Freedom of Information

Freedom of Information  (FoI) legislation is concerned primarily with facilitating general access to information created by, or held by Government, while ensuring that individuals are aware of, and have some control over, data that concerns them at a personal level[387]. Thus, the basic principle of any “Freedom of Information Act” is that government-held information should be freely available to those who seek it unless good reason can be shown in a particular case why it should not be.  Criteria would be laid down defining what categories of information would not be disclosed”[388] Typically, there is also a right of appeal to an independent body (often called an “ombudsman”) against a decision by a Government Department refusing access[389].

FoI and public information activities are two central aspects of an open and transparent public sector[390]. An open and transparent public sector also requires a right to receive information disseminated by the government on its own initiative.  This dissemination of government information is discussed in the Chapter on e-government.  Though both FoI and public information activities are important aspects of openness and transparency in the public sector, important differences between the two approaches exist. When individuals request access under FoI, they normally obtain genuine case documents. The citizen himself must choose which documents he wants to read and interpret them in order to arrive at his own understanding of the contents. When the aim is to control the exercise of public authority, this approach has obvious advantages, because it can ensure an appropriate distance and independence between the controller and the controllee. On the other hand, this approach will present a difficult challenge for the large majority of citizens, especially in complicated case areas.

Access to government-held information is essential to secure a proper level of knowledge in the general population about democratic processes. It is also a necessary requirement for the democratic control of the exercise of government authority. In 1946, the General Assembly of the United Nations adopted a statement that:

Freedom of Information is a fundamental human right and is the touchstone for all the freedoms  by which the United Nations is consecrated

Democracy demands a two-way flow of information between the government and the governed.  Although, in theory, the people govern,   in practice decisions are made by representatives of the governed. The people are governed but they are not the government[391].

Moore[392]  shows that since the nineteenth century we have seen sets of rights for the citizen develop.  These, in turn,  have led to increasingly information-intensive countries. The nineteenth century brought  political rights.  These included the right to elect leaders and join unions. Social rights followed more recently.  These gave  basic standards of living,  education and health services - in other words,  the Welfare State.   Moore argues that such reforms were the by-product of a progressively affluent, well-educated, maturing democracy that held the view that the benefits of society should be shared amongst the masses. Citizens in the information-intensive state appear to Moore to have earned another  right.  This can be defined as an intellectual right to function effectively within a state.

The question of secrecy, or in access to information terminology, exemptions to FoI, is based mainly about the potentially ‘harmful’ effects of information dissemination on, for example, national security.  Information and its control, use and regulation is a feature of power. The government’s role as the creator and organiser of information grants it considerable power.

The information industry very much favours the implementation of FoI.   It can see that many value added services could be created based upon output from FoI inquiries.  This  has occurred in the USA, where publishing companies that sell collections of information obtained under FoI have prospered.    There can be little doubt that one of the drivers for the interest in FoI in the European Commission is pressure from the publishing industry.

Freedom of Information Acts have been introduced in more than a dozen countries.  Other countries are making progress in the field, too.  For example, Smith[393] reports that in Latvia there are discussions on the possibility of citizens being able to access information and files on the activities of the KGB.

The kind and amount of information that governments are willing to release are generally similar in the major countries with such legislation.   There are, however, some notable differences. For example,  the disclosure of verbal information is very uncommon, but does apply in New Zealand[394].   Generally,  but not invariably, governments are not obliged to create records that do not already  exist.

There are also significant differences between the countries regarding the type of information that should be covered.   In Canada, it includes any correspondence, memorandum, book, plan, map, drawing, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine-readable record,  or other documentary material, regardless of physical form or characteristics.  Any machine-readable record that can be produced under the government’s control using computer hardware and software and technical expertise which are normally used by government institutions even if  not been produced before are also available[395].  In France, all files, reports, studies, accounts, minutes, statistics, directives, instructions, circulars, notes, and ministerial replies containing interpretations of the law or descriptions of administrative proceedings; opinions, other than those given by the Council of State or administrative tribunals; forecasts; written decisions; sound and visual recordings; and automated information not of a personal character  are available[396].   In Sweden,  any  object that contains information of some kind is available[397].

