for adequate safeguards against abuse, including prompt, full and effective judicial scrutiny of the validity of the restriction by an independent court or tribunal.