Freedom of Information was recognized as a fundamental right by the United Nations at its very inception. In 1946, the UN General Assembly resolved: “Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated.” Enshrined in the Universal Declaration of Human Rights, the right’s status as a legally binding treaty obligation was also affirmed in Article 19 of the International Covenant on Civil and Political Rights which states, “Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.” Jurists consequently claim that this has made the right to access information part of the body of universal human rights law.
We must remember that public information is meant not only to protect rights but also to prevent abuses by the state. This path is not easy and success depends not only on the tools that we have at our disposal but also in our ability to use them effectively. I recall in this regard the important Chilean case (Claude Reyes v. Chile; Inter-American Court of Human Rights, September 19, 2006) where the Inter-American Court of Human Rights became the first international tribunal to recognize the right to access public information as a fundamental human right.
Since then, Chile, through the passage of the Transparency Act and the creation of the Transparency Council in 2009, has emerged as one of the region’s leading countries engaged in access to information. Nearly 20 countries in the Americas have passed access to information laws. Comparably, in South Asia, till now, only four–Bangladesh, India, Nepal and Pakistan–have Right to Information (RTI) systems in place. Afghanistan, Bhutan and the Maldives are considering introducing such processes, but Sri Lanka is still debating this principle given their sensitivity over their Tamil problem.
The Bangladesh Constitution and the Right to Information Act, 2009, like Article 13 of the American Convention on Human Rights, reiterates that every citizen has the right to seek, to receive and impart information freely with the exception of certain regimes of restrictions. In the case of Bangladesh, Section 2 (f) of the RTI Act defines “information” as including any memo, book, design, map, contract, data, log book, order, notification, document, sample, letter, report, accounts, project proposal, photograph, audio, video, drawing, painting, film, instrument done through electronic process, machine readable record and official activities of any authority. It is wide in terms of scope and intent.
The exemptions are outlined in Section 7 of our RTI Act. They include inter alia: information that may, if disclosed, cause a threat to the security, integrity and sovereignty of Bangladesh; information relating to foreign policy that may affect the existing relationship with any foreign country or international organization; any secret information received from a foreign government; any information relating to intellectual property right; any advance information about income tax, government duties, the budget or changes in the tax rate; any advance information about management of financial institutions or changes related to exchange rate or interest rate; any information, that may, if disclosed, offend privacy of an individual or endanger his physical safety or of the public or due judicial process of a pending case including investigation; any information pertaining to a purchase process before it is completed or a decision has been taken about it (consistent with the existing regulations and rules); or any documents to be placed before the Cabinet.
A Schedule vide Section 32 also enumerates that the provisions of the RTI Act would not apply (except with regard to information pertaining to corruption and violation of human rights) to certain state security and intelligence agencies involved in state security and intelligence gathering. Section 9 (4) however tries to level the playing field by stating that whatever be the situation, if a request for information relates to the life and death, arrest and release from jail of any person, the officer-in-charge shall provide preliminary information thereof within 24 hours. I have found the presence of almost similar exemptions in a comparative study carried out with regard to RTI provisions in other South Asian countries, China, Korea, Japan, the US, and several European countries.
The EU institutions have been given the leeway whereby certain public and private interests can be protected by way of exceptions. Article 2.2.3 of this Resolution nevertheless observes (with regard to the protection of personal data) that the current practice, blanking out names and other personal data in documents to be disclosed is “too restrictive”. In Article 2.2.7 it has also been indicated that systematic disclosure of documents after specific events and well before the 30 year limit for opening the archives would be welcomed (except in cases where the documents pertain to judicial or quasi-judicial proceedings or public hearings and a final decision has not yet been adopted).
In Japan after more than 20 years of lobbying by citizens groups (academics and attorneys), opposition political parties and others, Japan’s National Information Disclosure Law (12) came into effect on April 1, 2001. This created for the first time a legally enforceable right of access to Japanese national government files. More than 4000 information disclosure requests were filed with national government agencies during the first week of the operation alone. Compared to the American FOIA or other FOI formats, the language of the Japanese statute greatly restricts the availability of many categories of important information and provides much broader discretion to officials in possession of files. Several special public corporations that provide basic public services are outside the scope of administrative agencies subject to the statute. This has apparently been done to “stop the risk of unjustly causing confusion among the people.”