The  right to require correction of personal information that is inaccurate, incomplete or misleading is common. Between 1985 and 1986, there were 215 such requests for correction in Australia, 209 in Canada and 54 in New Zealand.  The laws often  contain requirements to add a notation to the record so the applicant’s version of events is on file[398].

In most countries,  the fee payable by the applicant is kept low. For instance,  Canada charges a $5 application fee followed by additional costs per hour based on research time.  This pattern appears to be identical in most countries who have adopted FoI.

Whilst FoI  has been successful in shifting the balance between the citizen and the State, lack of publicity appears to have crippled the number of requests from the public in many countries.  The highest numbers of users appear to be public sector staff members who use the systems to access personal details about themselves.  Following that, are business and commerce, organisations (including trade unions, interest groups, societies, non-profit associations and lawyers whose clients are unidentified), the media, academics and students and a small number of Members of Parliament.  In France, the authorities have lamented the lack of interest from the press but have welcomed the demand from other sectors such as consumer groups, trade unions and environmental interests.

Some discrepancies can be found in what is exempted from the local FoI legislation, that is, the types of information that Governments can refuse to disclose.  For example, the Canadian exemptions fall into two broad categories: Mandatory and Discretionary.  Mandatory exemptions include personal information about any individual within or outside government.  Discretionary exemptions relate to the release of materials being determined by the department in charge of the materials[399].  France’s  law provides an interesting internal guideline for decision-making about the rights of individuals and how the release of certain information may have the potential to harm.

Sweden’s law  provides some typical exemptions: national security and foreign policy; the state’s central financial, monetary, or currency policy; the activities of public authorities for the purpose of inspection, control, or other supervision; activities of public authorities for the prevention or prosecution of crime; economic interests of the state or municipalities; protection of the individual’s personal and economic privacy;  and protection of the species of animals and plants.

In the USA, the exemptions are:  national defence and foreign policy; internal personnel rules and practices; other statutes which applies to matters that are ‘specifically exempted from disclosure by statute’; commercial and financial information obtained in confidence; agency memoranda to protect the process of  government by premature disclosure; personnel, medical and similar files; investigatory records; reports on financial institutions;  and (intriguingly) information concerning oil wells and oil reserves.

These criteria seem common amongst countries that have adopted FoI.  Countries that have a tradition of secrecy also have  a high number of exemptions.  Other exemptions reflect the ongoing concerns of that country.

It is interesting to consider why some countries have adopted FoI and others have not.  The acceptance of FoI in France and USA can be traced to the political philosophies that established new forms of Government in both countries in the late eighteenth century.   The Nordic countries have a tradition of a balance of power between  citizens and the monarch.    It is curious that some countries with a common law tradition, such as Australia, Canada and New Zealand, have adopted FoI enthusiastically, whilst the UK has not.

The relationship of libraries with FoI has recently been reviewed[400] and the likely impact of UK FoI legislation on UK public libraries[401] and Irish University libraries[402] have been the subject of research. the relationship between copyright, FoI and legal deposit  in the EU has also been reviewed.[403]

In this Chapter we report on countries’ FoI legislation, with special reference to the objectives of the legislation, information that is accessible, reasons for refusal of access to information, the time period allowed to process a request and the cost of requesting a piece of information.

Australia

The FoI Act 1982[404] provides public access to government records. A “record” is defined as any of, or any part of any of, the following: any paper or other material on which there is writing; a map, plan, drawing or photograph; any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; any article on which information has been stored or recorded, either mechanically or electronically; any other record of information; or any copy, reproduction or duplicate of such a thing; or any part of such a copy, reproduction or duplicate. However, the Act does not include material that is maintained by library for reference purposes; or Cabinet notebooks.[405]

The decision to whether the information requested may be accessed must be give to the individual requiring the information, within 30 days of the request being filed. The agency or Minister responsible for administering the request must also notify the applicant within 14 days to acknowledge that the request was received.

