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Constitutional Protections of the Right to Information

last modified Jan 09, 2012 08:45 AM

THIS IS AN ARCHIVED PAGE. THE INFORMATION BELOW IS NOT REGULARLY UPDATED. LAST PARTIAL UPDATE IS FROM DECEMBER 2012. THE CURRENT UPDATED PAGE CAN BE FOUND HERE.

OVERVIEW

The right of access to official information is now protected by the constitutions of some 60 countries. At least 53, and arguably all 60 expressly guarantee a “right” to “information” or “documents,” or else impose an obligation on the government to make information available to the public. The top courts of additional countries have interpreted their constitutions to recognize the right implicitly.

Almost all of these countries also have statutes that elaborate and implement a right to information. In countries with such laws, the question as to whether the right also has constitutional status may have little practical significance. Nonetheless, we suggest that the fact that so many countries have afforded the right constitutional status is noteworthy, and provides support for strengthening the status of the right under international and regional law. The fundamental status of the right has been particularly recognized in Latin America, even before the Inter-American Court’s landmark judgment in theClaude Reyes case.

Constitutions that guarantee less than a general right to government-held information are not included in this count. For instance, we do not include constitutions that guarantee a right only to personal information, or to environmental information, or extend the right only to journalists. Nor do we include in this count constitutions that recognize a “right to freely seek and receive information,” or variations of that phrasing, for instance as part of the right to freedom of expression, unless case-law, actual practice and/or assessments of in-country experts support the conclusion that the right includes a general right to information. We do, however, include in this count a right to government-held information that is limited to information of public interest (as found, e.g., by Canada’s Supreme Court in a 2010 judgment, and by the European Court of Human Rights.

We note that the constitutional status of the right to information is disputed in at least seven European countries that we include in our list. In Austria and Belgium, the constitutional provision is viewed by some as imposing important duties on government but not as conferring an enforceable right on individuals. The constitutions of Azerbaijan, Georgia, Macedonia, Russia and Ukraine all guarantee the right to freely receive information but not, explicitly, a right to receive information from public bodies. A few lower courts in some of those countries have ruled that their constitution does impose a right to receive, or a duty to provide, information. Moreover, all of the seven countries have laws that implement a general right to information, although the laws of Austria and Ukraine are relatively weak. We have included these seven countries in our list on the ground that the right is accorded special importance in those countries, sometimes as a right of the citizen, sometimes as a democratic imperative. Also, in all of the countries, at least some access to information advocates and/or other experts claim that the right does have constitutional status. While such claims are not decisive, we have allowed them to tip the scales in favour of inclusion. We welcome readers’ comments and feedback and, in particular, any authoritative interpretations, such as relevant case-law or academic analysis.

According to the above criteria, the constitutions of the following 60 countries guarantee a right to information:

  • 12 countries in the Americas (Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Mexico, Nicaragua, Panama, Paraguay, Peru and Venezuela);
  • 18 in Europe clearly grant a right to information (Albania, Bulgaria, Czech Republic, Estonia, Finland, Greece, Hungary, Lithuania, Moldova, Montenegro, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Sweden);
  • 7 in Europe arguably guarantee a right to information (Austria, Azerbaijan, Belgium, Georgia, Macedonia, Russia, Ukraine);
  • 6 in Asia and the Pacific (Nepal, New Zealand, Pakistan, Papua New Guinea, Philippines, Thailand); and
  • 17 in Africa (Burkina Faso, Cameroon, Democratic Republic of Congo, Egypt, Eritrea, Ghana, Guinea Bissau, Kenya, Madagascar, Malawi, Morocco, Mozambique, Senegal, Seychelles, South Africa, Tanzania, and Uganda).

The top courts of at least five additional countries have interpreted their constitutions or other basic laws to protect the right to information implicitly: Canada, France, India, Israel and South Korea. Courts below the top courts have interpreted their constitutions to give rise to the right to information in at least several additional countries including Paraguay, Uruguay and Russia.

The language of constitutional provisions is set forth by country in the right-hand menu on the above page, and also included with our list of laws and constitutional provisions.

Top courts of at least nine of these countries have ruled that the constitutional right is enforceable in court even without enactment of an implementing law, including Chile, Costa Rica, India, Paraguay, the Philippines, South Africa, South Korea, Uganda and Uruguay. Of these countries, Chile, India, South Africa, South Korea, Uganda, and Uruguay have adopted ATI laws. In three countries – Costa Rica, Paraguay, and the Philippines – which have yet to adopt ATI laws, the actionable constitutional right is all the more important.

The constitutions of a few additional countries – including Fiji – call for enactment of legislation to guarantee a statutory right of access to information.

At least five constitutions – of Kenya, Panama, Poland, Serbia and South Africa – expressly extend the right to information to state owned enterprises and/or private entities that exercise public functions as well as to public authorities. Indeed, the Constitutions of South Africa and Kenya guarantee a right of access to “any information that is held by another person and that is required for the exercise or protection of any rights” (South Africa) or “for the exercise or protection of any right or fundamental freedom” (Kenya).

Several countries that provide a right to information in their constitutions also have constitutional procedures that enable the right to be directly enforceable by the courts. For instance, in several Latin American countries (including Costa Rica, Honduras, Nicaragua, Panama and Peru) the constitutional right to information may be enforced via a habeas data petition or amparo.

Of the arguably 60 constitutions that expressly guarantee the right to information, at least 24 extend that right to “everyone”: six in the Americas – Brazil, Colombia, Mexico, Panama, Peru, Venezuela; 14 in Europe - Albania, Armenia, Austria, Azerbaijan, Bulgaria, Czech Republic, Estonia, Finland, Georgia, Greece, Lithuania, Moldova, Norway, Romania, Slovenia; and four others: New Zealand, Mozambique, Seychelles and Uganda. Several constitutions – including those of Hungary, Kenya, Macedonia, Morocco, Nepal, Pakistan, the Philippines Poland, Portugal, Spain and Sweden – expressly limit the right to citizens. Other constitutions are ambiguous on this point.

Constitutions and courts have set forth several lines of reasoning underlying or giving rise to the right to information:

  • Several emphasize the importance of the right as the foundation for a democratic society, recognizing that citizens need information if they are to be able to participate effectively in decision-making and holding officials accountable (e.g., Argentina, Chile, Costa Rica, Hungary, Mexico, Peru).
  • Several courts have interpreted the right to information to be an implicit component of the right to freedom of expression. For instance, in the Forests Survey Inspection Request Case, South Korea’s Constitutional Court ruled that the right to information is implicit in the right to freedom of speech and press, given that free expression and communication of ideas requires free formation of ideas as a precondition, and that “[f]ree formation of ideas is in turn made possible by guaranteeing access to sufficient information.” Colombia’s Constitutional Court has advanced similar reasoning in several cases. Freedom of speech and access to official documents in Sweden have been viewed as closely related since at least the original Freedom of the Press Act of 1766.
  • Some constitutions note the particular importance of the right for journalists and the media (e.g., Ecuador).
  • Colombia’s Constitutional Court has noted the close relationship between the right and the rights of victims of serious human rights violations to truth, reparation and justice.
  • India’s Supreme Court concluded in S.P. Gupta v. Union of India that the right to know arises not only from the right to freedom of expression but also, importantly, from the right to life.
  • South Africa’s Constitution recognizes the importance of the right to information in exercising and protecting all other rights.

The above-summarized reasoning, unusual provisions, tallied information and more, as well as citations, are supported by or supplied in the following country paragraphs.

For useful commentaries on constitutional protections of RTI, see the Centre for Law and Democracy's Entrenching RTI: An Analysis of Constitutional Protections of the Right to Information (2012, and The Constitutional Right to Information by Peled, Roy and Rabin, Yoram, Columbia Human Rights Review, Volume 42(2) (2010).

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AFRICA AND THE MIDDLE EAST

In Africa, 17 of 54 countries (the 53 countries of the African Union plus Morocco) have expressly guaranteed the right to information in their constitutions: seven countries in the southern Africa Development Community (SADC) (Democratic Republic of Congo, Madagascar, Malawi, Mozambique, Seychelles, South Africa and Tanzania); three in east Africa (Eritrea, Kenya and Uganda); five in west Africa (Burkina Faso, Cameroon, Ghana, Guinea Bissau, and Senegal), and two in north Africa (Egypt and Morocco).

An additional 14 countries have protected the right to information within the context of the broader right to freedom of expression, which includes the right to "seek, receive and impart information". These include eight in the SADC region (Angola, Botswana, Lesotho, Mauritius, Namibia, Swaziland, Zambia and Zimbabwe), one in east Africa (Tanzania), two in west Africa (Nigeria and Sierra Leone); and Ethiopia, whose constitution (in Art. 29) recognizes the right to information within the broader right to freedom of the press, mass media and artistic creativity.

