The principles should affirm the public’s right to information held by public bodies

Sandra Coliver, senior legal officer at the Open Society Justice Initiative, says the right to information is essential for freedom of expression.

Access to information held by public bodies is a crucial component of freedom of expression and warrants a separate principle dedicated to it for several reasons.

First, and most importantly, access to information held by public bodies, as well as by private entities that perform public functions or receive public funds, is essential if people are to be able to participate in informed debate; hold governments accountable; protect human rights, health, public safety, and the environment; and ensure access to public goods and services on an equitable basis.

There are two broad categories of information that people need from the government. We need information as consumers and users of government services, including how to access services and entitlements, and how to evaluate what services – hospitals, schools, means of transportation – are best for us. The public, and especially the watchdogs, also need information about how government agencies are functioning – their budgets, their outputs, their policies, the salaries of officials, contracts for outsourcing, reports of oversight bodies – in order to evaluate whether agencies are providing value for money and complying with international law, and constitutional and statutory requirements.

Public agencies are particularly reluctant to make information available that the public could use to hold them, or key officials, accountable. They may also not want to make some consumer information available simply because it’s cumbersome to compile and double-check, or because disclosure of the information could expose wrongdoing or mismanagement by entities that press for secrecy. For instance, the US Consumer Agency for a long time resisted publishing complaints about products, citing the concern that some complaints might be ill-founded and that publishing the information could unfairly prejudice the manufacturer and/or lead to defamation actions. The agency finally agreed to publish the information in June 2011 noting that they would include a disclaimer.

Second, concepts such as the freedom to “receive and impart information and ideas”, mentioned in Principle 1 do not encompass the full meaning of  “access to information held by public bodies”. The “freedom to receive and impart information”, set forth in the Universal Declaration of Human Rights and subsequent UN and regional treaties, has generally been understood to apply only to the freedom of willing entities to exchange information free from government interference, but not to address the claims of citizens and others to get information from public bodies that those bodies don’t want to disclose.

Third, international and national experts, institutions and laws have only very recently affirmed that the right to freedom of expression includes a right of access to information held by public bodies. For instance, only in 2011 did the UN Human Rights Committee declare that Article 19 of the International Covenant on Civil and Political Rights embraces a right of access to information held by public bodies. The committee, comprised of 18 experts elected by UN member states, is the body tasked with authoritatively interpreting and applying the Covenant, a treaty that codifies parts of the Universal Declaration of Human Rights. Given the newness of the international recognition of this right, its importance, and the proclivity of governments to deny an obligation to make information available, a separate principle is warranted.

Constitutions of more than fifty countries now grant constitutional status to the right to information; and nearly 90 countries have national-level rights to information laws or regulations in force – including the population giants of Brazil, China, India, Indonesia, Russia and the United States, most countries in Europe and Central Asia, more than half of the countries in Latin America, more than a dozen in Asia and the Pacific, seven countries in Africa, and three in the Middle East and North Africa.  More than 5.2 billion people now live in countries that include in their domestic law an enforceable right, at least in theory, to obtain information from their governments. (Citations to all of these constitutions and court judgments can be found on a website maintained by the Open Society Justice Initiative.

Accordingly, I would add a new principle, worded as follows:

“We require information, including from public bodies, in order to be able to participate in informed debate; hold our governments accountable; protect our human rights, public safety, health and the environment; and ensure our access to public goods and services on an equitable basis.”

That principle responds to the points above, and also implicitly makes two additional points. First our need for information includes, but is not limited to, information held by public bodies. The UN Human Rights Committee and numerous national laws recognise that people also need information from non-public entities that perform public functions, receive public funds, are substantially government-controlled or are established by law. A few modern laws and constitutions, including South Africa’s, recognise that people also may need information from any entity that impairs their rights. Second, the need for information held by public bodies is not limited to citizens; rather, it is a human right, which, as freedom of expression, has both an instrumental as well as an essential value. It is as essential to our humanity and freedom to be able to make informed choices as it is to be able to express ourselves. At the instrumental level, residents of a country (whether or not citizens), as well as individuals that are in other ways impacted by a government’s actions, certainly have a need and a right to information held by that government.

Finally, I also suggest that Principle 10 should be expanded to expressly refer to freedom of information:

“We must be free to challenge all limits to freedom of information and expression justified on such grounds as national security, public order and morality.”

This addition makes clear that people must be allowed not only to express opinions that offend the government of the day, but also to challenge secrecy based on national security and related public interests.

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Comments (5)

Automated machine translations are provided by Google Translate. They should give you a rough idea of what the contributor has said, but cannot be relied on to give an accurate, nuanced translation. Please read them with this in mind.

  1. Dear Timothy,

    I like your project so much, I refer to it in my Trial Brief.

    You may like to help me distribute my true to life story world wide.

    Louis Leclezio

    I am the voice of the ‘little guy’ from Africa.

    Whereas, the fastest growing Internet markets are in Africa, Asia, the Middle East and South America.

