Access to Information Cases

Overview

In this section are summaries of, and links to, national and regional court judgments on freedom of information. We aim to include references to a selection of important decisions of the regional courts and the UN Human Rights Committee, and to national court judgments that support access to information. These cases illustrate how the courts all over the world interpret and view the right of access to information.

While we aim to include as many decisions as possible, we do not claim to have the latest decisions from each court. Rather this selection hopes to provide organizations and individuals intending to litigate with a set of good arguments to make their case. The cases in this section are easily searchable by country and keywords. Where we have access to briefs of the parties or amici, we have included links to these as well.

We will continue to add more case summaries, and we also aim to add summaries of and links to the most interesting and relevant decisions of information commissioners. As always your contributions to this process will be greatly appreciated. Please send us any corrections and missing links, as well as additional cases, case summaries and briefs to make this page even more interesting and useful.

International and Regional Bodies

European Court of Human Rights

Case title: Geraguyn Khorhurd Patgamavorakan Akumb v. Armenia

Case Number: 11721/04

Date of decision: 14 April 2009

Relevant law: European Convention on Human Rights and Fundamental Freedoms, 1950

Decision: The application was rejected as the applicant didn't exhaust domestic remedies

Key words: parliamentary elections, access to information

Summary:

Facts

The applicant is a non-governmental organization which has its registered office in Yerevan (Armenia). The applicant organization acted as an election observer during the parliamentary election held in Armenia on 25 May 2003 and subsequently applied to the Central Election Committee (the CEC) via registered mail requesting copies of documents on the parliamentary elections. The District Court dismissed the applicant organization’s request. Court of Cassation reiterated the findings of the Court of Appeal that the organization had failed to prove that it had sent request to the CEC. Relying on Article 10 (freedom of expression) applicant complained that its right to receive and impart information had been violated by the actions of the CEC.

Decision

The European Court held that as the applicant organization had not provided adequate evidence about the CEC’s alleged failure to respond to its request for information its complaint was not examined by the domestic courts on the merits. The applicant organization had therefore failed to exhaust domestic remedies as required by Article 35 § 4 of the Convention and its application had to be rejected.

Note: Justice Initiative made a submission to the Court stating that the right of access to information was well-established in both European and international law and practice and access to government information was an integral element of freedom of expression and an actual prerequisite for the meaningful exercise of other political rights in a modern democracy.

Resources:

Decision of the Court

Written comments submitted by the Open Society Justice Initiative.

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Case title: Kenedi v. Hungary

Case Number: 31475/05

Date of decision: 26 May 2009

Relevant law: European Convention on Human Rights and Fundamental Freedoms, 1950

Decision: The Court ruled that access to documents for historical research is an important element of the right to freedom of expression

Key words: access to information for historical research, state secrets

Summary:

Facts

The applicant, a professor of history at the Central European University (CEU), for the purpose of historical research requested the Ministry of Interior to grant him access to certain documents dating from the 1960s. The request was denied based on the argument that the documents had been re-classified as State secrets until 2048. Although several Hungarian courts ordered the Ministry to give access to the documents, the Ministry refused to disclose the documents for five years.

Decision

The Court held unanimously that there had been a violation of Article 6 § 1 (right to a fair hearing) of the Convention, because of the excessive length of proceedings Mr. Kenedi was required to pursue in order to gain access to the documents he sought. It also ruled by unanimous vote, that there had been a violation of Article 10 (freedom of expression). The Court stated that access to the documents for historical research is an important element of the right to freedom of expression.

Resources:

Judgment of the Court.

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Case title: Sdruženi Jiho?eské Matky v. Czech Republic

Case Number:

Date of decision: 10 July 2006

Relevant law: European Convention on Human Rights and Fundamental Freedoms

Decision: The Court noted that the refusal to grant access to administrative documents is a violation of the applicant’s right to receive information, though at the end it ruled that in the present case there was not public interest in the disclosure of technical information about the nuclear power station.

Key words: access to documents and plans of nuclear power station

Summary:

Facts

The applicant, an environmental NGO, was refused access to documents and plans regarding a nuclear power station in Temelin, Czech Republic.

Decision

The Court emphasized that the right to freedom of information is to guarantees that every person will be able to receive information which others would like to have or can agree to provide. The Court also held that Article 10 does not guarantee a general right to have access to administrative documents. However, it recognized that the refusal to grant access to administrative documents, including those related to a nuclear power station is a violation of the applicant’s right to receive information. At the end, the Court found that the technical information about the nuclear power station was not of a public interest and it also concluded that the .refusal to disclose information was in the interest of protecting the rights of others, national security and public health. Because of these grounds, the Court ruled that there was no breach of Article 10 paragraph 2 of the Convention and declared the application inadmissible.

Resources:

More information on the case.

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Case title: Társaság A Szabadságjogokért (Hungarian Civil Liberties Union) v Hungary

Case Number: 37374/05

Date of decision: 14 April 2009

Relevant law: European Convention on Human Rights and Fundamental Freedoms, 1950

Decision: The Court ruled that it would be fatal for freedom of expression if public figures could prevent public debate by referring to their personality rights.

Keywords: access to information as a fundamental right, personal data of public official

Summary:

Facts

A Hungarian Member of Parliament filed a complaint with the Constitutional Court about Hungary's drug laws. The Hungarian Civil Liberties Union (HCLU) applied to the Court to receive a copy of the complaint, but were refused based on the ground that petition constituted "personal data" that could only be disclosed with its authors' permission.

Decision

The European Court of Human Rights (ECHR) held that the refusal to grant information interfered with the right of an NGO to access information that was needed for them to play their role as a public watchdog.

The Court recognized for the first time that Article 10 of the Convention guarantees the "freedom to receive information" held by public authorities. The Court found that when the state has information of public interest in its possession, and is requested to disclose such information to a "watchdog" group - whether the press or NGOs that serve a watchdog role - it is obliged "not to impede the flow of information". The Court stated that it would be fatal for freedom of expression if public figures could prevent public debate by referring to their personality rights.

Note: The Justice Initiative led an effort by a number of NGOs and media companies, including the Financial Times, to intervene as third parties in the current case.

Resources:

Judgment of the Court

Written comments submitted by the Open Society Justice Initiative.

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European Court of Justice (Grand Chamber)

Case Title: Access Info Europe v. Council of the European Union

Case Number: T?233/09

Date of decision: 22 March 2011

Relevant Law: Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Decision: The Court ruled that the Council infringed the Article 4(3) of Regulation No 1049/2001 by denying the disclosure of information relating to the identity of delegations of Member States who had made proposals, on the ground that this would seriously undermine its decision-making process. Subsequently, the Court annulled the contested decision of the Council.

Key words: decision-making process, access to the identity of delegations making proposals for amending Regulation of the European Parliament and of the Council.

Summary:

Facts

On 3 December 2008, the applicant association – Access Info Europe – applied to the Council under Regulation No 1049/2001 for access to a document containing proposals submitted by the Member States concerning the amendments to Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents.

Access Info Europe was granted partial access to the requested document. The Council provided the applicant with the proposals for amendments, but refused to identify delegations of Member States who put forward these proposals. For the justification of the refusal the Council stated that the disclosure would hinder the decision-making process and that there was no public interest in the disclosure based on Article 4(3) of the Regulation (para. 7).

The Council also argued that the discussion of the proposals was very sensitive and attracted serious public attention. It declared that some of the positions of Member States were met with public criticism which according to the Council would adversely influence the ability of the Member States delegations to express and defend their positions. Besides that, as the Council stated the delegations would refrain from submitting their views in writing and all these would hinder the Council to come to agreement regarding the revision of the Regulation (para. 44, 45).

Decision

As the Court noted the purpose of the Regulation No 1049/2001 was to ensure for the public the widest right to access and the exceptions to that right established by Article 4 of the Regulation should be interpreted strictly (para. 55).

The Court stated that “if citizens are to be able to exercise their democratic rights, they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information” (para. 69). The Court held that identification of delegations should not prevent them from submitting the new proposals and that proposal is supposed to be discussed and changed and that the public is capable of understanding that the delegations might amend their initial positions during the discussion process (para. 69).

The Court stated that it is characteristic for democratic debate that any proposal for amendment of the draft regulation can be subjected to positive and negative comments by the public (para. 78).

According to the Court the risk that delegations would refrain from submitting written proposals is not such as to undermine the decision-making process and to justify the refusal of access to the requested document (para. 81). Overall, the Court considered that all the arguments of the Council were abstract and not substantiated and according to it there was not demonstrated direct causal link between the disclosure to the public of the name of the delegations which made the proposals and the serious undermining of the decision-making process of the Council (para. 83).

Resources:

Judgment of the Court.

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Case title: Ciarán Toland supported by Sweden, Finland and Denmark v European Parliament

Case Number: T?471/08

Name & status of the court: General Court (Second Chamber)

Date of decision: 7 June 2011

Relevant law: Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Decision: The Court annulled the decision of the European Parliament of 11 August 2008 as the denial of access to Report No 06/02 of the Internal Audit Service of the Parliament of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’ was unfounded.

Key words: access to the audit report of European Parliament

Summary:

Facts

On 11 June 2008, an Irish lawyer, Mr. Ciarán Toland, applied to the European Parliament for access to the 2006 Annual Report of its Internal Audit Service, including the 16 audit reports referred to in paragraph 24 of the European Parliament Resolution of 22 April 2008. The requested report (known as the “Galvin Report” as it was prepared by Internal Auditor of the European parliament Robert Galvin), is an annual audit into the Parliamentary Assistance Allowance which examines the operation of the Allowance, and contains proposals for its reform and details of abuses in allowances paid to certain MEPs, in order to identify drawbacks in the allowance system. The requested report doesn’t identify the names of MERs. In March 2008, the Bureau of the European Parliament carried out a series of reforms for the implementation of recommendations contained in the Report. A month later the European Parliament voted to keep the report confidential.

On 23 June 2008, the Secretary-General of the Parliament granted the applicant access to the 2006 Annual Report of the Parliament’s Internal Audit Service with the exception of one paragraph which dealt with an audit still pending without mentioning the other 16 reports requested by the applicant. The applicant submitted second request reiterating his request for access to the 16 internal audit reports and claiming that there was provided no objective justification as to why access to those reports had been denied. The applicant also requested disclosure of the redacted paragraph in Report No 07/01.

By letter of 11 August 2008 (‘the contested decision’), the Parliament denied to provide access to the redacted paragraph in Report No 07/01, granted full access to 13 of the 16 internal audit reports and partial access to two further internal audit reports and refused access to the fourteenth of those reports, namely Internal Audit Report No 06/02 of 9 January 2008 entitled ‘Audit of the Parliamentary Assistance Allowance’ (‘Report No 06/02’) (para. 6). In its letter to the applicant Parliament stated that: “The use which its Members made of the allowances available to them was a sensitive matter followed with great interest by the media and that elements of Report No 06/02 could be used to derail the debate on the reform of the system and compromise rapid reform. Consequently, according to the Parliament, disclosure of Report No 06/02 could, at that stage, seriously undermine not only its decision-making process but also beyond, as the reform could not be carried out by that institution alone.” (para. 11). It also stated that exception set forth in the third indent of Article 4(2) of Regulation No 1049/2001 applied to the requested Report No 06/02, because its disclosure would have violated both the purpose of the audit and the Parliament’s decision-making process within the meaning of Article 4(3) (para. 12).

As a result of the refusal Mr. Toland initiated proceedings against the Parliament in the General Court of the European Union and the Governments of Sweden, Finland and Denmark intervened in his favor.

Decision

In respect of the argument relied on by the Parliament that the disclosure of the report would undermine decision-making process the Court ruled that the contested decision doesn’t contain any reliable argument that such a risk was reasonably foreseeable and not purely hypothetical on the date when the decision was adopted. As the Court stated “the fact that the use by the Members of Parliament of the financial resources made available to them is a sensitive matter followed with great interest by the media, which the applicant does not deny – quite the contrary – cannot constitute in itself an objective reason sufficient to justify the concern that the decision-making process would be seriously undermined, without calling into question the very principle of transparency intended by the EC Treaty” (para. 80). According to the Court neither the complexity of the process presents a reasonable ground to assume that the disclosure of the Report 06/02 would undermine it.

Regarding the argument of the Parliament that several attempts to reform parliamentary assistance system have failed in the past the Court stated that this argument was not given in the decision and was raised only later, before the Court, and also without any explanation that those failures had been caused by the disclosure of any sensitive information (para. 82).

The Court also noted that in the decision the Parliament didn’t discuss if there existed overriding public interest justifying the disclosure of the requested report. Regarding the assertion of the Parliament that the request of the applicant didn’t contain any arguments justifying the disclosure of the repot the Court held that in accordance with Article 6(1) of the Regulation No 1049/2001 the applicant is not obliged to indicate the reasons for requesting access to information (para. 84).

Due to the above the Court ruled that the contested decision must be annulled as it refuses access to the Report No 06/02 without justification.

Resources:

Judgment of the Court.

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Case title: Sweden and Turco v. Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities

Case Number: C?39/05 P and C?52/05 P

Date of decision: 1 July 2008

Relevant Law: Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents

Decision: The Court annulled the decision of the Council that refused access to the document containing the opinion of the Council's legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States.

Key words: access to legal opinions, legislative functions, public interest

Summary:

Facts

In October 2002 Mr. Turco, a resident of Italy, submitted a request to the Council for access to documents appearing on the agenda of the Justice and Home Affairs Council meeting, including an opinion of the Council’s legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States. The Council refused to disclose the document.

Decision

The Grand Chamber held that a legal opinion given to the Council (which has legislative responsibilities) concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure. It rejected the Council’s abstract submissions that disclosure could (a) lead the public to doubt the lawfulness of a legislative act, or (b) undermine the Council’s interest in seeking frank advice. Regarding the first point, concerning impact on the public’s perception of the lawfulness of a legislative act, the Court reasoned that openness grants legitimacy to the institutions and increases the confidence of EU citizens towards these institutions while the lack of debate and information may produce doubts in respect of the legitimacy of the whole decision-making process.

The Court stated that it was incumbent on the Council to ascertain whether there was any overriding public interest justifying disclosure. Even if the Council had a legitimate concern that disclosure could harm important interests, it nonetheless had to weigh that risk against the overriding public interests which underlie Regulation No 1049/2001. The Court concluded that there is an overriding public interest because disclosure of documents containing the advice of an institution’s legal service on legal issues increases the transparency of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act. Accordingly, the Court set aside the judgment of the Court of First Instance and, pursuant to Article 61 of the Statute of the Court (which provides that the Court itself my give final judgment in a matter where the state of proceedings so permit) annulled the Council’s decision refusing to allow Mr. Turco access to the legal opinion in question.

Resources:

Judgment of the Court.

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Inter-American Court of Human Rights

Case title: Claude Reyes et al. v Chile

Case Number:

Date of decision: 19 September 2006

Relevant law: American Convention on Human Rights

Decision: The Court ruled that the State shall, through corresponding entity and within six months, provide requested information and within reasonable time shall adopt necessary measures to ensure the right of access to State-held information pursuant to the general obligation to adopt domestic law established in Article 2 of the American Convention on Human rights.

Key words: access to information as a fundamental right

Summary:

Facts

Fundacion Terram is an environmental NGO that filed a request for information with the government of Chile about a major logging contract. Requests were ignored and subsequent appeals by the victims were dismissed by the Supreme Court as “manifestly ill-founded”.

Decision

The Inter-American Court became the first international tribunal to recognize a basic right of access to government information as an element of the right to freedom of expression. The court held that any restrictions on the right of access should comply with the requirements of Article 13.2 of the Convention, the presumption being that all state-held information should be public, subject to limited exceptions. States are required to adopt a legal framework that gives effect to the right of access, and to reform secrecy laws and practices. The Court also ordered Chile to train public officials on the rules and standards that govern public access to information.

Note: The Justice Initiative, joined by four other groups, filed amicus curiae briefs in the case with both the Commission and the Court. Excerpts relating to Chile from Transparency and Silence, a Justice Initiative survey on governmental handling of information requests, were formally introduced as evidence by the applicants.

Resources:

More information on the case

Decision of the Court

Written comments submitted by the Open Society Justice Initiative

Transparency and Silence.

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Case title: Gomes Lund et. al. v. Brazil

Case Number:

Date of decision: 24 November 2010

Relevant Law: American Convention on Human Rights

Decision: The court ruled that by denying and delaying access by the victims’ relatives to relevant army archives and other information, Brazil had violated their Article 13 right to information established by American Convention, read together with Articles 8 (duty to investigate) and 25 (access to court) of the Convention.

Key words: torture, impunity, right to truth

Summary:

Facts

In 1972, a small guerilla movement of students and workers emerged from the region of the Araguaia River in Brazil, seeking to foment a popular uprising to overthrow the military dictatorship which had been in power since 1964. For the next two years, the Brazilian Army brutally suppressed the movement, arresting and torturing the guerrillas. More than 60 were disappeared, their fate still unknown. For nearly 30 years the families of the victims have tried to expose the truth about what happened to their relatives, but have been prevented from doing so by amnesty laws passed in 1979 by the military government precluding any criminal investigations into offences carried out by the military regime. Since 1982, family members and certain public authorities have brought various legal claims in an attempt to determine the circumstances of the disappearances, to locate burial sites, and to recover the remains of the victims. Though the Supreme Court ruled in favor of the applicants the government maintained throughout the process that public records, including army and national archives records are not available. In recent years, however, journalists and former army officials have published information about the case, including documentary and photographic material suggesting that documents and other evidence are available and that government searches have been inadequately performed.

The Justice Initiative together with the Commonwealth Human Rights Initiative, the Open Democracy Advice Centre (South Africa) and the South African History Archive filed an amicus curiae brief in which the following three main arguments are made: (1) the American Convention grants victims and the general public a right to the truth about gross or massive human rights violations, including forced disappearances (Article 13, in conjunction with Articles 1, 8 and 25); (2) the right to the truth has both an individual and a collective dimension, separate from the right to judicial accountability for gross human rights abuses; it imposes on the state a duty to establish the basic facts of the violations, the general circumstances in which they occurred, as well as their reasons and perpetrators; and (3) Brazil failed to comply with the right to the truth by failing to disclose or de-classify relevant records held by the armed forces, and by adopting amnesty laws that obstruct access to the truth and shield the perpetrators.

Decision

The Inter-American Court concluded that the provisions of the Amnesty Law of Brazil that prevent the investigation and punishment of serious human rights violations are incompatible with the American Convention and lack legal effect, and as such, cannot continue to represent an obstacle for the investigation of the facts of the case or for the identification and punishment of those responsible.

The Inter-American Court found that Brazil is responsible for the violation of the right to seek information, established in Article 13 of the American Convention, given the State’s failure to provide access to records, which were in its control, of information on these facts. Additionally, the court issued a number of important guidelines on the question of access to information about past human rights violations. These include the question of the burden of proof regarding the (non-) existence of relevant records; the state duty to respond to requests for such information in good faith; and the state’s inability to rely on the “state secrets” doctrine as a basis for denying access to information regarding serious human rights violations.

Resources:

More information on the case.

Order of the Court on the request for provisional measures

Written comments submitted by the Open Society Justice Initiative, Commonwealth Human Rights Initiative, the Open Democracy Advice Centre (South Africa) and the South African History Archive.

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Inter-American Commission on Human Rights

Case Title: Indigenous Communities of the Xingu River Basin, Pará, Brazil

Case Number: PM 382/10

Date of decision: 1 April 2011

Relevant Law:

Decision: The Commission ordered the State of Brazil to stop the construction of Belo Monte Hydroelectric Plant and to conduct informed consultations with indigenous groups and for that purpose to provide to them all the relevant information and studies in accessible format and understandable language for them.

Key words: indigenous groups, construction of power plant, precautionary measures

Summary:

Facts

10 indigenous groups have asked the Brazilian authorities to halt the construction of the Belo Monte Power Plant, in the Amazon. The Belo Monte Dam is a proposed hydroelectric dam complex on the Xingu River in the state of Para in Brazil. After more than 17 years of discussions, the construction of the plant was approved by the Brazilian Congress in 2005. The construction is argued to threaten the land and food supplies of indigenous tribes. As it is claimed, the Dam would destroy 516 square kilometers of an area where indigenous groups are settled and also would damage forest and decrease considerably the quantity of fish stocks which is the main source of survival for indigenous communities.

In February 2010, the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA) granted the Preliminary License for the construction of the power plant. The License set forth a list of 40 requirements which had to be fulfilled by the company responsible for the construction.

Local communities, indigenous groups and environmental organizations have constantly opposed the construction of the power plant because of its devastating influence on the local communities and the nature. They used available judicial remedies in order to prevent the construction.

Decision

The case was brought before Inter-American Commission. The affected groups complained of the lack of public participation in the licensing process; lack of information related to the power plant and its impact on the environment and the indigenous tribes. The 20,000-page report concerning these issues was made available only two days before the first public hearing in September 2009 and it was written in a technical language with no understandable explanations for indigenous people. Affected groups also complained that information was not available in indigenous languages. The lack of translation during public hearings made it difficult for indigenous groups to express freely their opinions, participate in the discussions and receive full information. As it is established by international standards and Brazilian legislation, indigenous people must be consulted before the approval of the power plant by the Congress and also during the licensing process. Regardless of this requirement there was not conducted any public consultations regarding the construction of the dam.

The Inter-American Commission granted precautionary measures to 10 indigenous groups against Brazil. The Commission ordered that Brazil immediately suspend the licensing process for the Belo Monte Hydroelectric Plant project and terminate construction until certain minimum requirements are complied with. According to the Commission the State must (1) conduct free, informed, and culturally appropriate consultations with affected indigenous people with the aim to reach an agreement; (2) guarantee that, for the purpose of informed consultations, the indigenous groups have access in advance to relevant Social and Environmental Impact Study, in an accessible format and understandable translation into the indigenous languages; (3) adopt measures to protect the life and physical integrity of the indigenous peoples in Xingu Basin, and to prevent the spread of diseases and epidemics among them.

Resources:

Decision of the Commission.

More information on the case

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UN Human Rights Committee

Case title: Marques v Angola

Case Number:

Date of decision: 29 March 2005

Relevant law: International Covenant on Civil and Political Rights

Decision: The Committee stated that restriction on Marque's speech contradicted Article 19(2) of the Covenant

Key words: freedom of expression, journalists

Summary:

Facts

Rafael Marques was imprisoned for publishing a news article critical of the Angolan president. After prolonged pretrial detention, he was convicted of defamation, ordered to pay a substantial fine, and prevented from traveling.

Decision

The Committee found that Angola had violated Articles 9, 12, and 19 of the International Covenant on Civil and Political Rights (ICCPR). The Committee stated that Marques' arrest and detention were not reasonable or necessary, and were therefore arbitrary infringements of his liberty and security in violation of Article 9(1); he was not promptly informed of the reasons for his arrest or the charges against him, in violation of Article 9(2); his incommunicado detention denied him the right to be brought before a judge, in violation of Article 9(3); he was denied counsel at an initial stage, and denied his right to habeas corpus in violation of Article 9(4).

