INTERNATIONAL CIVIL LIBERTIES REPORT
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9. Freedom of Information as an
Internationally Protected Human
Right
by Toby Mendel1
The right to freedom of information, and
particularly the right of access to information
held by public authorities, has attracted a great
deal of attention recently. In the past five years,
a record number of countries from around the
world – including Fiji, India, Japan, South
Africa, Trinidad and Tobago, the United
Kingdom and a number of other European States
– have taken steps to enact legislation giving
effect to this right. In doing so, they join those
countries which enacted such laws some time
ago, such as Sweden, United States, Finland, the
Netherlands, Australia and Canada.
Intergovernmental bodies have also started to
devote more attention to this issue, with
significant developments at the UN and
Commonwealth.
The importance of freedom of
information as a fundamental right is beyond
question. In its very first session in 1946, the
UN General Assembly adopted Resolution 59(I),
stating, “Freedom of information is a
fundamental human right and ... the touchstone
of all the freedoms to which the United Nations
is consecrated.” Abid Hussain, the UN Special
Rapporteur on Freedom of Opinion and
Expression, elaborated on this in his 1995
Report to the UN Commission on Human
Rights, stating:
Freedom will be bereft of all
effectiveness if the people have
no access to information.
Access to information is basic to
the democratic way of life. The
1 Toby Mendel is Head of Law
Programme at ARTICLE 19, a human rights
NGO based in London with a mandate to
promote respect for freedom of expression
(http://www.article19.org).
tendency to withhold
information from the people at
large is therefore to be strongly
checked. UN Doc. E/CN.4/1995/32, para. 35.
These quotations highlight the importance of
freedom of information at a number of different
levels: in itself, for the fulfilment of all other rights
and as an underpinning of democracy.
It is perhaps as an underpinning of
democracy that freedom of information is most
important. Information held by public authorities is
not acquired for the benefit of officials or politicians
but for the public as a whole. Unless there are good
reasons for withholding such information, everyone
should be able to access it. More importantly,
freedom of information is a key component of
transparent and accountable government. It plays a
key role in enabling citizens to see what is going on
within government, and in exposing corruption and
mismanagement. Open government is also essential if
voters are to be able to assess the performance of
elected officials and if individuals are to exercise
their democratic rights effectively, for example
through timely protests against new policies.
It is increasingly being recognised that states
are under an obligation to take practical steps –
including through legislation – to give effect to the
right to freedom of information. It remains somewhat
unclear, however, precisely what the basis of this
obligation is. The jurisprudence, both at the
international and national levels, has been somewhat
equivocal, variously grounding the obligation in the
right to freedom of expression, the right to private
and family life or the right to freedom of thought. In
this article, I will present some of the mounting body
of evidence in support of the proposition that States
are under an obligation to guarantee citizens a right to
freedom of information. I will also argue that the
most sensible source of this obligation is as part of
the guarantee of freedom of expression. Finally, I
will outline the ARTICLE 19 Principles on Freedom
of Information Legislation.
In three key cases, the European Court of
Human Rights (ECHR) has held that Article 10 of the
European Convention for the Protection of Human
Rights and Fundamental Freedoms,i guaranteeing
freedom of expression, “basically prohibits a
Government from restricting a person from receiving
information that others wish or may be willing to
impart to him”. In these cases, Article 10 did not
“embody an obligation on the Government to impart
such information to the individual.” Leander v.
Sweden, 26 March 1987, 9 EHRR 433, para. 74. See
also, Gaskin v. United Kingdom, 7 July 1989, 12
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EHRR 36 and Guerra and Ors v. Italy, 19 February
1998. However, it is significant that in all three cases,
the failure to provide information was considered to
constitute an interference with private or family life,
inasmuch as States were under a positive obligation
to ensure respect for these rights. In the two more
recent of the three cases, the Court held that the
denial of access could not be justified and hence
represented a breach of the respective States’ human
rights obligations. In Gaskin, the Court held that an
individual had a right to access records held by a
local authority relating to the period while he was in
foster care. Ibid. In the most recent case, Guerra, the
Court went even further, holding that the government
was under an obligation to provide certain
environmental information to residents in an ‘at-risk’
area, even though it had not yet collected that
information. Note iii.