All of the states (except for the Northern Territory) also have FoI laws, as noted below. These include rights to gain access to and correct personal information about requesters.

·        Commonwealth Freedom of Information Act (FOIA) 1982

·        New South Wales FOIA 1989

·        South Australia FOIA 1991

·        Victoria FOIA 1982

·        Australian Capital Territory FOIA 1989

·        Queensland FOIA 1992

·        Tasmania FOIA 1991 – commenced on 1^st January 1993 (before the Act commenced release of government information was left to the discretion of the agency)

·        Western Australia 1992

Canada

As the Canadian government is closely based on the British model, secrecy was traditionally considered to be an important foundation for its proper functioning. However, since the 1960’s there has been a steady slow movement towards openness in government.

The Access to Information Act[406] provides individuals with a right of access to information held by the federal public sector. The purpose of the Act is to provide the right of access to information in records under the control of government institutions in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of accessible be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

This Act applies to all Canadian citizens, or permanent residents within the meaning of the Immigration Act. The Office of the Information Commissioner of Canada oversees the enforcement of the Act. The Commissioner is an Officer of Parliament, thus separate from the bureaucracy it oversees – though its funding comes from the Treasury Board Secretariat which can act in the event there are disputes between the Office of the Commissioner and Treasury Board. The Commissioner is also responsible for handling complaints under the Access to Information Act, has quasi-judicial powers to call for the production of records in dispute, do on-site investigation and make recommendations on how the complaint should be held.  A requestor of information, under the Act, or a government department, can file a complaint with the Federal Court if not satisfied with the Commissioner’s decision.

The Act defines a record as anything that includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof.[407] The government department processing the request must acknowledge a citizen’s request within 30 days of that request being made. Any request must state the language, which must be an official Canadian language, in which they require the information.

Access may be refused if it is reasonably expected to be injurious to the conduct by the Government of Canada of federal-provincial affairs, international affairs, and the defence of Canada. Any requests for information that cover law enforcement and investigation, threatens security, has been obtained or prepared by the Royal Canadian Mounted Police while performing its duties, could threaten the safety of individuals or intervene with an individual’s personal data, or could damage the economic interests of Canada or Government operations is likely to be refused.

A person who makes a request for access to a record under this Act may be required to pay an application fee at the time the request is made. This must not exceed twenty-five dollars

The Canadian Federal court has ruled that government has an obligation to answer all access requests regardless of the perceived motives of the request. However, the word access is used instead of the words freedom of information, which constitutes the basic difference to that of other countries legislation on freedom of information, such as the USA. Canadians only have the right to access government information, which is a more limited perspective then that of the USA.

The wording of the Act is not the only unique feature of the Access to Information Act, as this Act is reviewed every three years to assess its progress

Each of the provinces also has a FoI law, and most have a Commissioner to provide enforcement and oversight.

European Union

In 1994, the European Commission organised an important conference on access to government information in Stockholm.  There was talk at that stage of a Directive enforcing FoI on all Member States.  Since then, nothing has appeared. The rumours indicate that a number of Member States either were opposed to the whole idea of FoI, or did not believe FoI was an appropriate area for the Commission to be involved in, as it does not affect the operations of the Single Market.  However,  the Commission did issue a Green Paper on the topic[408]. This discussion document made a case for making FoI the norm in Member States, but the tenor of the paper is one of great caution, presumably reflecting the disagreements on policy in this area among Member States.  It is by no means certain that a Draft Directive will emerge enforcing FoI on Member States in the near future.  Indeed, the only Directive of relevance, regarding environmental information[409], was passed in 1990, i.e., before the time period covered for this research.