According to the Committee the restrictions on Marques' speech were not provided for in law or necessary to achieve a legitimate aim, violating his right to criticize or publicly evaluate the government without fear of punishment, in contravention of Article 19(2). It also held that Marques' prevention from leaving Angola, and the subsequent confiscation of his passport, had no basis in law and violated his freedom of movement under Article 12(1).

Note: The Justice Initiative and Interights represented Marques before the United Nations Human Rights Committee arguing that his rights had been violated.

Resources:

More information on the judgment

Documents submitted by the Open Society Justice Initiative and Interights.

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Case title: Toktankunov v. Kyrgyzstan

Case Number: 1470/2006

Name and status of the court: UN Human Rights Committee

Date of decision: 28 March 2011

Relevant law: Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR)

Decision: The right to information is grounded within freedom of expression; and Kyrgyzstan violated this right by not disclosing information concerning death sentences pursuant to secret bylaws which do not qualify as legitimate restrictions to this right.

Key words: duties of public authority; procedure / process; human rights; judicial information; scope of information covered; classification; confidentiality; exceptions to access / exemptions; national security; interest of requester; press / media; requester, status of; admissibility; remedy; expression, freedom of; international law; regulations

Summary:

Facts

In March 2004, Nurbek Toktankunov, representing a Kyrgyz public association, requested the Ministry of Justice (MOJ) corrections unit to provide data concerning death sentences. The government entity denied the request on the ground that this information is classified under secret Kyrgyz bylaws. Paras. 2.1, 2.5. The MOJ asserted that a state secrets law restricted such information through secret lists and regulations. Paras. 2.7-2.8. After the exhaustion of domestic remedies, the requester filed a complaint at the HRC. Kyrgyzstan did not respond on the merits, but submitted data on death sentences and prison mortality, stating that this was declassified “for service purposes” but confidential for the media. Paras. 4.1-4.2.

Decision

The HRC declared admissible the Article 19 complaint as (1) the information sought is in the public interest; (2) criminal judgments are generally public; and (3) the ICCPR recognizes the right of individuals and the media to receive state-held information without requiring a demonstration of direct interest. Para. 6.3.

The HRC recognized a “right of access to State-held information”—including a duty of the government to disclose or to justify non-disclosure—grounded in the ICCPR Article 19.3 freedom of expression. Para. 7.4. Kyrgyzstan violated Article 19.3 as (1) the confidential regulations are not a “law” that can restrict the right; and (2) the disclosure of information concerning the death penalty is in the public interest and restrictions on the right to this information are not necessary to protect a legitimate interest. Paras. 7.6-7.7. The State must provide the requester with an effective remedy, yet the information provided pursuant to the initiation of the complaint constituted an effective remedy. Para. 9.

A concurrence expressed caution about subsuming RTI within the right to expression to avoid diluting the right to expression as RTI permits more limitations.

Resources:

Judgment of the Committee.

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Africa and the Middle East

Israel

Case title: Freedom of Information Movement v. Clalit Health Services

Case Number: No. 2032-08

Country or Region: Israel

Name & status of the court: District Court in Tel-Aviv, sitting as Administrative Court

Date of decision: 21 February 2011

Relevant law: Freedom of Information, 1998

Decision: The Court ordered the disclosure of a 20 year-old donation agreement between the Schneider Family Foundation, registered in U.S and Israel's largest Health Services provider (which is considered a public entities in Israel), concerning a 60 million NIS (approximately $16 million) contribution to the construction of a Children's hospital.

Key words: access to agreement concluded between the public authority and donor organization

Summary:

Facts

Freedom of Information Movement submitted the request for the disclosure of agreement between the Clalit Health Services (the general HMO or health fund) and the Schneider Family after an article appeared in the newspaper that Lynn Schneider, a chairman of the Schneider Family Foundation, was involved in the firing of the hospital staff and that according to the donation agreement the Foundation had the right to interfere in the management affairs of the hospital. The request was refused. The applicant appealed.

Decision

As the Court noted without publishing the requested information the public will be denied the right to control the communications of public bodies with donor organizations and thus will not have the possibility to comment on the issue. According to the Court only the right to access to information enables the public to reject or confirm the activities of public bodies.

The Court rejected the argument of the respondent that the Freedom of Information Act didn’t apply to the agreement as it was signed before the enactment of the act stating that such interpretation would deprive the law of its content.

The Court also stated that the engagement of a private entity with public authority, should assume implied consent of the private entity that details of the agreement, which are not personal, would be subject to the public criticism. Notwithstanding this, the Court noted that as far as there was a concern that the disclosure of the agreement would have a negative effect on future contributions this concern could be removed by disclosing agreement, except for details about the amounts and dates of payments, which must be considered as private information.

Resources:

More information about the case.

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Case title: Shalit v. Peres

Case Number:

Country or Region: Israel

Name & status of the court: Supreme Court

Date of decision: 1990

Relevant law:

Decision: The Court ruled that the public has a right to be informed of the content of coalition agreements negotiated by political parties participating in an election.

Key words: political parties, public life

Summary: The Court held that the public has a right to be informed of the content of coalition agreements negotiated by political parties participating in an election. Acting in the absence of explicit constitutional or statutory recognition of the right of access, the Court nonetheless held that the democratic system is based on the sharing of the information about what is happening in the public domain with the public itself. The Government can withhold this information only in exceptional circumstances when this is required by state security or foreign relations or where there is a risk threatening any vital public interest.

Resources

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Case Title:

Case Number:

Country or Region: Israel

Name & Status of the Court: Tel-Aviv Administrative Court

Date of decision: 23 March 2011

Relevant Law: Freedom of Information Act

Decision: The Court ruled that the Defense Ministry must immediately provide Gisha with the "red line document" and disclose the names of those officials responsible for the closure.

Key words: access to documents determining what products can be allowed into Gaza strip, internal deliberation, public interest

Summary:

Facts

Gisha, an NGO fighting for more freedom of movement in the occupied territories and against the closure policy, asked the Ministry of Defense to provide documents that the Ministry used to determine what products should be allowed into the Gaza strip and at what quantities. The ministry refused the FOI request.

Gisha brought a case before the Court. Following the Flotilla incident which took place during the Court hearing the Ministry agreed to disclose some of the documents stating that their disclosure no longer threaten national security or foreign affairs. But it refused to make public “red line document” which supposedly contained calculations of the most minimal consumption of food in Gaza that the closure policy will not cross.

The Ministry claimed that the requested documents presented sensitive security issues and that on such issues the relevant authorities should have right to deliberate freely. It also argued that as far as the documents are not part of any policy there is no public interest in their disclosure.

Decision

The Court rejected the arguments put forward by the Defense Ministry. Justice Ruth Ronen noted that the fact that the document was part of internal deliberations in itself is not sufficient to justify refusal of disclosure. According to her the state would have to show that in these specific circumstances there is a fear of a "chilling effect". Since the document doesn’t contain the views of particular individuals, she found that its disclosure wouldn’t threaten the deliberation process. She held that the State failed to explain why the document was sensitive. The fact that the document deals with a sensitive issue, wrote Justice Ronen, does not entail that the document itself is sensitive. As she stated there was public interest in disclosure even if the document was not the basis for the implemented policy.

The Court ruled that the Defense Ministry must reveal the "red lines document" in which the state apparently established the minimum caloric intake required for the survival of residents of the Gaza Strip and also to reveal the names and positions of the officials enforcing the closure of Gaza, which were blacked out in the documents previously provided to Gisha.

Resources:

More information about the case.

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Kenya

Case title: Kariuki v. Attorney General

Case number: Petition no. 403 of 2006

Country or Region: Kenya

Name and Status of Court: High Court of Kenya at Nairob

Date of Decision: 8 July 2011

Relevant law: Constitution (Articles 2(1), 3, 10 and 35(1))

Decision: The salaries and allowances of the Armed Forces personnel are not private or confidential and must be disclosed to the requester and the Court.

Key words: Duties of public authority; Evidence; Mute refusal; Time; Security sector; Military; Economic information; Income and assets; Public servant / official; Scope of information covered; Classification; Confidentiality; Exceptions to access / exemptions; National security; Privacy; Interest of requester; Requester, status of; Third parties; Accountability; Constitutional protections; Fundamental right.

Summary:

Facts

Peter Kariuki, a former Commander of the Kenya Air Force, was relieved of his duties, arrested, detained, and eventually tried and convicted after a 1982 attempted coup. He brought a suit to challenge the conditions of his detention as in violation of his fundamental rights. In connection with this legal challenge, Mr. Kariuki sought from the Department of Defense employment records, payment vouchers, and current salary records for officers of similar rank. The Court ordered the Department of Defense to produce the information, but the Department of Defense refused, asserting that salaries and allowances of Armed Forces personnel are confidential and personal. P. 11.

Decision

The Court ruled that the Defense Forces are subject to the Constitution, pursuant to Articles 3 and 10. Article 10 stipulates transparency and accountability as among the national values binding all state organs. The Court further ruled that Article 35, on the right to information, grants Mr. Kariuki the right of access to the information requested from the Department of Defense. The Court thus rejected the Attorney General’s assertion that defense salary and allowance information is confidential, and compelled the Department of Defense to provide this information to the Commander and to the court. The Court stated that “records regarding salaries and benefits payable to public officers cannot be classified as private or confidential.” The Court recognized as relevant that the underlying case related to serious alleged violations of constitutional rights. Pp. 14-15.

Resources:

Judgment of the Court.

Case title: Republic v John Kiptorus Chemweno and David Barasa Makali

Case Number:

Country or Region: Kenya

Name & status of the court: Magistrates Court

Date of decision: 2003

Relevant law:

Decision: The court ruled that the information about investigation is the property of the public as it pays to the state to conduct investigation. The press had a duty to find out truth about the murder and provide correct information to the public.

Key words: criminal investigation

Summary:

Facts

The case concerned a police investigation into a murder in September 2003 that was of great public interest. In the midst of heated constitutional debate, Dr. Odhiambo Mbai, the Chairman of the Devolution Committee of the National Constitutional Conference at Bomas, who advocated limiting the president’s broad powers, was killed in his home. The police opened an investigation. The Standard newspaper ran a story implicating some key government people, including an MP, in the murder. John Kiptorus, a police officer at the station that was handling the investigation, was suspected of having given a copy of the police video cassette containing information about Dr. Mbai’s death to David Makali, who was at the time the Standard’s editor and a journalist. Both of them were arrested and charged in criminal court for stealing the video cassette, the property of the Kenyan Government.

Decision

The Chief Magistrate, Aggrey Muchelule (who has since become a Judge) found that there was no theft of the transcript in question and acquitted both accused. In his ruling, the Chief Magistrate stated that death was the issue of public interest and caused anxiety in the public and the police are obliged to investigate the case and provide information to the public. Information about investigation is the property of the public as it pays to the state to conduct investigation. The press had a duty to find out truth about the murder and provide correct information to the public. It had a complementary role to that of the police. To prevent the press to carry out this function would be restriction of the constitutional freedom of the press and the right of Kenyans to have information about their country’s affairs.

Noteworthy is the court’s finding that the public has the right to know about affairs of their country.

Resources:

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South Africa

Case title: Claase v Information Officer of South African Airways

Case Number:

Country or Region: South Africa

Name & status of the Court: Supreme Court

Date of decision: 2006

Relevant law:

Decision: The Court ruled that access to the passenger records of a certain commercial flight was required for the protection of the contractual (retirement) rights of a former pilot.

Key words: passenger records

Summary:

Facts

The retired pilot was entitled to a certain number of business class flights per year as a part of his contractual retirement package. Arriving in New York to fly to South Africa, he was informed that there were no such seats available. He disbelieved this assertion and, by successfully accessing the computer records relating to the flights and its passenger assignments, was able to show that at the point he sought the seat, he was unlawfully denied one in breach of his contractual rights.

Decision

The Supreme Court of Appeal found that access to the passenger records of a certain commercial flight was required for the protection of the contractual (retirement) rights of a former pilot of South African Airways (SAA).

Resources:

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Case title: Conrad Stefaans Brümmer v. the Minister of Social Development and Others

Case Number:

Country or Region: South Africa

Name & status of the court: Constitutional Court

Date of decision: 13 August 2009

Relevant law: Promotion of Access to Information Act

Decision: The Court ruled that a person who seeks to challenge the refusal of access to information must be afforded an adequate and fair opportunity to do so and ordered the legislature to enact legislation that prescribes a reasonable time limit to approach a court for relief.

Key words: access to court, access to information, time limit

Summary:

Facts

Mr. Brümmer, a journalist of the Mail & Guardian newspaper, made a request to the Department of Social Development for information about a tender the department is alleged to have awarded to IT lynx Consortium.

When Mr. Brümmer’s request was denied and an internal appeal was unsuccessful, he turned to the Cape High Court for relief. However, his application to the High Court was made after the 30-day limit, set out by the Promotion of Access to Information Act, Article 78(2). The applicant submitted that the time limit violates his rights of access to court as well as access to information guaranteed by the Constitution.

Decision

The High Court accepted the claim of unconstitutionality of the 30-day limit and held that section 78(2) was unconstitutional in that it does not give a person who is refused information adequate time to approach a court for relief. It therefore referred the matter to the Constitutional Court for confirmation.

Amicus briefs were presented by the South African History Archives Trust (SAHA) as well as the South African Human Rights Commission.

Judge Sandile Ngcobo, in a unanimous judgment, upheld the conclusion by the High Court. He held that a person who seeks to challenge the refusal of access to information must be afforded an adequate and fair opportunity to do so. He further declared that access to information is crucial to the right to freedom of expression, which includes freedom of the press and other media, and also freedom to receive or impart information or ideas.

Judge Ngcobo said the public must have access to information held by the state. The Constitutional Court ordered the Parliament to enact legislation that prescribes a time limit that is consistent with the Constitution, bearing in mind the right of access to court as well as the right of access to information. He ordered that pending the enactment of this legislation, a person who wishes to challenge the refusal of access to information must lodge an application to court within 180 days of being notified of a decision of an internal appeal refusing access to information.

Resources:

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Case title: Mittal Steel South Africa LTD (Formerly Iscor Ltd) v Hlatshwayo

Case Number:

Country or Region: South Africa

Name & status of the Court: Supreme Court of Appeal

Date of decision: 2007

Relevant law: Promotion of Access to Information Act

Decision: The Court ruled that the “public bodies” within the meaning of the PAIA included state-owned company that was privatized but at the material time was under the state control and was performing a public function

Key words: private bodies receiving public funds and/or performing public functions, access to information

Summary:

Facts

The respondent company had at one time been a state-owned company (then named Iscor) that was then privatized. The requester – a “determined student,” sought the records as a part of his academic study of state corporations in the ‘old’ South Africa.

Decision

In a well-reasoned judgment, Judge Conradie observed that nowadays when the privatization of public services and utilities is a common practice, private bodies may perform what is traditionally considered as a public function without being subject to control from the government’s side and despite this may still be classified as public bodies.

In finding that Iscor not only was under the control of the state at the time but was performing a public function in providing South African industry with a supply of government-regulated steel, the SCA made clear that the term “public bodies” within the meaning of the PAIA included previously public bodies that had been privatized.

Resources:

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Case title: President of the Republic of South Africa. v. M & G Media Ltd.

Case Number: 570/10 ZASCA 177

Country or Region: South Africa

Name & status of the court: Supreme Court of Appeal, highest court of appeal except for constitutional matters

Date of decision: 14 December 2010

Relevant law: South African Constitution (Section 32(1)(a)) Promotion of Access to Information Act (PAIA) of 2000

Decision: Under the South African Bill of Rights and the Promotion of Access to Information Act of 2000, conclusory affidavits provided by the President to justify the secrecy of a judicial report prepared for the President are insufficient evidence to justify non-disclosure.

Key words: evidentiary basis for secrecy; reports prepared for and held by President; discretionary right to non-disclosure; Promotion of Access to Information Act (PAIA); constitutional right to information

Summary:

Facts

M&G Media Limited, the publisher of a weekly newspaper, requested the disclosure of a report on the 2002 Zimbabwe elections prepared by two judges at the request of then President incumbent Mbeki. The President refused to release the report. In its information request, M&G relies on the constitutional right to “any information . . . held by the state” as promulgated and limited by the Promotion of Access to Information Act of 2000 (PAIA). The President asserts three grounds within PAIA to defend the report’s secrecy: (1) the exclusion of Cabinet and committee records from PAIA disclosure obligations; (2) Section 41(1)(b) permitting discretionary non-disclosure of information “supplied in confidence by or on behalf of another state or an international organization”; and (3) Section 44 permitting discretionary non-disclosure of records containing “an opinion, advice, report or recommendation obtained or prepared . . . for the purpose of” legally required policy formulation or decision-taking. On the first judicial ruling, the North Gauteng High Court ordered the release of the report. The President appealed (paras. 3-8, 21).

Decision

The appellate court upheld the lower court’s order requiring the report’s release and soundly rejected the evidentiary support presented by the President to justify non-disclosure. The court planted South Africa’s freedom of information law within the “legal culture of accountability and transparency,” and South Africa’s Bill of Rights and freedom of information law as representative of a “‘culture of justification’” (paras.10-11). The public body must provide adequate justification for non-disclosure and not conclusory, perfunctory and dismissive statements, as provided here (paras. 13, 19, 31).

Recognizing the inequality of information between the public body and the information requestor, the court “must scrutinize the affidavits put up by the public body with particular care” and “not hesitate to allow cross-examination of witnesses . . . if their veracity is called into doubt” (para. 15). The court contests the President’s failure to present “direct knowledge”—here held by Mr. Mbeki and the judges who do not provide affidavits (para. 20). Further, “proper grounds” must be laid to justify the indirect knowledge of the witness, to judge the validity and the weight of the assertions presented (paras. 37-38). The appellate court finds that the affidavits supplied by the government “assert conclusions . . . with no evidential basis to support them, in the apparent expectation that their conclusions put an end to the matter. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy” (para. 19).

The court rejects the evidentiary basis presented in support of each of the President’s specific justifications, outlined above. First, no evidence is presented that the President is the Cabinet or that the report was before the Cabinet (para. 21). Second, no or insufficient evidence was presented that the public body exercised the discretion required under Section 41(1)(b); that a state or an international organization supplied the information requested; that any such information was supplied in confidence; or that certain information not supplied by a state or international organization could not be severed and released (paras. 22-26, 40-49). Lastly, no or insufficient evidence was presented that the public body exercised the discretion required under Section 44; and that the purpose of the report’s preparation satisfied Section 44 requirements (paras. 27-34). In a reference to the judicial discretion to review records that a public body asserts should not be disclosed, the court in closing warns that the public trust in a court, gleaned from the court’s openness and judicial reasoning, is jeopardized by “becom[ing] a party to secrecy” (para. 52).

Resources:

Judgment of the Court.

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Case title: Transnet Ltd. & Another v SA Metal Machinery Co

Case Number:

Country or Region: South Africa

Name & status of the Court: Supreme Court of Appeal

Date of decision:

Relevant law:

Decision:

Key words: commercial secrets

Summary: The Court ordered disclosure of the price and composition of a winning bid for a contract with a state-owned transportation company.

Resources:

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Case title: Trustees For the Time Being of the Biowatch Trust v. Registrar: Genetic Resources

Case Number: 23005/2002

Country or Region: South Africa

Name & status of the Court: High Court

Date of decision: 23 February 2005

Relevant law: Promotion of Access to Information Act

Decision: The Court ordered the Registrar for Genetically Modified Corps to disclose information concerning the use of genetically modified organisms (GMOs) in South Africa, including certain risk assessment data as the disclosure was in public interest because of the potential dangers that GMO experiments may have caused to public health and environmental safety.

Key words: commercial interest, public health, public interest

Summary:

Facts

The Registrar for Genetically Modified Corps initially refused to disclose the information pertaining to the use of genetically modified organisms (GMOs) in South Africa, including certain risk assessment data, to Biowatch on the ground that the disclosure of such information would harm the commercial and financial interests of Monsanto and several other companies.

Decision

The Court ordered the Registrar of Genetically Modified Crops to release requested information to the requester. The court placed the burden of establishing that a refusal of a request for access is justified on the parties claiming the refusal. Section 36 of the Promotion of Access to Information Act provides that access to a record may not be refused if it consists of information “about the results of [any] investigation” performed by or on behalf of a third party “and its disclosure would reveal a serious public safety or environmental risk.” The Court noted the potential dangers to public health and environmental safety that result from GMO experimentation and concluded that disclosure of most of the requested information was in the public interest.

Resources:

Judgment of the Court.

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Case title: Van Huyssteen and Others NNO v Minister of Environmental Affairs and Tourism and Others

Case Number:

Country or Region: South Africa

Name & status of the court: High Court

Date of decision: 1996

Relevant law:

Decision: The Court held that the applicants were entitled to get copies of records relevant to the planning permission of steel mill.

Key words: construction, environment

Summary: High Court ruled that applicant requesters, who sought to protect their rights to trust property which were potentially threatened by the building of a large steel mill, were entitled to copies of the records held by the Minister of Environmental Affairs relevant to the proposed rezoning and planning permission.

Resources:

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Uganda

Case title: Charles Mwanguhya Mpagi and Izama Angelo v. Attorney General

Case Number: 751of 2009

Country or Region: Uganda

Name & status of the court: The Chief Magistrate’s Court of Nakawa at Nakawa

Date of decision: 3 February 2010

Relevant law: Access to Information Act (AIA), 2005

Decision: The magistrate court observed that the applicants had a right to access the oil agreements, but that, on balance, the harm (to confidentiality interests) from disclosure outweighed any public benefits from disclosure (given that the applicants failed to establish or even allege any concrete public benefits), and accordingly dismissed the application.

Key words: access to agreements on oil exploitation, natural resources

Summary:

Facts

Since 2006, over two billion barrels of oil reserves have been discovered in various parts of the Uganda’s northern region of Albertine Graben, bordering on the Democratic Republic of Congo (DRC). On the basis of these discoveries, the government and oil companies have entered into several Production Sharing Agreements (PSAs).

Applicants, with the support of Ms. Katuntu & Co. Advocates, applied to Attorney General and the Permanent Secretary of the Ministry of Energy and Mineral Resources requesting certified copies of agreements made between the government of Uganda and certain multinational oil companies for the purpose of oil prospecting and exploitation around the Lake Albert Region (Production Sharing Agreements, or PSAs). The request was refused on the grounds that a clause in the PSAs provided for confidentiality about the agreements and resulting information, and mandated the consent of the multinational companies for disclosure.

Applicants, two journalists, supported by Human Rights Information Network (Hurinet) and OSIEA, applied to a Ugandan magistrate court for an order to force the government to disclose the oil agreements. Application seeking from the court: (i) to set aside the administrative decisions actively or constructively denying access to the PSAs; (ii) a declaration that the public interest in disclosure is greater than any third party harm; and (iii) unrestricted access to the record of the PSAs in the public interest. The government argued that the disclosure would amount to a breach of contract because of PSA confidentiality clauses requiring third party consent of the prospecting companies, and that AIA § 28(1)(a) requires the rejection of an information request if the disclosure would breach a duty of confidence owed a third party.