It may be noted that Japan’s law incidentally defines an “administrative document” as a “document, drawing or electromagnetic record–a record created in a form that cannot be recognized through one’s sense of perception such as in an electronic form or magnetic form”. This emphasizes reliance on developing information technology.
In Australia FOI Act commenced in 1982 but was later amended by the Freedom of Information Amendment (Reform) Act 2010 and the Australian Information Commissioner Act 2010 enacted in May 2010. Prior to 1982, the provision of access to information held by Commonwealth agencies was discretionary. There was no general obligation on agencies. The amendments and reforms originating out of these measures have brought about important changes to the exemption provisions. They are now of two kinds: the first group is the ‘absolute’ exemptions, to which no public interest test applies. This includes the exemptions related to Cabinet documents, national security, defense, international relations, law enforcement, legal professional privilege, trade secrets, and material obtained in confidence. The second group is the ‘public interest conditional exemptions’. That includes the exemptions for deliberative processes, agency operations, Commonwealth-State relations, personal privacy, business information, research and the economy.
These exemptions cannot be invoked to deny access unless a decision is made that, in the circumstances, access to a document at that time would, on balance, be contrary to the public interest. In effect, there is a presumption in favor of access being granted. To guide agencies in deciding the balance of public interest, the Act lists factors favoring access and factors that are irrelevant.
In the Republic of Korea Public Information Disclosure System the term information means matters recorded in documents (including e-documents), drawings, pictures, films, tapes, slides and other media made, acquired and managed by public institutions. Public institutions are expected to enforce this Act by creating an information management system and also an information disclosure system by which information can be properly kept and speedily searched. Institutions are also expected to take necessary steps regarding pro-active disclosure and make full use of communications network.
As in other countries, in Korea too, some information is subject to non-disclosure: that is classified as secret (consistent with Acts approved by the National Assembly or upheld as such by the Constitutional Court), regarding national security, national defense, unification, diplomatic relations, pertaining to trial in progress, the prevention and investigation of crimes, the institution and maintenance of indictments, the execution and correction of sentence and security disposition.
China passed the Ordinance on Government Information Disclosure on 5 April 2007 (17) and began to implement it from 1 May 2008. Article 73 of China’s Constitution stipulates that Deputies to the National People’s Congress during its sessions, and all those in its Standing Committee during its meetings, have the right to address questions in accordance with the procedures prescribed by law, to the State Council or the Ministries and Commissions under the State Council, which must answer the questions in a responsible manner.
Article 4 of the Ordinance states that government levels above the District should set up working institutions for information disclosure. Article 15 points out that this will be done through government gazettes, government websites, press conferences, newspapers, periodicals, radio and television. In this context, Article 10 emphasizes the following on a pro-active basis: administrative ordinances, statistical information of the national economy, financial report of budgets and final accounts, lists, standards and the implementation of governmental procurement, implementation of critical construction projects, measures regarding poverty alleviation, contingency plans for public emergencies, supervision and inspection of environmental protection, public health and product quality of food and medicines.
Article 19(1)(a) of the Indian Constitution(18-a)was adjudged to explicitly accord the right to information the status of a fundamental right (State of U.P. vs. Raj Narain (1975 (4) SCC 428). RTI laws were enacted independently by the State Governments of Tamil Nadu (1997), Goa (1997), Rajasthan (2000), Karnataka (2000), Delhi (2001), Maharashtra (2002), Assam (2002), Madhya Pradesh (2003), Jammu and Kashmir (2004). The Central government enacted the Right to Information Act in 2005 and it came into effect from 12 October 2005.