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African Union

The Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples' Rights in 2002,[1] is widely considered to constitute an authoritative interpretation of Article 9 of the African Charter on Human and Peoples’ Rights, which is binding on the 53 countries of the African Union. The Declaration’s strong statement of the right to information is premised, in part, on the recognition that “the right of access to information held by public bodies and companies will lead to greater public transparency and accountability, as well as to good governance and the strengthening of democracy” (preambular paragraph 4) and that “[p]ublic bodies hold information not for themselves but as custodians of the public good” (article 4(1)).

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Burkina Faso

Article 8 of the Constitution provides:

Freedom of opinion, freedom of the press and right to information are guaranteed.

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Cape Verde

Article 245d of the Consitution of Cape Verde provides:

access to administrative records and files, without prejudice to the provisions concerning the law on internal and external security of the state, criminal investigation, the secrecy, state secrecy and personal privacy[2] .

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Congo, Democratic Republic of

Article 24 of the Constitution provides:

La liberté de presse, la liberté d’information et d’émission par la radio et la télévision, la presse écrite ou tout autre moyen de communication sont garanties sous réserve du respect de l’ordre public, des bonnes mœurs et des droits d’autrui.

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Egypt

Article 47 of the 2012 Constitution provides:

Citizens have the right to access information, data, statistics, and documents, and to disclose and circulate them. The state guarantees this right. The right is constrained by the inviolability of private life, the rights of others, and exigencies of national security.

The law specifies the principles by which public documents are accessed and archived. It determines how information is acquired and complaints against information denials are lodged. It also specifies how accountability for such denials is established.

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Eritrea

Article 19(3) of the Constitution provides:

Every citizen shall have the right of access to information.

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Ethiopia

Article 29 of the Constitution provides:

1. Everyone shall have the right to hold opinions without any interference.

2. Everyone shall have the right to freedom of expression without interference. This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through other media of his choice.

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Guinea Bissau

Article 34 of the Constitution states:

Everyone has the right to information and legal protection under the law.

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Ghana

Article 21(1) of the Constitution of Ghana states:

All persons shall have the right to ... (f) information, subject to such qualifications and laws as are necessary in a democratic society…

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Israel

The Supreme Court held in 1990 that the public has a right to be informed of the content of coalition agreements negotiated by political parties participating in an election.[3] Acting in the absence of explicit constitutional or statutory recognition of the right of access, the Court nonetheless held that:

Freedom of public opinion and knowledge of what is happening in the channels of government are an integral part of a democratic regime, which is structured on the constant sharing of information about what is happening in public life with the public itself. Withholding of information is justifiable only in exceptional cases where security of the State or foreign relations may be impaired or where there is a risk of harming some vital public interest.[4]

[…]

There is a third source [for the obligation to disclose] which is entrenched in the public’s right to know. It has been her[e] that freedom of expression is one of the basic principles of our system of law. Freedom of expression is a complex value, at the crux of which is the freedom “to express one’s thoughts and to hear what others have to say.” In order to realize this freedom the law vests the holder thereof with additional rights derived from the freedom of expression. Among these additional rights it [sic] the “right to receive information.” As against the individual’s right to receive information is the governing body’s study [sic] to provide that information.[5]

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Kenya

The Constitution of Kenya adopted in 2010 is the second constitution in the world, besides South Africa’s Constitution, that provides for a comprehensive right of access to privately-held information. Article 35 of the Bill of Rights states: “Every citizen has the right to access to information held by the state or any information that is held by another person and that is required for the exercise or protection of any right or fundamental freedom.”

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Madagascar

According to Article 11 of the Constitution of Madagascar:

(1) Information in all forms shall be subject to no prior restraint.

(2) Conditions of freedom of information and its responsibility shall be determined by law and by codes of professional ethics.

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Malawi

Article 37 of the Constitution of Malawi states:

Subject to any Act of Parliament, every person shall have the right of access to all information held by the State or any of its organs at any level of Government in so far as such information is required for the exercise of his rights.

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Morocco

Article 27 of the 2011 Constitution of Morocco states :

Citizens have the right to access information held by public bodies, elected institutions and bodies performing public service. Access to information can be limited only by the law with the purpose of protecting everything concerning national defence, internal and external security of the State, and private life; of preventing violation of any rights and liberties declared in the present Constitution and protecting the sources and domains expressly determined by the Constitution.[6]

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Mozambique

Article 74 of the Constitution of Mozambique states:

1. All citizens shall have the right to freedom of expression and to freedom of the press as well as the right to information.

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Senegal

Article 8 of the Constitution provides:

La République du Sénégal garantit à tous les citoyens les libertés individuelles fondamentales, les droits économiques et sociaux ainsi que les droits collectifs. Ces libertés et droits sont notamment:

[...]

le droit à l'information plurielle

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Seychelles

Article 28 of the Constitution provides for the "right of access to official information:"

(1) The state recognises the right of access of every person to information relating to that person and held by a public authority which is performing a governmental function and the right to have the information rectified or otherwise amended, if inaccurate.

(2) The right of access to information contained in clause (1) shall be subject to such limitations and procedures as may be prescribed by law and are necessary in a democratic society including -

(a)      for the protection of national security;

(b)      for the prevention and detection of crime and the enforcement of law;

(c)      for the compliance with an order of a court or in accordance with a legal privilege;

(d)      for the protection of the privacy or rights or freedoms of others.

(3) The state undertakes to take appropriate measures to ensure that information collected in respect of any person for a particular purpose is used only for that purpose except where a law necessary in a democratic society or an order of a court authorises otherwise.

(4) The state recognises the right of access by the public to information held by a public authority performing a governmental function subject to limitations contained in clause (2) and any law necessary in a democratic society.

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South Africa

Section 32(1) of the 1996 Constitution of South Africa reads:

Everyone has the right of access to –

a) any information that is held by the state; and

b) any information that is held by another person and that is required for the exercise or protection of any rights.

National Legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Section 32(1)(b) was the first constitutional provision that provided for a comprehensive right of access to privately-held information. Kenya’s Constitution now also provides for such a right. Moreover, it is uncontested that the phrase “another person” includes juristic as well as natural persons.

The transitional arrangements for the final Constitution provided that until the national legislation mandated under section 32(2) was enacted, the provision relating to the right of access to information contained in the Interim Constitution (the Constitution that was negotiated as a part of the final political settlement ahead of South Africa’s first post-apartheid democratic election of April 1994) would remain in force.[7] The Promotion of Access to Information Act 2000 (PAIA) was enacted in January 2000 (and came into effect in March 2001). Thus, between 1994 and January 2000, the right of access to information was the right as set forth in Section 23 of the Interim Constitution: “Every person has the right of access to all information held by the state or any of its organs in any sphere of government in so far as that information is required for the exercise or protection of any of their rights.”

The Interim Constitution of 1994 differs from the Constitution in that the Interim Constitution (a) makes no provision for access to privately-held information and (b) includes the caveat even regarding access to information held by the state that the information must be “required for the exercise and protection of any … rights.” (Section 23)

It is now well-accepted that the term “any rights” (in both the Interim and 1996 constitutions) is not limited to fundamental rights protected in Chapter 3 of the Constitution (the South African Bill of Rights). In Claase, for example, 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).[8]

In Van Huyssten v. Minister of Environmental Affairs and Tourism, the 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.

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Tanzania

Article 18(1) of the Constitution of Tanzania includes the right to seek, receive and impart information as part of the right to freedom of opinion and expression. Article 18(2) guarantees every citizen the right to be informed at all times of various events in the country and in the world at large which are important to the lives and activities of people and of issues of importance to society. The Commonwealth Human Rights Initiative deems these provisions to constitute an explicit guarantee of the right to information. In late 2006 the Government released a draft Freedom of Information Bill 2006. Stakeholders responded by rejecting the Government Bill and drafting their own alternative Stakeholder Bill to take to Government.

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Uganda

Article 41(1) of the Constitution of Uganda reads:

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.

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Zimbabwe

Article 20 of the Constitution provides:

1. Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

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AMERICAS AND THE CARIBBEAN

Argentina

The Supreme Court of Justice has ruled that Article 1 of the Constitution of Argentina, 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.[9] Furthermore, Article 75.22 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 Supreme Court has interpreted that, in light of these provisions, there is a duty to ensure access to information.[10]

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Brazil

Article 5, paragraph XIV of the 1998 Constitution of Brazil reads, “[A]ccess to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity”.