More recently,  the Commission has addressed FoI in respect of its own operations.[410] The European Union released its regulations  on Public Access to official documents held by the European Parliament, European Commission and Council  of Ministers in May 2001 The regulations have already been heavily criticised by openness groups as being inadequate. In June 2001, the final version of the new code of access[411] to EU documents came into effect. The three EU institutions (the Council, Commissioner and European Parliament) have to provide a public register of documents by June 2002, in order to comply with the new code.

The code, it is claimed, marks the new stage in the process of creating an ever-closer union among the citizens of Europe, with the need to introduce greater transparency into the work of the EU institutions.  However, the practice has been that the European Commission has moved towards FoI with great reluctance, and both it and other EU institutions have had legal actions taken against them for their unwillingness to release information they hold. 

Although in principle all documents should be accessible to the public, limitations have been put in place to protect personal data. A two-stage administration process has been introduced, enabling court proceedings or complaints to the ombudsman.  Each institution within the EC has been instructed to provide citizens the access to a register of documents, so that those citizens can exercise their FoI rights more easily.

Any citizen of the Union, and any legal person residing in or having its registered office in the member states may exercise these rights, subject to any exceptions set out in the regulation. This is in contrast to many countries’ FoI regimes, where anyone anywhere in the world is entitled to exercise the rights.

Grounds for refusal of access to information include where disclosure of a document would undermine the protection of public security.  In addition, refusal of access extends to documents on: defence and military matters; international relations; the financial affairs, monetary or economic policy of the community or a member state; and the privacy and integrity of the individual, regarding protection of personal data. Other exceptions include commercial interests of a legal person, intellectual property, court proceedings and legal advice; and information associated with inspections, investigations and auditing.

Application for access to documents has to made in written or electronic form in any official language of the Member States. The applicant is not obliged to state the reasons for wanting access to the document(s).   The application is registered and the applicant must be notified within fifteen working days, either that the institution will grant access to document or the reasons for part or total refusal of access to the information. The applicant then has another fifteen working days to file an appeal for the institution to reconsider the application. Following the appeal, if the applicant is still denied access, then (s)he has the option of court proceedings against the institution,  or alternatively to make a complaint to the ombudsman.

There are clear tensions in the EU between Nordic Member States, that have a long tradition of FoI, and other Member States with a tradition of secrecy, together with the Commission itself, which has a distrust of FoI.  Nonetheless, the EU has made important strides, not least in requirements under European law for access to environmental information.  EU law is in this area more open than many Member States’ FoI laws.[412]

We now consider developments in Member States.  A comparison of laws in member States and in the USA can be found in[413].

Denmark

The Access to Information Act and the Access to Public Administration Files Act [414] govern access to government records. There is currently an effort to replace the acts with a new law based on the EU Directive 95/46.

Finland

The Publicity (of Public Actions) Act[415] went into effect on the 1^st December 1999, replacing the Publicity of Officials Act 1951. It provides a general right to access any document created by government agencies, or sent or received by a government agency, including electronic records.

France

Two laws in France provide for a right to access government information/records. All records are available except those involving internal government deliberations, state security, personal information protected by law on data protection, commercial secrets and other document protected by law.

Germany

There is no general federal FoI Act in Germany, but the federal government is discussing the necessity of a FOIA between the federal and state governments. Germany is also waiting for the Council of Europe to finish its recommendations on FoI.  The Federal Ministry of the Interior announced a proposal and released a draft Federal FOIA[416], but there are many documents that are excluded from access under the Bill. The Data Protection Commission will enforce the Act. This may cause conflict between the rights to privacy and the rights to access information; this is discussed in the conclusion. In addition, since 1990 there has been a law that allows for access to the files of  the Stasi, East Germany’s former security service.

The land of Brandenberg adopted a FoI law in 1998 to allow citizens access to government records.  In 2000,  Berlin and Schleswig Holstein adopted FoI laws.

