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Executive/Administrative Bodies

last modified Sep 13, 2013 10:15 PM

THIS IS AN ARCHIVED PAGE.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

Most ATI laws apply to all agencies of the executive branch of government, with exempted agencies explicitly listed in the statute or in regulations or laws expressly referenced in the statute. In many countries, the intelligence and special services are exempted in whole or in part, although in modern statutes increasingly they are covered, subject to exceptions for national security and related grounds. Other agencies that are exempted in several countries are the military and police forces, and the offices of the head of state, head of government and ministers. Following are a few examples of laws that cover a broad range of executive/administrative agencies.

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India

The Right to Information Act 2005 applies to any ‘public authority’ that is covered by criteria laid down in section 2(h). A public authority includes any authority or body or institution of self-government established or constituted:

a) by or under the Constitution;

b) by any other law made by parliament;

c) by any other law made by State Legislature;

d) by notification issued or made by the appropriate Government.

No public authority is completely excluded from the coverage of the RTI Act. All three armed forces, the Ministry of Defence, the Coast Guard, the Department of Atomic Energy, nuclear power plants and aeronautics and space research organizations (except the Aviation Research Centre) and state civilian and armed police organizations are covered by the RTI Act.

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Intelligence and Security Agencies

There are many reasons why intelligence and security agencies should not be exempted from disclosure obligations:

  1. In several countries, application of ATI laws has led to exposure of scandals or wrongdoing that might not have come to light but for the laws.
  2. In practice, courts have been very deferential on intelligence and security matters, so there is little risk that they would ever order the release of truly sensitive information.
  3. Intelligence agencies, and also security agencies (though perhaps to a lesser extent) produce a lot of documents that are invaluable to researchers, scholars and the public that do not reveal anything about confidential government actions. For instance, in the US, the Central Intelligence Agency (CIA) held extensive documents concerning Saddam Hussein's history of human rights abuses. None of these CIA documents reveal anything about US policies or CIA activities, but they do reveal a great deal of information of public interest both about what Saddam Hussein did and what and when the US knew about his abuses.

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Intelligence Agencies

It appears that the intelligence and special services are covered by most countries in Europe, although much of the information they hold could be covered by exceptions, in particular, for national security, including protection of state secrets and diplomatic relations. Two countries in which the intelligence services are expressly exempted are the United Kingdom (Freedom of Information Act 2000 Article 23 (3)) and Germany (Federal Act Governing Access to Information held by the Federal Government, Article 3 Nr. 8). The United Kingdom’s special forces and intelligence services are, however, covered by Environmental Information Regulations.

In some countries, courts have confirmed that secret services are covered. See cases from Bulgaria, Montenegro and Serbia. Significantly, Serbia’s Information Commissioner ruled in 2007 (decision 07-00-00297/2005-03) that the Security Services (BIA) are covered by the ATI law and should release information on the number of persons put under tape surveillance in 2005.

The Intelligence agencies are expressly exempted from the laws of several countries. For instance, section 7 of Australia’s Freedom of Information Act provides that “An agency is exempt from the operation of this Act in relation to a document that has originated with, or has been received from one of the intelligence agencies. These include the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Inspector‑General of Intelligence and Security or the Office of National Assessments, the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation, and the Defence Signals Directorate of the Department of Defence.

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Intelligence Budgets

Brazil, Canada, the Netherlands, Serbia, the United Kingdom and other states routinely disclose baseline intelligence spending information. In 2007, the government of France published its intelligence budget total for 2004, in the amount of 291.1 million euros. In October 2006, a court in Montenegro ordered the National Security Agency to disclose its budget and staff numbers. In 1997, the aggregate figure for all US government intelligence and intelligence-related activities — of which the CIA is one part — was made public for the first time. The aggregate intelligence budget was $26.6 billion in fiscal year 1997 and $26.7 billion for fiscal year 1998. The intelligence budgets for all other years remain classified (as of January 2008). In the United Kingdom, numbers of intelligence staff, and the full budget spent on intelligence, are published.