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Canada

The Constitution of Canada does not expressly provide for a right of access to information. However, Canadian courts have held that freedom of expression, found in section 2(b) of the Canadian Charter of Rights and Freedoms (“the Charter”), includes the right to receive as well as to convey information. As the Supreme Court held in Edmonton Journal v. Alberta (Attorney General), “listeners and readers, as members of the public, have a right to information pertaining to public institutions and particularly the courts.”[11] Several courts, including the Supreme Court of Canada, have reasoned that FOI legislation, given its connection with the concept of democracy, has a quasi-constitutional status.[12] For instance, Justice Laforest concurring with the Supreme Court majority on this point, noted, in the landmark case of Dagg vs. Canada, that

the overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.[13]

In Ontario (Public Safety and Security) v. Criminal Lawyers’ Association the Supreme Court recognized a limited constitutional right to have access to government-held documents. Similarly to previous cases, the Court found that freedom of expression under section 2(b) of the Charter includes the right to information. This time, however, it particularly specified that section 2(b) includes the right to request access to government documents:

[T]here is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded.[14]

The Federal Court of Appeal has suggested that the right to access and correct one’s personal information could engage section 7 of the Charter, in light of the emerging view that an individual’s right to privacy (and to access and correct his or her private information) is enshrined in one's liberty interest set forth in section 7. This is so because the protection of private life is considered to be at the heart of liberty in a democratic society.[15]

Furthermore, the Ontario Court of Appeal, in a 2007 decision, found that the right to freedom of expression protected by section 2(b) of the Charter was not possible if the information was not provided and as such the public interest override contained in the Ontario Freedom of Information and Protection of Privacy Act was held to apply to all of the Act’s provisions.[16] In spite of this, the courts have yet to find a general constitutional right to information, and lower courts and Information Commissioners have been reluctant to accept that a right to access information is guaranteed by the Charter.

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Cayman Islands

[Note: Although the Cayman Islands are included here, they are not counted in our list of states with constitutional protections of access to information, given that the Cayman Islands are an overseas territory of the UK and not a fully independent state.]

The Constitution of the Cayman Island provides the following:

122. A law enacted by the Legislature shall provide for a right of access to information held by public authorities, for the conditions for the exercise of that right, and for restrictions and exceptions to that right in the interests of the security of the Cayman Islands or the United Kingdom, public safety, public order, public morality or the rights or interests of individuals.

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Chile

Article 19, No. 12 of the Constitution of Chile guarantees the right to freedom of expression, including the “right to seek and impart” information. However, this protection, unlike in several other constitutions of Latin America, does not include a “right to receive” information. In addition, the Constitution (Art. 19, No. 14) enshrines a right to petition, which in some other jurisdictions has been considered to be a means to ensure access to information. In 2005, Article 8 of the Chilean Constitution was amended to read: "The acts and decisions of the state authorities, as well as their reasoning and the procedures they use, shall be public." The provision continues to state that exceptions are permissible as long as they are established by a qualified law (a law that requires a super-majority of votes to be approved), and only if disclosure would have a negative effect on the functioning of a state body, the rights of individuals, state security or national interests. This article does not, on its face either a) guarantee a right of access to information, or b) apply to all information held by public authorities (but only to acts, decisions, reasoning and the procedures used to reach decisions).

The Constitutional Tribunal (the highest court on constitutional questions) ruled in August 2007, in Casas Cordero and Others v. National Customs Service, that the right of access to government information is implicitly protected by the Constitution’s guarantee of freedom of expression and the constitutional principle of a democratic republic.[17] The case arose when a Chilean company filed a request for information from Chile’s Customs Department regarding alleged irregularities in the setting of customs tariffs. The Department refused the request without even consulting the private party or considering the public’s interest in publication of the information. 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 essential mechanism for [ensuring] the full effectiveness of the democratic regime” which promotes “the adequate exercise and protection of [other] fundamental rights.”[18] 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. Interestingly, even though the Inter-American Court of Human Rights had issued its landmark judgment in the Claude Reyes case against Chile nearly a year earlier (in September 2006), the Court did not refer to that case.

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Colombia

Articles 74, 20 and 23 of the Constitution of Colombia enshrine the rights to a) access public documents, b) impart and receive impartial and accurate information, and c) obtain a prompt response to requests for information.

Article 74 of the Constitution states that: “Every person has the right to access public documents, with exceptions provided by law.”

Article 20 guarantees the right to freedom of expression and information: “Every person is guaranteed the freedom to express and disclose his thoughts and opinions, to impart and to receive impartial and truthful information, and to found broadcasting media”.

Article 23 states that: “Every person has the right to respectfully request information from the authorities for reasons of general or particular interest and to obtain an expeditious response. The Legislative Branch may regulate the exercise of this right with respect to private organizations to guarantee fundamental rights.”

In addition, Article 15 recognizes the action of habeas data, concerning personal information, as a fundamental right.

Numerous decisions of the Constitutional Court refer to the fundamental nature of the right of access to information. Some note the close relationship between the right to information and to the right to freedom of information given that “it is undeniable that the guarantee of the free flow of information requires access to public documents.”[19] The Court has also noted the link between the right of access to information and the rights of victims to truth, reparations and justice.[20] Moreover, the Constitutional Court established that, in a democratic society, the general rule is to allow access to all public documents, and that public authorities have a duty to provide clear, complete, timely, truthful and updated information about any state activity. Every public body should also have a policy to maintain documents, particularly those related to serious and systematic human rights and humanitarian law violations.[21] The Court has further ruled that exceptions to the general principle of disclosure should be allowed only in unusual circumstances, must be authorized by a legislative act,[22] and should aim to protect another legitimate purpose set forth in the Constitution, such as a fundamental right (e.g., the right to life or privacy) or the protection of national security.[23] The restrictions must be reasonable and proportionate to the legitimate objective, in the context of a democratic society.[24]

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Costa Rica

Article 30 of the Constitution of Costa Rica states that: “The free access to administrative departments for the purposes of obtaining information on matters of public interest is guaranteed. State secrets are exempt from this provision.”

The Constitutional Chamber of the Supreme Court of Costa Rica held in a 2002 case that the Central Bank’s refusal to disclose a report of the International Monetary Fund, requested by a newspaper, 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."[25]

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 “the right to information … implicates the citizens’ participation in collective decision-making, which, to the extent that freedom of information is protected, guarantees the formation and existence of a free public opinion, which is the very pillar of a free and democratic society.”[26]

The Constitutional Chamber of the Supreme Court reaffirmed the right of access to state-held information in a 2003 case concerning access to banking information of political parties held by the Central Bank.[27]See section on Information about Elections, Political Parties and Candidates.

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Ecuador

Article 81 of the Constitution of Ecuador provides for a right to access information sources, as well as a right to “seek, receive, examine and disseminate objective, accurate, pluralistic and timely information, without prior censorship, on matters of general interest,” consistent with community values; and gives particular relevance to the enjoyment of this right by journalists and communications professionals.[28] Paragraph 3 of Article 81 establishes that information from public archives should not be reserved, except when national security or other laws so provide. This right is implemented both by the constitutional right to petition and by the Transparency and Access to Public Information Act 2004.

The first and third paragraphs of Article 81 state:

The state shall guarantee the right, in particular for journalists and social commentators, to obtain access to sources of information; and to seek, receive, examine, and disseminate objective, accurate, pluralistic, and timely information, without prior censorship, on matters of general interest, consistent with community values. …

Information held in public archives shall not be classified as secret, with the exception of documents requiring such classification for the purposes of national defence or other reasons specified by law.

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Mexico

Since 1977, the Constitution of Mexico has established, in Article 6, an obligation on the federal state to guarantee access to information.[29] The Supreme Court has established that this provision 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.[30] The Constitution also provides for a right of petition.

In June 2007, a second paragraph was added to Article 6 of the Constitution requiring all 32 states and the Federal District to revise their local ATI laws within a one-year period and to introduce electronic systems for offering information within two years. Article 6(2) now reads as follows (translation approximate):[31]

1) All information in possession of state institutions is public and only in exceptional cases may information be temporally reserved, in the public interest and as defined by law.

2) Private information and personal data will be protected according to the law.

3) All persons will have free access to public information without the need of justification or proving interest. All persons will have free access to their personal information and will be able to correct mis-information.

4) Procedures for accessing and revising information must be established. These procedures are to be conducted before specialized and impartial organs, which have operational, administrative and decision-making autonomy.

5) The obliged entities will have to maintain their documents in updated archives and will have to publish through available electronic media full and actual information regarding their management indicators and the management of public resources.

6) The laws will define the form in which the obliged entities will have to make public the information related to public resources which they give to legal or moral persons.

7) Sanctions will be given to those not fulfilling their obligations regarding ATI. These sanctions will be defined by law.

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Nicaragua

Article 66 of the Constitution of Nicaragua provides that Nicaraguans have the right to truthful information and, in exercising that freedom, may seek, receive, and disseminate information and ideas, orally, in writing, in graphic form, or by another medium of their choice. In addition, Article 26 of the Constitution provides a right to personal information, in the following terms: “All persons have the right to … (4) Knowledge of all information about them registered by state authorities, as well as the right to know why and for what purpose this information is held.” These rights were implemented by Law No. 621 of 2007 on Access to Public Information.

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Panama

The Constitution of Panama was amended in 2004 to provide, in Article 43, for the right to access information held by the state or by private companies involved in work of a public nature. It allows that such a right might be limited but only by written law. Articles 42 and 44 also guarantee judicial remedies to ensure the exercise of the right of access to information, along with habeas data procedures.