It would appear that the ECHR is reluctant
to introduce positive obligations, and in particular an
obligation to provide access to information, in the
context of Article 10, guaranteeing freedom of
expression. The reasons for this are unclear. It is
possible the Court, which has always been quite
conservative in its approach, may be concerned about
the implications of reading a general right to access
information held by public authorities into Article 10.
It is also possible that the Court has failed fully to
understand the implications of freedom of expression,
and the need for full access to information, as
underpinnings of democracy.
The UN Special Rapporteur on Freedom of
Opinion and Expression has been rather more
progressive in his approach. In successive recent
annual reports to the UN Commission on Human
Rights, the Special Rapporteur has stated clearly that
the right to access information held by public
authorities is protected by Article 19 of the
International Covenant on Civil and Political Rights
(ICCPR),ii as the following excerpt from his latest
report, in 1999, illustrates:
[T]he Special Rapporteur expresses
again his view, and emphasizes,
that everyone has the right to seek,
receive and impart information and
that this 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 - including
film, microfiche, electronic
capacities, video and photographs -
subject only to such restrictions as
referred to in article 19, paragraph
3, of the International Covenant on
Civil and Political Rights.
UN Doc. E/CN.4/1999/64, para. 12.
These views have been welcomed by the UN
Commission on Human Rights, composed of 53
member States of the UN. Resolution 1999/36, para.
2.
Within the Commonwealth, there have also been
moves recognising the importance of freedom of
information. The Commonwealth Secretariat, with
the assistance of ARTICLE 19, organised an Expert
Group Meeting in March 1999 to discuss the
importance of freedom of information legislation.
The Group adopted a Final Document setting out a
number of principles governing freedom of
information of which the first is as follows:
Freedom of information should be
guaranteed as a legal and enforceable right
permitting every individual to obtain records
and information held by the executive, the
legislative and the judicial arms of the state,
as well as any government owned
corporation and any other body carrying out
public functions.
This Final Document was endorsed by the Law
Ministers Meeting in May and then by the
Commonwealth Heads of Government Meeting in
November 1999. Commonwealth Functional Cooperation,
para. 20 in Commonwealth Heads of
Government Meeting Communiqué, Doc. 99/68, 15
November 1999.
National courts in a number of countries,
particularly in Asia, have held that access to
information held by public authorities is a
fundamental human right. As early as 1969, the
Japanese Supreme Court established the principle, in
two high-profile cases, that the guarantee of freedom
of expression found at Article 21 of Japan’s
constitution, included a “right to know” (shiru kenri).
Repeta, L., Local Government Disclosure Systems in
Japan, National Bureau of Asian Research, Paper
Number 16, October 1999, p. 3.
In a seminal judgement in 1982, the Indian
Supreme Court held that, “The concept of an open
Government is the direct emanation from the right to
know which seems to be implicit in the right of free
speech and expression …. disclosure of information
in regard to the functioning of government must be
the rule and secrecy an exception justified only where
the strictest requirement of public interest so
demands.” S.P. Gupta v. President of India and Ors
[1982] AIR (SC) 149, p. 234. In that case, the
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Supreme Court held that where the non-appointment
of an additional Judge for a further term was
challenged, correspondence between the Law
Minister, the Chief Justice of the High Court, the
State Government and the Chief Justice of India
should be disclosed.
In a closely related development, the Supreme
Court of Sri Lanka noted that a right to freedom of
information, while not necessarily included within
the guarantee of freedom of speech, for that “would
be to equate reading to writing, and listening to
speaking”,iii may well be part of the guarantee of
freedom of thought and opinion. At issue in that case
was the abrupt cancellation of a regular programme
broadcast by the State broadcaster, the Sri Lanka
Broadcasting Corporation, which included material
critical of government. The petitioner claimed that
his freedom of speech as a listener had been infringed
by the stoppage inasmuch as the government had
limited his access to information. The Court noted
that, “information is the staple food of thought, and
that the right to information, simpliciter, is a
corollary of the freedom of thought”. Ibid., p. 17.