Decision

In the initial hearing, the magistrate court observed that the applicants had a right to access the oil agreements, but that, on balance, the harm (to confidentiality interests) from disclosure outweighed any public benefits from disclosure (given that the applicants failed to establish or even allege any concrete public benefits), and accordingly dismissed the application ruling that the government did not have to disclose the documents. The Court concluded that:

  • The government has to show more than that disclosure would breach its contract with private oil companies given that a court order of disclosure “supersedes any agreement between the parties.”
  • Standard for 34(b) mandatory disclosure in the public interest requires that applicants demonstrate “that the public benefit in the disclosure of the details of the agreements far outweighs the harm” that would result from violation of the “privacy and confidentiality interest of the contracting parties.”
  • Applicants did not sufficiently establish that this application is brought in the public interest: failed to demonstrate that disclosure would translate into public engagement in oil exploitation or a more accountable government.
  • Trustee-beneficiary relationship between the government and the people vis-à-vis natural resources is a unique one that does not require disclosure, particularly where disclosure can be detrimental to the Ugandan people.
  • Other countries similarly keep these agreements confidential.

The case is now on appeal to the Ugandan High Court.

Resources:

Judgment of the Court.

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Case title: Greenwatch (U) Ltd v. Attorney General of Uganda and Uganda Electricity Transmission Co.Ltd

Case Number: HCT-00-CV-MC-0139 of 2001

Country or Region: Uganda

Name & status of the court: High Court of Uganda at Kampala, judgment by Hon. Justice F.M.S. Egonda-Ntende

Date of decision: 12 November 2002

Relevant law: Constitution

Decision: The Court ruled that as the Implementation Agreement (IA) covering the building, operation and transfer of a hydroelectric dam was a public document, Power Purchase Agreement which was incorporated into IA was also a public document. Notwithstanding this the Court ruled that the applicant NGO didn’t have right to access these documents only because not all of its members were citizens of Uganda.

Key words: commercial secrets, state security and sovereignty, public document, construction, operation and transfer of hydroelectric dam

Summary:

Facts

The Government of Uganda entered into a series of agreements, the main agreement being an Implementation Agreement (IA), with the AES Nile Power Limited covering the building, operation and transfer of a hydro-electric dam on the River Nile near Jinja, Uganda. As a consequence of the IA, a Power Purchase Agreement (PPA) was executed by AES Nile Power Limited and Uganda Electricity Board (UEB), a statutory corporation at the time, established and wholly owned by the Government of Uganda, with the commercial monopoly to generate, transmit and sell electric current in Uganda. Subsequently Uganda Electricity Transmission Company Ltd. (UET) became the successor to the UEB, and so the applicant filed the case also against UET.

The Applicant Greenwatch is a Ugandan NGO dedicated to environmental protection. It sought to obtain a copy of the PPA from the Government in vain. The Government responded in November 2001 that the PPA contained commercial secrets, and that disclosure would not only impair the economic credibility and sovereignty of Uganda, but would also amount to a breach by the State of its sovereign commitments under the said agreements. Greenwatch submitted that it was entitled under Article 41 of the Constitution to have access to information that is in the hands of the state, its organs and agencies, and that the obligation was on the respondents to show that access to the PPA came within one of the exceptions provided under Article 41 which reads as follows:

“(1) Every citizen has a right of access to information in the possession of the state or any other organ or agency of the state except where the release of the information is likely to prejudice the security or sovereignty of the state or interfere with the right to privacy of any other person.”

Decision

The Court found that because the IA was signed by a Minister in her official capacity, the IA was a public document under Section 72 of the Evidence Act. The court reasoned that the IA and PPA were so intertwined that one could not “fully comprehend the full import of the IA without reading and digesting the PPA,” and accordingly concluded that “the PPA is in effect incorporated into the IA by reference.” Given that the IA was a public document, the Court therefore ruled that the PPA was a public document too.

The court rejected the argument that disclosure of the PPA would harm state security and state sovereignty on the ground that the respondents’ affidavits did not show how disclosure to the public would affect the security of the state or its sovereignty (para. 27).

Finally, the Court concluded that a corporate body may be a citizen within the meaning of Article 41 if all of its members are Ugandan citizens. Given that not all members of Greenwatch were Ugandan citizens, for that reason alone, the court ruled that the applicant was not entitled to access the information sought under Article 41 of the Constitution, although it did rule that the IA and the PPA are “public documents.” Accordingly, the court allowed the application in part and dismissed it in part with no order as to costs.

Resources:

Judgment of the Court.

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Americas and the Caribbean

Argentina

Case title: Acordada de la Corte Suprema de Justicia de la Nación No. 1/2004 Exp. 315/2004 Adm. Gral [citation is considered the official case name]

Case Number: Acordada de la Corte Suprema de Justicia de la Nación No. 1/2004 Exp. 315/2004 Adm. Gral

Country or Region: Argentina

Name & status of the court: Supreme Court of Justice

Date of decision: 2004

Relevant law: Constitution

Decision:

Key words: access to information as a fundamental right

Summary: The Supreme Court of Justice ruled that Article 1 of the Constitution, which establishes a republican form of government, gives rise to an obligation of transparency because a republic requires that government actions be available to the public.

Resources:

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Case title: Corte Suprema de Justicia de la Nación, S.622.XXXIII “S.,V. c/ M., D.A. s/medidas precautorias [citation is considered the official case name]

Case Number: Corte Suprema de Justicia de la Nación, S.622.XXXIII “S.,V. c/ M., D.A. s/medidas precautorias

Country or Region: Argentina

Name & status of the court: Supreme Court of Justice

Date of decision: April 3, 2001

Relevant law:

Decision:

Key words: access to information as a fundamental right

Summary: The Court noted that Article 75.22 of the Constitution ensures the domestic application of international human rights treaties, including the American Convention on Human Rights (ACHR), the International Covenant on Civil and Political Rights (ICCPR), and the American Convention Against Corruption (ACAC). The Court ruled that, in light of these provisions, there is a duty to ensure access to information.

Resources:

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Brazil

Case title: Empresa Folha da Manhã S/A v. The President of the House of Representatives (Camara dos Deputados)

Case Number: Mandado de Segurança 28.177-4 Distrito Federal

Country or Region: Brazil

Name & status of the court: Supreme Court

Date of decision: August 2009

Relevant law: Constitution

Decision: The Court ruled that the information about expenses of parliament members should not be confidential and should be disclosed to the public

Key words: expenses of parliament members; fiscal confidentiality

Summary:

Facts

Members of parliament were receiving monthly allowance approximately US$ 7,000 for expenses related to rent, taxi, etc. that, according to media news was mainly spent by them for costs not related to their work. The daily Folha de Sao Paulo was refused the information about the use of the US$ 7,000 by the House of Representatives based on the ground that it would violate fiscal confidentiality.

Decision

Judge Aurelio stated in his decision that public officials must be accountable to the public. He indicated that the 1988 Constitution ensures the right to receive information from public bodies. According to him media has the duty to inform the public. The judge held that it is unacceptable to deny access to documents which provide proof of public expenditures and which should be voluntarily published by the public bodies on their websites. According to the provisory decision, requested documents should be disclosed.

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Case title: Gustavo Bonato Fruet v. the Minister for Defense and the Commander of the Brazilian Airforce

Case Number: Mandado de Segurança Nº 13.138 - DF (2007/0238703-9)

Country or Region: Brazil

Name & status of the court: Superior Court of Justice

Date of decision: October 2008

Relevant law: Constitution

Decision: The court noted that all the information related to the travel of ministers cannot be considered confidential and only information concerning national security must be classified as such. Nevertheless, the Court rejected the application as the applicant didn’t apply all the available remedies before appealing to the court.

Key words: national security, use of airplanes by ministers, confidentiality, national security

Summary:

Facts

The applicant is a parliamentarian who requested information about the use of Brazilian Airforce planes by State Ministers between June 2006 and June 2007. The information was provided in September 2007 by the Minister for Defense, but the relevant data was refused on grounds of confidentiality.

Decision

In the final decision by the Superior Court of Justice, the rapporteur on the case, Minister (Judge) Marques, mentioned that Constitution guarantees full access to public information except the information concerning the security of the State or society. According to him, the Commander of the Brazilian Airforce failed to prove why the requested information was confidential. He also stated that any exceptions should be interpreted in a narrow manner. The Commander could not consider all the information related to the travel of state ministers confidential as only the information concerning national security should be classified as such. He also added that the classification should be justified by the appropriate public authority and it should not be discretionary.

The rapporteur on the case also stated that the applicant should have first appealed to the Commander and to the Minister for Defense. The majority of the Ministers (judges) shared the reasoning of the rapporteur, refusing applicant’s request to make the information public. Only one Minister presented a dissenting vote. Applicant appealed against the decision and the case was sent to the Supreme Court. No significant developments have taken place so far at the Supreme Court.

Resources:

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Case title: Labor Party and other members of the State Legislature v. Government of the State of Paraná

Case Number: Recurso Ordinário em MS No. 10131 PR (1998/0062760-0)

Country or Region: Brazil

Name & of the court: Superior Court of Justice

Date of decision: Final decision published in February 2002

Relevant law:

Decision: The Court held that the requested agreements concluded between the state and private company were not confidential and should have been disclosed to the public

Key words: state contracts, public interest

Summary:

Facts

In 1997 the Labor Party and some parliamentarians of the State of Parana requested documents regarding the agreements concluded between the State of Parana and Renault do Brasil Automoveis S/A. These agreements concerned the benefits offered by the government for the installation of the company’s facilities in the state capital, Curitiba.

Decision

The Superior Court of Justice decided that access to the requested documents should be granted and they should not be classified as confidential under the existing legislation. According to the Court the disclosure was necessary in order to ensure the transparency of agreements executed by the public authorities. As the Court noted there was public interests in having access to the requested agreements.

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Case title: Union of Education Experts of the Public System of the Municipality of Sao Paulo & Association of the Engineers, Architects and Agronomists of Sao Paulo v. The Municipality of Sao Paulo

Case Number: Suspensão de Segurança 3.902-4 Sao Paulo

Country or Region: Brazil

Name & status of the court: Supreme Court of Sao Paulo

Date of decision:

Key words: salary and other information of public servants, transparency, right to privacy

Relevant law:

Decision: The Court ruled that the public interest in having the information about the names, salaries and posts of public servants was more important than the rights of public officers to keep the information confidential.

Summary:

Facts

In June 2009 the Mayor of Sao Paulo, launched a website - Keeping an Eye on Public Costs (De Olho nas Contas) - that contained information on a number of public contracts and expenses, also a list of all public servants, their posts and salaries. Applicant associations initiated several lawsuits in order to suspend the mayor´s decision arguing that the publication of the names, salaries and posts of public servants was a violation of their right to privacy and security of person. The Superior Court of Justice of the State of Sao Paulo took a provisory decision ruling that some parts of the website should be taken off-line. The Municipality of Sao Paulo appealed to the Supreme Court against the provisory decision. The appeal was judged by a sole Minister (Judge) Mendes, the president of the Supreme Court.

Decision

Minister Mendes as a result of balancing different fundamental rights and constitutional principles decided that the website should be authorized to publish the list of salaries. He stated that the Internet has changed the relationship between the society and the state, particularly in respect of controlling public expenses by the society. The judge recognized that in some cases disclosure of information is subject to legitimate restrictions. However, in this case, the public interest in having the information was more important than the rights of public officers. According to him any decision against the local government’s policy of transparency infringes the public order.

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Canada

Case title: City of Ottawa v. Ontario

Case Number: 2010 ONSC 6835

Name & status of the court: Superior Court of Justice, Ontario. Largest superior trial court in Canada

Date of decision: December 13, 2010

Relevant law: Municipal Freedom & Protection of Privacy Act (Ottawa)

Decision: Personal email correspondence unrelated to government activities yet stored on a government computer is not subject to disclosure requirements under city freedom of information laws.

Key words: private emails

Summary:

Facts

The City of Ottawa requested access to personal emails between Mr. O’Connor, a municipal government employee, and the Children’s Aid Society, a non-governmental entity for which Mr. O’Connor volunteered. These emails were not related to municipal work but used a government email address and were stored on the government’s server, as permitted but not required by city policy. The Information and Privacy Commissioner ruled that the emails were subject to municipal freedom of information legislation (the Municipal Freedom & Protection of Privacy Act, or MFIPPA) as they constitute records “in the custody or under the control of an institution.” The City appealed (paras. 2-10).

Decision

The Superior Court of Justice ruled that the emails are not within the scope of the city freedom of information act (para. 4). The emails cannot be within the “custody or control” of the government institution when the purpose of the freedom of information legislation is taken into account through a multifactorial analysis (paras. 4, 20, 21, 28, 30-31). The purpose of the legislation is to enhance the democratic process, and the disclosure of personal emails would not enhance the democratic process (paras. 25-26). The ability of the city to monitor the electronically stored personal files of employees does not change the non-governmental nature of the files nor does it make them publicly accessible (paras. 40-42).

Resources:

Judgment of the Court.

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Case title: Phinjo Gombu v. Tom Mitchinson, Assistant Commissioner et al.

Case Number:

Name & status of the court: Provincial Court in Ontario

Date of decision: 2002

Relevant Law:

Decision:

Key words: public interest, election campaign contribution records

Summary: The Court ruled that an investigative reporter was entitled to have access to an electronic database of campaign contribution records related to a Toronto municipal election. The Ontario Court held that the public interest served by disclosure of the data – namely, facilitating public scrutiny of the democratic election process – was so important that it “clearly outweigh[ed]” any competing interests.

Resources:

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Chile

Case title: Cordero and Others v. National Customs Service

Case Number:

Name & status of the court: Constitutional Tribunal

Date of decision: August 9, 2007

Relevant law: Chilean Constitution

Decision: The Tribunal held that public agencies cannot withhold requested information without first consulting with, or receiving objections from, the third party involved and that according to the Constitution any restrictions on access to government information must be established by a statute adopted by a congressional super-majority.

Key words: access to information as part of freedom of expression, customs tariffs, commercial secrecy

Summary:

Facts

A Chilean company filed a request for information with Chile’s Customs Department regarding alleged irregularities in the levying of customs tariffs against a certain company. The Department refused the request without even consulting the company or considering the public’s interest in access to the information.

Decision

In finding for the applicant, the Tribunal ruled that the right of access, even though not explicitly recognized by the Chilean Constitution, was implicitly protected. In the words of the Tribunal, the right of access is an integral part of the broader right of freedom of expression and an indispensable mechanism for guaranteeing the full functioning of the democratic state which promotes the appropriate exercise and protection of other rights. The Tribunal further held that any restrictions on the right of access must be defined and construed narrowly. Turning to the specific facts of the case, the Tribunal found that the statute at stake granted agencies impermissibly broad discretion to withhold third party information, the disclosure of which might arguably harm their confidentiality interests. In particular, the Tribunal held that agencies cannot withhold such information without first consulting with, or receiving objections from, the third party involved. The Chilean Constitution mandates that any restrictions on access to government information must be established by a statute adopted by a congressional super-majority.

Resources:

Judgment of the Court.

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Costa Rica

Case title: Appeal for constitutional protection presented by the Representative José Humberto Arce Salas against the Bank of Costa Rica

Case Number: 02-009167-0007-CO, Res. 2003-03489

Name & status of the court: The Constitutional Chamber of the Supreme Court

Date of decision: May 2, 2003

Relevant law:

Decision: The Court ruled that as a political party has transferred part of its funds to the private company the information became of public interest.

Key words: right to privacy, bank secrecy, access to information

Summary:

Facts

The Board of Directors of the Bank of Costa Rica had denied the request of information presented by the Representative José Humberto Arce Salas regarding irregularities in the private financing of political parties, on the grounds that such information was protected by bank secrecy and the right to privacy.

Decision

The Court assessed that ¨(…) in the case that there is unequivocal evidence that a political party has transferred part of its private funds to a privately-owned company (…) the information would cease to be of a private nature (…) and become of public interest."[1]

Resources:

Report of the Special Rapporteur for Freedom of Expression, Chapter IV “Report on Access to Information in the Hemisphere”, 2003.

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Case title: Navarro Gutiérrez v. Lizano Fait

Case Number:

Name & status of the court: Constitutional Chamber of the Supreme Court

Date of decision: April 2, 2002

Relevant law:

Decision: The Court ruled that the refusal of the Central Bank to disclose the requested report of the International Monetary Fund violated the constitutional right to information of the citizens.

Key words: newspaper, Central Bank information

Summary:

Facts

A newspaper requested the Central Bank to disclose a report of the International Monetary Fund. The Central Bank refused the request.

Decision

The Court held that the Central Bank’s refusal to disclose a report of the International Monetary Fund, violated the constitutional right to information “to the detriment of all Costa Rican citizens.” The Court reasoned that The State must guarantee that information of a public character and importance is made known to the citizens, and, in order for this to be achieved, the State must encourage a climate of freedom of information. … In this way, the State … is the first to have an obligation to facilitate not only access to this information, but also its adequate disclosure and dissemination, and towards this aim, the State has the obligation to offer the necessary facilities and eliminate existing obstacles to its attainment”.[2] In reaching its decision, the Court relied emphatically on the symbiotic relationship between the right to information and the rights of democratic participation, arguing that right to information comprises participation of the citizens in the decision-making process which ensures the formation of public opinion and presents the indispensible pillar of a free and democratic society.

Resources:

Report of the Special Rapporteur for Freedom of Expression, Chapter IV “Report on Access to Information in the Hemisphere”, 2003.

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Mexico

Case title: Zarate v. Federal Electoral Institute

Case Number:

Name & status of the court:

Date of decision: September 10, 2004

Relevant law:

Decision:

Key words: political parties, political-electoral rights

Summary: The Court reasoned that in order to decide for which political party to vote, whether to join it or not citizens must receive information about political parties. These decisions present the integral part of their freedom to choose which cannot be exercised without having information about certain aspect of political parties.

Resources:

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Case title:

Case Number:

Name & status of the court: Supreme Court

Date of decision:

Relevant law: Constitution

Decision: The Court ruled that the right of access to information guaranteed by the Constitution was closely linked to the right of truth.

Key words: right to truth, access to information

Summary: The Supreme Court has held that the provision of the Constitution which established obligation on the federal state to guarantee access to information is closely linked to the right to truth, understood as a right of the public to be provided truthful information to enhance its participation in the decision-making process. The Supreme Court has established that authorities who provide manipulated or incomplete information, or information that is biased towards particular interests, and that limits informed participation in public matters, violate constitutional rights.

Resources:

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Paraguay

Case title: Elizabeth Flores Negri v. Rector of the National University of Asunción

Case Number:

Name & status of the court: District Court of Asuncion

Date of decision: July 31, 2007

Relevant law: Constitution, American Convention on Human Rights

Decision: The Court based on the Constitution and American Convention ruled that right to access information was violated in the present case.

Key words: public defender, access to state held information

Summary:

Facts

The case, brought by Instituto de Derecho y Economía Ambiental (IDEA), started when a member of the office of the Public Defender twice requested, in person, from the Rectorate of the National University of Asuncion, a copy of certain amendments to the scholarship regulations. The Rectorate denied the request on technical grounds (because not signed by the proper official in the Public Defender’s Office and not submitted in proper format). The information was eventually provided, but the Public Defender brought a case before the Court regarding the initial refusal.

Decision

The Court, ruling that the suit was not moot, concluded that there is a constitutional right of access to state-held information in Paraguay, which is judicially enforceable and which was violated in this case. The Court relied on the constitutional right to petition the authorities (Article 40) and to receive information from publicly available sources (Article 29). The Court interpreted these provisions in light of Article 13 of the American Convention on Human Rights and the Claude Reyes judgment, which it considered binding law for Paraguay.

Resources:

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Peru

Case title: Case brought by Instituto Prensa y Sociedad (IPYS)

Case Number:

Name & status of the court: Constitutional Court

Date of decision: January 2007

Relevant law: Law on Freedom of Information

Decision: The Court ruled that the costs for copying may not exceed market rate and must be established by the rules of administrative procedure of the public agency

Key words: costs for copying documents

Summary: The Constitutional Court ruled that the Ministry of Justice had violated the constitutional right of access and the FOI Law by charging costs for copying that exceeded the market rate. The Court, overturning a decision of the Supreme Court (of 5 July 2006), noted that the FOI Law (Art. 20) requires agencies to charge only the reproduction cost; the Court ruled that agencies must state a fee in their “Rules of Administrative Procedures (Texto Unico de Procedimientos Administrativos — TUPA)” that reflects actual reproduction costs that can in no case be higher than the market rate. As a result of the ruling, the Ministry must reduce its charge per page from 56 to 7 soles.

Resources:

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Case Title:

Case Number:

Name & status of the Court:

Date of decision: First instance court decision June 2010, last-instance court decision October 15, 2010

Relevant Law: Law on Transparency and Access to Public Information

Decision: Both lower and higher Courts ordered the City Council of Huamanga to release requested information about financing and payments for advertisements done by the City Council in favor of media outlets and journalists

Key words: access to financial information of public office

Summary:

Facts

Mario Cueto Cárdenas, a journalist, requested from the General Secretary of the City Council of Huamanga all the information on the amount of sums paid by the City Council to the media outlets and journalists for posting advertisements during the period from October to December of 2009. As the he didn’t get any answer for more than one month from the City Council he requested the same information, but this time from the Mayor of Huamanga, who is the highest public official of the city. The requested information was not provided and the journalist filed a petition for the writ of Habeas Data to the Court.

Decision

At the Court the City Council claimed that the applicant didn’t request information from the appropriate public official and he didn’t exhaust all the administrative instances set forth by the law. The Court rejected these arguments and granted the writ of Habeas Data. It ordered the City Council to disclose the requested data in ten working days.

The public office appealed against the decision arguing that the requested information didn’t exist and they had to create this information which was not envisaged by the Law on Transparency and Access to Public Information. The higher court dismissed the government’s appeal and upheld the decision of the lower court ordering immediate disclosure of the information.

Resources:

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United States

Case title: Center for International Environmental Law vs. the Office of the United States Trade Representative

Case Number: 01-498 (RWR)

Name & status of the court: District Court for the District of Columbia

Date of decision:

Relevant law: Freedom of Information Act (FOIA)

Decision: The Court ruled that the defendant couldn’t demonstrate that the release of the requested Document 1 would cause harm to national security of the United States and that the exemption established by FOIA applies.

Key words: national security, foreign relations, negotiations for free trade agreement, Confidentiality of documents used in the negotiation process

Summary:

Facts

Center for International Environmental Law (hereinafter CIEL) based on Freedom of Information Act (FOIA) requested from the Office of the United States Trade Representative (hereinafter USTR) the document concerning the United States position in the negotiations for the Free Trade Agreement of the Americas (FTAA). According to the established practice nations participating in the negotiations of the FTAA observe the rule that none of the documents used in the negotiation process can be disclosed unless all the parties agree to this. Due to this after the parties to the negotiation process agreed to make available to the public three out of the four documents requested by the plaintiff the USTR provided these documents to the plaintiff. Following this Document 1 is the only document at issue which USTR claims to be classified national security document the disclosure of which would harm the United States’ position in future foreign and trade relations. It also argues that the release of the document would violate its agreement with other parties of the FTAA negotiations not to release to the public negotiating documents. On its part CIEL claims that the USTR didn’t present sufficient evidence proving that the disclosure of the document would cause any damage to foreign relations and national security of the United States.

