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VcY ZkZc ldg`^c\ l^i] d[ÒX^Vah id egZeVgZ iek]^jje]_l[[\\[Yjje_j5J^[i[Wh[ YgV[ig^\]iid^c[dgbVi^dcaVlh#>cVYY^i^dcid iec[e\j^[gk[ij_edij^_iXeeai[[ai ]^h ldg` l^i] 6GI>8A:&.! ]Z ]Vh egdk^YZY ZmeZgi^hZ dc i]ZhZ ^hhjZh id V l^YZ gVc\Z jeWZZh[ii"fhel_Z_d]WdWYY[ii_Xb[ d[ VXidgh ^cXajY^c\ i]Z LdgaY 7Vc`! kVg^djh JCVcYdi]Zg^ciZg\dkZgcbZciVaWdY^Zh!VcY WYYekdje\j^[bWmWdZfhWYj_Y[h[]WhZ_d] cjbZgdjh C<Dh# Eg^dg id _d^c^c\ 6GI>8A: \h[[Zece\_d\ehcWj_ed"WdZWdWdWboi_i &.!IdWnBZcYZaldg`ZY^c]jbVcg^\]ihVcY ^ciZgcVi^dcVa YZkZadebZci! ^cXajY^c\ Vh V e\m^Wj_imeha_d]WdZm^o$ hZc^dg ]jbVc g^\]ih XdchjaiVci l^i] Dm[Vb 8VcVYVVcYVhV]jbVcg^\]iheda^XnVcVanhi 68dbeVgVi^kZAZ\VaHjgkZn Vi i]Z 8VcVY^Vc >ciZgcVi^dcVa 9ZkZadebZci ;gZZYdbd[>c[dgbVi^dc/ 6\ZcXn8>96# ÆJ^[\h[[Ôeme\_d\ehcWj_edWdZ_Z[Wi IdWn BZcYZa ]Vh ejWa^h]ZY l^YZan! b_[iWjj^[^[Whje\j^[l[hodej_ede\ 6 8dbeVgVi^kZ AZ\Va HjgkZn Xdcig^Wji^c\ id cjbZgdjh 6GI>8A: &. VcY Z[ceYhWYoWdZ_iYhkY_Wbje[\\[Yj_l[ di]ZgejWa^XVi^dch#=Z^h!Vbdc\di]Zgi]^c\h! i]Z Vji]dg d[ i]Z 6GI>8A: &. ejWa^XVi^dch h[if[Yj\eh^kcWdh_]^ji¾9[djhWbjej^[ I]Z EjWa^XÉh G^\]i id @cdl/ Eg^cX^eaZh dc BY ;gZZYdb d[ >c[dgbVi^dc AZ\^haVi^dc VcY 6 ]kWhWdj[[_dfhWYj_Y[e\W\h[[Ôeme\ 4OBY-ENDEL BdYZa ;gZZYdb d[ >c[dgbVi^dc AVl# I]^h ^h _d\ehcWj_edWdZ_Z[Wi_ij^[fh_dY_fb[j^Wj i]Z hZXdcY Wdd` Wn Bg# BZcYZa ejWa^h]ZY Wn JC:H8D! i]Z Òghi WZ^c\ EjWa^X HZgk^XZ fkXb_YXeZ_[i^ebZ_d\ehcWj_eddej\eh ;gZZYdbd[>c[dgbVi^dc/ 3ECOND%DITION 7gdVYXVhi^c\/ 6 8dbeVgVi^kZ AZ\Va HjgkZn# 2EVISEDAND5PDATED =^h ejWa^h]ZY ldg` XdkZgh V l^YZ gVc\Z d[ j^[ci[bl[iXkjedX[^Wb\e\j^[fkXb_Y$È [gZZZmegZhh^dc^hhjZh^cXajY^c\WgdVYXVhi^c\! Xdbbjc^XVi^dchg^\]ih!YZ[VbVi^dc!i]Zg^\]i ;gdbi]Z;dgZldgYWn6WYjaLV]ZZY@]Vc id^c[dgbVi^dc!i]Zg^\]ihd[i]ZX]^aY!ejWa^X 6hh^hiVci9^gZXidg"<ZcZgVa hZgk^XZWgdVYXVhi^c\VcY[VahZcZlh#=Z]Vh Vc ]dcdjgh 76 ^c bVi]ZbVi^Xh [gdb BX<^aa [dg8dbbjc^XVi^dcVcY>c[dgbVi^dc Jc^kZgh^in VcY V Òghi XaVhh AA7 aVl [gdb JC:H8D 9Va]djh^ZJc^kZgh^in# Freedom of Information: A Comparative Legal Survey by Toby Mendel Second Edition Revised and Updated UNESCO: Paris, 2008 The author is responsible for the choice and the presentation of the facts contained in this book and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the organization. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Published in 2008 by the United Nations Educational Scientifi c and Cultural Organization / Communication and Information Sector / Freedom of Expression, Democracy and Peace Division (contact: Mogens Schmidt, Director, Deputy Assistant Director-General for Communication and Information, [email protected]; Andrea Cairola, [email protected]; 1 rue Miollis, 75015, Paris, France). The full PDF version of this book as well as additional background material and laws on freedom of information can be downloaded at www.unesco.org/ webworld/en/foi © UNESCO CI-2007/WS/15 – CLD 2302.7 Acknowledgements I would like to thank the following people, all of whom provided valuable comments on various chapters of this book: David Banisar, Deputy Director, Privacy International, London; Javier Casas, Legal Area Director, Instituto Prensa y Sociedad (IPYS), Peru; Mukelani Dimba, Deputy Chief Executive Offi cer, Open Democracy Advice Centre (ODAC), South Africa; Maurice Frankel, Director, Campaign for Freedom of Information, United Kingdom; Carolyn Gomes, Executive Director, Jamaicans for Justice; Rashid Hadjili, Director, Media Rights Institute, Azerbaijan; Helena Jäderblom, Chair of the Council of Europe’s Group of Specialists on Access to Offi cial Documents (DH-S-AC) and Judge in the Administrative Court of Appeal in Stockholm, Sweden; Alexander Kashumov, Head of the Legal Team, Access to Information Programme, Bulgaria; Maria Lisitsyna, President of the Youth Human Rights Group, Kyrgyzstan; Laura Neuman, Access iii to Information Project Manager, Assistant Director, Americas Program, The Carter Center; Issa Luna Pla, Director, Centro Transparencia, Mexico; Miguel Pulido, Coordinator, FUNDAR, Mexico; Lawrence Repeta, Professor, Omiya Law School, Japan; Daniel Simons, Legal Offi cer, ARTICLE 19; Shekhar Singh, National Campaign for People’s Right to Information, India; Thomas M. Susman, Partner, Ropes & Gray LLP, United States; and Patrick Tumwine, Advocacy, Information and Research Offi cer, HURINET, Uganda. I would also like to thank UNESCO for inspiring and supporting me in the production of this second edition of my book, and to extend particular thanks to Mr. Wijayananda Jayaweera, Director, Division for Communication Development, UNESCO, who inspired the fi rst edition. I would like to dedicate