Public access to information maintained by government agencies in Europe
Access to public information and freedom of information (FOI) refer to the right to access information held by public bodies also known as "right to know". Access to public information is considered of fundamental importance for the effective functioning of democratic systems, as it enhances governments' and public officials' accountability, boosting people's participation and allowing their informed participation into public life. The fundamental premise of the right to access public information is that the information held by governmental institutions is in principle public and may be concealed only on the basis of legitimate reasons which should be detailed in the law. Access to public information builds on the principle that in a democratic system people should be in the condition of accessing a wide range of information in order to effectively participate in public life as well as on matters affecting them.
The right of access to public information is a component of the fundamental right of freedom of expression set forth by Article 19 of the Universal Declaration of Human Rights (1948) which states that the fundamental right of freedom of expression encompasses the freedom "to seek, receive and impart information and ideas through any media and regardless of frontiers". Access to public information and freedom of information are recognised as human rights in the three main regional systems of human rights, namely within the Americas, Europe and Africa, as well as in major international instruments.
The right to access information places two obligations on public bodies. First, the proactive duty to make public key information on the activities of authorities and governments; second, the reactive obligation to respond to people's requests for information, either by releasing public original documents or copies of the documents held.
Over the past 10 years, the right to information and access to public information has been recognised in an increasing number of countries and several FOI laws have been adopted all over the world, including in the developing countries. If in 1990 only 13 countries had a national freedom of information law, today there are 100 such laws across the world.
In 2015, The UNESCO General Conference voted to designate Sept. 28 as "International Day for the Universal Access to Information" or, as it is more commonly known, Access to Information Day. The date had previously been celebrated as "Right to Know Day" since 2002. The UNESCO resolution recommends approval by the UN General Assembly.
Overview.
The right to access information builds on the principle that the public has a right to know how power is exercised and public money is spent, given that public bodies are elected by people and sustained by taxpayers. The access to public information is a precondition for governments' and public officials' accountability and it enables the adoption of informed decisions by citizens, hence representing a fundamental element for the proper functioning of democratic systems. International standards and evolving jurisprudence have confirmed that information held by public bodies belong to the public. The Council of Europe Convention on Access to Official Documents (2009) states that "all official documents are in principle public and can be withheld subject only to the protection of other rights and legitimate interests".
More than 100 countries around the world have now adopted national access to information laws to make the right to know effective. The first law on access to public information was adopted in Sweden in 1766, but after that it took almost two centuries to have the second law approved in Finland in 1951 and then in the United States in 1966. During the 1970s and 1980s there has been a small but constant growth in FOI's laws, with a real expansion after 1989 due to the activism of civil society groups in Central and Eastern Europe during the post-Communist transitions to democracy. Indeed, the big push forward in the field of access to information leading to the broadening of the definition and of the scope of the right of access to information came together with a coordinated civil society reaction to contrast the control over the information exercised by Communist regimes in the Soviet bloc. It was this movement which fuelled the development of 'access to information' as a right in the sense of a human right. A 1992 decision of the Hungary's Constitutional Court established that access to information is a "fundamental right" that enable citizens to have an oversight on the lawfulness and efficiency of the government. Moreover, environmentalist groups and consumer associations also contributed to the affirmation of the right to know.
All the eight former communists countries which joined the European Union in 2004 had a freedom of information law; also Romania and Bulgaria had their own law when joined the EU in 2007 and Croatia had already had an access to information law in force for ten years when it joined the EU in 2013.
Nowadays, in the OSCE region 48 of the 56 member states have specific access to information laws.
The right to access information places two obligations on governments and public bodies. First, the duty to make public key information on the activities implemented by public bodies; second, the obligation to respond to people's requests of accessing documents, either by making available the original documents or by sharing copies of documents and information held.
Access to information is a right which comprises two parts. The first is a proactive component, namely the positive obligation of public bodies to provide, make public and disseminate information about their activities, budgets and policies so that citizens can understand what public bodies are doing, can participate in public life and can monitor the behaviour of public authorities. The second component is a reactive one, entailing the right of all persons to requests information and documents to public bodies, along with the right to receive an answer. In principle, all the main information held by public bodies should be available, while exceptions to disclosure should be grounded on the protection of other values, such as privacy, national security or commercial interests.
