Access to Information Laws: Overview and Statutory Goals
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As of September 2013, at least 95 countries had nationwide laws establishing the right of, and procedures for, the public to request and receive government-held information ( including four with actionable ATI regulations, i.e. Argentina, China, Niger and Tunisia). For a list of these countries, click here. For a similar list that also contains numerous self-governing territories and other sub-national entities with right to information (RTI) laws, compiled by Dutch FOI expert Roger Vleugels, click here.
The first RTI law was enacted by Sweden in 1766, largely motivated by the parliament's interest in access to information held by the King. Finland was the next to adopt, in 1951, followed by the United States, which enacted its first law in 1966, and Norway, which passed its laws in 1970. The interest in RTI took a leap forward when the United States, reeling from the 1974 Watergate scandal, passed a tough FOI law in 1976, followed by passage by several western democracies of their own laws (France and Netherlands 1978, Australia and New Zealand 1982, Canada 1983, Columbia and Denmark 1985, Greece 1986, Austria 1987, Italy 1990). By 1990, the number of countries with RTI/FOI laws had climbed to 14.
The fall of the Berlin Wall and the rapid growth of civil society groups demanding access to information - about the environment, public health impacts of accidents and government policies, draft legislation, maladministration, and corruption - gave impetus to the next wave of enactments, which peaked in the late 1990s and early 2000s. Between 1992 and 2006, 25 countries in Central and Eastern Europe and the former Soviet Union passed RTI laws, of which Hungary and Ukraine were among the first. During that same period through to the present, at least 51 countries in other regions of the world enacted laws.
By September 2013, some 95 countries had national-level right to information laws or regulations in force - including the population giants of China, India, and Russia, most countries in Europe and Central Asia, more than half of the countries in Latin America, more than a dozen in Asia and the Pacific, eleven countries in Africa, and three in the Middle East. As of May 2012, when Brazil's law entered into force, more than 5.5 billion people live in countries that include in their domestic law an enforceable right, at least in theory, to obtain information from their governments.
The momentum for adoption of RTI laws is building in Africa, with passage of a law in Nigeria in 2011 after a decade-long civil society campaign and work led by the African Commission on Human and Peoples Rights to develop a Model Law on Access to Information for Africa. Momentum is also developing in Asia, boosted by China's adoption of nationwide regulations (applicable to all levels of government) in 2007 and Indonesia's adoption of a nationwide law in 2008. The region least touched by the right to information movement is the Middle East. Only Jordan, Yemen and Israel have laws; moreover Jordan's law is weak and adoption was driven by the government rather than civil society.
Of the 56 participating states in the OSCE, 46 now have specific access to information laws (the 10 that do not are: Andorra, Belarus (Belarus passed a Law on Information, Informatization and Protection of Information in 2008 but due to the low quality of the law we do not consider it as a full-fledged FOI law), Cyprus, the Holy See, Kazakhstan, Luxembourg, Monaco, San Marino, Spain, and Turkmenistan).
The Council of Europe Convention on Access to Official Documents, adopted by the Committee of Ministers of the Council of Europe on November 27, 2008 provides in preambular paragraph 6 that exercise of the right to access official documents:
(i) provides a source of information for the public;
(ii) helps the public to form an opinion on the state of society and on public authorities; [and]
(iii) fosters the integrity, efficiency, effectiveness and accountability of public authorities, so helping affirm their legitimacy [...].
Only nine countries in Africa (Angola, Ethiopia, Guinea Conakry, Liberia, Nigeria, Rwanda, South Africa, Uganda, Zimbabwe) have access to information laws, and two have actionable ATI regulations (Niger and Tunisia). Zimbabwe's Access to Information and Privacy Act has been used more to suppress information in the name of privacy than to make information available and accordingly is sometimes not included in counts of RTI laws.
Fifteen countries in the Americas and six in the Caribbean had access to information laws as of September 2013. They are, in the Americas Belize, Brazil, Canada, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Uruguay, USA; and in the Caribbean Antigua & Barbuda, Dominican Republic, Guyana, Jamaica, St. Vincent & Grenadines, and Trinidad & Tobago.
In 2004, the Transparency and Access to Public Information Act (TAPIA) was enacted. The TAPIA includes provisions that establish the principle of disclosure for public duties, and requires transparency of public information in such a way as to ensure participation of citizens in the decision-making process, and accountability of authorities who exercise public duties (Article 4 (c) and (e)).
The Mexican Federal Transparency and Access to Public Government Information Law, commonly referred to as the LFTAIPG, for its Spanish acronym (Ley Federal de Transparencia y Acceso a La Información Pública Gubernamental) sets forth general principles that illustrate the fundamental goals of freedom of information laws. These include making public administration transparent by disclosing the information generated by the government; encouraging accountability to citizens, so that they may evaluate the government's performance; and contributing to the democratization of society and the full operation of the rule of law (Article 4). In relation to case law, there have been isolated opinions (tesis aisladas) on access to information in general, but the system requires at least five tesis to build a binding jurisprudence.
Law 27806 on Transparency and Access to Public Information (Ley de Transparencia y Acceso a la Información Publica) was enacted in 2002 with the goal of "promoting transparency in the acts of the State and regulating the fundamental right to access of information that is enshrined in Section 5 of Article 2 of the Political Constitution of Peru" (Article 1).
The basic purpose of the US Freedom of Information Act is, according to the US Supreme Court, "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed" (NLRB v. Robins Tire & Rubber).
Asia & Pacific
Sixteen countries in Asia and the Pacific have access to information laws: Australia, Bangladesh, Cook Islands, India, Indonesia, Japan, Kyrgyzstan, Mongolia, Nepal, New Zealand, Pakistan, South Korea, Taiwan, Tajikistan, Thailand, and Uzbekistan. In addition, China has actionable ATI regulations.
The Public Information Disclosure Act that entered into effect in 2010, states an extensive and well-considered list of objectives intended to be advanced by the law:
a. to secure the right of the citizens to know the plan to make public policies, public policy programs, and the process to make public decisions, as well as the reason of making a public decision;
b. to encourage the participation of the society in the process of making a public policy;
c. to increase the active role of the people in making public policies and to manage the Public Agencies properly;
d. to materialize good governance, i.e., transparent, effective and efficient, accountable and responsible;
e. to know the rationale of a public policy that affects the life of the people;
f. to develop sciences and to sharpen the mind of the nation; and/or
g. to enhance the information management and service at Public Agency circles, so as to produce good quality information service. (Article 3)
The purpose of Japan's Act on Access to Information Held by Administrative Organs, 1999 is set forth in Article 1:
In accordance with the principle that sovereignty resides in the people, by providing for the right to examine administrative documents, the purpose of this law is to strive for greater disclosure of information held by administrative organs thereby ensuring that the government is accountable to the people for its various operations, and to contribute to the promotion of a fair and democratic administration that is subject to the accurate understanding and criticism of the people.
Only three countries in the Middle East - Israel, Jordan and Yemen - had an access to information law as of January 2013.