Decision

The Court stated that according to the FOIA public bodies are required to make records available to the public and the nine exemptions established by the law should be interpreted as narrowly as possible to ensure that the public has wide access to the information held by the public bodies. It also stated that the public body is in better position to explain the reasons for applying exemption to certain information and that the general statements are insufficient for justifying nondisclosure.

The court didn’t accept the argument of USTR that the disclosure would harm the foreign relations of the United States because in the present case the issue concerned the disclosure of the position of the United States in the negotiation process and not that of any other foreign country. According to the Court because of this the disclosure of requested Document 1 couldn’t discourage any of the foreign countries from providing confidential information to the United State in the future presuming that it would not respect its obligation to keep foreign documents confidential.

USTR also argued that the disclosure of the Document 1 would reveal its position on the interpretation of the particular phrase of the agreement which may be used by the foreign nations to institute arbitration proceedings against the United States for the violation of the agreement. In respect of this the Court held that the arguments brought by the USTR to justify nondisclosure of the document are inconsistent because on the one hand it argues that the disclosure would undermine the trust of foreign countries in the United States and on the other hand that disclosure would harm national security as it would prevent the country from adjusting interpretation of the particular phrase as it suits its interest. Therefore, the court rejected also this argument referred to by USTR.

Resources:

Judgment of the Court.

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Case title: Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others

Case Number:

Name & status of the Court: District Court for the District of Columbia

Date of decision: December 17, 2007

Relevant law:

Decision:

Key words: executive privilege, access to visitor records

Summary:

Facts

The suit was brought by a watchdog group, Citizens for Responsibility and Ethics in Washington, which has been trying to determine how often several conservative religious leaders entered the White House during the Bush administration. They requested visitor records.

Decision

The District Court (court of first instance) ruled that the White House visitor logs were public records, and that the administration should stop withholding them from public scrutiny. The Court rejected administration arguments that the visitor records should be shielded under executive privilege. The court held that though the Secret Service creates, uses and stores visitor records knowledge of these visitors would not disclose presidential communications or any secret policy deliberations. Accordingly, the Court ordered the Secret Service to find the requested visitor logs and apply for any specific exemptions it considered applicable. The ruling means that such records cannot be destroyed without prior approval of the Archivist. The Secret Service appealed.

In June 2008, the United States Court of Appeals for the District of Columbia Circuit ruled that it would be premature to consider reversing the lower court’s decision. Rather, the Appeals Court stated that the dispute should go back to the district court so that the Secret Service could apply for exemptions for specific documents. The Court noted that the watchdog group’s request was narrowly drawn and should not create a burden for the Secret Service.

Resources:

Memorandum Opinion of the District Court for the District of Columbia.

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Case title: Kenny v. Byrne

Case Number:

Name & status of the court:

Date of decision: 1976

Relevant law:

Decision: The Court noted that only full disclosure of the financial information will enable public to reveal corruption and dishonesty in the government.

Key words: state employees’ financial information

Summary: In approving a state’s executive order that required high level state employees to publicly disclose their financial information, the Court noted the connection between the full disclosure requirements and the intent of the order to reveal actual conflicts of interest and also to disclose to public all financial information which may be important in preventing corruption and dishonesty in government. The Court recognized that summary or partial disclosure of financial information would not allow members of the public to evaluate the financial information – and thus to determine where possible conflict exist and to become reassured in the integrity of their government – which means that the very objectives of disclosure would be defeated.

Resources:

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Case title: Lake v. Phoenix

Case Number: 222 Ariz. 547, 218 P.3d 1004 (2009)

Name & status of the court: Supreme Court of Arizona top appellate state court, decision not subject to further challenge

Date of decision: October 30, 2009

Relevant Law: Arizona (US) state freedom of information law

Decision: City was obliged to disclose metadata (electronic information concerning the history of an electronic document) pursuant to state freedom of information law.

Key words: metadata; electronic history

Summary:

Facts

Mr. Lake, a police officer, requested from the City disclosure of the metadata (electronic information describing the history of an electronic document, i.e., the creation date, how often the document was accessed, etc.) attached to electronic documents regarding his work performance prepared by his supervisor. Mr. Lake made this request in the context of an employment discrimination lawsuit in which he suspected that the city backdated the paper copies provided. The City did not contest that the content of the documents constituted a public record, but contended that the metadata does not qualify as a public record subject to disclosure requirements. The two lower courts ruled in favor of the city (paras. 2-5).

Decision

The Supreme Court of Arizona ruled that where public records are maintained in electronic format, the electronic information, including the metadata, is subject to public disclosure (paras. 1, 14). The court recognized the metadata as “part of the underlying document . . . as much as the words on the page.” The court called it “illogical” and in conflict with the law’s “policy of openness” to require that information handwritten on a document would be subject to public disclosure whereas the same information electronically embedded could be withheld (para. 13). The court explicitly rejected the city’s assertion that this ruling would create an “administrative nightmare" (para. 15).

As background, the court recognized the State law on public records to require the maintenance of “all records . . . reasonably necessary or appropriate to maintain an accurate knowledge of their official activities . . .” (para. 9). The court also stated that the state definition of “public records” is broad but not all-inclusive of documents created by public entities: only documents which are substantially related to the state activities are subject to mandatory disclosure (para. 8).

Resources:

Judgment of the Court.

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Case title: Martin Marietta Corp. v. Dalton

Case Number:

Name & status of the court: DC District Court

Date of decision: 1997

Relevant law:

Decision: The Court ruled that the public has the right to know how and why a public authority decided to spend public funds.

Key words: commercial secrets

Summary:

Facts

Martin Marietta, a defense contractor, sought to prevent the Department of the Navy’s Naval Air Systems Command from disclosing (1) cost and fee information, (2) component and configuration prices, and (3) technical and management information.

Decision

The Court found that Martin Marietta failed to show how it would be injured by disclosure of the information, stating that government contracting is one of the important spheres for the public to have information about. The public, including those competitors who lost the business, has the right to know how and why a public authority decided to spend public funds, to be assured the competition was impartial, and even to learn how to be more effective competitors in the future.

Resources:

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Case title: Milner v. Department of the Navy

Case Number: No. 09-1163 (full citation not yet available)

Country or Region: United States

Name & status of the court: United States Supreme Court

Date of decision: 7 March 2011

Relevant law: Freedom of Information Act (FOIA): 5 U.S.C. Article 552(b)(2)

Decision: FOIA Exemption 2, which protects from disclosure material “related solely to the internal personnel rules and practices of an agency” does not apply to military explosives data and maps because Exemption 2 covers strictly human resource matters.

Key words:

Summary:

Facts

In 2003 and 2004, Petitioner Milner submitted FOIA requests for explosives data and maps used by the Department of the Navy in storing munitions.  Pages 1-2 and 5.  The Navy denied the request, invoking “Exemption 2” (5 U.S.C. Article 552(b)(2)), which protects from disclosure material “related solely to the internal personnel rules and practices of an agency.”  Page 6.  Grounded in this exemption, the Navy argued that disclosure would threaten the security of the base and its surrounding community.  Page 5.  After the District Court granted summary judgment to the Navy and the Court of Appeals affirmed, the Supreme Court granted certiorari.

Decision

The Supreme Court ruled that the Navy was not justified in withholding the explosive maps and data requested because Exemption 2 applies only to records relating to employee relations and human resources issues.  Pages 1, 19.  Legislative history supported the Court’s decision, as Congress had drafted Exemption 2 as a replacement for a broader exemption previously contained in the Administrative Procedure Act.  Exemption 2, therefore, was designed to discourage excessive withholding by using language of narrower reach.  Pages 1-2.  In light of this historical context, the Court clarified the meaning of the word “personnel” as referring strictly to human resource matters (e.g. a “personnel department deals with employee problems and interviews applicants for jobs”).  Pages 6-7.  The Navy offered an alternative reading of Exemption 2 based on a D.C. Circuit decision from 1981 (Crooker v. Bureau of Alcohol, Tobacco & Firearms) which reasoned that Exemption 2 also protects “predominantly internal” materials whose disclosure would “significantly ris[k] circumvention of agency regulations or statutes.”  Pages 3-4, 10-12.  The Court rejected this argument, noting that this circumvention requirement has “no basis or referent in Exemption 2’s language.”  Page 10.  In addition to replacing the word “solely” with “predominantly,” the circumvention requirement in Crooker “ignores the plain meaning of the adjective ‘personnel’” and relies on ambiguous legislative history.  Pages 10-12.  The Court also made a further distinction that the use of the term “personnel” in Exemption 2 connotes that the file/department or practice/rule is “about personnel” not “for personnel.”  Page 15.  Finally, the Court recognized that while the Navy has a strong security interest in shielding this kind of data from public disclosure, there are other exemptions available for that purpose: e.g. FOIA Exemption 1, 3, and 7.  Pages 17-18.  On remand, the Ninth Circuit Court of Appeals remains open to address the applicability of Exemption 7, which protects “information compiled for law enforcement purposes . . . [if its release] could reasonbly be expected to endanger the life of physical safety of an individual.”  Page 18.

Resources:

Decision of the United States Supreme Court

Case title: NLRB v. Robins Tire & Rubber

Case Number: 437 U.S. 214, 242

Name & status of the court: United States Supreme Court

Date of decision: June 15, 1978

Relevant law: Freedom of Information Act

Decision: In the present case the Court noted that disclosure of the employees’ statements would interfere with the enforcement proceedings because the employers may coerce employees and others who gave statements against the employer to change them.

Key words: access to investigation documents

Summary:

Facts

After the National Labor Relations Board (NLRB) filed an unfair labor practice complaint against respondent employer, respondent requested, pursuant to the Freedom of Information Act (FOIA), that the NLRB make available prior to the hearing copies of all potential witnesses' statements collected during the NLRB's investigation. This request was denied on the ground that the statements were exempt from disclosure under, inter alia, Exemption 7 (A) of the FOIA, which provides that disclosure is not required of investigatory records collected for law enforcement purposes if this would interfere with enforcement proceedings.

Decision

The Supreme Court held that the principle purpose of access to information right is to guarantee that public is fully informed in order to check against corruption and hold public official accountable which is crucial for the existence of democratic state.

The Supreme Court reversed the decision of the Court of Appeals to the extent it required prehearing disclosure of the statements made by the respondent’s employees. It stated that disclosure of the employees’ statements by NLRB would interfere with the enforcement proceedings because the employers may coerce employees and others who gave statements to change them.

Resources:

Judgment of the Court.

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Case title: U.S. Dept. of Justice v. Tax Analysts

Case Number: 492 U. S. 136 (1989)

Name & status of the court: Supreme Court

Date of decision: 1989

Relevant law:

Decision:

Key words: agency records

Summary: The Court has established a two-part test, holding that "agency records" are records that are (1) either created or obtained by an agency; and (2) under agency control at the time the FOIA request is made.

Resources:

Judgment of the Court.

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Uruguay

Case title:

Case Number:

Name & status of the court: Court of Appeal

Date of decision: March 4, 2002

Relevant law:

Decision: The Court ordered the executive branch to release information related to an arrest request by Argentina concerning two former members of the military and an ex-policeman for alleged human rights abuses.

Key words: exception to ATI, arrest request

Summary: Court of Appeals ordered the executive branch to release information related to an arrest request by Argentina concerning two former members of the military and an ex-policeman for alleged human rights abuses. The information included reports of the Public Prosecutor and the Attorney General. The Court ruled that exceptions to the principle of access to information shall be clearly stated, noting the importance of international human rights provisions, freedom of information as a means to build public opinion, and the essential character of public opinion in a democratic society.

Resources:

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Europe

Albania

Case title: CDDI v. City of Tirana

Case Number:

Name & status of the court: Tirana District Court

Date of decision: November 8, 2007

Relevant law:

Decision: The Court ordered the full disclosure of the government contract regarding waste collection.

Key words: government contracts

Summary:

Facts

In September 2006, the Centre for Development & Democratization of Institutions (CDDI), the leading ATI NGO in Albania, filed a request with the Tirana District Court for six items, including (1) copies of contracts with city waste collection contractors, and (2) a map with locations of waste containers. CDDI wanted the contracts because there had been serious allegations of abusive contracting by the City in this and other areas. The City did not respond or provided any information even after four court hearings.

Decision

At the fifth hearing, the judge ordered the City manager to provide the requested information to the judge or face a steep personal fine (which would have been the first such order in Albania). In November 2007, at the sixth court hearing, the City lawyers provided responses to four of the information requests, but did not provide the two items described above. Regarding the requested contracts, lawyers for the City argued that as the contracts will expire soon, CDDI can ask for the 2008 contracts as they are signed. The judge rejected that argument as irrelevant and ordered disclosure. This is the first time that an Albanian court has ordered full disclosure of a government contract.

Resources:

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Bulgaria

Case title: Decision No 7 of 1996 on constitutional case No 1 from 1996 [citation is considered the official case name]

Case Number: Decision No 7 of 1996 on constitutional case No 1 from 1996

Name & status of the court: Constitutional Court

Date of decision: 1996

Relevant law:

Decision:

Key words: access to information, state obligation

Summary: The Constitutional Court held that the constitutional right “to seek, obtain and disseminate information”: a) entitles every citizen to seek and obtain information from government bodies without the need for special justification of his/her interest and b) imposes an obligation on the state to provide public information.

Resources:

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Case title: Desislava Krasteva (bTV) vs. the Administrative Court – Varna

Case Number: No.572/2008

Name & status of the court: Administrative Court – Dobrich, first instance court

Date of decision: January 5, 2009

Relevant law: Access to Public Information Act (APIA)

Decision: The Court annulled the decision of the Interim Chairperson of the Administrative Court – Varna and ordered to disclose to the applicant requested administrative case file.

Key words: access to administrative case files, public interest

Summary:

Facts

In 2008 the applicant, a reporter of one of the main channels bTV, requested from Administrative Court in Varna the disclosure of the documents of 2008 administrative case file. The request was motivated by the doubt expressed in the press that the former chairman of the court took bribe for the decision of the case. The request was refused by the Interim Chairperson of the Administrative Court – Varna based on the ground that the case contained personal data and Article 2 of Access to Public Information Act (APIA) excluded the disclosure of information containing this kind of data.

The applicant filed a complaint before the Administrative Court –Varna. As all the judges requested to be struck of the list and the case was sent to the Administrative Court – Dobrich.

Decision

According to the Court of Dobrich the requested information was of public interest as there were public discussions about the detention of the former Chairman of the Administrative Court with charges of bribery. As the Court stated the high public interest in respect of the requested information was caused by the fact that the Bulgarian society demonstrated its strong intolerance against corruption in public authorities. The Court pointed out that as the requested information concerned the case in which legal persons were engaged the argument of personal data protection couldn’t be applied. According to the Court there was not involved any commercial secret as well.

Due to all these the Court ordered the Interim Chairman of the Administrative Court –Varna to provide to the applicant the requested information.

Resources:

More information about the case.

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Case title: 03528/2006 [citation is considered the official case name]

Case Number: 03528/2006

Name & status of the court: Sofia City Court

Date of decision: November 2, 2007

Relevant law: Access to Public Information Act

Decision: The Court ruled that the refusal to release the contract with Microsoft Company regarding the purchase of software was unlawful and even if Microsoft would not consent to release information the public office still must weight all the considerations and may release at least some of the information.

Key words: commercial secrets

Summary:

Facts

Rosen Bosev, a journalist with Capital weekly had requested information Director of the Government Information Service (GIS) about the conditions under which the former minister of state administration, Mr. Dimitar Kalchev, had signed a contract with Microsoft Company for the purchase of software licenses for the needs of the state administration, as well as a copy of the contract itself. The issue became widely discussed after publication in the press about the increase in the number of software licenses to 48,000, which meant that the overall price had gone beyond USD $ 28 million. Moreover, the Bulgarian government had signed the contracts with Microsoft Company without a public procurement process. In May 2007, the Director of the GIS refused to grant access to the requested information, on the ground that the conditions for the signing of the contracts, and the contracts themselves, were trade secrets and that disclosure would have resulted in unfair competition.

Decision

With the legal assistance of Access to Information Program (AIP), the journalist submitted a complaint to the Sofia City Court, whose last hearing in the case was on October 3, 2007. The Court declared the refusal unlawful. Pursuant to Article 31 of the Access to Public Information Act, the GIS should have asked Microsoft if it could release the information, which the GIS failed to do. The Court also stated that even if Microsoft does not consent to the release of information, this does not mean that the GIS should automatically refuse to release the information. Instead, the GIS should weigh the various considerations, and might for instance release at least some of the requested information.

Resources:

More information about the case

Summary of the case.

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Case title:

Case Number:

Name & status of the court: Administrative Court of Sofia City

Date of decision: November 11, 2010

Relevant law: Access to Public Information Act (APIA)

Decision: The Court ordered the administration of the president to disclose the requested minutes of in private meeting held between the President of Bulgaria and the former President of Russia Vladimir Putin in 2008.

Key words: access to the minutes of two presidents’ in private meeting

Summary:

Facts

In April 2010, Lachezar Lisicov, a journalist of a newspaper, requested the minutes of in private meeting held between the President of Bulgaria and the former President of Russia Vladimir Putin in January 2008. The Presidents’ administration didn’t disclose the information within the required time of 14 days established by the law.

Decision

With the assistance of Access to Information Program (AIP) the journalist filed a complaint before the Administrative Court. The Court ruled that the requested information is public information according to article 2(1) of Access to Public Information Act (APIA) because it provides information to the citizens about the activities of the President in foreign policy. The Court stated that based on the Regulation on the Implementation of State Protocol Act in private meeting is not the exception and shall be recorded and kept. As the Court held, though the meeting was only between the two presidents and was not attended by other persons it was still official meeting and besides that, the only fact that it was between the two presidents was not enough to consider it as confidential. According to the Court even if it was confidential the president’s administration should have provided motivated refusal for the disclosure of the information to the applicant.

Based on all the above the Court ordered the administration of President to disclose the requested information. The decision is final as the respondent didn’t appeal.

Resources:

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Denmark

Case title:

Case Number:

Name & status of the court: Copenhagen City Court

Date of decision: December 4, 2006

Relevant law:

Decision: The Court ruled that the journalists acted in public interest when disclosed the confidential information regarding the decision of Danish government to take part in military action in Iraq.

Key words: public interest, journalists

Summary:

Facts

In its verdict of September 2005 the Eastern Division of the Danish High Court found Frank Grevil, a public servant with the Danish Defense Intelligence Service, guilty of disclosing confidential information without authorization. In February 2004, he had disclosed three threat assessments of October 2002, January and March 2003 to two Danish journalists and an editor. The journalists published stories in February and March 2004 based on the information knowing that it was secret and confidential. The media defendants were charged with publishing confidential information.

When the articles were published, there was considerable public interest in knowing the basis for the decision taken in March 2003 by the Danish Government to become involved in the military action in Iraq, and the question as to whether Iraq might possess weapons of mass destruction was an important part of such concerns. In the opinion of several witnesses, publishing the information at issue was of material importance to the public debate in helping the public to understand the role of the Intelligence Service and contributing to greater openness surrounding the affairs of the Intelligence Service.

Decision

The Court upheld the conviction of Grevil but reversed as to the journalists. The question as to whether media defendants may be punished for these offences depends on whether their disclosure of confidential information can be characterized as "unauthorized", or whether instead it is proved that the defendants acted legitimately in the obvious public interest. The Court reasoned that the provisions of the Danish Criminal Code must be read in light of Article 10 of the European Convention on Human Rights and case law from the European Court of Human Rights. The Court concluded that such importance must be attached to the considerable public interest surrounding the decision to take part in the invasion of Iraq in 2003, compared with the risk that the operations of the Intelligence Service would suffer. The Court decided that the defendants acted legitimately in the obvious public interest when they chose to disclose the confidential information. The media defendants, accordingly, were acquitted.

Resources:

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Hungary

Case title: Decision 32/1992 (V.29) AB [citation is considered the official case name]

Case Number: Decision 32/1992 (V.29) AB

Name & status of the court: Constitutional Court

Date of decision: 1992

Relevant law:

Decision:

Key words: management of public affairs, democratic values

Summary: The Constitutional Court ruled that freedom of information is a fundamental right essential for citizen oversight: The publicity and accessibility of data of public interest is a fundamental right guaranteed by the Constitution, which also happens to arise directly from it. Free access to information of public interest promotes democratic values in elected bodies, the executive power, and public administration by enabling people to check the lawfulness and efficiency of their operations. Because of the complexity of the civic sphere, the citizens’ sway over administrative decisions and the management of public affairs cannot be effective unless public authorities are willing to disclose pertinent information.

Resources:

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Case title: Decision 34/1994 (VI.24) AB [citation is considered the official case name]

Case Number: Decision 34/1994 (VI.24) AB

Name & status of the court: Constitutional Court

Date of decision: 1994

Relevant law:

Decision:

Key words: state secrets, public interest

Summary: The Court struck down a state secrets law, ruling that it imposed impermissible restrictions on the right to information. In so doing, the Court found that free access to data of public interest, including those held by the state, is one of the preconditions for the exercise of the right to free expression.

Resources:

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Case title: Environmental Management and Law Association (EMLA) v. National Bureau of Historic Monument Protection. Parking Lot Construction in World Heritage Buda Castle

Case Number:

Name & status of the court: Budapest Capitol Court, the second-instance court

Date of decision: November 25, 2010

Relevant Law: FOIA of Hungary, Administrative Procedure Act of Hungary

Decision: The first and the second instance courts ordered the disclosure of construction permit of parking lot in Buda Castle district and also disclosure of Urban Planning Impact Study

Key words: access to construction permit, historical heritage, access to files of administrative procedure, conflict of FOIA and procedural laws, access to preparatory materials

Summary:

Facts

A public company (owned by the government and the respective municipality) has received a permit from the Cultural Heritage Protection Office in 2001 October to build a parking lot for 700+ vehicles in the UNESCO World Heritage Buda Castle. Later the company has decided to suspend respective activities, and the parking lot has in fact never been built. In 2010 a large piece of stone has fallen off the castle wall, questioning the quality of maintenance activities done in the castle.

Katalin Joósz, student of the FOI Legal Clinic at ELTE together with Csaba Kiss from the Environmental Management and Law Association (EMLA) has requested the disclosure of the aforementioned construction permit and the Urban Planning Impact Study accompanying the permitting documentation from the Cultural Heritage Protection Office in 2009 December. The request was refused and the requester brought an action in the court.