Ireland

Ireland has a Freedom of Information Act 1997, which facilitates public access to information held by public bodies that is not routinely available by other means. It came into force in 1998. It has been amended several times since, most recently in 2001[417].

Under the Act, any member of the public has the right to access information on themselves regardless of when it was created, but any records requested on other topics will only be supplied if dated 21^st April 1998 and onwards. The FOIA established three new statutory rights:

·        A legal right for each person to access information held by public bodies and government departments,

·        A legal right for each person to have official information relating to him/herself amended where it is incomplete, incorrect or misleading,

·        A legal right for each person to obtain reasons for decisions affecting him/herself.

The Act asserts the right for members of the public to obtain access to information to the greatest extent possible, consistent with public interest and the right to privacy of individuals. Under  the Act a “record” includes any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording. It also provides for any information that is stored manually, electronically or mechanically.[418]

The body responsible for managing a request for information must give a response within four weeks of the request, whether this is to allow, or refuse, access to the information.

The organisation may refuse to supply the information if the record concerned does not exist, or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.  Refusal is also allowed if the release of the information may cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned, the request is seen to be frivolous or vexatious,  or if  release of the information may be contrary to the public interest. Refusal is also allowed for if the information requested for release is thought to adversely affect the security of the State, the defence of the State, the international relations of the State, or matters relating to Northern Ireland.[419]

A fee is charged to the requester of the information. This is calculated by estimating the cost of the search for and retrieval of the record concerned and the amount of time spent in collecting and processing the information requested.

The Act has been amended several times since its  first enactment.  As a  result, the number of bodies  covered by the FOIA has grown. The total number of public bodies controlled by this Act is now (2001) 280.

The Act creates a presumption that the public can access documents created by government agencies and requires that government agencies make internal information on their rules and activities available.  However, evidence suggests that the implementation of the Act does not meet requirements stated in the legislation.  an investigation carried out by the Commissioner on a sample of 12 public bodies concluded that most public bodies processed requests for information within the time scale specified by the Act, but there was  widespread failure to give proper reasons for refusing access to information.[420]  The Commissioner’s report expressed concern about the refusal rate of access to information. The report stated that request refusal by public bodies in Ireland seemed to be higher than the refusal rate in Australia.   a number of agencies are experiencing difficulties in dealing with requests. this could explain the number of refusals. when analysed, it was found that three exemptions written in the Act were being used unnecessarily.

The Office of the Information Commissioner enforces the Act, and as of April 1999 it had received 6,200 requests for information of which 20% were refused.

Suggestions for the improvement of the current legislation, and the need for greater public awareness and a more pro-active approach have been recently made.[421]

Italy

The Act of 241/7.8 1990 provides for general access to government documents, however requesters need to provide a legitimate reason for demanding that information.

Luxembourg 

There is no FoI law in Luxembourg, but under a 1960 decree on state archives[422], the archives are open to the public, however the general public must make a written request explaining why they want access to such information.

Sweden

Sweden is a country that has traditionally adhered to the Nordic tradition of open access to government files, and implemented the world’s first freedom of information Act.

Hong Kong

In 1995, the Hong Kong government introduced a Code on Access to Information[423] to serve as a formal framework for the provision on information by government agencies. The code requires civil servants to provide records held by government departments, unless there is a specific reason for not doing so.

The code extended to incorporate the whole of the Government in 1996. The Code defines the scope of information that will be provided, it sets out how information will be made available and it also lays down the procedures governing its prompt release. The Code defines a “record” as something that may include a document in writing and - any book, map, plan, graph or drawing; any photograph; any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatsoever; any diskette, tape, sound-track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced there from; any film, negative, tape, microfilm, microfiche, CD-ROM or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced there from; and anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them.