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Paraguay

Article 28 of the 1992 Constitution of Paraguay, titled “About the Right to Obtain Information,” reads as follows:
(1) The people's right to receive true, responsible, and equitable information is hereby recognized.
(2) Everyone has free access to public sources of information. The laws will regulate the corresponding procedures, deadlines and sanctions, in order to make this right effective.

Although no law has been adopted to implement this provision, in 2007, the District Court of Asuncion ruled that Paraguay’s Constitution guarantees the right of access to state held information, and that the right is judicially enforceable.[32] 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 sued anyway over the initial refusal. 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 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 28). The Court interpreted these provisions in light of Article 13 of the American Convention on Human Rights and the Claude Reyes judgment[33], which is considered binding law for Paraguay.

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Peru

The right to public information is protected under Section 5 of Article 2 of the 1993 Constitution of Peru. Under this section, any person[34] has the right to request, without stating a specific cause, information from a government entity except for that expressly prohibited by law or the Constitution such as personal or private information or information pertaining to national security. There are limits to these exceptions, such as Article 96, which guarantees any member of Congress the right to request from public officials any reports that he or she deems necessary including those considered to be of a confidential nature.

Peru’s Tribunal of Constitutional Guarantees has interpreted Article 2 to be a fundamental right of all persons as well as a collective right given that an informed public serves as the foundation for a democratic society in which all participate in the process of elaboration, search, selection and promulgation of public information.[35]Access to information is the foundation for an authentic democratic society, necessary for citizens to be able to develop free and informed public opinion about government activities and hold their government accountable.[36] In order to fulfill this constitutional mandate, the Tribunal has held that government entities must provide information that is “complete, precise, correct, current, timely, and accurate.”[37] While Section 5 declares the intent to promote open and transparent government as the basis for a democratic society, the second half of Section 5 protects against the unlawful disclosure of private or personal information. The Constitutional Tribunal has held that private information can become public when it is requested and subsequently possessed and used by an administrative entity. [38] In addition to a general right to public information, theConstitution’s authors also contemplated the need to enumerate specific rights to information regarding public functionaries. See section on Asset Declarations.

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United States

In the United States, the right to freedom of information is considered central to the concept of democratic accountability. James Madison, a leading figure in the drafting of the US Constitution, eloquently described the importance of an informed citizenry to democratic governance:

A popular Government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both. Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.[39]

In 1978 the Supreme Court ruled in Houchins v. KQED that, while the right of access to information clearly is guaranteed by statute, there is no constitutional underpinning to the right:

[T]here is no constitutional right to have access to particular government information, or to require openness from the bureaucracy. . . . The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.

Justice Stevens, dissenting from the majority, cited various sources that recognize constitutional protections of the media’s right to collect information and the public’s right to know. In Richmond Newspapers Inc v. Virginia, (in which the Court ruled that holding a closed criminal hearing to prevent public attendance violated the First Amendment’s right to freedom of speech ), he noted in a concurring opinion that:

Today . . . for the first time, the Court unequivocally holds that an arbitrary interference with access to important information is an abridgment of the freedoms of speech and of the press protected by the First Amendment.

It is somewhat ironic that the Court should find more reason to recognize a right of access today than it did in Houchins.

The Sixth Circuit, in Detroit Free Press v. Ashcroft,[40] concluded that the Supreme Court’s various pronouncements do signify the existence of a constitutional right to freedom of information, albeit limited:

[T]here is a limited constitutional right to some government information . . . . [A]lthough First Amendment Coalition and Capital Cities Media recognize Houchins as holding that there is no general right of access to government information, the line of cases from Richmond Newspapers to Press–Enterprise II recognize that there is in fact a limited constitutional right to some government information . . .[41]

Nonetheless, most commentators view the Houchins decision as the most decisive ruling in the United States on the question of whether the right of access to information receives constitutional protection.[42]

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Uruguay

In a 2002 decision, a 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.[43] (Editor’s note: We have not counted Uruguay among the countries whose top courts have interpreted the Constitution to guarantee a right to information given that the Court of Appeals is not a top court.)

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Venezuela

Article 28 of the Constitution of Venezuela, amended in 1999, provides:

All persons have the right of access to information and data held in government or private files referring to them or to their property, except where the law provides otherwise; to know why and for what purpose the information is kept; and to file requests before the competent court for the updating, rectification, or destruction of information that is erroneous or that illegitimately affects their rights. They may also obtain access to documents of any kind containing information of interest to communities or groups of individuals.

Article 51 of the Constitution establishes the right to submit petitions to the authorities. According to this provision, all persons have the right to address petitions to any authority or public official on matters within their purview and to obtain a timely and adequate response. Violations of this right are punishable by law and can result in dismissal. The Organic Law on Public Administration and other laws implement at least parts of the right to information.

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ASIA AND PACIFIC ISLANDS

Fiji

Article 174 of the 1997 Constitution of Fiji states: “As soon as practicable after the commencement of this Constitution, the Parliament should enact a law to give members of the public rights of access to official documents of the Government and its agencies.” Article 30(1) guarantees to “everyone” a general “right to freedom of speech and expression,” including “(a) freedom to seek, receive and impart information and ideas.” We have, however, not included Fiji in our count of countries whose Constitution guarantees a right to information given that (a) the Constitution only calls for legislation, and a law has yet to be enacted; (b) Article 174 is in the part of the Constitution titled “Accountability,” rather than the Bill of Rights; and (c) the Commonwealth Human Rights Initiative holds the view that Fiji’s Constitution does not guarantee a right to information.[44]

In October 2007, 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.[45] Under the FNPF Act, all employers make compulsory monthly contributions to the fund equal to 16 percent of monthly wages. 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. Justice Coventry cited Article 43(2) of the Fiji Constitution’s “Bill of Rights,” which exhorts the courts to "promote the values that underlie a democratic society". Drawing attention to Article 174 on Freedom of Information, he noted: "It is now nearly 10 years since the Constitution came into being. Parliament has not yet enacted a law giving members of the public rights to access official documents of the government and its agencies. In my judgment, this is a grave shortcoming and should be rectified at the earliest opportunity."[46] The ruling is considered to set a precedent allowing the media to publish any government or statutory body information no matter how it is obtained so long as it is in the public interest according to the Constitution.

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India

The Constitution of India does not contain an explicit reference to the right to information. The Supreme Court has established in several decisions that the citizen’s right to know arises from two fundamental rights guaranteed by theConstitution – the right to freedom of speech and expression, guaranteed by Article 19(1) and the right to life, guaranteed by Article 21.[47] The Supreme Court addressed the issue as early as 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 as follows:

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.[48]

In 1982, the Supreme Court ordered the government to release intra-agency correspondence regarding transfers and dismissals of judges. Recognizing a “right to know which seems implicit in the right of free speech and expression,” the Indian Court reasoned that,

[w]here 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 government. … The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State.[49]

The Court further reasoned that the citizen’s right to know forms an integral part of the right to life and liberty guaranteed under Article 21 of the Constitution.[50]

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Japan

There is no reference to freedom of information in the Constitution of Japan, however, the Supreme Court ruled that the right to information is protected by Article 21, which guarantees freedom of assembly, organization, speech and the press together with any other form of expression.[51] The Court stated:

In order that the contents of the reports of such mass media may be correct, 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.[52]

The Court concluded that the right to information enjoys constitutional protection due to its instrumental role in realizing the freedom of the press.[53]

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Kazakhstan

The Constitution of the Republic of Kazakhstan of August 30, 1995, amended by Law No. 284 of October 7, 1998, does not recognize general right to government-held information. Rather, it includes three articles that provide a public access to certain limited categories of information. Article 18(3) imposes an obligation on “state bodies, public associations, officials, and the mass media” to “provide every citizen with the possibility to obtain access to documents, decisions and other sources of information” but only “concerning his rights and interests.” Article 20(2) guarantees the “right to freely receive and disseminate information by any means not prohibited by law.” Article 31(2) provides that “[o]fficials shall be held accountable for the concealment of facts and circumstances endangering the life and health of the people in accordance with law.”

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Korea, Republic of (South)

The Constitutional Court issued a landmark ruling in 1989, recognizing an actionable, constitutional right of the public to government-held information, even though Korea's Constitution does not expressly guarantee such a right.[54] In ruling that a municipal office had to grant the applicant access to certain real estate records, the Court reasoned as follows:

Freedom of speech and press guaranteed by Article 21 of the Constitution envisages free expression and communication of ideas and opinions that require free formation of ideas as a precondition. Free formation of ideas is in turn made possible by guaranteeing access to sufficient information. Right to access, collection and processing of information, namely the right to know, is therefore covered by the freedom of expression. The core of the right to know is the people’s right to know about the information held by the government, that is, the general right to request disclosure of information from the government.

The right to know is given effect directly by the Constitution without any legislation implementing it. Therefore, if the complainant requested disclosure of information and had a legitimate interest in it, and the government failed to respond without any review, his freedom of speech and press, or freedom of expression of Article 21 or its component right to know, was abridged.