Decision

The Court of first-instance delivered its judgment in 2010 April and obliged the defendant, Cultural Heritage Protection Office to disclose the requested permit as well as the so-called Urban Planning Impact Study. The defendant appealed against the decision. The Budapest Capitol Court has upheld the decision of the first instance court in its entirety. The final judgment was based on the following arguments, in fact accepting the reasoning of the plaintiff:

  • it is irrelevant how the administrative procedural laws regulate access to documents as long as the FOIA is an independent and sufficient legal basis for FOI claims;
  • a FOI claim has to be judged by reference to the FOIA and no additional legal basis is needed;
  • the process of information requests is regulated by the FOIA and not by the administrative procedural laws;
  • the requested data are public interest data and at the same time constitute environmental information, thus the Aarhus Convention has to be applied accordingly;
  • The construction permit of a parking lot to be built inside the Buda Castle, which is a part of World Heritage, must be disclosed;
  • the defendant has not proved that the non-disclosure of the impact study as a preparatory material is in its interest, thus it has to be disclosed as well.

Resources:

Judgment of the Court.

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Case title:

Case Number:

Name & status of the court: Regional Court of Appeals

Date of decision: September 8, 2008

Relevant law: Freedom of Information Act

Decision: The Court ordered the Hungarian Ministry of Development and Economics to disclose information concerning investments worth 200 billion Hungarian forints (nearly 800 million euros) made by Swedish companies stating that there was public interest regarding the information.

Key words: commercial secrets

Summary:

Facts

In 2001, the Hungarian Air Force had decided to purchase the Swedish Gripen-jets instead of American F-16 jets. In compliance with the contracts, 110% of the purchase price had to be invested in Hungary by Swedish companies or rather, had to be used to create export-expansion opportunities to Sweden for Hungarian companies. Two years later, the following administration ordered more advanced jets, nearly doubling the purchase price. In December 2007, the Ministry’s Offset Committee informed the public that the Saab/Gripen Group had fulfilled more than 90% of the offset.

A journalist of the on-line newspaper, origo.hu asked the Ministry for information about the investments that constituted the offset. The Ministry refused on the ground that the information was a commercial secret, and the journalist, represented by the Hungarian Civil Liberties Union (HCLU), initiated a Freedom of Information lawsuit in December, 2007. The object of the lawsuit was to find out which Swedish investments had been counted by the Ministry. In mid-August 2008, the Saab/Gripen Group issued a press release stating that it had fulfilled all of it duties – worth almost 800 million euro - according to the contract. The original term, cited from the 2001 contract, was due to end in 2015. The press release also stated that the Ministry had approved the completion of the contract on March 27th, 2008.

Decision

The Court ordered the Hungarian Ministry of Development and Economics to disclose information concerning investments worth 200 billion Hungarian forints (nearly 800 million euros) that, according to the Ministry, Swedish companies had made in exchange for the purchase of (Swedish) Gripen fighter-jets by the Hungarian Air Force.

The Court stated that the requested information is unequivocally of public interest since the fighter-jets were purchased from public funds and the information requested by the journalist is closely connected to the purchases. The Court stated that the Ministry is obliged to issue the precise list of companies that received shares from the offset program.

Resources:

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Romania

Case title: Romanian Helsinki Committee v. Minister of Public Finances

Case Number:

Name & status of the Court: Bucharest Tribunal’s Administrative Division; Bucharest Court of Appeal

Date of decision: February 3, 2003

Relevant law:

Decision: The Court ruled that there was a public interest regarding the requested information and that Ministry of Finance should organize in such way as to be able to provide information in due time.

Key words: court fees, NGOs

Summary:

Facts

The Romanian Helsinki Committee (RHC) asked the Minister of Public Finances (MPF) for various statistics on the handling of requests to waive court fees including the number of requests for different types of fee waivers, how many of those were granted between 1990-2002, the number of cases in which a different type of fee waiver was granted than requested, the number of complaints against the amount of court fees, and how many of those were approved. The MPF did not answer and denied the information after administrative appeal on the following grounds:

  • the information was not of public interest because it concerned personal data;
  • the MPF did not hold such information, and
  • data processing would take longer than the maximum legal time-limit (30 days).

Decision

The RHC challenged the denial of information before the Bucharest Tribunal’s Administrative Division. The Court found in favor of RHC on the grounds that (a) the information is of public interest, and (b) synthetic information is not personal data and does not fall under any exception from free access. The MPF appealed to the Bucharest Court of Appeal (BCA). The BCA upheld the first instance decision. It reasoned that there is public interest in the information and MPF should organize its activity to be able to provide information in due time. The MPF did not comply with the decision in due time. Accordingly, the RHC brought court proceedings against the Minister seeking penalties, and only then was the information released.

Resources:

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Russian Federation

Case title: Dmitry N. Myshkin vs. Administration of the Khimki town district

Case Number: No. 33-9245/2011

Name & status of the court: The Moscow Oblast Court, in this case court of appeal

Date of decision: April 21, 2011

Relevant law: Freedom of Information Law

Decision: The Moscow Oblast Court ordered the town administration to provide to the applicant all the normative documents used for local budget formation

Key words: local budget, preparatory documents for budget drafting, activities of local self-government bodies

Summary:

Facts

The draft budget of Khimki town for 2011 was posted on the official website in accordance with legislation. According to it 265,289,000 rubles were assigned to the “General Governmental Issues” budget line. As far as the normative documents applied in the formation of local budged have not been published it was not possible to determine why such huge amount was assigned to “General Governmental Issues” budget line.

A resident of Khimki filed a request to the district head, asking to publish the normative documents explaining funding of the “General Governmental Issues” budget line, and to disclose the number of municipal employees in the Khimki town district as for November 1, 2010. The request was denied because according to the local administration orders issued by it and decisions made by the town Council of Deputies cannot be considered as the information on the activities of public bodies, including both government and local self-government bodies. The requester filed a case to the court.

Decision

On 17 February 2011 the Khimki town court upheld the decision of the town administration ruling that all normative documents requested by the applicant are necessary for the logistical support of the activities of public authorities and because of this neither the FOI law nor the Federal Law “On Information, Information Technologies, and Information Protection” apply to them.

The applicant appealed against the decision to the Moscow Oblast Court. The latter ruled that the documents requested by the applicant relate to the activities of the local public authorities and ordered the town administration to disclose them to the applicant all the requested documents in due time.

Resources:

Decision of Khimki town Court

Decision of Moscow Oblast Court.

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Case Title: Nazarova v. Ministry of Justice

Case Number: GKPI10-459 (????10-459)

Country or Region: Russian Federation

Name and Status of Court: Supreme Court, Highest court of appeal; decision unreviewable

Date of Decision: 30 June 2010

Relevant laws: Order of the Ministry of Justice No. 244 (2005) (“on the delivery of information contained in the federal registry of normative legal acts”); Federal Law No. 8-FZ (2009), Articles 8(3) & 10(4) (on access to government information); Federal Law No. 149-FZ (2006), Article 8(5) ("On Information, Information Technologies, and Information Protection")

Decision: The right to access governmental information from the federal register cannot be read to require a “motivated written request.”

Key words: Duties of public authority; Evidence; Proactive publication; Government; Judiciary; Electronic information; Laws; Legal records; Interest of requester; Requester, status of; Burden of proof; Public interest; Transparency

Summary:

Facts

Daria Nazarova, a lawyer with the Institute for Information Freedom Development, sought free unlimited online access to the register of normative legal acts, challenging the 2005 Order of the Ministry of Justice No. 244 which limited access to those who advance a "motivated written request." Ms. Nazarova claimed that Section 8 of the Order limited access to information on the Ministry website, contrary to right to information protections found in Article 8(5) of the Federal law No. 149-FZ “on information, informational technologies and on the protection of information”, and Articles 8(3) and 10(4) of the Federal law No. 8-FZ “on providing access to information about the activity of government bodies and bodies of local governance.”

Decision

The Court held that the right to access information presumes that citizens and organizations can search for and receive any information in any form, from any source, so long as conditions of federal law are met. The right to access information about government activity does not require a requester to prove necessity. The Court recognized Section 8 of the Order as invalid so far as it requires a “motivated written request.”

Resource:

Judgment of the Court (in Russian)

Unofficial translation

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Slovakia

Case title: no. I. ÚS 57/00 [citation is considered the official case name]

Case Number: no. I. ÚS 57/00

Name & status of the court: Constitutional Court

Date of decision:

Relevant law:

Decision:

Key words: audio recording, municipal body

Summary: The Constitutional Court ruled that the right to make an audio recording of a session of a municipal legislative body follows from the Constitution. The Court reasoned that based on the Constitution the right to information has three components - seeking out, receiving, and disseminating information. Receiving information means collecting data so that it can be processed by the subject for his/her needs or for the needs of others. Acquiring information can be done by sensual organs as well by various technical means such as audio, visual or audiovisual records and by any other means.

Resources:

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Case title: no. II. ÚS 44/00 [citation is considered the official case name]

Case Number: no. II. ÚS 44/00

Name & status of the court: Constitutional Court

Date of decision:

Relevant law: Constitution

Decision: The Court ruled that the public has the right to receive information concerning the execution of the functions of the public body.

Key words: video recording, police action, right to privacy

Summary:

Facts

The police took action against people demonstrating for the freedom of Tibet on the square in the town of Prešov in order to prevent them from continuing the demonstration. When people began to make a video recording of the police action, the police prevented them from doing so, arguing that making a video recording of their action violated their right to privacy and their right to protection of personality.

Decision

The Court ruled that the right to make a video recording of members of the police during a police action follows from the Constitution. As it held execution of public duties in the public place cannot be regarded as part of either the right to privacy or as an expression of personal nature of public officials. They must accept the right of the public to have access to the information concerning the execution of the functions of the public body.

Resources:

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Case title: no. IV. ÚS 40/03 [citation is considered the official case name]

Case Number: no. IV. ÚS40/03

Name & status of the court: Constitutional Court

Date of decision:

Relevant law: Constitution

Decision:

Key words: voting-photographs, municipal bodies

Summary: The Constitutional Court ruled that prohibiting a citizen from taking photographs of members of the municipal legislative body during the process of a vote on an important issue violated the constitutional right to receive information.

Resources:

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United Kingdom

Case title: UK All Party Parliamentary Group on Extraordinary Rendition v. Ministry of Defense

Case Number: [2011] UKUT 153 (AAC)

Name & status of the court: Upper Tribunal, Administrative Appeals Chamber (UTAAC), Superior court of record with status equivalent to the High Court

Date of decision: April 18, 2011

Relevant law: UK Freedom of Information Act

Decision: Under the UK Freedom of Information Act, (i) the government’s belated assertion of excessive cost concerns has prejudicial effect that can invalidate the government’s claim; (ii) there is high public interest in the disclosure of information concerning detention and interrogation policies; (iii) the international relations exemption (§ 27) is not implicated in a request for agreements concerning adherence to the law; (iv) information concerning the Special Forces (§ 23) and legally privileged communications (§ 42) is broadly exempt; and (v) a personal data exemption (§ 40) is not implicated in a request for non-identifying statistical details.

Key words: national security; international relations; data protection; exemptions; cost; Special Forces

Summary:

Facts

The UK All-Party Parliamentary Group (APPG) on Extraordinary Rendition was established in 2005 to examine allegations of UK involvement in the US practice of extraordinary rendition in counterterrorism operations. The APPG filed information requests in 2008 seeking information about the extralegal transfer for detention and interrogation with the risk of torture or cruel, inhuman or degrading treatment. The information requested included (i) information concerning diplomatic assurances between the UK and Iraq, Afghanistan and the US on the handling of detainees; (ii) the Detention Practices Review; (iii) the UK policy on capture and joint transfer; and (iv) statistics on detainees captured and transferred by the Joint Task Forces.

In the administrative review process, the Ministry of Defense provided only limited information, and denied the bulk of the information requests on cost grounds; as well as substantively on the grounds that the information implicated various exemptions – including for international relations, information concerning Special Forces, legally privileged information, and personal data subject to protection.

The appeal followed various decisions by the Information Commissioner ruling on the exemptions claimed by the Ministry of Defense. The request was read as a citizen’s request under the UK’s freedom of information act, not as a request of Members of Parliament or parties to other litigation.

Decision

In a public decision supplemented by a closed annex, the Tribunal rejected most of the government’s cost arguments; acknowledged the high public interest in the information requested; ordered disclosure of some statistical and other information and a further hearing to consider more fully the international relations exemption asserted; and accepted the government’s assertions on the legitimate non-disclosure of information concerning Special Forces and legally privileged information.

On the cost question, the Tribunal held that the central government’s cost limit of £600 could not be belatedly invoked here because of its prejudicial impact given the importance of time and the potential remedy available to the applicant of dividing up the request to satisfy the cost limitation (para. 47).

Regarding the § 27 international relations exemption (protecting information likely to prejudice international relations or the interests of the UK abroad) as applied to the diplomatic assurances, the Tribunal noted that this is a “qualified exemption” subject to the public interest balancing test (para. 54). Despite giving “appropriate weight” to the executive branch concerns (para. 56), the Tribunal was disposed to reject the government’s assertion of a harm to international relations from disclosure (paras. 59, 64-66).

The Tribunal expressed skepticism that an agreement intended to ensure human rights and legal compliance in detainee transfers “could be perceived as confidential in nature or something the existence of which embarrasses foreign states” (para. 59). The Tribunal went on to say that:

Since the maintenance of the rule of law and protection of fundamental rights is known to be a core value of the government of the UK, it is difficult to see how any responsible government with whom we have friendly relations could take offence at open disclosure of the terms of agreement or similar practical arrangements to ensure that the law is upheld. . . . If, on the other hand, there was such a case [of a particular government with concerns about disclosure of such information], then the public interest in disclosing the terms of those arrangements becomes that much more pressing and weighty. It is difficult to see how the Secretary of State for Defense, let alone the general public concerned with the issue, could be assured by assurances with a foreign government that was unwilling to have the terms of such agreements made open (paras. 64, 66). The Tribunal ordered a subsequent hearing, but with the “doubt” that the “s.27 exemption can outweigh the public interest in knowing what the terms of the understanding are” (para. 67).

The Tribunal similarly rejected the government’s arguments that the international relations exemption applied to the request for disclosure of the Detention Practices Review (para. 73), but upheld the government’s assertions regarding secrecy of legally privileged information (para. 42) for its legal annex. According to the Tribunal, the assertion of the exemption withstands scrutiny because of the strong public interest in enabling the government to obtain “frank and confidential legal advice,” despite the countervailing “weighty nature of the public interest factors in favor of disclosure of material concerning treatment of detainees.”[3] (para. 76).

The Tribunal upheld the government’s assertions regarding secrecy of information concerning Special Forces (para. 23) implicated in the requests for the policy on capture and statistics concerning Iraqi operations (paras. 87, 101). Where all the information concerned the UK Special Forces, the government could respond by neither confirming nor denying the existence of information responsive to the request (para. 87).

The Tribunal rejected the government’s assertions that it needed to protect personal data (§ 42) implicated in the request for statistics concerning captured detainees, mandating the disclosure of certain Afghan data that did not include detainee names. The Tribunal held that the disclosure of this information is not personal data because individuals would be unidentifiable. Even if identifiable, it would not prejudice the individuals because they were detained for short periods (para. 123).

Resources:

Judgment of the Court.

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Asia and Pacific Islands

Australia

Case title: ADI Residents Action Group and Dep’t of Finance and Admin. & Anor

Case Number:

Name & status of the court: Administrative Appeals Tribunal of Australia

Date of decision: January 29, 2001

Relevant law:

Decision:

Key words: commercial secrets

Summary: The Tribunal ordered that the development agreements governing the disposal of an ammunition factory and surrounding land could be withheld. The information included profit and risk sharing arrangements of the parties, incentives, funding proposals, and the particular methodology for managing the contract from which the parties expected to derive commercial benefit

Resources:

Decision of the Tribunal.

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Case title: XYZ v Victoria Police

Case Number: [2010] VCAT 255

Name & status of the court: Victorian Civil and Administrative Tribunal

Date of decision: March 16, 2010

Relevant law: Charter of Human Right and Responsibilities 2006

Decision: The Court noted that the freedom of information presents indispensable part of freedom of expression, but in the present case it was ruled that the public interest in protecting the integrity of investigation into illegal acts of police prevailed over the personal interest of the applicant in the disclosure of the documents related to the investigation.

Key words: right to information as part of freedom of expression

Summary:

Facts

XYZ, a senior constable with Victoria Police was suspected of money laundering by the Ethical Standards Department. However, the investigation found no evidence and therefore he was not charged. Under the Freedom of Information Act XYZ requested documents related to the investigation in order to reveal unlawfulness of the investigation. Police rejected access to some of the documents based on the ground that their disclosure would violate the integrity of investigation into police misconduct.

Decision

In the decision Justice Bell held that the right to freedom of expression guaranteed by s 15(2) of the Charter of Human Right and Responsibilities 2006 comprises a positive right to have access to public documents. He stated that freedom of information presents indispensable part of freedom of expression, because the aim of the right to freedom of information will be violated if the public authorities will be able to refuse access to information without any justification. He also held that the right is not absolute but subject to objective restrictions and public authorities have margin of appreciation in this respect.

The application was rejected based on the ground that personal interests of the applicant to receive information in accordance with his right to freedom of expression was outweighed by the public interest in protecting the integrity of investigation into illegal acts of police.

Resources:

Order of the Tribunal.

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Fiji

Case title:

Case Number:

Name & status of the court: High Court

Date of decision: October 2007

Relevant law:

Decision: The Court ruled that the results of financial audit of Fiji's largest financial institution are a matter of public interest and Fiji TV Ltd. had to be allowed to broadcast the information.

Key words: public interest, media

Summary: Fiji’s High Court cited Article 174 as partial basis for its ruling that Fiji TV Ltd. had to be allowed to broadcast information about a financial audit of the Fiji National Provident Fund (FNPF), a statutory body which is Fiji’s largest financial institution. Fiji TV aired excerpts of an audit by the accounting firm of Ernest and Young on September 19, 20 and 21 by which date the FNPF obtained a temporary injunction. It then filed an application for a permanent injunction. In dismissing the application, Justice Coventry of the High Court concluded that the findings of the audit were a matter of clear public interest and that the FNPF had failed to prove that the report was confidential. Furthermore, he ordered the FNPF to pay FJD $ 13,500 (US $ 8,812) in costs to Fiji TV. Justice Coventry reasoned that the FNPF could not seek to prevent the public from knowing the contents of a report concerning the conduct of its affairs when it involved the investment of millions of dollars of their money. Drawing attention to Article 174 on Freedom of Information, Justice Coventry noted that the fact that parliament has not yet adopted the law guaranteeing access to official documents of public authorities is a serious shortcoming and should be rectified as soon as possible.

Resources:

News report “Court Strikes Blow for Right to Information”.

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India

Case title: Common Cause v. Union of India

Case Number:

Name & status of the court: Supreme Court

Date of decision: 1996

Relevant law:

Decision:

Key words: election commission, political parties

Summary: The Court held that the Election Commission was authorized to collect information from political parties and their candidates on their electoral spending.

Resources:

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Case title: Electronics and Computer Software Export Promotion Council v. Central Information Commission & Navneet Kaur

Case Number:

Name & status of the court: Delhi High Court

Date of decision: July 19, 2006

Relevant law: Access to Information Act

Decision: The Court ruled that if an organization discharges public functions, receives money from and is controlled by the government, is must be considered as public authority and must abide by the RTI Act.

Key words: private bodies receiving public funds and/or performing public functions, access to information

Summary:

Facts

The applicant alleged sexual harassment against two officials of the Electronic and Computer Software Export Promotion Council (ESC). When she requested information about the committee that was established to investigate the allegation, ESC argued it did not need to release the information because it was not a “public authority” for purposes of the RTI Act because it had autonomy to make its own rules and its employees were not government employees.

Decision

First the Central Information Commission, then the High Court, disagreed. An organization is a “public authority” if it discharges public functions and meets financial and administrative criteria. The High Court relied on the fact that ESC receives over half of its budget from the central government. Significant administrative factors included the fact that ESC is audited by a government department, reported to the central government through a department, and received department assignments. This “public authority” nature was not negated by the ESC’s autonomy in framing its rules governing the service conditions of its employees or by the fact that ESC employees are not considered government servants. The Court held that a “trade facilitation organization” is a “public authority” because of (a) financial support and (b) administrative control, and therefore must abide by the RTI Act.

Resources:

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Case title: Public Information Officer, Chief Minister's Office, Civil Secretariat Govt. of U.P. v. State Information Commission and Ors.

Case Number: 2008(4) AWC3574

Name & status of the court: High Court of Allahabad (Lucknow Bench)

Date of decision: July 1, 2008

Relevant law: Right to Information Act 2005, Constitution

Decision: The Court ruled that the Chief Minister Discretionary Fund is the public money and the public has the right to receive information about it.

Key words: access to public funds, information about persons receiving money from public funds, privacy of the beneficiary of the fund

Summary:

Facts

Decision

In this case, the Court had to decide whether: a) the names of the persons including address who have received money from the Chief Minister Discretionary Fund and also the amount of money received, can be disclosed; b) whether the Chief Information Commissioner is competent only to impose a punishment for the failure to disclose information or can also order disclosure of information.

The Court held that all the information about the Chief Minister’s Discretionary Fund, including the information regarding the persons, who have received any amount from the fund with their category and the amount received are the information which must be made public. The public has a right to receive this information and also information whether the amount has been properly utilized or not. As the Court ruled the aim of the Right to Information Act is to prevent abuse of power by the public agencies by requiring them to make certain information about their work public. The aim of the Act is not only to provide information but to check a level of corruption in public agencies. For that purpose the Act enables the citizens to receive the necessary information, so that they can initiate appropriate action against the officers taking illegal decisions. Right to information/right to know is an integral part of the freedom of speech and expression, a fundamental right guaranteed by the Constitution. According to the Court the Chief Minister's Discretionary Fund is the public money and, therefore, public has a right to have information about it. The argument that the disclosure of such information would invade the privacy of the beneficiary has no ground and the benefit received from this fund does not reduce honor and the status of the beneficiary.

Regarding the powers of the Commissioner the Court held that the obvious intention of granting enquiry powers to the Commission is to enable it to compel the public officers to disclose any information, which cannot be withheld under the existing legislation.

Resources:

Judgment of the Court.

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Case title: S.P. Gupta v. President of India

Case Number: AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365

Name & status of the court: Supreme Court of India

Date of decision: December 30, 1981

Relevant law: Sections 123 and 162 of the Indian Evidence Act; Articles 19(1)(a) and 74(2) of the Constitution of India.

Decision: Non-disclosure of information is justifiable only if disclosure would be injurious to the public interest. Injury to the reputation of a public official should not be a consideration. The Court ordered disclosure since there was no threat of injury to the public interest. In this case, the Court recognized the constitutional protection of the “right to know which seems implicit in the right of free speech and expression” (para. 66)

Key words: Disclosure, non-disclosure, reputation of public officials

Summary:

Facts

Various High Courts transferred to the Supreme Court writs “of great constitutional importance affecting the independence of the judiciary” under a procedural rule permitting this within the Constitution, Article 139 (para. 1). The writs concerned, generally, the appointment of judges to the country’s High Courts (paras. 1-11).