this book to my wife Lilani and my three sons, Caleb, Nathan and Ilan, who provide me with constant support and encouragement in my work, as well as much needed diversion in between. Table of Contents Foreword and Note to the Second Edition 1 by Abdul Waheed Khan, Assistant Director-General for Communication and Information, UNESCO Introduction 3 v International Standards and Trends 7 The United Nations 8 Regional Standards 9 Organization of American States 10 Council of Europe 11 African Union 12 The Commonwealth 12 International Jurisprudence 13 Inter-American Court of Human Rights 13 European Court of Human Rights 14 Information in Specifi c Areas 16 Information on the Environments 16 Information on Human Rights 18 The Right to Political Participation 19 The Fight Against Corruption 20 National Developments 20 Constitutional Interpretation 20 Specifi c Constitutional Provisions 21 Right to information Legislation 22 Intergovernmental Organisations 22 Features of an FOI Regime 31 PRINCIPLE 1. MAXIMUM DISCLOSURE 33 Freedom of information legislation should by guided by the principle of maximum disclosure PRINCIPLE 2. OBLIGATION TO PUBLISH 33 Public bodies should be under an obligation to publish key Information PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT 33 Public bodies must actively promote open government PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS 34 Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests The three-part test vi PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS 37 Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available PRINCIPLE 6. COSTS 38 Individuals should not be deterred from making requests for information by excessive costs PRINCIPLE 7. OPEN MEETINGS 39 Meetings of public bodies should be open to the public PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE 39 Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS 40 Individuals who release information on wrongdoing - whistleblowers - must be protected Country Chapters 43 Azerbaijan 43 Kyrgyzstan 74 Thailand 106 Introduction Introduction Introduction The Right of Access The Right of Access The Right of Access Procedural Guarantees Procedural Guarantees Procedural Guarantees Duty to Publish Duty to Publish Duty to Publish Exceptions Exceptions Exceptions Appeals Appeals Appeals Sanctions and Protections Sanctions and Protections Sanctions and Protections Promotional Measures Promotional Measures Promotional Measures Bulgaria 51 Mexico 80 Uganda 111 Introduction Introduction Introduction The Right of Access The Right of Access The Right of Access Procedural Guarantees Procedural Guarantees Procedural Guarantees Duty to Publish Duty to Publish Duty to Publish Exceptions Exceptions Exceptions Appeals Appeals Appeals Sanctions and Protections Sanctions and Protections Sanctions and Protections Promotional Measures Promotional Measures Promotional Measures India 55 Peru 88 United Kingdom 119 Introduction Introduction Introduction The Right of Access The Right of Access The Right of Access vii Procedural Guarantees Procedural Guarantees Procedural Guarantees Duty to Publish Duty to Publish Duty to Publish Exceptions Exceptions Exceptions Appeals Appeals Appeals Sanctions and Protections Sanctions and Protections Sanctions and Protections Promotional Measures Promotional Measures Promotional Measures Jamaica 62 South Africa 94 United States 127 Introduction Introduction Introduction The Right of Access The Right of Access The Right of Access Procedural Guarantees Procedural Guarantees Procedural Guarantees Duty to Publish Duty to Publish Duty to Publish Exceptions Exceptions Exceptions Appeals Appeals Appeals Sanctions and Protections Sanctions and Protections Sanctions and Protections Promotional Measures Promotional Measures Promotional Measures Japan 69 Sweden 101 Introduction Introduction The Right of Access The Right of Access Procedural Guarantees Procedural Guarantees Duty to Publish Duty to Publish Exceptions Exceptions Appeals Appeals Sanctions and Protections Sanctions and Protections Promotional Measures Promotional Measures Comparative Analysis 141 Introduction 141 The Right of Access 141 Procedural Guarantees 144 Duty to Publish 146 Exceptions 148 Appeals 151 Sanctions and Protections 152 Promotional Measures 153 viii Conclusion 155 Foreword by Abdul Waheed Khan Assistant Director-General for Communication and Information UNESCO The free fl ow of information and ideas lies at the heart of the very notion of democracy and is crucial to effective respect for human rights.
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