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. Too often governments treat official information as their property, rather than something which they hold and maintain on behalf of the people.
Readers will have learned that the Government has tabled in the National Assembly the Access to Information Bill, No. 10 of 2011 which has been referred to a Parliamentary Select Committee for consideration. In our column of 13th June, we looked at the UK Bribery Act and indicated in that previous offering that we would look at the state of our bribery laws. However in light of the developments in respect of the Access to Information Bill, this column takes a detour and turns its attention to access to information, advocacy of which was identified as one of the main areas of interest of Transparency Institute.
In this column we set out a set of principles to be embodied in Freedom of Information legislation recommended by the international NGO known as ARTICLE 19, which specializes in promoting access to information by citizens in countries across the world. These principles establish the 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.
These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, and by the Organization of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report.
PRINCIPLE 1. MAXIMUM DISCLOSURE
1. The overriding goal of legislation should be to implement maximum disclosure in practice.
2. 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).
PRINCIPLE 2. OBLIGATION TO PUBLISH
1. Public bodies are under an obligation to publish key information
2. They must accede to requests for information;
3. They must publish and disseminate widely documents of significant public interest.
PRINCIPLE 3. PUBLIC BODIES MUST ACTIVELY PROMOTE OPEN GOVERNMENT.
1. 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.
2. 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.
3. Public bodies must provide freedom of information training for their employees.
4. Public bodies should be encouraged to adopt internal codes on access and openness.
PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS
1. Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests.
2. 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.
3. A complete list of the legitimate aims which may justify non-disclosure should be provided in the law.
4. A refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test.
5. 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.
6. 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
PRINCIPLE 5
Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available.
1. 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.
2. Provision should be made for people with disabilities – reading, writing, language, visual or aural impairment.
3. There should be strict time limits for the processing of requests and a requirement that any refusals be accompanied by substantive written reasons.
4. An internal appeal to a designated higher authority within the public authority and for an individual right of appeal to an independent administrative body from a refusal by a public body to disclose information.
5. 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.
6. 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.
PRINCIPLE 6. COSTS
Individuals should not be deterred from making requests for information by excessive costs.
PRINCIPLE 7. OPEN MEETINGS
Freedom of information legislation should therefore establish a presumption that all meetings of governing bodies are open to the public.
PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE
Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed
PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS
Individuals who release information on wrongdoing – whistleblowers – must be protected
Transparency Institute is reviewing the Access to Information Bill and will be sharing its findings in future articles. We would like to hear from readers on the subject of access to information. Contact us by email at [email protected] or by telephone on 664-3639.