Legal information will be legally restricted from gaining access if it is a contravention of any law, which applies in Hong Kong, or a breach of any obligation arising under common law or under any international agreement, which applies to Hong Kong[424]

Each department will designate an Access to Information Officer who will be responsible for promoting and overseeing the application of the Code. Requests for information can be made orally and/or in writing, an orally request will satisfy the Acts requirements when the information required is easily accessible. However, the reply to an information request must be provided by one of the following means; providing a copy of the relevant record or part thereof, providing a transcript of the relevant record or part thereof, affording a reasonable opportunity to inspect, hear or view the relevant record or part thereof, or providing a summary of the relevant record or part thereof.  Where possible,  the response to a request will be satisfied within 10 calendar days, unless stated otherwise, of which an interim report will be delivered to the requester.

Charges will apply to the request, of which will be dependable upon the charges levied will reflect the cost of providing the information.

Information maybe refused when perceived as "harm" and "prejudice", which includes both actual harm and prejudice and the risk or reasonable expectation of harm and prejudice thus the decision is made to whether access to information is in the public interest to disclose. The following information that would harm Hong Kong's defence, security, external affairs, law enforcement, legal proceedings and public safety, nationality, immigration and consular matters, damage to the environment, management of the economy, Management and operation of the public service, Internal discussion and advice, management of public services, improper gain or advantage, incomplete analysis, research or statistics, where disclosure could be misleading or deprive the department or any other person of priority of publication or commercial value, third party information, privacy of the individual, business affairs, and premature requests.[425]

New Zealand

The Official Information Act (1982)[426] and the Local Government Official Information and Meetings Act (1987) are the relevant pieces of FoI  legislation governing the public sector within New Zealand. There are significant interconnections between the FoI legislation and the Privacy Act in subject matter, administration and jurisprudence, and can be thought of as complementary components of one overall statutory scheme.

The New Zealand Government is, like other countries with British traditions,  renowned for its secrecy. The purpose of the Act is to counteract this and to progressively increase the availability of official government information. The Official Information Act recognises the need for protection of certain information, which may result in the refusal of access to that particular information.

The decision to grant access to the information or refuse access due to reasonable reason(s) satisfied by the legislation for withholding information, must be made by the appropriate governing body within 20 working days from the day after the request had been received.

Any of the following reasons may be appropriately applied to information that has been refused access; if making the information available is likely to prejudice the security or defence of New Zealand, prejudice international relation of the government, to damage the New Zealand economy, threaten the maintenance of the law, and endanger the safety of a person. These are labelled “conclusive” reasons for withholding information. There are other reason for the refusal of information, which are based upon the withholding of information outweighs the release of the information in respect to privacy of natural persons, disclosure of trade secrets, threatens the obligation of confidence, and damaged to the public interests.[427]

The New Zealand Official Information Act has a unique characteristic that is not found in many other countries’ FoI legislation. The Act allows information in any manner to be accessed, as long as the information is held within official capacity of those subject to the Act. Unlike other laws, this Act does not categorise information into classes.

A definition of official information is given within the Act, but does not specify any particular form or format. This emphasises the intention to place few limits on its scope,  and allows a broad interpretation to be adopted by the reviewing bodies.  Arguably,  the Act reduces the number of disputes on what qualifies as information and what does not.

In a review of the FOIA by the Law Commission, four problems main problems were underlined; the burden caused by large and broadly defined requests; tardiness in responding to requests; resistance by agencies outside the core State sector; and the absence of a co-ordinated approach to supervision, compliance, policy advice and education regarding the Act and other information issues.[428]

There are a number of possible solutions to these problems. In the case of large and broadly defined requests, it maybe advisable to refuse the release of the information and appropriate charges made to the requester, resulting in the encouragement of more focused requests for information. With regards to the tardiness in responding to requests, minister and organisations should be adequately supplied with resources to deal with the requests.[429] It is also evident that there is still an urgent need for education and awareness of the Act to those bodies that are subject to compliance with the legislation.