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Armed Forces

Most armed forces are covered by ATI laws in Europe. Experts in five countries – Albania, Czech Republic, France, Germany, and the United Kingdom – expressly confirmed that the armed forces are covered by their country’s ATI laws. In the United Kingdom, the armed forces are covered, except for the special forces and “any unit or part of a unit which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in the exercise of its functions” (Freedom of Information Act, Schedule 1, Article 6.)

Most parts of the Defence Department (except for agencies expressly exempted, such as intelligence offices) are covered by the ATI laws of several additional countries, including Australia (Freedom of Information Act,  Section 11).

Although India’s RTI Act allows the Central Government and state government to exempt any intelligence or security organization from the Act’s coverage by notice in the Official Gazette, the Act expressly provides that “information pertaining to allegations of corruption and human rights violations shall not be excluded” (Section 24 (4)). In the United States, “operational files” of intelligence agencies may be exempted from the FOIA, but only by statute duly passed by both Houses (Freedom of Information Act, 5 U.S.C. § 552(b)(3)). So, for instance, a bill to exempt the files of the Defence Intelligence Agency was defeated in 2000 because the bill, if passed, would have shielded he activities of foreign death squads, torturers and other human rights abusers.

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India

The RTI Act allows for partial exclusion of intelligence and security organizations from the purview of the RTI Act. Section 24(1) and (2) and 24(4) empower the Central and State Governments respectively to notify such organizations. Schedule II of the RTI Act 2005 lists intelligence and security organizations to which the law does not apply. Section 24 of the RTI Act provides that the Central Government and any state governments may, by notification in the Official Gazette, amend the schedule to include any other intelligence or security organization. The Central Government had exempted 26 paramilitary forces and revenue and military intelligence organizations in this manner as of June 2007. Most states have partially exempted the intelligence wing of their police departments and other similar bodies from the Act.

Nonetheless, and importantly, the Act requires that “information pertaining to allegations of corruption and human rights violations shall not be excluded” (Section 24(2) and Section 24(4)). Rather, such information shall be provided within 45 days from the date of the receipt of the request after the approval of the Central Information Commission, regarding information held by a Central government agency, or the approval of the State Information Commission, regarding state information (Section 24 (4)).

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United States

No federal agencies are fully exempted from the FOIA. However, “operational files” of several intelligence agencies – including the Central Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office and the National Security Agency – are exempted from the FOIA. The operational files exemptions were enacted in separate laws and apply as FOIA exemptions under exemption (b)(3), which exempts materials “specifically exempted from disclosure by statute . . . provided that such statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (A)(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld” (5 U.S.C. § 552(b)(3)). There are many problems associated with the broad “operational files” exemption. Thanks to the opposition of the non-governmental National Security Archive, a bill introduced in 2000 that would have exempted the operational files of the Defence Intelligence Agency was defeated; the NSA and others successfully argued that the bill, if passed, would have shielded the activities of foreign death squads, torturers and kidnappers from public scrutiny and thereby would have undermined the efforts of official truth commissions.

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Heads of State/Government and Cabinets

Few European ATI laws expressly exempt the Council of State or Cabinet of Ministers or a comparable body from the law’s coverage. The three countries are Denmark (exempts Council of State, comprised of all cabinet ministers and the Crown Prince or Hereditary Princess, whose role includes assenting to legislation and approving the King’s activities as head of state) (Access to Public Administration Files Act (1985), Part III, 10(1)), Greece (Administrative Procedure Code (1999), Article 5(3)) and Iceland (Council of State and Cabinet of Ministers) (Information Act of 1996, Article 4(1)). However, it should be noted that, even though the laws do not expressly exempt these bodies, often in practice it is difficult to gain access to minutes of cabinet meetings and similar information.

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Australia

Section 4 of the FOI Act states that the Act applies to “official documents of a Minister”, defined as “documents in the possession of the Minister in his or her capacity as a Minister and … relat[ing] to the affairs of an agency or Department of State”.