There are a number of good reasons – both
practical and principled – why the right to freedom of
information should be read into the guarantee of
freedom of expression, at least as spelt out in Article
19 of the ICCPR. Textually, Article 19 differs from
the guarantees applied by the ECHR and the national
courts noted above inasmuch as it includes “freedom
to seek, receive and impart information and ideas of
all kinds” [emphasis added]. It is arguable that
freedom to receive information prevents public
authorities from interrupting the flow of information
to individuals and that freedom to impart information
applies to communications by individuals. It would
then make sense to interpret the inclusion of freedom
to seek information, particularly in conjunction with
the right to receive it, as placing an obligation on
government to provide access to information it holds.
More important, however, is the centrality of
freedom of information to the key underlying
rationales for freedom of expression in the first place.
The importance of freedom of expression has been
explained in three key ways, as an aspect of human
dignity, as the best means of ascertaining the truth
and as a fundamental underpinning of democracy.
Freedom of information plays an important role in all
three but it is as an aspect of democracy that it is
perhaps most crucial. Democracy cannot flourish if
governments operate in secrecy, no matter how much
open discussion and debate is allowed. Indeed, the
very nature and quality of public discussion would be
significantly impoverished without the nourishment
of information from public authorities. To guarantee
freedom of expression without including freedom of
information would be a formal exercise, denying both
effective expression in practice and a key goal which
free expression seeks to serve.
At a more principled level, democracy is
quintessentially about ensuring that governments
perform in accordance with the will of the people.
This sort of basic accountability is clearly impossible
unless governments operate in an open, transparent
fashion, including by allowing people to access the
information they hold. But democracy is also about
government’s responsibility to the people and the
idea that civil servants really should ‘serve’ the
public. This includes the idea that public authorities
have, in principle, no right to keep information they
hold from the people, unless there is some overriding
public interest reason to justify this.
In June 1999, ARTICLE 19 published, The
Public’s Right to Know: Principles on Freedom of
Information Legislation,iv setting out a number of
standards in this area, drawn from international and
comparative national practice. A primary goal of this
document is to help promote progressive and
effective freedom of information legislation,
particularly in those countries currently developing
such laws. The ARTICLE 19 Principles have already
been endorsed by a number of individuals and bodies
and it is hoped that the UN Special Rapporteur on
Freedom of Opinion and Expression will recommend
them to the UN Commission on Human Rights at its
2000 session.
The first, foundational standard is that freedom
of information legislation should be guided by the
principle of maximum disclosure, establishing a
broad presumption in favour of disclosure binding on
a wide range of public bodies. Two principles note
positive obligations on public authorities in this area.
The first is to publish certain types of material, even
in the absence of a specific disclosure request. Of
particular importance here is information about the
functioning and decision-making of the public body,
and about the types of information it holds. The
second is to actively promote open government,
including through public education and training of
officials.
A number of principles deal with access
requests, including exceptions, processing of requests
and costs. Requests may be refused only on the basis
of exceptions listed in the legislation and only when
the authority can show that disclosure would pose a
real risk of substantial harm to the protected interest.
Even in that case, the information should be disclosed
in the public interest where the benefits of disclosure
outweigh the harm. Any refusal to disclose by a
public authority should be subject to an appeal to an
independent administrative body with adequate
powers to promote effective compliance with the law,
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and from there to the courts. The cost of making a
request should not be excessive or deter legitimate
requests.
Other principles deal with the issue of open
meetings (government in the sunshine), protection for
whistleblowers and the relationship of a freedom of
information law to any secrecy legislation. In
principle, the freedom of information law should
provide for a comprehensive regime of exceptions
and other laws should not be permitted to extend this
regime.
The importance of an effective right to freedom
of information, both in itself and to democracy and
respect for other human rights, is beyond question
and has a solid basis in international and comparative
human rights law. Different courts have focused on a
number of different bases for this right, but the most
logical is the right to freedom of expression, as
guaranteed in Article 19 of the ICCPR. To help
elaborate the specific content of the right, ARTICLE
19 has published a set of Principles of Freedom of
Information Legislation. We welcome any comments
on these principles and urge readers to use them to
lobby government to pass appropriate freedom of
information legislation.
Endnotes
i ETS, NO. 5, adopted 4 November 1950, entered into force 3 September 1953.
ii UN General Assembly Resolution 2200 A (XXI) of 16 December 1966, entered into force 23 March
1976.
iii Fernando v. Sri Lanka Broadcasting Corporation and Others, 30 May 1996, SC Application NO.
81/95, p. 16.
iv This document is available through our website, www.article19.org.