The relevant portion of this case concerned the disclosure of certain correspondence between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India, and the relevant notes made by them in regard to the non-appointment of an additional Judge for a further term and the transfer of a High Court Judge (para. 55). Petitioners, and one of the judges in question, sought the disclosure of these documents (para. 55).

The government argued that the documents were privileged from disclosure on two grounds. First, the government argued that they were privileged as advice from the Council of Ministers to the President, relying on Article 74(2) of the Constitution, which reads “The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court” (para. 58).

Second, the government argues that they were privileged on the grounds that their disclosure would “injure public interest,” relying on Section 123 of the Indian Evidence Act (para. 55). Section 123 of the Indian Evidence Act reads: “No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit” (para. 67). The Court sited Section 162, which reads as follows, as necessary for the interpretation of Secion 123: “A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court” (para. 67).

Decision

The Court identified the issue as “an extremely important [] question in the area of public law particularly in the context of the open society” as it “involved a clash between two competing aspects of public interest”—public access to documents and the need for protection of certain confidential documents (para. 57).

First, the Court rejected the government’s assertion that the documents were protected from disclosure on the grounds that they were advice from the Council of Ministers to the President (para. 60).The Court recognized that it does not have the constitutional authority to inquire into the justifications for decisions of the Council of Ministers (para. 58). However, in this case the advice that the Council of Ministers ultimately tendered to the President was formed after consultation with the Chief Justice of the High Court and the Chief Justice of India (para. 60). The Court opined that the fact that the opinions of the Chief Justice of the High Court and the Chief Justice of India ultimately made it into the Council of Ministers’ advice, does not actually render them part of the advice that is protected from disclosure by section 74(2) (para. 60). The Court reasoned that, “the material on which the reasoning of the Council of Ministers is based and the advice is given cannot be said to form the part of advice” (para. 60). The Court held that the advice in question is “outside the exclusionary rule enacted in Clause (2) of Article 74” (para. 60).

Second, the Court addressed why the information in question cannot be protected from disclosure based on section 123. Based on the language of section 162, the Court indicated that when the admissibility of a document is contested, the Court may inspect the document, take other evidence into account, and determine its admissibility (para. 67). The Court went on to discuss a previous case that addressed the exclusionary rule of section 123, State of Punjab v. Sodhi Sukhdev Singh. This case indicated that the principle behind the section 123 exclusionary rule is public interest. Thus, the question that needs to be addressed is whether disclosure of particular information would be injurious to the public interest; if so, the information should not be disclosed (para. 67). The Court indicated that when there is an objection to disclosure, two questions must be considered by the court: whether the document related to the affairs of state and whether its disclosure would be injurious to the public interest. The injury that should be avoided is a potential disruption of the proper functioning of the government as a result of disclosure. The Court opined that the Chief Justice of a High Court and the Chief Justice of India would not have been deterred from performing their constitutional duty of expressing their views had they been aware that these views might be disclosed to the public. Thus, there is no public interest justification for non-disclosure (paras. 80-81).

The Court recognized that a democratic society cannot keep the activities of the government hidden from the public in order to avoid accountability and criticism. Recognizing a “right to know which seems implicit in the right of free speech and expression” (para.66), the Indian Court reasoned that: “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy” (para. 63).

The Court also defined open government deriving from the right to know implicit in free speech and expression rights guaranteed under Article 19(1)(a) of the Constitution, which guarantees the right to free speech and expression (para. 66).

The Court identified a presumption of disclosure: “[D]isclosure of information in regard to the functioning of Government must be the rule and secrecy an exception justified only where the strictest requirement of public interest so demands. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest, bearing in mind all the time that disclosure also serves an important aspect of public interest” (para. 66).

Resources:

Judgment of the Court

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Case title: State of Uttar Pradesh v. Raj Narain

Case Number: A.I.R. 1975 S.C. 865, 884.

Name & status of the court: Supreme Court

Date of decision: 1975

Relevant law:

Decision:

Key words: security of public officials, public order

Summary: The first time when the Supreme Court has established that the citizen’s right to know arises from two fundamental rights guaranteed by the Constitution – the right to freedom of speech and expression, and the right to life was in 1975. In ruling that the government had to disclose documents regarding security arrangements for the Prime Minister's travels within the country, despite growing tensions in the country, so long as disclosure did not endanger his security or public order, the Court reasoned that people have the right to know everything that is done by public officials in their official capacity. This right is derived from the concept of freedom of speech, but it is not absolute and can be subjected to restriction for reasons of public security.

Resources:

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Case title: The CPIO, Supreme Court of India v. Subhash Chandra Agarwal & Anr.

Case Number:

Name & status of the court: High Court of Delhi

Date of decision: September 2, 2009

Relevant law: Access to Information Act

Decision: The Court held that if the non-disclosure cannot be justified based on Access to Information Act then the information must be disclosed regardless of the security classification assigned to it.

Key words: declaration of assets

Summary:

Facts

The respondent (hereinafter applicant, Subhash Chandra Agarwal & Anr.) requested from the Central Public Information Officer, Supreme Court of India (the CPIO) a copy of the resolution dated 7.5.1997 of the Full Court of the Supreme Court, (“the 1997 resolution”) which requires every judge to make a declaration of all assets and also information relating to declaration of assets etc., furnished by the respective Chief Justices of States. The CPIO informed the applicant that the information relating to the asset declaration of the judges was not held by or under the control of the Supreme Court and, therefore, it could not be provided.

Decision

In respect of the question whether the assets declaration was considered “information” for the purposes of the Right to Information (RTI) Act the Court held that the test must be whether or not the document/information is available in material form with the public authority that has received the request. Judges file declarations in material form, so that makes them information for the purpose of the RTI Act. The Court has stated that even the information about private individuals held by a public authority was covered by the RTI Act. The Court held that the protection of personal information of public official is not as high as for private individuals. It determined three tests regarding the disclosure of the personal information of a public official: 1. whether the disclosure is necessary for providing knowledge of the proper performance of the duties and tasks by the public servant; 2. whether the information contains the individual's private details unrelated to his position; 3. whether the disclosure will provide any information necessary for establishing accountability or transparency in the use of public funds. The Court also held that if the non-disclosure cannot be justified based on articles 8 and 9 of the Access to Information Act then the information must be disclosed regardless of the security classification assigned to it. The Court ruled that the Chief Justice of India can be treated as a distinct public authority due to the numerous functions performed by him or her in addition to the adjudicatory role of being the chief judge.

Resources:

More information about the case

Judgment of the Court.

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Case title: Union of India (UOI) v. Respondent: Association for Democratic Reforms and Another; with People's Union for Civil Liberties (PUCL) and Another v. Union of India (UOI) and Another

Case Number:

Name & status of the court: Supreme Court

Date of decision: May 2, 2002

Relevant law:

Decision:

Key words: elections, candidates

Summary: The Court ruled that voters are entitled to receive detailed information about the background of candidates for election, including their assets and any pending criminal investigations. The Court directed the Election Commission to collect such information from all candidates running for national and state legislatures, and to make the information public in advance of elections.

Resources:

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Japan

Case title: Futaki v. Japan Tobacco Company Biotechnology Center

Case Number:

Name & status of the court: Osaka High Court

Date of decision: 2002

Relevant law:

Decision: The Court held that the interest in public health outweighed the interest in business confidentiality and ordered the disclosure to Mr. Futaki of requested documents.

Key words: commercial interest, public health

Summary:

Facts

The information requested by Mr. Futaki included floor plans and specifications of the Japan Tobacco Company (“JT”) Biotechnology Center, a major genetic laboratory, constructed in a crowded residential area. The government officials had rejected Mr. Futaki’s request, claiming that the disclosure of the documents would result in significant injury to JT’s competitive position. JT argued that disclosure would enable competitors to learn details of the design and construction of the facility.

The Osaka District Court upheld the city’s decision to withhold the information, concluding that the documents qualified for protection under the relevant law and that the risk of harm to the community if the documents were not disclosed was insufficient to warrant disclosure. On appeal, the Osaka High Court overturned the lower court’s decision. The High Court agreed with the lower court’s determination that disclosure of the documents would cause competitive injury to JT but concluded that the level of risk of injury to human life, the human body or health was sufficient to override the business interest and require release of documents. Mr. Futaki had requested the information shortly after the Great Hanshin Earthquake, which caused massive structural damage to several buildings in the area, and the documents might provide some comfort regarding the threat of biohazards in the community.

Resources: Lawrence Repeta, “Business Confidentiality Versus Human Health” the Role of Japan’s Information Disclosure Laws (2006)

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Case Title: Kaneko v. Japan (“Hakata Station Film Case”)

Case Number: Sup.Ct. 1969.11.26 Keishu 23-11-l490

Name and Status of Court: Supreme Court of Japan

Date of Decision: November 26, 1969

Relevant Law: Article 21 of the Constitution.

Decision: Article 21 of the Constitution grants both freedom of expression and the freedom to report facts. This protection also extends to the freedom to gather news that is necessary for factual reporting. Thus, the right to information receives constitutional protection due to the important role it plays in realizing the freedom of the press.[4] However, these rights are not absolute. It is not a violation of the media’s freedom to gather news, or the public’s right to know, to mandate the disclosure by the news media of television footage where necessary to ensure a fair trial.

Key words: Freedom of mass media, freedom to report facts, media freedom in newsgathering

Summary:

Facts[5]

In what became known as the Hakata Station Incident, students demonstrated against a visit by the nuclear-powered aircraft carrier, the U.S.S. Enterprise, leading to four arrests and one indictment. Lawyers, Diet (legislature) members and other supporters of the students brought charges against the Prefectural Police Commissioner and 870 police officers, claiming abuse of police authority. The district prosecutor rejected the charges and the petitioners sought recourse in the Fukuoka District Court.

The Fukuoka District Court, at the request of the petitioners, ordered that four Fukuoka television companies submit all film of the Hakata Station Incident into evidence. The companies refused. An initial appeal to the High Court and the Supreme Court was quashed on technical grounds.

The four companies appealed again to the Supreme Court. The companies argued that the public’s right to know through full and impartial news coverage would be violated if the media is forced to submit the film into evidence. The companies asserted that the public trust in the media would be diminished if the film were used for a purpose other than for which it was intended by the media; or if an outside agency decided how to use film footage.

Decision

The Court confirmed that in a democratic society, the media channels serve the public’s right to know. The Court also confirmed that Article 21 of the Constitution guarantees not only the freedom to express ideas, but also the freedom to report facts, and the media’s freedom in newsgathering.

The Court stated: "In a democratic society the reports of the mass media provide the people with important materials on which to base their judgments as they participate in the nation's politics and they serve the people’s ‘right to know.’ Consequently, it goes without saying that the freedom to report facts, along with the freedom to express ideas, is grounded in the guarantees of Article 21 of the Constitution, which provides for the freedom of expression. Moreover, in order that the contents of the reports of such mass media may be corrected the freedom to gather news for informational purposes, as well as the freedom to report must be accorded due respect in light of the spirit of Article 21 of the Constitution.”[6]

However, the Supreme Court found that the court order in question was not directly related to the freedom of newsgathering because the order targeted only film that has already been presented to the public. The Court did indicate that the use of this film for another purpose could lead to interference with the freedom of newsgathering.

The Court proceeded to state that the freedom of newsgathering is not without limits, and sometimes it needs to be balanced against other freedoms. In this case, the media’s freedom of newsgathering had to be balanced against the right to a fair trial. The Court found that given the circumstances of the case at hand, the evidentiary use of the film was unavoidable and hence did not violate the letter or the spirit of Article 21.

Resources:

W. Beer, “Freedom of Information and the Evidentiary Use of Film in Japan: Law and Sociopolitics in an East Asian Democracy”

Narufumi Kadomatsu’s “The Right to be Informed - The Obligation for Providing Information: The Case of Japanese Information Disclosure Law

Roy Peled and Yoram Rabin, “The Constitutional Right to Information”.

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Case title: Nagoya Citizen Ombudsmen v. Director of the Central Japan Economics and Industry Bureau of the Ministry of Economics and Industry

Case Number:

Name & status of the court: Nagoya District Court

Date of decision: December 13, 2001

Relevant law: Act on Access to Information

Decision: The Court overturned the non-disclosure decision of public authority and held that the exemption should apply only in cases where it is objectively shown that disclosure would present the risks stated in Access to Information Act.

Key words: commercial secrets

Summary:

Facts

A local citizens group submitted a request to examine finance-related documents that were submitted to the Central Japan Bureau of the national government’s Ministry of Economics and Industry by a non-profit foundation that was formed to organize a World Exposition (“Foundation”).

The Ministry disclosed some of the requested documents but refused to disclose two types of information: 1) a list of financial institutions in negotiation with the Foundation to provide funding, and 2) cash flow projections for the project. To justify its withholding, the Ministry cited Article 5(2) of Japan’s Act on Access to Information Held by Administrative Organs, 1999, which exempts business information from disclosure in cases where “there is a risk that public disclosure would cause injury to the rights, competitive standing or other legitimate interest” of a business entity or individual, and which applies to information created by the government itself or received from a third party.

Decision

The requester filed suit with the Nagoya District Court (court of general first-instance jurisdiction), which overturned the ministry’s non-disclosure decision. The Court held that the exemption should apply only in cases where it is “objectively” shown that disclosure would present the risks stated in Article 5(2). The Court further held that the government has the burden to make this showing and that the mere statement that “rules of experience” indicate that the information at issue should be kept confidential was insufficient to fulfill this burden.

The Court reasoned that in light of the express purposes of Japan’s access to information law, it could not recognize “rules of experience” and that it would be inappropriate to exempt all information formalistically labeled as sales, management or financial secrets. Then the Court announced its core principle that the when deciding if the information should be disclosed there must be conducted comprehensive review of such elements as nature and content of the information, its relationship to information already published, and specific conditions related to these matters.

Regarding the names of the financial institutions, the court noted that terms of the proposed loans appeared to be within a range typical in the marketplace and therefore even if the proposed lenders names were made public, there was no objective risk that this would cause injury to the Foundation’s relationships of trust (with the proposed lenders) or cause difficulties in fundraising.

Regarding financial projections, the ministry withheld the information arguing that public would misunderstand or incorrectly interpret the data to be final. The Court responded that there was no apparent evidence that in case of disclosure of information the mass media or members of the public would misunderstand or incorrectly interpret it and this would create a risk to the operations of the Foundation.

The government agency further argued that there was a strong likelihood that disclosure of information such as income from expected operations would injure its negotiating position with potential business partners. The Court stated that prematurely disclosing the details of one’s position to the other side may cause disadvantage to the former in negotiations, but information at issue as known contains only annual amounts not such details as which lender will provide how much funding or the conditions on the use of trademarks or joint advertising and therefore its disclosure cannot cause an objectively apparent obstruction to negotiations or to the financial operations of the Foundation.

The Ministry appealed the Nagoya District Court’s decision, but later vacated its initial determination and the appeal was dismissed as moot.

Resources:

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Case title:

Case Number:

Name & status of the court: Tokyo District Court, Tokyo High Court

Date of Decision: April 1999

Relevant law: Information Disclosure Ordinance

Decision: The Court ordered the release of the requested details of costs relating to travel by then-Tokyo Governor and a group of legislators noting that the refusal is not objectively rational for the residents of Tokyo.

Key words: official visits

Summary:

Facts

A citizen requested details of costs relating to travel by then-Tokyo Governor Aoshima and a group of Tokyo legislators to Europe in July 1996 for an official signing ceremony. He based his request on Tokyo’s information disclosure ordinance. (The Tokyo legislature was not subject to Tokyo’s disclosure ordinance at that time, but the requested documents were held by an official of the Tokyo government whose office was subject to the disclosure ordinance.)

The Tokyo prefecture who held the requested documents sought guidance from the legislature as to whether or not to disclose the documents, and the legislature opposed disclosure. The prefecture accordingly refused to disclose all the documents on the ground that disclosure would damage relations between the governor and the legislature.

Decision

The requester filed suit demanding disclosure. The Tokyo District Court ordered disclosure, stating: that determination of any damage to the relationship of trust must be objectively rational when considered by residents of Tokyo and as the determination of the prefecture is based solely on the subjective relationship between the parties, it is not acceptable to Tokyo residents.

The Tokyo prefecture appealed to the Tokyo High Court, which upheld the lower court’s decision, and then appealed to the Supreme Court, which refused the case and the Tokyo High Court decision, became final in April 1999.

As a result of disclosure in this case, it was found that numerous items apparently were forged, such as appended handwritten receipts, and it seemed that legislators had padded their bills. Based on the disclosed information, the requester filed a demand for an audit, and the auditor identified more than eight hundred thousand yen in losses due to falsified receipts.

Resources:

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Korea, Republic of (South)

Case Title: Forests Survey Inspection Request Case

Case Number: 1 KCCR 176, 88Hun-Ma22

Name and Status of Court: Constitutional Court of South Korea

Date of Decision: September 4, 1989

Relevant law: Article 21 of the Constitution

Decision: The petitioner’s constitutional right to know was breached by the government’s failure to provide him with the documents requested. The right to know is a precondition of the constitutionally protected freedom of speech and press.

Key words: Right to know, right to information, freedom of expression, government information, freedom of speech and press, public interest, constitutional protection, property rights.

Summary:

Facts

The petitioner inherited land from his father immediately after the Korean War. Unbeknownst to the petitioner, the property that he inherited was expropriated by the State. The petitioner made several requests to the Supervisor of County of Ichon of the Kyong-ki Do for old forests title records, private forests use surveys, land surveys, and land tax ledgers kept by the County. The Supervisor failed to provide the petitioner with land surveys and private forests use surveys. The petitioner filed a constitutional action against the Supervisor for violating the petitioner’s property rights.

Decision

The Court opined that the freedom of information is a precondition of the freedom of speech and press guaranteed under Article 21 of the Constitution. Thus, the right to the access, collection and processing of information (i.e. the right to know) is provided for by the constitutional protection for freedom of expression.

People have a core right to know of the information that is held by the government. Thus, people have a general right to request disclosure of administrative information from the government. Since the right to know is constitutionally derived (with no need for implementing legislation), a government’s failure to respond to a request for information is a violation of Article 21.

The Court added that the right to know is not an absolute right and hence it can be reasonably restricted. Infringement of the right to know must be balanced against the interest secured by the restriction and the right to know must be protected so long as it does not violate public interest. The Court found that disclosure at least to persons with direct interest is mandatory.

In this case, there are no legitimate reasons for non-disclosure of the information requested by the petitioner (i.e., privacy, national security classification). Thus, the government breached the petitioner’s right to know.

Consequences

While this was the first case recognizing a constitutional right to know, it was followed by others. In the Records Duplication Request case, CC90Hun-Ma133, the Court decided that the Prosecutor’s Office acted unconstitutionally when it denied a former criminal defendant to obtain his trial records. Following these constitutional cases, the National Assembly adopted the Official Information Disclosure Act in late 1996.

Resources:

Summary of the case.

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Case title: Han v. Korean Broadcasting System

Case Number:

Name & status of the court: Seoul High Court

Date of decision: July 2, 2008

Relevant law: Official Information Disclosure Act

Decision: The Court ruled that compelled disclosure of the requested tape would not violate media freedom under the Constitution and the Broadcasting Act.

Key words: private bodies receiving public funds and/or performing public functions, access to information

Summary:

Facts

The case started in November 2006 when Han, a supporter of Dr. Hwang Woo-Suk, a disgraced biomedical scientist who had been accused of fabricating stem cell research, asked KBS for a tape on Dr. Hwang that had been edited by a KBS TV producer without authorization, but had not been used for any KBS broadcast.

Decision

The application of the Official Information Disclosure (OID) Act to the KBS (Korean Broadcasting System), was confirmed by the Seoul High Court, a court of second instance, which affirmed the ruling of the Seoul Administrative Court that the KBS is a “public institution” covered by Article 2-3 of the Official Information Disclosure Act, regardless of whether, as a government-invested institution, it is subject to exemption pursuant to the Framework Act on the Management of Government-Invested Institutions. The Court ruled that the requested tape was “information” under the information disclosure law, although the tape was edited by a KBS employee without permission, it was still prepared, obtained, and managed by KBS. Importantly, the Court ruled that compelled disclosure of the tape would not violate media freedom under the Constitution and the Broadcasting Act. The Court reasoned that as the plaintiff’s request is not for broadcasting of the information it cannot be regarded as a restriction to or interference with the defendant’s freedom of the press or with its freedom and independence of programming.

The Court made four other key holdings: disclosure would not violate rights to privacy or copyright, the tape was not exempt as a document under preparation, and the request could not be excluded as vexatious even though more than 23,000 others had submitted similar requests.[7]

Resources:

More information about the case in Korean language.

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Nepal

Case Title: Prof. Dr. Bhim Raj Adhikari, Registrar and Controller of Examination Board of Tribhuwan University v. National Information Commission and others

Case Number:

Name & Status of the Court: Supreme Court

Date of decision: May 4, 2011

Relevant Law: Interim Constitution, Right to Information Act

Decision: The Supreme Court ordered the Tribhuwan University to show to the students answer sheets of their exams

Key words: access to the exam’s answer sheets

Summary:

Facts

After the publication of the exam results some students of Tribhuwan University (TU) of Nepal dissatisfied with their exam results requested the University to show them copy of their final exam. The request was based on Right to Information Act of 2007 according to which TU is a public body. The request was refused by the University and the students appealed to the National Information Commission (NIC) claiming that the University violated their right to information guaranteed by the RTI Act and the Interim Constitution. On 14 September 2009 NIC decided in favor of the students ordering the TU to show them requested copies. NIC ruled that this would contribute to the transparency and that there was no need to hide the answer sheets if they were assessed fairly and accurately. TU submitted a writ of petition to the Supreme Court against the decision of the NIC.

Citizens' Campaign for Right to Information (CCRI) provided all necessary technical and legal support to the students in this whole process.

Decision

Supreme Court upheld the decision of the NIC stating that the students have access to their answer sheets based on Article 27 of the Interim Constitution and Section 3 (3) (E) of Right to Information Act 2007. It ruled that the University should provide to the students their answer sheets if they request so. The Court has also set some restrictions to the right. According to the Court the answer sheets can be issued only to the concerned students and not the third parties; the name of the examiner cannot be revealed; the University can establish fee for providing copy; students cannot compare their answer sheets to that of the others. The Court ordered TU to develop the policy and procedure for providing answer sheets to the students.

Resources:

The Kathmandu Post “Let students see their answer sheets: Apex court directs TU

The Himalayan “SC replies to TU’s question about answer sheets

Republica “SC says students can see exam answer sheets

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Philippines (the)

Case title: Chavez vs. NHA

Case Number:

Name & status of the court: Supreme Court

Date of decision: August 15, 2007

Relevant law: Constitution

Decision: The Court ruled that the duty to disclose information should be differentiated from the duty to permit access to information. The former covers only transactions involving public interest while the latter has a broader scope embracing any matter contained in official communications and public documents of the government agency.