However, the right to know is not absolute, and can be reasonably restricted. The limit on the extent of restriction must be drawn by balancing the interest secured by the restriction and the infringement on the right to know. Generally, the right to know must be broadly protected to a person making the request with interest as long as it poses no threat to public interest. Disclosure, at least to a person with direct interest, is mandatory.[55]

Following this case, known as the Forests Survey Inspection Request case, the National Assembly adopted the Official Information Disclosure Act in late 1996.

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Mongolia

The Mongolian Constitution guarantees to its citizens the following rights and freedoms:

Article 16 (17): The right to seek and receive information except that which the state and its bodies are legally bound to protect as secret. In order to protect human rights, dignity and reputation of persons and to ensure State defence, national security and public order secrets of the State, organization or individuals, which are not subject to disclosure shall be determined and protected by law.

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Nepal

Article 27 (Right to Information) of the Interim Constitution of Nepal states: “(1) Every citizen shall have the right to demand or obtain information on any matters of his/her own or of public importance.”

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New Zealand

Section 14, on freedom of expression, of the Bill of Rights Act 1990 reads: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” Prior to passage of this Act in 1990, the New Zealand Court of Appeal had already described New Zealand’s freedom of information legislation as “an Act of constitutional significance.”[56] The Bill of Rights affirms and extends that position, for example, influencing public access to court records.[57]

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Pakistan

The 18th Amendment, adopted in April 2010, inserted a new Article 19A in the Constitution of Pakistan that states: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law."

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Papua New Guinea

Article 51 of the Constitution of Papua New Guinea provides: “(1) Every citizen has the right of reasonable access to official documents, subject only to the need for such secrecy as is reasonably justifiable in a democratic society”. Article 51 sets forth a list of 10 permissible exceptions to the right, including an unusual one for “(j) geological or geophysical information and data concerning wells and ore bodies.” This is similar to the ninth exemption to the US Freedom of Information Act, which excludes from the Act’s coverage “geological and geophysical information and data, including maps, concerning wells. A Draft Freedom of Information Bill was developed by civil society, but had not been acted upon by Government as of 2006.[58]

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Philippines

The right to information is recognized as a distinct Constitutional guarantee. Article III (Bill of Rights), Sec. 7 of the 1987Constitution of the Philippines,[59] which remains in force, states:

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The Supreme Court declared the right to be enforceable in 1987, in a case involving access to information regarding the civil service eligibility of certain individuals:

These constitutional provisions [re the right to information] are self-executing. They supply the rules by means of which the right to information may be enjoyed ... by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature . . . . What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest...[60]

The Court continued by noting the importance of the right to information for democratic decision-making:

The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy…. In the same way that free discussion enables members of society to cope with the exigencies of their time…, access to information of general interest aids the people in democratic decision-making … by giving them a better perspective of the vital issues confronting the nation.[61]

The 1987 Constitution also contains a provision in Article II (Declaration of Principles and State Policies), Section 28, which reads:

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

For many years, this latter provision was regarded merely as providing emphasis to the guarantee under the Bill of Rights. However, in the recent case of Chavez vs. NHA, the Supreme Court for the first time gave this Section 28 an independent construction. 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:

Sec. 28, Art. II compels the State and its agencies to fully disclose “all of its transactions involving public interest.” Thus, the government agencies, without need of demand from anyone, must bring into public view all the steps and negotiations leading to the consummation of the transaction and the contents of the perfected contract. Such information must pertain to “definite propositions of the government,” meaning official recommendations or final positions reached on the different matters subject of negotiation. ….

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.

However, while the guarantee in the Bill of Rights is self-executing, the Court stated that Section 28 requires implementing legislation. Advocates in the Philippines for the passage of a Freedom of Information Act have strengthened provisions on “the duty to disclose” to conform to this latest Supreme Court ruling.

In addition to the foregoing provisions spelling out general rights and duties, there are also specific classes of information that the Constitution requires to be made public. These include information on foreign loans obtained or guaranteed by the government. Article XII (National Economy and Patrimony), Sec. 21 of the 1987 Constitution states: “Foreign loans may only be incurred in accordance with law and the regulations of the monetary authority. Information on foreign loans obtained or guaranteed by the government shall be made available to the public.”

The constitutional guarantee is applied to all branches of government (legislative, judicial, and executive) including all their instrumentalities.[62] For constitutional guarantees regarding the public’s right of access to declarations by public officers or employees of their assets and liabilities see section on Asset Declarations.

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Thailand

The current Constitution of Thailand was passed by referendum of the voters on 19 August 2007 and enacted by the King on 24 August 2007. Its legitimacy has been challenged given that it was drafted by an Assembly selected by the junta and installed by King Bhumibol Adulyadej following the September 2006 coup. In any event, Part 10, encompassing Sections 56-62, contains strong affirmations of the right to information, including a general right to information held by public agencies, state enterprises and local governments (Section 56), as well as specific rights to certain kinds of information. Section 57 guarantees a right to information concerning activities that “may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning such person [the requester] or a local community,” and Section 61 guarantees a right to consumer information. Section 62 recognizes a right to information about “the performance of duties of persons holding political positions, State agencies and State officials” and extends protection to whistleblowers. Following is the language of these sections:

Section 56.

A person shall have the right to know and have access to public data or information in possession of a Government agency, a State agency, a State enterprise or a local government organization, unless the disclosure of such data or information shall affect the security of the State, public safety or interests of other persons which shall be protected or purport to be personal data, as provided by law.

Section 57.

A person shall have the right to receive data, explanations and reasons from a Government agency, a State agency, a State enterprise or a local government organization prior to the approval or the operation of any project or activity which may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning such person or a local community and shall have the right to express his or her opinions to agencies concerned, for assisting further consideration of such matters.

In planning social, economic, political and cultural development, or in undertaking expropriation, town and country planning, zoning and making bylaws likely to have impacts on essential interests of the public, the State shall cause to be held comprehensive public hearings prior thereto.

Section 61. The right of a person as a consumer shall be protected in respect of the acquisition of rightful information and a person as such shall have the right to make a complaint for a remedy of loss suffered as well as the right to assemble in an endeavor to protect rights of consumers.

Section 62. A person shall have the right to monitor and make a request for an examination of the performance of duties of persons holding political positions, State agencies and State officials.

The person who bona fide provides to an agency responsible for the scrutiny of the exercise of State powers or to a State agency information in connection with the performance of duties of persons holding political positions, State agencies or State officials shall be protected.

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EUROPE

Council of Europe

The Council of Europe Convention on Access to Official Documents, adopted by the Council of Europe Committee of Ministers on 27 November 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 …

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Albania

Article 23 of the Constitution of Albania reads:

    1. The right to information is guaranteed.

    2. Everyone has the right, in compliance with law, to get information about the activity of state organs, as well as of persons who exercise state functions.

    3. Everybody is given the possibility to follow the meetings of collectively elected organs.

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Austria

Article 20(4) of the Federal Constitutional Law of Austria imposes an obligation on civil servants “entrusted … with administrative duties” and “functionaries of public law corporate bodies” to “impart information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain secrecy”.[63] Article 20(3) sets forth a presumption of secrecy if concealment is required to protect an enumerated list of interests, unless otherwise provided by law.[64]

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Azerbaijan

Article 50(1) of the Constitution of Azerbaijan is almost identical to the first sentence of Article 29 of Russia’s Constitution. Article 50(1) reads: “Everyone is free to look for, acquire, transfer, prepare and distribute information.”

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Belgium

Article 32 of the Constitution of Belgium guarantees a right of access to administrative documents: “Everyone has the right to consult any administrative document and to have a copy made, except in the cases and conditions stipulated by the laws, decrees, or rulings referred to in Article 134.”[65] Administrative information is defined as “any information in any form whatsoever, which the administration possesses". This includes all information recorded in any form, regardless of the information’s source. Whatever the origin of a document, when it is in possession of an administrative body, it is considered to be an administrative document.

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Bulgaria

Article 41 of the Constitution of Bulgaria reads:

1) Everyone shall be entitled to seek, obtain and disseminate information. This right shall not be exercised to the detriment of the rights and reputation of others, or to the detriment of national security, public order, public health and morality.

2) Everyone shall be entitled to obtain information from state bodies and agencies on any matter of legitimate interest to them which is not a state or official secret and does not affect the rights of others.

This language is based on Article 19 of the Universal Declaration of Human Rights. The Constitutional Court held in 1996 [66] that this constitutional right 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. The constitutional provision and the above decision are constantly referred to by the Supreme Administrative Court in cases of information denial. Access to information is recognized as both a constitutional and a statutory right.

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Czech Republic

The 1993 Charter of Fundamental Rights and Freedoms, Article 17 states: “Freedom of expression and the right to information are guaranteed.”

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Estonia

Article 44 of the Constitution of Estonia states:

1) Everyone shall have the right to freely receive information circulated for general use.

2) At the request of Estonian citizens, and to the extent and in accordance with procedures determined by law, all state and local government authorities and their officials shall be obligated to provide information on their work, with the exception of information which is forbidden by law to be divulged, and information which is intended for internal use only.