The exemptions under Section 8 include information concerning security and integrity of India, privileges of Parliament, confidential information received from foreign governments, trade and commercial secrets, information that might lead to invasion of privacy, that which is forbidden to be published by a court of law, information available in fiduciary relationship and Cabinet papers. Like other countries the Act also provides exemption to some security and intelligence organizations. The Act enjoys overriding effect over other legislations including the Official Secrets Act, 1923.
The Act considers the following actions among others as misuse of the Act. This has been held to be so based on decisions taken by the Central Information Commission: if one is interested in the affairs of other colleagues without any justifiable reasons; asking for certified copies of documents admitted by the applicant himself; to try to force a public authority to settle the applicant’s claims in a certain given time frame; putting pressure on the respondent to enhance bargaining power (harassing the public authority).
It has also been made clear through adjudication that the RTI cannot be confused with instruments of grievance redress. The Information Commission is neither a forum for redressal of personal grievances nor an agency to order change of procedures/rules (S.K. Sachdeva vs. Department of Personnel and Training, 2006). Another case concerning matters related to pension also did not receive redress at the Information Commission (S.L. Saluja vs. State Bank of India, 2008). Several cases before the Information Commission at other times have also held that appointment matters are not within the purview of the Commission. It has been held that service grievances have to be agitated before an appropriate forum or competent authority and that the available internal mechanisms for redressal of grievances have to be exhausted by making use of normal internal procedure.
Similarly, other adjudications have held that the following do not constitute a request for information: cancellation of the registration of a society; comments of a particular officer on the action taken by him and it is not expected that the PIO should interpret various provisions in Government Circulars and Orders/Manuals. Significantly, it has also been held that it is not required of the public authority to keep a record of who meets whom and when. Importantly however, it has been held that “the information available to the prosecutor should also be available to the alleged offender.” (Ajay Jhuria vs. Council of the Indian School Certificate Examinations, 2006)
The United States enacted the Freedom of Information Act (FoIA) in 1966 when President Lynden B Johnson signed it on September 6, 1966; 200 years after Sweden passed the Freedom of the Press Act, the first law on freedom of information in the world. The US law has been amended many times. In 1996 President Clinton signed the Electronic Freedom of Information Act Amendment Bill that provided that records created by all federal agencies on or after November 1, 1996 should be made available electronically and that electronic reading rooms should be made available to citizens to access records and increased the response time to 20 days from 10 days. An Executive Order also allowed release of previously classified national security documents more than 25 years old and of historical interest as part of FoIA.
After September11, 2001, President Bush through an Executive Order dated November 1, 2001 restricted access to the records of the former Presidents. On January 21, 2009, after his inauguration, President Obama used an Executive Order that again encouraged openness, transparency and accountability in government records without changing the Presidential Records Act.
However, since then as evidenced in the State of Maryland the number of exemptions on which public institutions do not have to provide information has risen from 6 to 132. The ongoing conflict in Afghanistan , the persistent instability in Iraq and the US difficulties of engagement in other areas of the Middle East and in Iran have contributed to the erosion of freedom in that country on the plea of national security and the need to combat terrorism.
The United Kingdom (England, Wales and Northern Ireland) is the only country in the world to have two Freedom of Information Acts, one for the three above and the other for Scotland. The FoIA was passed by the British Parliament in 2000 as the fulfillment of the Labour Party’s election manifesto in the 1997 election. It provided citizens the legal right to access information about the functioning of public authorities. The right allows the applicant to ascertain whether the public authority has the information that the applicant has specified and, if so, to give copies of it in the form the person wants within 20 days. The Act covers more than 100,000 public bodies. There was an effort in 2007 to amend the Act to exempt MPs including Peers from the purview of the Act but it failed.
This Act supersedes the Code of Protection on Access to Government Information and the Code of Practice on Openness in the NHS, introduced in 1994 by the Conservative government. The Act now gives the public legal right of access to official information and makes alteration and destruction of records to prevent disclosure a criminal offence.
From 1 January 2005, a citizen can also access “unstructured personal data” held by a public authority, which include, for example, notes and memos. On the other hand, in the recent past, the “Neither Confirm Nor Deny” (NCND) principle has been introduced which has greatly affected disclosure of information and thereby reduced accountability. As in the United States, national security considerations have taken the upper hand.