Key words: disclosure of information, access to information

Summary:

Facts

Decision

The Court distinguished between “the duty to permit access to information,” which is required by Section 7 of the Bill of Rights, and “the duty to disclose information,” which is what Section 28 mandates. The Court stated that Section 28, Art. II compels the public agencies to fully disclose “all of its transactions involving public interest.” Without demand from anyone they must provide to the public all information concerning the consummation of the transaction and the contents of the contract.

The other aspect of the people’s right to know apart from the duty to disclose is the duty to allow access to information on matters of public concern under Sec. 7, Art. III of the Constitution. The gateway to information opens to the public the following: (1) official records; (2) documents and papers pertaining to official acts, transactions, or decisions; and (3) government research data used as a basis for policy development.

Thus, the duty to disclose information should be differentiated from the duty to permit access to information. There is no need to demand from the government agency disclosure of information as this is mandatory under the Constitution; failing that, legal remedies are available. On the other hand, the interested party must first request or even demand that he be allowed access to documents and papers in the particular agency. A request or demand is required; otherwise, the government office or agency will not know of the desire of the interested party to gain access to such papers and what papers are needed. The duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency.

Resources:

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Case title: Garcia vs. Board of Investments

Case Number:

Name & status of the court: Supreme Court

Date of decision: September 7, 1989

Relevant law: Constitution, 1987

Decision: The Court stated that it is the constitutional right of a citizen to have access to information of public interest and ordered to provide to the petitioner the requested original and amended application of a Taiwanese private corporation for the registration as a new producer of petrochemicals in the Philippines. The Court, however, ordered trade secrets to be excluded

Key words: commercial secrets, public interest

Summary:

Facts

The case involved the application by a Taiwanese private corporation, the Bataan Petrochemical Corporation (BPC), for registration as a new producer of petrochemicals in the Philippines. The Philippine Board of Investments (BOI) approved the application, giving various fiscal incentives owing to the pioneering status of the investment. The application as approved specified the province of Bataan as the site for the proposed investment. However, news broke out that the investor amended its application to change the investment site from the province of Bataan to the province of Batangas. The Congressman of Bataan (the original site) who opposed the change in location of the investment, requested the BOI to provide a copy of the original application, the amended application, and the supporting documents to each. The BOI denied the request, stating that the investor (BPC) refused to give consent to the release of the requested documents, relying on Section 81 of the Omnibus Investments Code, which states: “Confidentiality of Applications. All applications and their supporting documents filed under this Code shall be confidential and shall not be disclosed to any person, except with the consent of the applicant or on orders of a court of competent jurisdiction.”

Decision

The Congressman filed a case before the Supreme Court, which ruled that the requested copies of certain documents may not be denied, as it is the constitutional right of a citizen to have access to information on issues of public interest under Article III, Section 7 of the 1987 Constitution. The confidentiality of the records on BPC's applications is not absolute and based on above mentioned Article 81 may be disclosed upon the consent of the applicant, or by order of a court of competent jurisdiction.

The Court ordered that the petitioner could have access to BOI’s records on the original and amended applications for registration excluding, however, papers containing trade secrets and other business and financial information.

The documents were used by the Congressman to support his opposition to the change of location of the proposed investment. Unfortunately, the court did not articulate a test or definition of what is a commercial or trade secret.

Resources:

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Case title: Legaspi vs. Civil Service Commission

Case Number:

Name & status of the court: Supreme Court

Date of decision: May 29, 1987

Relevant law:

Decision: The Court ruled that the limitation on right to access should be in accordance with the state policy on full disclosure of all acts of public interest.

Key words: civil service, access to information

Summary:

Facts

Decision

In this case the Supreme Court declared the right to information to be enforceable involving access to information regarding the civil service eligibility of certain individuals. It stated that legislature can establish the conditions and limitations to the access to information but this must be in accordance with the state policy of full disclosure of all acts causing public interest.

The Court noted also the importance of the right to information for democratic decision-making. It stated that constitutional protection of the right to information recognizes the importance of free exchange of ideas in a democratic regime. Access to information helps citizens to make free decisions.

Resources:

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Sri Lanka, Democratic Socialist Republic of

Case title: Environmental Foundation Ltd., v. Urban Development Authority of Sri Lanka

Case Number: 47/2004

Name & status of the court: Supreme Court

Date of decision: November 28, 2005

Relevant law: Constitution

Decision: The Court ruled that the refusal of the information violated the petitioner's constitutional right who acted in public interest when requested information regarding Galle Face Green management issue.

Key words: environment, public interest

Summary:

Facts

The respondent, Urban Development Agency (UDA) entered into a lease agreement with the E.A.P. Ltd in order to hand over the seaside of Galle Face Green for management and control. The petitioner, Environmental Foundation Ltd which is a non-profit organization dedicated to the protection of the environment, requested from the UDA the following information: 1. order vesting the Galle Face Green in the UDA; 2. lease agreement with EAP; 3. approved plan of development of the GFG. Respondent refused to provide the requested information.

Decision

According to the Court the UDA is an organ of the government and is obliged to protect the fundamental rights guaranteed by the Constitution including the right of any person to exercise freedom of speech and expression regarding matters of public interest. Refusal of access to information by the UDA constituted a violation of the petitioner’s constitutional right. The Court stated that though there is no explicit right to information in the Constitution the right to freedom of speech, expression and publication guaranteed by the Constitution comprises the right of the person to receive information on matters of public interest. As the Court held the petitioner acted in the public interest and the UDA failed to produce documents proving that the Galle Face Green has been vested in it. The Court ruled that the agreement concluded between the UDA and EAP was ultra vires and had no force. The Galle Face Green should be preserved as a public place and the Government of Sri Lanka should provide resources for this purpose.

Resources:

Judgment of the Court.

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Information Commission/ers Decisions

France

Case title: Advice for the Mayor of Puy-en-Val

Case Number: Ref. No. 20072650

Name & status of the court: Commission for Access to Administrative Documents (CADA), information commission

Date of decision: July 5, 2007

Relevant law: Law n° 78-753 of 17 July 1978 and Decree n° 2005-1755 of 30 December 2005; both related to free access to administrative documents and the reuse of public information.

Decision: A request is not considered abusive if it concerns a high number of documents, or if the applicant’s requests are recurrent. A request may be unacceptable if the applicant requests the disclosure of administrative documents that have previously been communicated to the applicant, or concerns documents that do not presently exist, but it remains the duty of the administrative official to reject the disclosure on those specific grounds.

Key words: Commission’s recommendation; abusive request; unacceptable request; administrative documents previously communicated to the same applicant; administrative documents that do not presently exist

Summary:

Facts

The union SUD requested the disclosure of administrative documents from the Mayor of Puy-en-Val regarding the city’s services organization and its agents. The Mayor, before deciding to refuse or to grant disclosure, asked the Commission for Access to Administrative Documents (CADA) to advise him, as permitted by law. According to law, the Mayor does not have to follow the Commission’s recommendations, but is free to accept or refuse the disclosure of the requested administrative documents. The Mayor asked the Commission to consider whether the union’s requests could be perceived as “abusive,” given that some of the documents were already requested and obtained in the past by the union, and that some others are published or do not presently exist.

Decision

The Commission stated that it did not consider the union’s request to be “abusive,” even if the Mayor need not respond affirmatively to all aspects of it as some are unacceptable.

The Commission reaffirmed the general definition of an abusive request as a request that deliberately aims to disrupt the administration’s functioning. Specifically, a request could be considered abusive if it involves the request of a high number of documents, if it is a request that the department cannot materially disclose, or if the documents have been previously communicated to the applicant.

The Commission underlined that a refusal of disclosure is an exception to the rule, and only justifiable when it is unmistakably established that the request is abusive. Consequently, a request for a large number of documents or a repeated request should not necessarily be considered abusive.

Concerning the union’s request, the Commission opined that the request is not on its face abusive even though the quantity of requests is high, and some components of the request are unacceptable as the requested documents have been previously communicated to the applicant, or the documents do not presently exist. The Mayor should then just respond appropriately stating which portions are unacceptable because they have, for example, already been communicated.

Resources:

Opinion of the Commission.

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Case title: Advice for the Mayor of Vitry-sur-Orne

Case Number: Ref. No. 20071868

Name & status of the court: Commission for Access to Administrative Documents (CADA), information commission

Date of decision: May 24, 2007

Relevant law: Law n° 78-753 of 17 July 1978 and Decree n° 2005-1755 of 30 December 2005; both related to free access to administrative documents and the reuse of public information.

Decision: (1) A request cannot be considered abusive just because it concerns a high number of documents. (2) The administration may ignore requests for information available online. (3) When documents are published or are communicated to an applicant, the law permits their re-use so long as the personal data is redacted by the administration.

Key words: Commission’s advice; abusive requests; online documents; re-use of communicated documents

Summary:

Facts

Mr. L. requested the disclosure of administrative documents from the Mayor of Vitry-sur-Orne regarding the budget and the organization of social and cultural events in the municipality. The Mayor, before deciding to refuse or to grant the disclosure, asked the Commission for Access to Administrative Documents to advise him, as permitted by law. According to law, the Mayor does not have to follow the Commission’s recommendations but is free to accept or refuse the disclosure of the requested administrative documents.

The Mayor of Vitry-sur-Orne asked the Commission to consider whether Mr. L.’s requests could be perceived as “abusive” given that some of the documents are accessible on the Internet, and that the applicant may intend to distribute the communicated documents on the street, or to illegally post them on public buildings.

Decision

The Commission did not consider Mr. L.’s request “abusive” despite the fact that it involved a high number of documents. Nevertheless, the online documents are considered published so the administration may ignore this part of Mr. L.’s request. Regarding the re-use of the documents, the Commission stated its lack of jurisdiction in criminal law, but reaffirmed that when documents are published or communicated to an applicant, the law permits their re-use for public and non-public aims, as long as personal data is redacted by the administration.

First, the Commission reaffirmed the general definition of an abusive request as a request that deliberately aims to disrupt the administration’s functioning. Specifically, a request could be considered abusive if it involves the request of a high number of documents that the administration’s department is incapable of disclosing, or of which the requester already has access. The abusive character of a request can only justify a refusal to disclose documents when it is indisputably established. Requests of a large number of documents, or repeated requests, are not necessarily abusive.

Here, the Commission did not consider the request abusive, despite its involving a large number of documents, particularly because the request was sufficiently specific. However, the Commission reaffirmed that when a request does involve a large volume of documents, the administration – especially of small municipalities – is able to take time to photocopy, or to ask the applicant to consult the document at the administrators’ office to encourage the applicant to consider reducing the number of copies requested or to determine those most useful. Pursuant to article 35 of Decree n° 2005-1755 (30 Dec. 2005), the reproduction and transmittal costs can be charged to the requester, with limits set by law.

Second, the Commission reaffirmed that online documents are considered published, so the administration has the right to ignore this part of Mr. L.’s request.

Third, the Commission stated its lack of competence to consider criminal consequences related to the eventual use of information disclosed to Mr. L.

Nevertheless, when documents are published or are communicated to any applicant, the law of 17 July 1978 permits their use for public and non-public aims, subject to redacting of personal data.

Resources:

Opinion of the Commission.

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Case title: Mr. P. v. Minister of Foreign and European affairs

Case Number: Ref. No. 20110479

Name & status of the court: Commission for Access to Administrative Documents (CADA), information commission

Date of decision: February 17, 2011

Relevant law: Law n° 78-753 of 17 July 1978 and Decree n° 2005-1755 of 30 December 2005; both related to free access to administrative documents and the reuse of public information.

Decision: (1) The documents transmitted by a country to the Council of Europe Committee of Ministers can be withheld from the public if decreed by the Committee of Ministers as public disclosure can harm France’s relations with the Council or other member states. (2) The non-disclosure of documents concerning the European Court of Human Rights’ judicial election may not be justified as prejudicing foreign policy where states have adopted a policy of transparency.

Key words: Commission opinion; foreign policy; prejudice; privacy interests; Council of Europe Committee of Ministers; execution of case law from the European Court of Human Rights; European Court’s judicial election

Summary:

Facts

Mr. P. requested from the Foreign Minister the disclosure of: (1) documents concerning France’s engagement in the selection of judges to serve at the European Court of Human Rights (ECHR); and (2) documents transmitted by France to the Council of Europe Committee of Ministers regarding the implementation of the ECHR decision R.L. et M.-J.D. c/ France.

The Foreign Minister refused the request. Regarding the former documents, the Minister asserted that their disclosure would prejudice foreign policy. Regarding the latter documents, the Minister justified the non-disclosure on the grounds that disclosure may prejudice the relationship between France and the Council of Europe.

Mr. P. applied to the Commission for Access to Administrative Documents for reconsideration.

Decision

The Commission stated that the Foreign Minister should disclose the requested documents concerning judicial nominations, but upheld the refusal to release the documents submitted to the Council of Europe Committee of Ministers.

As an initial matter, the Commission considered that both sets of requested documents are administrative documents according to the law of 17 July 1978.

Concerning the judicial nominations documents, the Commission identified that the Parliamentary Assembly of the Council of Europe decided in 2009 to increase the transparency and the impartiality of the ECHR judicial elections process. Consequently, the Commission considered the Foreign Minister’s refusal unjustified as it would not be likely to prejudice France’s foreign policy. The Commission thus recommended the disclosure of the requested documents provided that the privacy of the candidates, particularly the privacy of those not selected, is respected.

Concerning the documents related to the implementation of the ECHR decision R.L. et M.-J.D. c/ France, the Commission affirmed the Minister’s non-disclosure decision. The Committee of Ministers must, pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms, observe and monitor the execution of ECHR case law. Under the rules, documents presented to the Committee of Ministers by a High Contracting Party are considered publicly accessible unless the Committee decides to restrict access to protect legitimate private or public interests. Public access to those documents is not guaranteed by an internationally binding text. The Commission affirmed the power of the Committee of Ministers to make decisions regarding disclosure, either explicitly or implicitly (i.e., by delaying a decision regarding disclosure).

In this case, the Committee of Ministers had not yet made a decision regarding disclosure of the requested documents. Thus, the Commission held that the Foreign Minister’s refusal was justified in order to avoid prejudicing the relationship between France and the Council of Europe or other member states.

Resources:

Opinion of the Commission.

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Case title: Ms. S. v. President of the center for the management of public functions in Alpes Maritimes

Case Number: Ref. No. 20110295

Name & status of the court: Commission for Access to Administrative Documents (CADA), information commission

Date of decision: January 20, 2011

Relevant law: Law n° 78-753 of 17 July 1978 and Decree n° 2005-1755 of 30 December 2005; both related to free access to administrative documents and the reuse of public information

Decision: Pursuant to Article 2 of the law of 17 July 1978, (1) unfinished administrative documents, including graded professional exams not submitted to the jury, are not subject to disclosure obligations; and, (2) administrative bodies are obligated to transfer information requests to the appropriate governmental body if the initial recipient of the request is not the holder of the documents requested.

Key words: Commission’s opinion; unfinished documents; protection of private interests; transfer obligations of governmental entities

Summary:

Facts

Ms. S. requested the disclosure of documents related to an engineering certification exam she took in June 2010, including her graded exam paper, and that of the highest achieving students during her exam and prior exams. The president of the center for the management of public functions refused disclosure on the grounds that (i) regarding her exam, the test was an unfinished document not subject to disclosure obligations, as she did not pass it and it thus never reached the admissibility jury for final approval; and (ii) regarding prior exams of other students, the center was not the body responsible for administering the exams prior to 2010 and the request should instead be directed to the national body. Ms. S. applied to the Commission for Access to Administrative Documents for reconsideration.

Decision

The Commission considered the non-disclosure of the applicant’s exam justified, but required the center to transmit the requests for earlier exams to the appropriate governmental body for consideration.

The Commission reaffirmed a prior opinion (n° 20094046, 3 Dec. 2009) finding that exam documents are considered administrative documents which can be disclosed to their author and to third parties subject to appropriate redaction of personal information, unless redaction would be insufficient to guarantee anonymity.

However, according to article 2 of the law of 17 July 1978, unfinished or preparatory documents are not subject to the disclosure obligations applicable to administrative documents. The Conseil d’État, the highest administrative court of appeal, has stated that the examiner’s provisional graded tests, prior to the final jury decision, are considered unfinished documents (n° 152387, 20 June 2007). Consequently, the Commission considered that these documents should not be disclosed.

The Commission did, however, find partly in Ms. S’s favor on the prior exams, recognizing the obligation of the administrative entity receiving the information request to transmit the request to another governmental entity if necessary, pursuant to Article 2 of the law of 17 July 1978. It is thus the responsibility of the center to transmit the request for prior exams of high-achieving test-takers to the appropriate body and the center should not have denied them outright.

Resources:

Opinion of the Commission.

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Case title: President of the Labor Union of public transit in Île-de-France v. Association of users of public transit

Case Number: Ref. No. 20104717

Name & status of the court: Commission for Access to Administrative Documents (CADA), information commission

Date of decision: January 20, 2011

Relevant law: Law n° 78-753 of 17 July 1978 and Decree n° 2005-1755 of 30 December 2005; both related to free access to administrative documents and the reuse of public information.

Decision: Even if the disclosure of some administrative documents may be restricted because it will prejudice industrial and commercial secrecy, the prejudice must be sufficiently great to justify non-disclosure.

Key words: Commission’s opinion; industrial and commercial secrecy; competitive rules; prejudice; justified non-disclosure

Summary:

Facts

Mr. A.F., representing the association of users of public transit (AMUTF), requested the disclosure of administrative documents from the President of the Labor Union of public transit in Île-de-France (STIF) regarding the evolving nature of the union’s benefits.

The President of the Labor Union refused, so Mr. A.F. applied to the Commission for Access to Administrative Documents on 15 November 2010 for reconsideration.

The President of the Labor Union refused to communicate the requested documents on the grounds that they hold precise information related to the commercial politics and network of its operators, and that a redacted version would make them incomprehensible.

Decision

The Commission considered the President of the Labor Union’s refusal unjustified, even if the President’s motivations might be sufficient in another case.

As an initial matter, the Commission identified the Labor Union as a public organization and the documents requested by Mr. A.F. as “administrative documents” according to the law of 17 July 1978. Consequently, these documents could be communicated to any requester.

 

Resources:

Opinion of the Commission

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Serbia

Case title: Anti-Corruption Council v. Ministry of Environment, Mining and Spatial Planning

Case Number: 07-00-342/2011-03

Name and Status of Adjudicator: Information Commissioner

Date of decision: 27 April 2011

Relevant law: Law on Free Access to Information of Public Importance

Decision: The authority must provide a governmental advisory body with requested information concerning the expenditure of public funds.

Key words: Expenditures, public / Budget, mute refusal

Summary:

Facts

The Anti-Corruption Council, a national governmental advisory body, requested from the Ministry of Environment, Mining and Spatial Planning access to information pertaining to the Ministry’s outreach campaigns. In particular, the Council requested information related to the funds allocated to projects of journalists’ associations and other civil society organizations, reports on the project activities, and financial reports. The Ministry did not respond to the request, and the applicant filed a complaint with the Commissioner.

Decision

The Commissioner found the complaint admissible and decided in favor of the Anti-Corruption Council, reasoning that the public has a right to know how public funds are spent. In particular, the public has a right to know whether the activities for which the associations received public funds were adequately implemented and whether there are reports on the activities and financial reports. The Commissioner ordered the Ministry to provide the information. At first, the Ministry did not comply. It provided the information only after the applicant announced that it would request the enforcement of the decision from the Commissioner.

Note: The Anti-Corruption Council, which investigates cases of potential corruption or maladministration, is an advisory body to the Government of Serbia. It does not have the status of a public authority under administrative law. Although by law, as well as by expected good practice, the Council should have no problems in gaining access to documents held by other authorities, especially those held by the executive branch, in practice this is not always the case. Unable to access documents via regular channels, the Council often uses the law on access to information. In quite a few cases the Council has filed complaints with the Commissioner.

Resources:

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Case title: Journalist P.G. v. Public Company – Directorate for the Construction of the City of Nis

Case Number: 07-00-959/2010-03

Date of decision: July 27, 2010.

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (Public Company – Directorate for the Construction of the City of Nis) to provide the applicant with requested information. The applicant received the requested information.

Key words: free access to information, legalization of illegal construction, authority not in possession of information

Summary:

Facts

The applicant, journalist P.B. based in the City of Nis, requested from the Public Company – Directorate for the Construction of the City of Nis (The Directorate) a list of construction products for which the Directorate sought legalization from a competent authority. The information was requested based on a suspicion that the Directorate itself was in possession of illegally constructed property.

The Directorate replied to the applicant without providing him with requested information. It informed the applicant that he ought to submit the request for information to the competent authority – the Administration for Real Estate and Inspection of the City of Nis.

The applicant filed the complaint to the Commissioner for Information of Public Importance and Personal Data Protection.

Replying to the complaint, the Directorate stressed that it did not possess the list of construction products and that it only submitted suggestions for the legalization of illegal construction. It also claimed that it had already complied with the request. Additionally, the Directorate accused the Commissioner of being biased in the case as the Commissioner himself had written opinion pieces for the media organization where the applicant worked, even though the subject matter of the pieces was the right to free access to information and these were intended to promote the right, without any remuneration for Commissioner.

Decision

The Commissioner found the complaint admissible and decided in favor of the applicant ordering the public authority to formally decide on the applicant’s access to information request. The Commissioner held that the right to free access to information, in accordance with the Law, refers both to the right to know whether the authority is in possession of the requested information and the right to obtain precisely the requested information. Thus the Commissioner ordered the public authority to inform the applicant, and not the Commissioner, whether it possessed a document containing a list of all the construction for which the authority sought legalization.

The Directorate provided information in accordance with the Commissioner’s decision.

Resources:

Decision of the Commissioner (?? ????????? ?? ???????? ????? ????)

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Case title: Judges’ Association of Serbia v. High Judicial Council

Case Number: 07-00-00112/2010-03

Date of decision: February 9, 2010

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (High Judicial Council) to provide the applicant with requested information.

The applicant gained partial access.

Key words: free access to information, judicial reform and (re)appointment of judges, deficient request, no proof on the reception of the request

Summary:

Facts

The applicant, the Judges’ Association of Serbia, requested from the High Judicial Council information regarding the process of the (re)appointment of judges, such as: the call for candidates, a list of candidates with the information on the courts where they had been previously employed and the exact posts they applied for, a list of judges whom the High Judicial Council deemed not to have met the compulsory criteria: worthiness, qualification and competence, including the circumstances that lead to such decisions and criteria for the decision making. The applicant also requested the decision of the High Judicial Council to restrict access to certain data and declare them confidential, evaluation results done by the courts where the candidates had worked previously as judges, as well as the information regarding the ranking of the candidates. In addition, the applicant requested information regarding other procedural preconditions for the process of (re)appointment, such as those involving cooperation with other authorities such as the National Assembly or others; the applicant also requested the information whether the authorities in the process of the (re)appointment used data in the possession of the Ministry of Interior and the Security-Information Agency. Finally, the copies of minutes of all the High Judicial Council sessions were requested.