On the occasion of the first officially recognised Access to Information Day celebrated on 28 September 2016, European civil society groups working to enhance the right of access to public information raised some concerns as, despite significant progress, there are still far-reaching shortcomings especially with regard to transparency of decision-making. According to such organisations, among the main obstacles to government openness there is the inadequate record keeping of public bodies’ information: minutes of public officials’ meetings are not recorded, exchange with lobbyists are not available, public decisions are adopted without proper justification or documented evidence available to the public. An additional problem concerns the over-application of exceptions with particular regard to the use of the privacy reasons, applied to not disclose the activities of public officials when performing public functions. Moreover, European civil society organisations are particularly concerned for the lack of transparency around the decision-making process at both national and EU level, as in the case of the refusal by the EU to disclose documents on the EU-Turkey refugee deal.
Access to information as a human right.
A big push forward the advancement of the right to access information as a fundamental right was due to the activism of civil society movements which contrasted the regimes' control over information in the Communist countries in the Soviet bloc. A fundamental document in this sense is a 1992's decision of the Hungarian Constitutional Court which established that access to information is a "fundamental right" essential for citizen oversight on the lawfulness and efficiency of the government.
Progressively, several national and international courts decisions have been treating access to information as a basic human right, thus providing a strong legal case for citizens resorting to courts to defend any refusals by authorities to provide access to public information. Such decisions are grounded on a series of international declarations, human rights covenants and conventions at international, regional and EU levels. In the first place, the right to access public information is recognised as a fundamental right and as a component of the right of freedom of expression in the Article 19 of the Universal Declaration of Human Rights; in the Article 19 of the International Covenant of Civil and Political Rights; and in the Article 13 of the American Convention on Human Rights. At regional level, all the three main regional systems of human rights, namely within the Americas, Europe and Africa, have recognised freedom of information as a universal human right. In July 2011, the United Nations Human Rights Committee confirmed that the right to freedom of expression enshrined in Article 19 of the International Covenant on Civil and Political Rights includes the right of access public information.
At the European Union level, Article 42 of the European Charter of Fundamental Rights establishes the right of access to EU institutions documents, as recognised also by Article 15 of the Treaty on the Functioning of the EU ("Treaty of Lisbon"). In 2009, the European Court of Human Rights on the basis of Article 10 of the European Convention on Human Rights, which is the article on freedom of expression, acknowledged the fundamental right of access to information held by public bodies. Specifically, the Court established that the right to information is protected in particular in case of "information monopoly", namely when the public bodies are the only ones owning the requested information, and when the information is needed by media or civil society organisations for public accountability purposes. The decision of the European Court embraced a 2006 decision by the Inter-American Court of Human Rights which endorsed Article 13 of the American Human Rights convention stating that individuals have the right to request information to public authorities and public authorities have the positive obligation to provide such information.
Finally, many countries across the world recognise the right to information or access to documents in their Constitutions, either within the frame of the right to freedom of expression or separately and specifically as the right of access to information or documents. At least 50 countries all over the world, including 29 OSCE countries, have Constitutions including such provisions.
Societal benefits of access to public information: accountability, participation, efficiency.
Transparency enhanced through the right to access public information entails a series of core benefits for democratic societies, in particular accountability, participation and efficiency. First, access to public information enhances public accountability as it contributes to make governments and public officials more accountable for their actions and decisions. Second, the right to know boost people participation as it makes available information that can help citizens to make more effective decisions on matters that directly affect their lives and to participate with informed opinions in public debates and in the decision-making process. Third, access to public information contributes to the efficiency of decision-making as disclosure encourages public institutions to better manage and organise information and may help to improve communication between public bodies. Also, access to information serve some other social goals. For instance, access to medical records can help individuals to improve personal decision-making and make better decisions about medical treatment, financial planning and the like. Finally, access to information can facilitate effective business practices as some of the information held by public bodies related to economic issues can be very useful for enterprises and can therefore contribute to increasing the effectiveness of the business sector.
International standards and laws.
At national level access to public information is regulated by freedom of information laws. In addition to national legislation, principles and standards for access to public information are set forth into several international declarations and treaties that have authoritatively recognised the fundamental and legal nature of the right to freedom of information along with the need for effective legislations that should guarantee the respect of that right in practice. Such international laws and standards include:
Access to public information: guiding principles.
The non-governmental organisation ARTICLE 19 has published a set of principles called "The Public's Right To Know: Principles on Freedom of Information Legislation" which describes the best practices and standards on freedom of information legislation based on international and regional laws as well as on evolving national practices and legislations. Such principles, which are designed mainly for national laws, are also applicable to inter-governmental bodies such as the United Nations and the European Union.
Principle 1: Maximum disclosure.
The principle of maximum disclosure sets a