    Whereas, the North American Internet market is saturated.

    Whereas, those fast growing markets should, if anything, be privileged and protected rather than adversely prejudiced.

    Whereas, the Internet success rests on the shoulders of hundreds of millions of little guys like me around the world.

    Whereas, scant mention is made in the media and/or in any proposed resolutions, ahead of WCIT2012, that address the problems encountered by the ‘little guys’ under the present US ruled system.

    Whereas the ITU is represented in the US by Scott Cleland as: “not to understand the voluntary nature of the Internet or how the Internet really operates and evolves – because the bottom-up collaborative Internet is the antithesis of top-down governmental command and control.”

    Whereas although the Internet is represented as a “bottom up collaborative” international ‘effort’ the vast multi billion dollar revenues that this “bottom up” US controlled ‘co-op’ generates is understandably jealously guarded by very few privileged US Corporations at the top of the Internet tree.

    Whereas no matter how powerful a nation is, or how well capitalized any US Corporation is, if it crucifies the ‘little guy’ once too often, it may end up killing its right to control the Internet goose that has laid so many golden eggs for so long for its privileged benefit.

    Check out Google Market value for example:

    Now, therefore, be it resolved that the ITU, the US, Google and the world media should pay urgent attention when the human rights of the ‘little guy’ are not respected and are not protected by the US.

    After all, no one should ever forget that those golden eggs are increasingly collected from a multitude of ‘little guys’ located in Africa, Asia, the Middle East and South America.

    Whereas, those fastest growing Internet markets are outside USA borders!

    Who, in the world, should best protect the Internet nest and distribute the eggs fairly?

    My web site tells part of the true story of the ‘little guy’ from Africa.

    Will the ITU, the US Congress & Senate, Google and the world media help me write the rest of the story?

    I look forward to hear from you.

    Louis Leclezio

  2. I agree that the principles should affirm the public’s right to information held by public bodies (access). However, a prior principle is also important, namely, that information generated by public bodies is the property of the public and should be kept and archived for public use. Typically this principle is implemented through an archives law, which logically precedes an access law. In Hong Kong there is no legal requirement that public bodies maintain archives, and consequently most information is destroyed, not archived. Although Hong Kong has a public records office, public bodies are not required by law to deposit information in the office. Thus, since 1997, when Hong Kong became a part of China, no public records have been transferred from the HK Chief Executives Office to the archive. The assumption apparently is that these public records are the private property of the Chief Executive. Still, China and most other countries have some kind of archives law. We in the Archives Action Group in HK are lobbying to introduce such a law, but so far have had little success. A legal requirement that public information be kept precedes the principle of public access to them.

  3. Completely agree, What is the point of free speech if societies are not well informed and are not given legitimate facts? When people protest for a cause against their government and their cause does not contain full information of the governments actions, the state will undermine protests due to an uninformed public. The government will act as they wish. The population is subjugated to the information governments want to show them (especially in country’s that control the media).

    Also, in country’s such as America media is ideologically and politically linked to the government, thus information the government does not want to share with the public will not be aired in the media.

  4. My concern, from experience, is that however well-intentioned the Freedom of Information acts are (as presently enshrined certainly within the UK) open to considerable abuse. In my years of dealing with FOI requests I cannot honestly say I have seen anything that resembles something I, as a citizen, would wish to defend. For the most part it is used by journalists who are simply fishing for stories, commercial vendors seeking to take advantage of business intelligence, lazy research students, or individuals who wish solely to tie up the internal processes of public bodies distracting them from the other work they need to do. I defend the principle of FOI, but in its present state, feel it is not being used for its original purpose.

  5. I would tend to disagree with the conceptual approach. Much as I agree with the proposed principle, I don’t see how this is an aspect of free speech, or even of fundamental rights generally.

    Instead, it is an issue of democracy and due process. Only if we have access to documents can we properly inform ourselves in order to vote for the best candidate, and only if we have access to documents can we properly take advantage of our right to due process of law. (Cf. this access to documents case from last month, about access to documents created in the course of an antitrust investigation. Without those documents, how can the private victims of the cartel sue?)

    The link between access to documents and free speech, on the other hand, is much more tenuous. Even in the absence of the relevant documents, relevant speech is still possible. No one knows for certain what happened in Guantanamo and the other black holes, but that doesn’t stop us from talking through various scenarios, arguing about right and wrong, and about what we would like the government to do. The details of the truth only really matter when the time comes to turn those opinions into a democratic vote, or when the time comes to bring a habeas petition on behalf of someone stuck in a black hole. Democracy and due process, not free speech.

    A further problem is that the proposed principle essentially implies a positive obligation for the government. As the previous commenter wrote, access to documents means that the government has to publish information and in many cases even prepare documents so that they can be published. In my humble opinion, on the other hand, the free speech debate should be first and foremost about the government getting out of the way, about negative liberty.

  6. Your comment is awaiting moderation.

    The onus should be upon the public bodies to actively publish any material as it is created, together with a statement of public resources which have been expended.

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