Norway

Each citizen has a relatively broad statutory right permitting access to public case documents on request[430]. This right has been crucial to the ability of the press to examine and criticise the public authorities on behalf of the community. Legislation, regulations and other public case documents are not protected by copyright law but can be used freely by everyone.  

The Internet and the Web have dramatically lowered the economic and practical thresholds for publication. It is now possible for the press and professional and industrial bodies to use the Internet to make case documents publicly accessible in their original form. Those bodies can legally place such documents on the Internet, accompanied by other relevant material: a possibility which may become especially attractive. In Norway, for example, there is a continuing debate addressing  the question whether or not gas power plants should be built. Environmental organisations face opposition from the majority in the Parliament (Stortinget). These environmental organisations are able to demand access to public documents relevant to the case at hand and publish them on the Internet together with their own interpretations and comments.

South Africa

The Draft Open Democracy Bill, which became the “Promotion of Access to Information Act 2000”)[431] defines a record as any recorded information regardless of form or medium, whether the information is in the possession or under the control of that public or private body, respectively; and whether or not it was created by that public or private body, respectively.

The objectives of this Act are to provide for public access, as swiftly, inexpensively and effortlessly as reasonably possible, to information held by governmental bodies without jeopardising good governance, personal privacy and commercial confidentiality; to provide for the disclosure of information contained in records held by governmental bodies to which the public have access under this Act; to require governmental bodies to make information available that will assist the public in understanding the functions of governmental bodies, their operation and the criteria employed in making decisions; to provide individuals with access to information concerning themselves held by governmental or private bodies; to provide a mechanism for individuals to correct inaccurate information about themselves held by governmental or private bodies; to protect individuals against abuse of information concerning themselves held by governmental or private bodies; to protect individuals who make known evidence disclosing contraventions of the law, maladministration or corruption in governmental bodies; and generally, to promote transparency and accountability of all organs of state by providing the public with timely, accessible and accurate information and by empowering the public to effectively scrutinise, and participate in, governmental decision-making that affect them.

This Act overrides any other legislation, whether that legislation came into effect before or after the commencement of this section, and allows any person on request, but subject to this Act, to be given access to any record of a governmental body.

When a citizen makes a request for information from a governmental body they are required to pay a prescribed fee, this must be paid before any further progress is made on the request.

The information commissioner to whom the request for information must acknowledge the request, and return a verdict within 30 days, after the request is received or transferred, what ever the decision. An extension of the time period to deal with the request maybe sanctioned if the request is for a large number of records or requires a search through a large number of records, the request requires a search for records in the governmental body not situated in the same town or city as the office of the information officer, consultation among divisions of the governmental body or with another governmental body is necessary. The extension must not exceed another 30 days. However, if the information officer does not return a verdict of the information request within the time period stated in the legislation, the request is regarded as being refused.

The Act allows a number of reasons why requests for information may be refused: for protection of personal privacy, protection of third party commercial information, records supplied in confidence, safety of individuals and security of structures and systems, reasons of law enforcement, legal professional privilege, for the defence and security of the Republic, international relations, economic interests of Republic and commercial activities of governmental bodies, operations of governmental bodies, frivolous or vexatious requests, published records and records to be published, records already open to the public, and mandatory disclosure in public interest.[432]

USA

The USA has had  FoI legislation in place for over 40 years; arguably, this legislation is part of the culture of US citizens and their government. Under the Freedom of Information Act (FOIA) of 1966 all federal agencies are required to disclose records in writing by any person, and by making all records owned by government agencies presumptively available upon request, this Act guarantees a right to inspect a storehouse of government documents.

This Act came into effect in 1967; nine exemptions and three exclusions are contained in the statute. These allow agencies to withhold information from individuals.

In addition to the Federal FOIA, each agency is responsible for meeting the FOIA responsibilities for its own records.