Germany introduced the process in 2005 and it culminated in the Freedom of Information Act in 2006. The Act stipulates that information includes every record serving official purposes but excludes drafts and notes. It applies to authorities of the Federal government, federal bodies and institutions discharging administrative tasks under public law. It stipulates that third party’s personal data may be transferred subject to third party consent. Intellectual property rights are protected. Information has to be provided within one month but an additional 15 days is allowed in cases of third party information. All administrative appeals have to be according to the Administrative Court Procedure. As in other countries exemption exists with regard to information pertaining to international relations, military and security interests of the Armed Forces, measures to prevent illicit foreign trade, the course of current judicial proceedings, or that might endanger public security or compromise fiscal interest in trade, commerce and economic interest of insurance companies.
Exemptions or limitations appear to be more or less similar in the context of RTI and FOIA regimes across the global landscape. Unfortunately, 9/11 events and other associated terrorist attacks have exacerbated this situation and sometimes have adversely affected the common person’s chances of accessing information. In some cases, the practice of anticipatory self-defense has even led to expanding the areas of exemptions. This has taken place in the US and a few other countries.
On the other hand, there is the function of RTI as envisaged in the 1999 Joint Declaration of the Special Rapporteurs for Freedom of Expression of the UN, OSCE and the OAS. It states that “implicit in freedom of expression is the public’s right to open access to information and to know what governments are doing on their behalf, without which truth will languish and people’s participation in government would remain fragmented.”
This brings me to the cognizance of the serious principle of State administration following the path of maximum disclosure and good faith. It is also this aspect that persuades me to believe that RTI must be subject to a limited regime of exceptions, which in turn has to be interpreted restrictively, with all the provisions aimed at favoring the right of access. Denials of information must, in this context, be reasoned and the burden of proving that the required information cannot be released should fall on the State. In addition, in the event of any doubt or legal vacuums, RTI should take precedence. Exceptions must not become the general rule and information classified as secret or confidential must be published after a reasonable period of time. This will make public administration more transparent and promote good governance.
There also needs to be an obligation to provide an adequate and suitable legal remedy for reviewing denials of requests for information. We need to realize that RTI imposes on the state, and in our case, also on non-governmental organizations (receiving financial support from the state or from foreign development partners) an obligation of pro-active transparency. It also needs to be noted that the information provided should be understandable and available in approachable language and up-to-date. This will be consistent with the expectations raised by the UN, OAS and the OSCE Special Rapporteurs on Freedom of Expression and their 2004 Joint Declaration. This element will be particularly important with regard to activities that affect members of the public, their budget, subsidies, benefits and contracts.
Let us now look at the admissibility and conditions of limitations within the sphere of right to access information. In principle, limitations that remove certain types of information from public access is based on their exceptional nature, purported legal and legitimate objectives, and the possibility of real danger threatening national security. Unfortunately, this process of withholding information creates fertile grounds for discretionary and arbitrary action on the part of state bodies that then create the inherent right of classification of information as secret, reserved or confidential. This in turn generates some uncertainty in what citizens can take for granted. Such a scenario might subsequently lead to exceptions becoming the easy way out and a common practice.
In South Asia we are trying to agree that limitations to RTI to seek, to receive and impart information must be prescribed by law expressly and in advance to ensure that discretion as a tool is not resorted to in an excessive manner. It is expected that such reference should not be just to any legal norm, but rather to general normative acts. This is consistent with Advisory Opinion 6/86 expressed by the Inter-American Court. This is an important factor and needs to be viewed against the requirement of compelling public interest. The person seeking information also needs to be provided with a reasoned response that provides the specific reasons for which access is denied. In the Bangladesh RTI process this has been ensured for the applicant through Form ‘Kha’ of Rule 5 of the RTI Act, 2009.