3) Estonian citizens shall have the right to become acquainted with information about themselves held by state and local government authorities and in state and local government archives, in accordance with procedures determined by law. This right may be restricted by law in order to protect the rights and liberties of other persons, and the secrecy of children's ancestry, as well as to prevent a crime, or in the interests of apprehending a criminal or to clarify the truth for a court case.

4) Unless otherwise determined by law, the rights specified in Paragraphs (2) and (3) shall exist equally for Estonian citizens and citizens of other states and stateless persons who are present in Estonia.

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Finland

Section 12 of the 2000 Constitution of Finland states:

(1) Everyone has freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programs that are necessary for the protection of children may be laid down by an Act.

(2) Documents and recordings in the possession of the authorities are public, unless their publication has for compelling reasons been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.

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France

The Conseil d’État has affirmed in two cases that the right of access to administrative documents is a “fundamental guarantee, accorded to citizens for the exercise of their public liberties in the sense of Article 34 of the Constitution of France.”[67] Article 34 reads in relevant part: “Statutes shall determine the rules concerning … civic rights and the fundamental guarantees granted to citizens for the exercise of their public liberties ….” The full statement by the Conseil d’État, in Case No. # 237203, paragraph 6, reads as follows:

Considérant que la définition des modalités concrètes de communication de documents administratifs ne met en cause ni le principe ni l'étendue du droit d'accès aux documents administratifs, qui constitue une garantie fondamentale accordée aux citoyens pour l'exercice des libertés publiques au sens de l'article 34 de la Constitution ; que le pouvoir réglementaire était donc compétent, dans le silence de la loi du 17 juillet 1978, pour décider que les frais d'acheminement postal des copies de documents administratifs seraient mis à la charge du demandeur ….[68]

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Georgia

Article 24(1) of the 1995 Constitution of Georgia, as amended through December 27, 2006, guarantees to everyone “the right to freely receive and impart information.” Article 41 guarantees the right to privacy of personal information including “the right to become acquainted … with the information about him/her stored in state institutions as well as official documents existing there.”

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Greece

Article 5A of the Constitution of Greece states:

(1) All persons are entitled to information, as specified by law. Restrictions to this right may be imposed by law only insofar as they are absolutely necessary and justified for reasons of national security, of combating crime or of protecting rights and interests of third parties.

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Hungary

Article VI (2) of the 2011 Fundamental Law of Hungary states: “Everyone shall have the right to the protection of their personal data, as well as to access and disseminate data of public interest.” The Constitutional Court ruled in 1992 that freedom of information is a constitutional 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.[69]

In Decision 34/1994 (VI.24) AB, 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.

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Italy

The Constitution of Italy is silent on the matter, but in Judgment No. 104 of 2006 the Constitutional Court declared that transparency is a general principle that binds domestic authorities as it is part of the common European constitutional heritage.

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Lithuania

Article 25 (paragraphs 2 and 3) of the Constitution of the Republic of Lithuania, adopted by referendum on October 25, 1992, guarantees a right to information in the following terms:
2) The human being must not be hindered from seeking, receiving and imparting information and ideas.
3) Freedom to express convictions, to receive and impart information may not be limited otherwise than by law, if this is necessary to protect the health, honor and dignity, private life, and morals of a human being, or to defend the constitutional order.

Inclusion of the 3rd paragraph in Article 25 establishes the right as more than a right to gather information free from government interference; instead, paragraph 3 declares that receipt of information is the norm, and limitations, which must be specified by law and be necessary to protect a short list of enumerated interests, is the exception. Moreover, the list of permissible limitations is narrower than those allowed by Article 10 of the European Convention on Human Rights: they do not include “disclosure of information received in confidence” or “maintaining the authority and impartiality of the judiciary.” For these reasons, we count the constitutional provision as one that guarantees a right to information, and not merely freedom of information.

The fifth paragraph of Article 25 guarantees citizens (as distinct from “human beings,” who are the holders of the general right to information) the right to receive personal information:

5) The citizen shall have the right to receive, according to the procedure established by law, any information concerning him that is held by State institutions.

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Macedonia

Article 16 of the Constitution of Macedonia provides, in relevant part:

(2) The freedom of speech, public address, public information and the establishment of institutions for public information is guaranteed.

(3) Free access to information and the freedom of reception and transmission of information are guaranteed.

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Moldova

Article 34 of the Constitution of Moldova provides for a right of access to information:

(1) Having access to any information of public interest is everybody's right that may not be curtailed.

(2) According with their established level of competence, public authorities shall ensure that citizens are correctly informed both on public affairs and matters of personal interest.

(3) The right of access to information may not prejudice either the measures taken to protect citizens or national security.

(4) The State and private media are obliged to ensure that correct information reaches the public. …

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Montenegro

The new Constitution of Montenegro, adopted October 2007, include the right to information in Article 51:

Everyone shall have the right to access information held by the state authorities and organizations exercising public authority.

The right to access to information may be limited if this is in the interest of: the protection of life; public health; morality and privacy; carrying of criminal proceedings; security and defence of Montenegro; foreign, monetary and economic policy.

In addition, Article 23 guarantees environmental rights, including access to environmental information, and Article 49 guarantees freedom of public information.

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Netherlands, the

Article 110 of the Constitution of the Netherlands states: “In the exercise of their duties government bodies shall observe the right of public access to information in accordance with rules to be prescribed by Act of Parliament.” There are two views as to whether this provision guarantees a right to public information or only imposes a duty on public bodies to make information available consistent with statutes. The prevailing view within the Netherlands is that the Constitutiondoes not guarantee a right to information, based in part on the fact that Article 110 is not included in the Bill of Rights but rather in that part of the Constitution titled “Legislation and Administration.” A minority contend that the right is of constitutional stature. The courts have not expressed an opinion on the matter and are unlikely to do so, given that the courts may not set aside a law, or declare an action of an administrative body illegal, on the ground that it contradicts theConstitution. In any event, the issue is not significant given that the FOI law provides a relatively strong statutory protection of the right. For these reasons, we do not include the Netherlands in our count of countries that recognize a constitutional right to information.

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Norway

The Constitution of Norway, as amended in 2004, provides in Article 100:

Everyone has a right of access to the documents of the State and of the municipal administration and a right to be present at sittings of the courts and elected assemblies. The law may prescribe limitations to this right in regard to the right to privacy or other weighty considerations.

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Poland

Article 61 of the Constitution of Poland states:

(1) A citizen shall have the right to obtain information on the activities of organs of public authority as well as persons discharging public functions. Such right shall also include receipt of information on the activities of self-governing economic or professional organs and other persons or organizational units relating to the field in which they perform the duties of public authorities and manage communal assets or property of the State Treasury.

(2) The right to obtain information shall ensure access to documents and entry to sittings of collective organs of public authority formed by universal elections, with the opportunity to make sound and visual recordings.

(3) Limitations upon the rights referred to in Paragraphs (1) and (2), may be imposed by statute solely to protect freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State.

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Portugal

The Constitution of Portugal has included a right of access to information since 1976. Article 268 of the 1989 Constitution states:

1) Citizens shall possess the right to be informed by the Administration whenever they so request as to the progress of the processes in which they are directly interested, as well as to be made aware of such decisions as are taken in relation to them.

2) Without prejudice to the law governing matters of internal and external security, criminal investigation and personal privacy, citizens shall also possess the right of access to administrative files and records.

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Romania

Article 31 of the Constitution of Romania on the Right of Access to Information, reads, in relevant part:

1) A person's right of access to any information of public interest shall not be restricted.

2) The public authorities, according to their competence, shall be bound to provide correct information to the citizens in public affairs and matters of personal interest.

3) The right to information shall not be prejudicial to the measures of protection of young people or national security. …

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Russian Federation

Article 29(4) of the Constitution of the Russian Federation states:

Everyone shall have the right to freely look for, receive, transmit, produce and distribute information by any legal way. The list of data comprising state secrets shall be determined by a federal law.

In addition, Article 24(2) guarantees the right of everyone to review personal information about him- or herself: "The bodies of state authority and local self-government, their officials shall ensure for everyone the possibility of acquainting with the documents and materials directly affecting his or her rights and freedoms, unless otherwise provided for by law."

The leading Russian freedom of information NGO, the Institute for Information Freedom Development (IIFD), takes the position that Article 29 guarantees citizens the right to access any information, including information about activities of government bodies. The Institute recognizes that many governmental agencies do not agree with this interpretation and instead take the position that citizens have a right only to information that directly affects their rights and freedoms, according to Article 24 of the Constitution. A few courts have expressly adopted the Institute’s position, in particular, concerning government websites and standards. In their decisions, the courts quoted Article 29, but did not provide any explanation or interpretation of the Article.[70]

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Serbia

Article 51 of the Constitution of Serbia reads:

Everyone shall have the right to be informed accurately, fully and timely about issues of public importance. The media shall have the obligation to respect this right.