As the High Judicial Council did not respond to the request, the applicant filed a complaint to the Commissioner. The Commissioner forwarded the complaint to the authority to reply.

In its reply, the High Judicial Council claimed that it had not received the request and that it would have provided an answer if it had received it. The Council supported the claim by pointing to the fact that there was no document identification number on a copy of a request submitted with the complaint. There was only an official stamp of the common registry receiving mail for numerous public authorities, and therefore the applicant lacked official identification number for the requests. The Council, to support its claim, also stated that it had received 171 requests for access to information submitted by non-appointed judges, and that many of these, to which the Council responded, were almost identical in content to the very request.

Decision

The Commissioner found the complaint admissible and decided in favor of the application. The Commissioner did not accept the justification of the public authority regarding the reception of the request. He found the request sufficient and in accordance with the Law on Free Access to Information of Public Importance, emphasizing that the document identification number is not a compulsory element of a sufficient request.

The Commissioner deemed the request for information legitimate and in accordance with the Law. In particular, the Commissioner held that the judicial reform was a matter of interest for the public at large and not only for the actors directly involved in the process of the (re)appointment of judges. The Commissioner found no reason for the Council to limit the access to any of the requested information except to sections of the record on individual voting during the sessions, as these reflect positions of individual members of the High Judicial Council. Therefore, the Commissioner ordered the High Judicial Council to provide copies of all documents containing requested information while protecting the personal data pertaining to the voting of individual members contained in the minutes of the Council’s sessions.

The public authority informed the Commissioner that it had complied with the decision. However, the applicant notified the Commissioner that it did not obtain all the information requested. Specifically, it did not obtain the following: a copy of the ranking of candidates, a document enabling non-appointed judges to challenge the decision, or the copies of the minutes of the High Judicial Council sessions. The applicant requested a liability investigation and the Commissioner submitted the request to the Ministry of Public Administration and Local Self-government, the authority competent for the supervision of the Law.

Note: There were many concerns regarding the judicial reform and the process of (re)appointment of judges in Serbia. Most of them questioned the legality and transparency of the process. There was a serious concern that the High Judicial Council used data on judges held by the Security-Information Agency. Such concern was caused by media reporting on the Ministry of Justice’s statement that such data had been used. In the exercise of its competence as data protection authority, the Commissioner inspected the Agency and found no evidence that such data had been used.

Resources:

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Case title: “Kosmas air“ d.o.o. (limited) Belgrade v. The Civil Aviation Directorate of the Republic of Serbia

Case Number: 07-00-1175/2009-03

Date of decision: March 4, 2010

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (The Civil Aviation Directorate) to provide the applicant with requested information. The applicant received requested information.

Key words: free access to information, legal bases for remuneration to members of advisory body, deficient request, “abuse of right”

Summary:

Facts

Private company “Kosmas air“ d.o.o. Belgrade requested from the Civil Aviation Directorate (further: Directorate) a copy of a document containing information regarding legal basis for the remuneration paid to the members of the Advisory Council to the Directorate , the amount of the remuneration and the method for establishing the amount.

As the public authority did not provide the information within the deadline, the applicant filed a complaint to the Commissioner.

Following the complaint, the public authority provided the Commissioner with the reply. The authority emphasized that the applicant was not allowed the copy of document due to the deficiency of the request. They explained that the applicant provided only his name, surname, the name of the company and a P.O.box for postal delivery failing to provide his private address and the address of the company. The authority also stated that the case concerned the abuse of the right (Art. 13 of the Law on Free Access to Information of Public Importance) since the applicant had launched a lawsuit against the authority having been rejected the extension of the civil aviation certificate.

Decision

The Commissioner found the complaint admissible and ordered the public authority to provide access to requested information.

The Commissioner did not find the request deficient. With regard to contact information provided in the request, the Commissioner found that the request contained the email address of the applicant, which was sufficient, and that the request could not be rejected on the grounds of missing contact information. Furthermore, the Commissioner found the reliance on the legal provision on the abuse of the right ungrounded, particularly as the reliance was established on a speculation that the applicant would misuse the requested information to discredit the official civil aviation authorities. Additionally, the authority did not relate its stance to any of the legal grounds stipulated under the provision on the abuse of the right, such as the following: “request [was] unreasonable, frequent, […], an applicant repeatedly require[d] the same information or information already obtained, or when too much information [was] requested.” (Art. 13. Law on Free Access to Information of Public Importance)

The Commissioner held that the public had a justified interest to access the information regarding the legal basis for remuneration and the amount thereof since the remunerations are a part of the budgetary expenditure of an authority which is established by the state and uses public resources. Furthermore, the public had a right to know about the remunerations since the members of the Advisory Board to the Directorate were high officials of the executive branch of the government. Therefore, the Commissioner ordered the disclosure of the information, subject to exclusion of private data related to the bank account numbers and private addresses in accordance with data protection regulation.

Note: As the Civil Aviation Directorate of the Republic of Serbia did not comply with the Commissioner’s decision, the applicant requested the enforcement of the decision. The Commissioner issued two fines to the Ministry (Commissioner issued maximum fines – equivalent to app. €2,000 – €200 + €1,800). Notwithstanding the fines, the Directorate did not provide the information.

Being unable to enforce the decision, the Commissioner requested the Government to assist in the administrative enforcement of the decision by “taking actions within its sphere of competence, with recourse to direct enforcement” (Art. 28(4)).

In addition, the Commissioner informed the Ministry for Public Administration and Local Self-government, competent for the supervision of the Law, to initiate a misdemeanor procedure against the responsible person/s in the public authority.

Almost a year after the Commissioner’s decision the authority complied with it and provided the information to the applicant.

Resources:

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Case title: “Nedeljni telegraf” journalist v. Institute for Public Health of Serbia “Dr. Milan Jovanovic Batut”

Case Number: 07-00-32/2010-03

Date of decision: February 2, 2010

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (The Institute for Public Health of Serbia “Dr Milan Jovanovic Batut”) to provide the applicant with requested information.

Key words: free access to information, vaccines, justified public interest, threat to and protection of public health

Summary:

Facts

A journalist of the weekly newspaper “Nedeljni telegraf” requested from the Institute for Public Health of Serbia “Dr Milan Jovanovic Batut” (further: the Institute) a copy of the contract on the purchase of vaccines for the compulsory immunization in Serbia in 2009, concluded between the Institute and the Institute of Virology, Vaccines and Sera “Torlak” in Belgrade (note: also a public authority), as well as information regarding the contract with the company „Sanofi Aventis“. With regard to information concerning the private company, the applicant requested information on whether the company concluded a 3-year contract with the Institute of Virology, Vaccines and Sera “Torlak” after a public tender.

The Institute did not provide requested information and the applicant filed a complaint to the Commissioner. The institute informed the applicant that the information regarding the contract with the private company did not concern the issues of public health, neither the protection of or threats to public health, and that the matter itself should not be an issue of justified public interest.

Following the appeal and the Commissioner’s request for the public authority’s reply, the Institute provided the Commissioner with information regarding the procedure for the purchasing of vaccines, as well as respective copies of a contract on the general vaccine supply concluded with the Republic Institute for Health Insurance and the Institute of Virology, Vaccines and Sera “Torlak”. However, with regard to the contract with the private company „Sanofi Aventis“, the Institute did not submit the reply.

Decision

The Commissioner found the complaint admissible and ordered the public authority (the Institute) to provide information. According to the Law on Free Access to Information of Public Importance, there is a justified public interest to know whenever the information is related to threats to public health or protection of public health. Since the information required referred to the purchase of vaccines for the compulsory immunization of all citizens in year 2009, the interest of the public to access the information is undisputed.

The Commissioner emphasized that the procurement of those vaccines had been a matter of great interest of the public. Moreover, the case coincided with the news that the Parliamentary Assembly of the Council of Europe was discussing a possibility to investigate into the “false pandemic”. Several members of the PACE called for the adoption of a recommendation (Doc. 12110, 18 December 2009, “Faked Pandemics - a threat for health”, Motion for a recommendation, presented by Mr. Wodarg and others)

The Commissioner ordered the public authority to provide information to the applicant i.e. to provide the copies of the two contracts which the authority submitted to the Commissioner. The Commissioner also ordered the public authority to provide the information whether it is in possession of the contract with the aforementioned private company and if so, to provide a copy thereof.

The public authority informed the Commissioner that it had complied with the order by submitting to the applicant the copies of the two available contracts. It stated, however, that it did not possess the contract with the private company and thus could not provide it to the applicant.

Note: In June 2010 the Council of Europe adopted Resolution 1749 (2010) Handling of the H1N1 pandemic: more transparency needed and Recommendation 1929 (2010). Handling of the H1N1 pandemic: more transparency needed

Resources:

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Case title: NGO Toplica Centre for Democracy and Human Rights v. Ministry of Environment, Mining and Spatial Planning

Case Number: 07-00-297/2011-03

Date of decision: April 6, 2011

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (Ministry) to provide the applicant with requested information. The applicant did not obtain access to information. The authority (Ministry) was fined for non-compliance.

Key words: free access to information, public procurement, internal organization, “tacit denial”

Summary:

Facts

The applicant, Toplica Centre for Democracy and Human Rights is a non-governmental organization active in one of the regions in Serbia. The NGO required from the Ministry of Environment, Mining and Spatial Planning information regarding the Ministry’s public procurements, their public procurement plan for 2009 and documents related to six specified public procurements implemented in 2010, including the specifications of services, bidders’ offers and documents pertaining to payments to the selected bidder.

The applicant required information regarding procurements concerning media and publishing services, as well as software services. One of these procurements concerned the service of developing a web portal dedicated to the Ministry’s activity “Let’s clean up Serbia”, which the public was particularly interested in and believed the service to have been significantly overpaid.

The access to information request also concerned information regarding services of advertising in the media, which appeared to have been procured country-wide by various public authorities.

The Ministry did not comply with the request nor did it issue a decision denying the access. The applicant filed a complaint to the Commissioner for tacit access denial.

The Commissioner forwarded the complaint to the Ministry requesting it to submit the response to the complaint, which the Ministry did not submit.

Decision

The Commissioner found the applicant’s complaint admissible and held that there was a justified public interest to know how a public authority uses public money. Therefore, the Commissioner ordered the Ministry to provide the requested information to the applicant.

However, the Ministry did not comply with the Commissioner’s decision within the ordered period and the applicant requested the enforcement of the decision.

For clarification, in such a case the Commissioner can issue a fine to the public authority or several fines not exceeding the overall amount of app. €2,000. As envisaged by the Law, fine is to be issued against the public authority and not the head of the authority or other responsible person.

The Commissioner issued two fines to the Ministry (equivalent to app. €2,000 – €200 + €1,800). Notwithstanding the fines, the Ministry did not provide information.

The Commissioner informed the Ministry for Human and Minority Rights, Public Administration and Local Self-government, competent for the supervision of the Law on Free Access to Information of Public Importance, to initiate the misdemeanor procedure against the responsible person/s in the public authority.

Note: As of the middle of 2010 the Commissioner has the power to issue fines against public authorities. However, even after Commissioner’s binding decisions, the fines do not enable access to information. Therefore, this recently acquired competence does not a guarantee the fulfillment of the right. There are still cases whereby the authorities have not complied with Commissioner’s decisions. The fines, to be directed to the state budget and are paid by the authority, and not by responsible persons within the authority.

In addition to these measures, the ministry competent for the supervision of the Law on Free Access to Information should initiate a misdemeanor procedure. The applicant can also file charges against the head of public authority.

Resources:

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Case title: N.N. (citizen and a non-appointed judge) v. Ministry of Justice

Case Number: 07-00-00918/2010-03

Date of decision: July 2, 2010

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (Ministry of Justice) to provide the applicant with requested information. The applicant received the requested information.

Key words: free access to information, “tacit denial”, evaluation of judicial reform, (re)appointment of judges

Summary:

Facts

The applicant requested from the Ministry of Justice information contained in a letter addressed to the Minister by the European Commission. The information pertains to the evaluation of the judicial reform and the (re)appointment of all judges in Serbia, The applicant declared himself as a former judge who was not (re)appointed during the process of the (re)appointment of all judges in Serbia.

As the Ministry did not respond to the request, the applicant filed a complaint to the Commissioner. The Commissioner forwarded the complaint to the Ministry for a reply. However, the Ministry did not submit its reply to the complaint.

There were more than 100 complaints submitted to the Commissioner by individual judges who were not (re)appointed and by the Judges’ Association of Serbia regarding their requests to access information about the judicial reform and the (re)appointment of judges. The common statement found in most of the complaints was that the process was not transparent and that neither did the individual judges nor the public at large have all relevant information about the process.

Decision

The Commissioner found the complaint admissible and decided in favor of the applicant, thus ordering the Ministry to provide the requested information. The Commissioner held that the whole process of judicial reform was a matter of interest not only to those individuals, groups or institutions directly affected by the process of the (re)appointment of judges, but to the public at large. The Commissioner held that the information requested was undoubtedly of public interest and that there were no grounds for the authority to deny access.

As the Ministry did not comply with the Commissioner’s decision, the Commissioner issued a fine (equivalent to app. €2,000), after which the Ministry complied.

Note: The issue of re-election of all judges and prosecutors that took place in January 2010 raised concerns of individual judges and prosecutors, their associations, as well as international community i.e. European Commissioner and the EU Delegation to Serbia, and national authorities such as the Commissioner and Ombudsman. The process was criticized as not transparent while election criteria were not known in advance. In addition there is no consensus whether the process was to be understood as the election or re-election of judges. It is believed that re-election was not in compliance with the constitutional guarantee of life tenure.

Currently (July 2011) the process as well as individual cases in which judges and prosecutors were not elected are under re-examination.

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Case title: Political party “Nova Srbija” v. Niš city Mayor

Case Number: 07-00-694/2010-03

Date of decision: June 3, 2010

Relevant law: Law on free access to information of public importance

Decision: Commissioner for Information of Public Importance and Personal Data Protection (the Commissioner) ordered the authority (Niš city Mayor) to provide the applicant with requested information.

Key words: free access to information, political parties, contract with private bodies, confidentiality of information requested by a private body as a contracting party

Summary:

Facts

Political party “Nova Srbija” (New Serbia) requested from the Niš city Mayor copies of several contracts and documents related to agreements with airline companies and the operation of the Niš airport. In all the agreements the City of Niš was a contracting party.

The public authority partially fulfilled the request and provided the applicant with the copies of two out of four requested documents. The applicant filed a complaint to the Commissioner for Information of Public Importance and Personal Data Protection.

In the reply to the complaint, the public authority (Niš city Mayor) states that one of documents could not have been provided to the applicant since the City was bound by the very agreement not to reveal the document to third parties unless there is a written consent by the other contracting party (an airline company “Wind Jet”). The Mayor did not have the required consent. The second document requested, but also not provided to the applicant, concerned the fulfillment of the agreement and therefore could have been disclosed as the disclosure would have revealed the content of the first document and breached the confidentiality clause of the agreement.

Decision

The Commissioner reviewed the document (the agreement between the airline company and the City of Niš) and found that the confidentiality clause the public authority was referring to could not be interpreted as prohibiting access to the content of the contract, but is related to some other contracting duties.

The Commissioner emphasized that even if such a provision could have been interpreted as prohibiting access to third parties in the particular case, such a provision would have been void. The Commissioner found that access to information of public importance as a right guaranteed under the Constitution cannot be limited by an agreement. Any limitation of a human right must be envisaged by law.

Consequently, the Commissioner ordered the Niš city Mayor to provide information to the applicant, i.e. to provide the copies of the contract concluded between the City of Niš and the airline company „Wind Jet“ and the agreement between the City of Niš and the public enterprise entity „Niš Airport“.

The Mayor informed the Commissioner that they have complied with the Commissioner’s decision.

Resources:

Decision of the Commissioner in Serbian

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Case title: The Assembly of the Autonomous Province of Vojvodina v. Ministry for Capital Investments of the Republic of Serbia

Case Number: 07-00-327/2007-03

Date of decision: May 14, 2007

Relevant law: Law on free access to information of public importance

Decision: The Commissioner for Information of Public Importance and Personal Data Protection ordered the authority (Ministry for Capital Investments) to provide the applicant with requested information.

Key words: free access information, concession, classified information, state authority as a free access to information applicant

Summary:

Facts

The Assembly of the Autonomous Province of Vojvodina sought from the Ministry for Capital Investments a copy of a concession agreement related to the construction, usage and maintenance of the motorway Belgrade – Subotica (exact name direction Horgos – Pozega). The contracting parties are the Republic of Serbia and the consortium of firms FCC Construccion S.A. and Alpina Mayreder bau gmbH as a concessionaire.

The public authority did not provide information within the deadline and the applicant filed a complaint to the Commissioner.

Replying to the complaint, the public authority (Ministry for Capital Investments) said that they extended the deadline (from 15 to 40 days) to reply to the applicant, as in accordance with the FOI Law in cases a public authority need more time to collect all documents and information required. In addition, the Ministry said that according to the agreement on consulting services for drafting the agreement and participation in negotiations concluded between the Government and a consulting company (‘Louis Berger’), all the documents made for the purposes of those services are to be considered the property of the Government of Serbia. The Ministry added that it was an international practice that concession agreements were not available to third parties, while the confidentiality clause, as a usual part of those agreements, prohibited access to information regarding the agreement to third parties, unless the access was necessary for the purposes of additional financial support to the concessionaire, or was subject to prior approval of the grantor, or if required by law. The Ministry did not provide information even after the expiration of the 40 day deadline.

Decision

The Commissioner ruled in favor of the applicant. He found that, as in accordance with the Law on Free Access to Information, formal confidentiality of a document was only one of the conditions for withholding information. Besides the formal condition of confidentiality, a material condition is required, i.e. that the document should contain information disclosure of which could cause serious legal and other consequences for legitimate interests protected under the law that prevailed over the interest for free access to information. The authority failed to provide a proof of possible harmful consequences and presented only a hypothetical possibility for the occurrence of damage.

The concession was in the focus of public. Many experts pointed at possible harmful effects of certain provisions of the concession agreement to Serbia’s national and economic interests. Furthermore, under the pressure from the media, the Ministry had already allowed the press a restricted access to the information in the agreement; the Ministry allowed journalists to have insight into some parts of the agreement, but no photo-copying was allowed).

Based on the unpersuasive justification of the denial of access due to confidentiality clause, as well as the facts that the document pertaining to construction of an important motorway was a matter of great public importance and some persons had already accessed the documents, the Commissioner ordered the authority to provide information to the requestor.

Note: The authority (Ministry for Capital Investments) sought the postponement of the enforcement of the Commissioner’s decision. It even filed an unauthorized lawsuit against the decision, which the Supreme Court discharged as inadmissible.

The Commissioner and the media insisted on the compliance with the Commissioner’s decision urging the Ministry and the Government to reveal the information, which the Government did several months after the deadline. The Government posted the concession agreement on its website.

Resources:

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Brief Bank

European Court of Human Rights

Case title: Bubon v. Russia

Case Number: 63898/09

Key words: police statistical data, interest of the applicant in requested information

Summary: The applicant (journalist) filed an FOI request to the head of the Regional police department asking some statistical data needed for his article on prostitution and fight against it. The Regional Police department arguing that the requested information could only be summoned on a written order of certain officials denied his request. State statistics denied possession of such information, noting that the requested information was in the possession of the regional police department. The applicant filed a request to the district Court and later appealed it. The Khabarovsk regional Court upheld the judgment of the District Court which said that the requested information didn’t affect the applicant’s rights and legitimate interested and therefore the denial was lawful.

Resources:

More information on the case

Written Comments submitted by the Open Society Justice Initiative

Exemplary Statistical Crime Data by Country.

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Case title: El-Masri v Macedonia

Key words: right to truth, impunity, arbitrary detention, torture

Summary: Macedonian agents seized Khaled El-Masri from a bus and held him without charge for 23 days, accusing him of being a member of Al-Qaida. They then drove him to Skopje airport and handed him to a CIA rendition team who flew El-Masri to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained and tortured for four months. The government of Macedonia denies any involvement in his abduction. Every attempt at justice has failed. Now the case is being considered by the ECHR. One of the arguments of the applicant is that Macedonia is hiding its role in the network of European governments that were secretly helping the CIA program and he and society as a whole have a right to know the truth.

Note: The Justice Initiative assisted Macedonian lawyer Filip Medarski to litigate the case through the Macedonian courts, and is acting as co-counsel before the European Court of Human Rights.

Resources:

More information on the case

Submission by the Open Society Justice Initiative.

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Paraguay

Case title: Vargas Telles v. City of San Lorenzo

Case Number: 1054/2008

Name & status of the court: Supreme Court

Relevant law: Constitution

Key words: data about city officials and contractors

Summary: In May 2007, José Daniel Vargas Telles, a resident of the City of San Lorenzo concerned about the city's hiring and contracting procedures requested information from the city administration on the identities, titles and remuneration of city officials and contractors. He relied on Article 28 of the national Constitution, which guarantees everyone free access to "public sources of information." The city refused to provide the information on grounds of personal privacy, and a legal challenge was rejected on the same grounds. The appeal court held, in addition, that Vargas had failed to prove that he suffered any personal harm from the denial of information. Vargas and the Public Defender are currently challenging the appeal judgment before the Constitutional Chamber of the Supreme Court. They argue that the appeal court misapplied data protection laws and violated the applicant's constitutional right of access to "public sources of information," including information of public interest held by the government. This is the first access to information case to reach the Supreme Court of Paraguay.

Note: In February 2010, the Justice Initiative filed a "friend of the court" brief on the case with the Supreme Court of Paraguay. The brief provides comparative information on the status of the right of access in Latin America, the relevant jurisprudence of the Inter-American Court, and the practices of other nations regarding disclosure of official remuneration data. Members of a regional coalition of free expression groups endorsed the Justice Initiative brief through a statement filed separately with the Court.

Resources:

More information about the case

Written comments submitted by the Open Society Justice Initiative.

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[1] As translated in the 2003 Report of the Special Rapporteur for Freedom of Expression, Chapter IV “Report on Access to Information in the Hemisphere” para.108.

[2] As translated in the 2003 Report of the Special Rapporteur for Freedom of Expression, Chapter IV “Report on Access to Information in the Hemisphere” para.107.

[3] The Tribunal quoted directly from the Eminent Jurists Panel 2009 report that extraordinary rendition “violates numerous human rights” and that “accountability is not an obstacle to countering terrorism” (para.76).

[4] Roy Peled and Yoram Rabin, “The Constitutional Right to Information”, Columbia Human Rights Law Review, Vol. 42(2), pp. 373Review, Vol. 42(2), pp.373

[5] Lawrence W. Beer, “Freedom of Information and the Evidentiary Use of Film in Japan: Law and Sociopolitics in an East Asian Democracy”, 65(4) Amer. Polit. Sci. Rev. 1119 (1971).

[6] Narufumi Kadomatsu “The Right to be Informed - The Obligation for Providing Information: The Case of Japanese Information Disclosure Law”, 69(2) J.L and Pol. 441 (2002).

[7] This case was summarized by Prof Kyu Ho Youm, who also translated excerpts of the court’s opinion into English