Within the contemporary scenario, national security needs are often underlined for exercise of exemptions and for implementing limitations on the free flow of information. It has become a controversial issue. The excuse of national security for not releasing information may be used with regard to immediate threats (for example, the particular tactics of an ongoing military campaign) rather than as a tool to prevent embarrassment of officials for previous foreign policy interventions or security associated campaigns.
It would be worthwhile to draw one’s attention to a recent report prepared by Venkatesh Nayak of the Access to Information Programme, Commonwealth Human Rights Initiative (CHRI), New Delhi outlining major findings regarding security and intelligence organizations exempted from the RTI Act in India. He has pointed out that as on date the Government of India has notified 25 security and intelligence organizations as being exempt from the ordinary obligations of transparency under the RTI Act like their parent departments and ministries and other public authorities. They are however required to provide access to information if it relates to allegations of corruption and human rights violation as in the case of Bangladesh [under Section 32 (2) of its Right to Information Act, 2009].
It has therefore been underscored by Nayak that such exempt organizations must also appoint public information officers and first appellate authorities under Sections 5(1) and 19(1) of the Indian Act. By logical extension of this statutory requirement, they must also submit their reports to the Chief Information Commissioner of India under Section 25 of the Act about the number of RTI applications received, amount of fees collected and details of cases where access to information was rejected.
It is interesting to note here the following as revealed by the CHRI:
(a) 11 such Indian organizations (44%) have never reported RTI statistics to the CIC even once, between 2005 and 2014. They are: the NTRO and National Security Council Secretariat (both under the Prime Minister’s Office), R&AW, Aviation Research Centre, Special Frontier Force and Special Protection Group (all under the Cabinet Secretariat), Directorate of Enforcement, Central Economic Intelligence Bureau and Financial Intelligence Unit, India (all under the Finance Ministry) and the National Investigation Agency and NATGRID (both under the Home Ministry), and
(b) The Central Bureau of Investigation under the Ministry of Personnel, the nodal Ministry for implementing the RTI Act, has stopped reporting RTI statistics since 2012 after it was notified under Section 24 of the RTI Act.
In this context, many Indian analysts wonder whether some security and intelligence organizations can be less transparent than others. They are also pointing out that if the Intelligence Bureau (IB) and the Central Reserve Police Force (CRPF) can faithfully report RTI statistics then why the above institutions should have problems with disclosure. The CHRI in this regard has commented that disclosing RTI statistics does not in any manner jeopardize national security– external or internal.
Consistent with this trend, we have seen a growing awareness in India that undue secrecy severely compromises national security and breeds corruption. In 2011 the Delhi High Court ordered an audit into the finances of NTRO— an unprecedented move — on the petition of a former employee who was aware of allegations of mismanagement of public funds. This subsequently raised the question of greater and more intensive subjecting of intelligence agencies like IB, NTRO and R&AW under parliamentary oversight.
Earlier a private member’s bill tabled in the previous Lok Sabha to subject these agencies to a legislative framework lapsed with the dissolution of the House. It may be noted that this effort was parallel to a former employee of IB filing a Public Interest Litigation suit in the High Court of Karnataka questioning this supra-legal status of intelligence agencies. This former employee decided to expose the wrongdoing of such agencies in the face of the government’s reluctance to implement the Whistleblowers Protection Act.
As a result, one is persuaded to reiterate that confidentiality of sensitive information created or held by such agencies may be considered as a “must” by some at the helm but it cannot be allowed to evolve into a blanket of secrecy for perpetuity.
It is felt that secrecy laws need to define national security precisely without being vague or generic. Jurists quite correctly have pointed out that the criteria to be used for determining whether or not information can be declared secret should be unambiguous. This is the only way for ensuring the primacy of public interest. The rules should also include an organogram that stipulates which official or officials are entitled to classify documents as secret and should also set overall limits on the length of time documents may remain so.
There is also need to refer in this context to whistleblowers and their obligation to maintain confidentiality or secrecy. It is widely believed that whistleblowers revealing information for public good on deliberate wrongdoing by public bodies through action or policies that might pose serious threats to public health, public safety, fundamental human rights as enshrined in law and the constitution or the environment need to be protected against legal, administrative or employment related sanctions.