Everyone shall have the right to access information kept by state bodies and organizations with delegated public powers, in accordance with the law.

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Slovakia

The 1992 Constitution of Slovakia provides for a general right of access to information and a specific right of access to environmental information.

Article 26 of the Constitution reads in relevant part:

1) The freedom of speech and the right to information are guaranteed.

2) Everyone has the right to express his views in word, writing, print, picture, or other means as well as the right to freely seek out, receive, and spread ideas and information without regard for state borders. …

3) The freedom of speech and the right to seek out and spread information can be restricted by law if such a measure is unavoidable in a democratic society to protect the rights and liberties of others, state security, public order, or public health and morality.

4) Public authorities are under an obligation to provide information on their activities in an appropriate manner and in the state language. The conditions and manner of execution will be specified by law

Article 45 states: “Everyone has the right to timely and complete information about the state of the environment and the causes and consequences of its condition.”

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 as follows:

From the definition in the Constitution, it follows that the right to information has three components - seeking out, receiving, and disseminating information. (...) Receiving information is collecting data into its own disposition sphere so that the information 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 – under present conditions, audio, visual, as well as audiovisual records, but also by every other means. [71]

In a similar case, 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[72]. In findings nr II. ÚS 28/96, II. ÚS 7/00 and III. ÚS 169/03, the Constitutional Court similarly ruled that the right to make an audio recording of a public court session follows from theConstitution.

The Constitutional Court, in its finding no. II. ÚS 44/00, ruled that the right to make a video recording of members of the police during a police action similarly follows from the Constitution. 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. The Constitutional Court ruled:

[T]he execution of power regulated by law in a public place can be considered neither as a component of the basic right to privacy, nor as an expression of a personal nature (§ 11 of the Civic Code) of the members of the city police. (...) Public officials must be aware of the fact that they will face the attention of the public, and they must accept the execution of the right to information by the public minimally in the extent of executing their constitutional or lawful powers in public or in contact with the public.[73]

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Slovenia

Access to public information is guaranteed in the second paragraph of Article 39 of the Constitution of Slovenia, titled Freedom of Expression. This second paragraph reads: “Except in such cases as are provided by law, everyone has the right to obtain information of a public nature in which he has a well-founded legal interest under law.” A “legal interest” no longer needs to be proven or even stated, given that the Act on Access to Information of Public Character, adopted in 2003, explicitly so provides. Moreover, Article 15, paragraph 4 of the Constitution makes clear that nothing in theConstitution shall be interpreted to restrict a human right recognized by a law in force: “No human right or fundamental freedom regulated by legal acts in force in Slovenia may be restricted on the grounds that this Constitution does not recognize that right or freedom or recognizes it to a lesser extent.”

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Sweden

Sweden provides the oldest, and one of the strongest, constitutional protections of the right to information. The core of the principle, dating from the 1766 Constitution of Sweden, is that all government documents are public in the absence of a statute that expressly regulates otherwise.[74] This presumption of openness is considered one of the most important foundations of Swedish democracy.[75] The Freedom of the Press Act (Tryckfrihetsförordningen, TF), first proclaimed in the Constitution of 1766, was suspended only from 1772 to 1809. Article 1 of Chapter 2 of the current version, adopted in 1949, on the public nature of official documents, reads: “Every Swedish citizen shall be entitled to have free access to official documents, in order to encourage the free exchange of opinion and the availability of comprehensive information.” Article 2 states that the right may be restricted only if “necessary” to protect one of seven enumerated interests and only if “scrupulously specified” by a special act. Indeed, until 1937, any restrictions to the right of access to official documents had to be in constitutional law.

The Instrument of Government (1974), another constitutional document, stipulates in Chapter II, on Fundamental Rights and Freedoms, Article 1(2) that:

[Every citizen shall be guaranteed] freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others.

Article 13 sets forth a list of the permissible restrictions on freedom of information.

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Switzerland

The Federal Constitution of Switzerland, as amended through Oct 15, 2002, contains only a guarantee of freedom of information, and not a right to government-held information (and thus is not included in our list of constitutions that guarantee a right to information). Article 16 reads:

1) The freedom of opinion and information is guaranteed.

2) All persons have the right to form, express, and disseminate their opinions freely.

3) All persons have the right to receive information freely, to gather it from generally accessible sources and to disseminate it.

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Ukraine

The 1996 Constitution of Ukraine was strongly influenced by the European Convention on Human Rights. Fortunately, regarding the right to information, the Constitution was also influenced by Article 19 of the International Covenant on Civil and Political Rights. Article 34 guarantees the right to information in the following terms:

  • Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
  • Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
  • The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.

The Constitution also includes the right to inspect and correct personal information,[76]and the right to environmental information.[77]

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[1] 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia.

[2] Informal translation. The Portuguese version reads: "aceder aos arquivos e registos administrativos, sem prejuízo do disposto na lei em matéria relativas à segurança interna e externa do Estado, à investigação criminal, ao segredo de justiça, ao segredo do Estado e à intimidade das pessoas."

[3] HCJ 1601/90 Shalit v. Peres 48(3) PD 353 [1990] (Isr.).

[4] HCJ 1601/90 Shalit v. Peres 48(3) PD 353 [1990] (Isr.)., at 214.

[5] HCJ 1601/90 Shalit v. Peres 48(3) PD 353 [1990] (Isr.)., at 353.

[6] Translation by the editors. The original French version states: "Les citoyennes et les citoyens ont le droit d’accéder à l’information détenue par l’administration publique, les institutions élues et les organismes investis d’une mission de service public. Le droit à l’information ne peut être limité que par la loi, dans le but d’assurer la protection de tout ce qui concerne la défense nationale, la sûreté intérieure et extérieure de l’Etat, ainsi que la vie privée des personnes, de prévenir l’atteinte aux droits et libertés énoncés dans la présente Constitution et de protéger des sources et des domaines expressément déterminéspar la loi."

[7] Section 23(2)(a) of Schedule 6 (Transitional Arrangements) to the Final Constitution – The Constitution of South Africa Act 1996, Act 108 of 1996.

[8] Claase v Information Officer of South African Airways. 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.

[9] Acordada de la Corte Suprema de Justicia de la Nación No. 1/2004 Exp. 315/2004 Adm. Gral.

[10] Corte Suprema de Justicia de la Nación, S.622.XXXIII “S.,V. c/ M., D.A. s/medidas precautorias” 3 April, 2001, at 25.

[11] [1989] 2 S.C.R. 1326 at 1336.

[12] See MacDonnell v. Quebec (Commission d'accès à l'information) [2002] S.C.J. No. 71(S.C.C.); Canada (Attorney General) v. Canada (Information Commissioner), 2004 FC 431 (F.C.) at para 194 (Dawson J: “The investigation is conducted in furtherance of the quasi-constitutional right of access that has as its purpose the facilitation of democracy”); and Canada (Attorney General) v. Canada (Information Commissioner), [2002] F.C.J. No. 225 (Fed. T.D.) (McKeown J: “I recognize that the Access to Information Act is quasi-constitutional legislation and the Information Commissioner has an important role to play in our society …”).

[13] Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 (S.C.C.) at 433, per La Forest J. (dissenting, but not on this point).

[14] Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, [2010] 1S.C.R. 815 at 37

[15] Ruby v. Canada (Solicitor General) [2000] F.C.J. No. 779 (F.C.A.), at para. 165. The Court held that the specific paragraphs of the Privacy Act at issue in the case did not engage section 7 of the Charter. Although the case was appealed to the Supreme Court of Canada, the Supreme Court did not address the liberty/privacy issue.

[16] The Criminal Lawyers' Association v. The Ministry of Public Safety and Security (formerly The Solicitor General) et al. (2007) 86 O.R. (3d) 259 (C.A) [Contra: Ontario (Attorney General) v. Fineberg [1994] O.J. No. 1419 (S.C.J.)].

[17] Casas Cordero and Others v. the National Customs Service. For a copy of the judgment in Spanish, as well as comments submitted to the Constitutional Tribunal, in English and Spanish, by the Justice Initiative with the pro bono assistance of the law firm of Ropes & Gray LLP. The Chilean transparency NGO Pro Acceso brought the case and were represented before the Constitutional Tribunal by the Chilean law firm of Colombara & Olmedo.

[18] Casas Cordero and Others v. the National Customs Service.

[19] Constitutional Court, T-216/05, para. 17. See also Constitutional Court, T-473/92.

[20] Constitutional Court, C-872/03.

[21] Constitutional Court, C-872/03; and Constitutional Court, T-227/03.

[22] Constitutional Court, C-872/03. The Court considered that the establishment of exceptions to the right of access to information may be established by a simple majority of the house.

[23] Constitutional Court, C-872/03; and Constitutional Court, T-227/03.

[24] Constitutional Court, C-872/03; and Constitutional Court, C-038/96.

[25] Navarro Gutiérrez v. Lizano Fait; as translated in the 2003 Report of the Special Rapporteur for Freedom of Expression, at 107.

[26] Navarro Gutiérrez v. Lizano Fait, para. VI.