The Electronic Freedom of Information Act Amendments of 1996 were signed into law by President Clinton in October 1996. This was the first significant rewrite of FOIA since 1986. The amendments to this Act encompass the 1996 Electronic Freedom of Information Act. The adoption of the EFOIA means access to information now includes information stored in electronic form and that the agency that deals with an applicants request must provide the information in any form or format requested.

In addition to the original regulations of the FOIA the EFOIA requires that all agencies must make the sanctioned access of information available for inspection and copying copies of records released in response to FOIA requests. This is provided in the form of (electronic) reading rooms.

Access to information must be provided in any form or format that the requester requires, as long as it is possible reproduce the information within that format. However under the amendments to the FOIA due to the EFOIA, all agencies have to make reasonable efforts to locate the information requested in digital form.

All agencies are required to respond to a request for information within 20 days (inclusive of Saturdays, Sundays and public holidays), however an extension may be granted, which also requires the agency to inform the applicant the reasons for the time extension and the date that the information will be delivered or a verdict is decided which opposed the right to the information.  The impact of the EFOIA (amongst other e-government initiatives)  on US citizens has recently been reviewed.[433]

Conclusions

It is   clear that governments are “disseminating more and more information and reducing that barriers impeding access to that which is held but not disseminated”[434]. Most of the Acts are very  similar  in their contents and exceptions.   Hong Kong’s Access to Information Code and the European Union’s New Code of Access exhibit the shortest turn around time for responding to information requests. New Zealand is one of the few countries not to depend solely on  physical material as a “document” that can be inspected.  In most countries, the applicant does not have to state the reason for the request, though in some cases there are restrictions so the right is only available to citizens or businesses based in that country.

It is evident that there are a number of distinct approaches to FoI. The governments that have traditionally been secretive have been slow to make any advancement in providing access to information, if at all. But in contrast countries that have had a history of openness ( such as Sweden and the USA) have had legislation in place for a number of years. Other differences can be found in the ways the laws handle questions of language, literacy and financial barriers.  South Africa makes provisions in  all these areas.   Canada makes provision for its Francophone citizens, and several countries make provisions for those in financial hardship.   The UK Government  assumes that most people with a wish to use FoI  can read English fluently  and can afford the application fees for access.  These assumptions are probably incorrect.

One continuing problem with all acts is the wide leeway given to the civil servants involved to decide whether to release the information or not.  The role and powers of the ombudsman are therefore crucial, as is the precise wording of the areas of information that are exempt from disclosure.

Appeal systems are either judicial or tribunal based.  Courts are costly and time consuming whereas an Information Commissioner  is usually a cheap effective administrator of Freedom of Information law. Against this, it  must be noted that such a system is weaker that a Court based system.  Some experts believe a judicial system is the only guarantee of securing the full and effective operation of FoI, and point to the USA as an exemplar.  

The UK’s position on the Freedom of Information remains considerably behind Commonwealth countries  such as Australia,  Canada and New Zealand.  The European Union’s view on  FoI  appears supportive, but in practice  is lacking in enthusiasm.   The European Union has powers to set the pace on FoI.  The expected  draft Directive on FoI has not been announced, and the Green Paper takes a cautious approach.

For  FoI to  be a success and have an impact  in the UK, several criteria need to be fulfilled.  The Government  should take regard of the following:

·        Adequate marketing strategies.  Individuals are still ignorant about the law.

·        Flexibility with fees.   Every citizen should  feel that access is affordable.

·        Clarity needed in legislation. The question of who is allowed access, additional fees for extra work, cost and organisation of administration; and facilities for non English speakers need to be considered.   We believe this latter issue is extremely important. 

·        A willingness to supply information collated together rather than particular documents that have been requested.

More broadly, the UK’s position remains one of reluctance, with an over-               lengthy set of exemptions and an unwillingness to give the Information Commissioner sufficient powers to impose her will on reluctant Departments.  The UK should look to the Australian or Nordic examples of how to approach FoI.

References