One also take this opportunity to refer to the landmark case of Myrna Mack Chang v. Guatemala and the Inter-American Court’s judgment (of November 25, 2003) in the framework of a criminal proceeding (pertaining to an extrajudicial execution) especially when it involves the investigation and prosecution of illegal actions attributable to the security forces of the state. Public authorities should not try to shield themselves behind the protective cloak of official secret to avoid or obstruct the investigation of illegal acts ascribed to members of its own entities (e.g. security forces). In other words, the “clandestinity of the Executive branch” trying to perpetuate impunity is being frowned upon. It would be pertinent here to refer to the important findings in the case Department of the Air Force v. Rose, U.S. 352.361(1976) which pointed out that if there is a genuine public interest, then government agencies cannot deny access to information by citing the “internal” nature of the information. There is a lot to learn from this for many security agencies operating in South Asia.
It would be fitting here to also share a few other views regarding accessing information and how to reduce limitations. We need to understand that lack of clarity, particularly in developing countries is enhanced by poor record management. There needs to be emphasis on the creation and preservation of digitized police archives and land records to reduce chances of abuse of authority. This will also improve the process of best practice in domestic law and will in turn help individuals to access to state information consistent with Article 19 of the International Covenant on Civil and Political Rights.
We have to appreciate that there is always the need to support the “culture of transparency”. We must understand that the First Chamber of the Constitutional Court of Peru was quite correct in its observation of 18 August 2009 that the legal need for transparency “obligates the Administration without requiring justification for the solicitation thereof”. This will reduce the prospect of corruption.
The state also needs to carefully examine and consider the following aspects to offset any difficulty that may be caused to the process of transparency and in the free flow of information:
(a) Jurisprudence on the obligation to prepare a public version of a document when the requested information is partially confidential;
(b) Jurisprudence on the state’s duty to demonstrate causality and proof of damage in order to invoke the confidentiality of an administrative procedure;
(c) Jurisprudence on the obligation to submit denial of documents for reasons of national security to review in the chambers of the respective Information Commission;
(d) Regulations and jurisprudence to specifically address access to court documents, such as complaints, briefs, motions and evidence. While judges may have discretion in the implementation of exceptions related to access to court information, the RTI law should outline clear, narrow, intelligible standards to guide judges in their decision making; and
(e) Jurisprudence on the obligation not to persecute journalists or editors for their good-faith publication of information (this will of course not apply if there is proof of any personal or monetary gain accruing to the media person arising out of such publication).
Before concluding, it would be important to highlight some significant suggestions raised by the World Bank Institute in their working paper Proactive Transparency: The future of the Right to Information with regard to public offices and institutions. One believes that these areas of disclosure merit serious consideration:
- Institutional information: legal basis of the institution, internal regulation, functions and powers.
- Organizational information: organizational structure including information on personnel and the contact information of public officials responsible for providing information.
- Operational information: data being used as a basis for formulating strategy and plans, activities, procedures, decisions, reports, and evaluations.
- Public services information: descriptions of services offered to the public, information on fees and deadlines.
- Budget information: projected budget, actual income and expenditure (including salary information) and audit reports.
- Open meeting information: information on such meetings and how to attend them.
- Subsidies information: information on the beneficiaries of subsidies, the objectives, amounts, and implementation.
- Public procurement information: detailed information on public procurement processes, criteria, and outcomes of tender applications; copies of contracts, and reports on completion of contracts.
- Lists, registers, databases: information on the lists, registers, and databases held by the public body and whether they are available online and/or for on-site access by members of the public.
- Information about information held: an index or register of documents/information held in databases.
- Publications information: information on publications issued and whether these are free of charge or the price to be paid if they have to be purchased.
Such proactive disclosure can be done through government web portals, sunshine laws which require that regulatory authorities’ meetings, decisions and records be made available to the public and through e-governance programs. This will help in limiting limitations and assist in the creation of better governance and greater accountability.