[27] Appeal for constitutional protection presented by the Representative José Humberto Arce Salas against the Bank of Costa Rica. File: 02-009167-0007-CO, Res. 2003-03489.

[28] Political Constitution of Ecuador, Decreto Legislativo No. 000 RO/1 11 August 1998, Art. 81.

[29] Article 6 was included by a reform published on December 6, 1977. See: Semanario Judicial de la Federación y su Gaceta, Novena Época, Pleno, XI abril de 2000, p.72, tesis: P.XLV/2000, IUS 191981.

[30] Semanario Judicial de la Federación y su Gaceta, Novena Época, Pleno III, June 1996, tesis: P. LXXXIX/96; IUS: 200111.

[31] Decreto por el que se adiciona un segundo párrafo con siete fracciones al Artículo 6 de la Constitución Política de los Estados Unidos Mexicanos, published in the Official Gazette, July 20, 2007.

[32] Elizabeth Flores Negri v. Rector of the National University of Asunción.

[33] Inter-American Court of Human Rights, Claude Reyes et al. v. Chile. Open Society Justice Initiative submitted an Amicus Brief in the case.

[34] Person includes corporate entities. Sentencia del Tribunal Constitucional, Exp. No. 0644-2004. Oct. 17, 2005.

[35] Sentencia del Tribunal Constitucional, Exp. No. 1797-2002 HD/TC, Jan. 29, 2003, at 9-10. Estado actual de la pagina web del Poder Judicial de acuerdo con la Ley de Transparencia y Acceso a la Información, Informe del Consorcio Justicia Viva.

[36] Sentencia del Tribunal Constitucional, Exp. No. 2579-2003-HD/TC, Apr. 6, 2005, 5.

[37] Sentencia del Tribunal Constitucional, Exp. No. 0959-2004-HD/TC, Nov. 19, 2004, 6.

[38] Sentencia del Tribunal Constitucional, Exp. No. 0644-2004 HD/TC, Oct. 17, 2005, 5.

[39] Letter from James Madison to William T. Barry (4 Aug. 1822), in 3 Letters and Other Writings of James Madison 276 (R. Worthington ed., 1884).

[40] Detroit Free Press v. Ashcroft, 303 F.3d 681, 684–85 (6th Cir. 2002).

[41] Detroit Free Press v. Ashcroft, 303 F.3d 681, 695, 700 (citing First Amendment Coal. v. Judicial Inquiry & Review Bd., 784 F.2d 467, 473 (3d Cir. 1986) (en banc); Capital Cities Media, Inc. v. Chester 797 F.2d 1164, 1167 (3d Cir. 1986) (en banc); Press-Enterprise Co. v. Sup. Ct. of Cal., 478 U.S. 1, 13 (1986)).

[42] Roy Peled and Yoram Rabin, The Constitutional Right to Information, Columbia Human Rights Law Review, Vol. 42(2), pp.375-78

[43] A. Alsina c. Estado, 4 March 2002, paras XVIII to XX.

[44] See Status of the Right to Information in the Commonwealth.

[45] See news report, Court Strikes Blow For Right to Information, Nov. 6, 2007, Inter Press Service.

[46] See news report, Court Strikes Blow For Right to Information, Nov. 6, 2007, Inter Press Service.

[47] The relevant cases of the Supreme Court are Bennett Coleman & Co. v Union of India, AIR 1973 SC 783, dissenting judgment of Justice KK Matthew in particular; State of UP v Raj Narain, AIR 1975 SC 865.

[48] State of Uttar Pradesh v. Raj Narain. Accordingly, despite the fact that tensions within the country were growing, the Court ordered the government to disclose documents regarding security arrangements for the Prime Minister's travels within the country so long as they did not endanger his security or public order. See also Handbook, supra note 24, § 6.2.4 (discussing this case).

[49] S.P. Gupta v. Union of India, at 232. See also Reliance Petrochemicals Ltd v Proprietors of Indian Express Newspapers Bombay Pvt Ltd, AIR 1989 SC 190; Indian Express Newspapers (Bombay) Pvt Ltd v. India(1985) 1 SCC 641; Secretary, Ministry of Information & Broadcasting, Govt. of India, and Others, v. Cricket Association of Bengal Ana Others, 1995(002) SCC 0161 SC; People’s Union For Civil Liberties (PUCL) And Another, v. Union of India, 2003(001) SCW 2353 SC.

[50] S.P. Gupta v. Union of India.

[51] Peled, Rabin, The Constitutional Right to Information, Columbia Human Rights Law Review, Vol. 42(2), p. 373.

[52] Kaneko v. Japan.

[53] Peled, Rabin, The Constitutional Right to Information, Columbia Human Rights Law Review, Vol. 42(2), p. 373.

[54] Forests Survey Inspection Request case.

[55] Forests Survey Inspection Request case.

[56] Commissioner of Police v Ombudsman [1988] 1 NZLR 385.

[57] See, e.g. Mafart v Television New Zealand Ltd, Sup. Ct no. SC70/2006, [2006] NZSC 78, (2006) 18 PRNZ 394

[58] Information from website of the Commonwealth Human Rights Initiative.

[59] The guarantee was first recognized in the 1973 Constitution. Article IV (Bill of Rights), Section 6, of the 1973 Constitution reads: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law.”

[60] Legaspi vs. Civil Service Commission.

[61] Legaspi vs. Civil Service Commission.

[62] Information supplied by Nepomuceno Malaluan, Action for Economic Reforms.

[63] Article 20(4) provides in full: “All functionaries entrusted with Federation, Länder and municipal administrative duties as well as the functionaries of other public law corporate bodies shall impart information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain secrecy; an onus on professional associations to supply information extends only to members of their respective organizations and this in as much as fulfillment of their statutory functions is not impeded. The detailed regulations are, as regards the Federal authorities and the self-administration to be settled by Federal law in respect of legislation and execution, the business of the Federation; as regards the Länder and municipal authorities and the self-administration to be settled by Land law in respect of framework legislation, they are the business of the Federation while the implemental legislation and execution are Land business.”

[64] Article 20(3) provides: “All functionaries entrusted with Federal, Länder, and municipal administrative duties as well as the functionaries of other public law corporate bodies are, save as otherwise provided by law, pledged to secrecy about all facts of which they have obtained knowledge exclusively from their official activity and whose concealment is enjoined in the interest of the maintenance of public peace, order and security, of universal national defence, or external relations, in the interest of a public law corporate body, for the preparation of a ruling or in the preponderant interest of the parties involved (official secrecy). Official secrecy does not exist for functionaries appointed by a popular representative body if it expressly asks for such information.”

[65] Article 134 reads: “Laws executed on the basis of Article 39 determine the judicial force of the rules which the organs that they create may take in matters which they determine. They may confer the power to decree with force of law to these organs, with the responsibilities and in the manner which they establish.”

[66] Decision No 7 of 1996 on constitutional case No 1 from 1996.

[67] Conseil d'Etat 9 / 10 ssr 13 décembre 2002 n°237203 & Conseil d'Etat 7 / 5 ssr 29 avril 2002 n°228830.

[68] Translation by the editors: “Considering that the specific form of providing administrative documents does not threaten either the principle or the scope (extent) of the right of access to administrative documents, which constitutes a fundamental guarantee accorded to citizens for the exercise of their public liberties in the sense of Article 34 of the Constitition; that the regulatory power is therefore competent, the law of 17 July 1978 being silent [on the matter], to decide that the costs for postal transport of administrative documents will be charged to the requestor ….”

[69] In re to Constitutionality of Act LXV of 1990 on Local Governments, 32/1992 (V.29) AB, at 183-184 (as translated by the Office of the Hungarian Parliamentary Commissioner for Data Protection and Freedom of Information).

[70] Information provided by Ivan Pavlov, Executive Director, Institute for Information Freedom Development. Court decisions in Russian can be found in the Institute's .

[71] Finding of the Constitutional Court, no. I. ÚS 57/00, 2000

[72] Finding of the constitutional Courtno. IV. ÚS40/03, 2003

[73] Finding of the Constitutional Court, no II. ÚS 44/00, 2000

[74] Constitution of Sweden (The Freedom of the Press Act) Chapter 2: "The Principle of Public Access to Official Records."

[75] Hans-Gunnar Axberger, “Freedom of the Press in Sweden,” in Press Law and Practice: A Comparative Study of Press Freedom in European and Other Democracies, edited by S.Coliver (Article 19: March 1993), at 160.

[76] Article 32 provides, in part: “Every citizen has the right to examine information about himself or herself, that is not a state secret or other secret protected by law, at the bodies of state power, bodies of local self-government, institutions and organisations. Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be expunged, and also the right to compensation for material and moral damages inflicted by the collection, storage, use and dissemination of such incorrect information.”

[77] Article 50 states: “Everyone has the right to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right. Everyone is guaranteed the right of free access to information about the environmental situation, the quality of food and consumer goods, and also the right to disseminate such information. No one shall make such information secret.”

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