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Ireland

The Information Commissioner determined that records of the Taoiseach (Prime Minister) that related to his functions and activities as a member of a political party were exempt from disclosure – and that other records (not subject to specific exclusions) are subject to disclosure (The Sunday Times and Department of the Taoiseach & Hogan and Department of the Taoiseach ).

The request concerned correspondence between the Taoiseach Department’s communications unit and the Taoiseach, including records created for the Taoiseach by his Special Advisor. Section 2 of the FOI Act defines an “exempt record” to include “(b) a record that is created for or held by an office holder and relates to the functions or activities of—(i) the office holder as a member of the Oireachtas (parliament) or a political party, or (ii) a political party”. The Commissioner reasoned that where a particular record is concerned with the conduct of the business of Government, it cannot fall within the scope of section 2. If, however, a communication relates to a political party in terms of promotion of its own political message or philosophy or its potential for election to Government, then it does fall within the scope of that exemption. The Commissioner concluded that the bulk of the records concerned were clearly of a political party nature and that while some of the records contained references to policy matters, they were not concerned with those policies but rather with the public’s perception of members of the Government in their party political role. The Commissioner noted that the fact that the record was created by someone paid out of public money was relevant to deciding whether s.2 applies but, having noted that Special Advisors are not excluded from providing advice to office holders in their roles as members of political parties, he found that s.2 applied and that the refusal of access was therefore justified.

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Japan

The Law Concerning Disclosure of Information Held by Administrative Organs provides that any person may request that an administrative organ covered by the statute disclose administrative documents.  The term “administrative organ” is defined in Article 2(1) to include Cabinet bodies and bodies under Cabinet jurisdiction that were established by law.

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New Zealand

The Official Information Act applies to information held by a Minister of the Crown “in his official capacity” (Section 2). However, in one New Zealand case (9 CCNO 87) in which a Minister acquired the requested information through membership on a caucus committee and had not used it in relation to her portfolio, the Ombudsman found that the Minister did not hold the information in her official capacity as Minister of the Crown and so the information did not come within the scope of the Act.

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United States

The FOIA does not apply to the Offices of the President and the Vice President, and other entities within the Executive Office of the President whose functions are limited to advising and assisting the President (including the National Security Advisor, National Security Council, and White House Counsel). However, documents concerning the White House held by other agencies, such as the Secret Service, are subject to the FOIA.

Executive privilege is the power claimed by the President and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches. The Supreme Court confirmed the legitimacy of the doctrine in United States v. Nixon, but only to the extent of confirming a qualified privilege.

Once invoked, a presumption of privilege is established, requiring the prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case" (at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.

The courts have typically been deferential to the privilege, presuming that it holds unless someone can prove an overwhelming interest in obtaining the information. Executive privilege usually applies to White House deliberations, on the theory that the President needs candid and confidential advice from his staff. The privilege also protects national security matters, especially when they involve military and foreign affairs, and protecting such information as the names of spies and informers and the progress of delicate negotiations.

President George Bush (2000-08) invoked executive privilege "in substance" at least six times. One of these cases was decided favorably by the courts; the other five were not judicially challenged.

The favorable decision came in December 2007, when the District Court for the District of Columbia (court of first instance) ruled that the White House visitor logs were public records, and that the administration should stop withholding them from public scrutiny. The suit was brought by a watchdog group, Citizens for Responsibility and Ethics in Washington, which has been trying to determine how often several conservative religious leaders entered the White House during the Bush administration. The court rejected administration arguments that the visitor records should be shielded under executive privilege. “Because the Secret Service creates, uses and relies on, and stores visitor records, they are under its control,” (p. 35) Judge Lamberth wrote. “Knowledge of these visitors would not disclose presidential communications or shine a light on the president’s or vice president’s policy deliberations” (p.38). Accordingly, the court ordered the Secret Service to find the requested visitor logs and apply for any specific exemptions it considered applicable. The ruling means that such records cannot be destroyed without prior approval of the Archivist. The Secret Service appealed.

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

Following are the five instances in which President Bush’s claim of executive privilege was not challenged in the courts, but were instead resolved through political compromises: in December 2001, to refuse to disclose details regarding a scandal involving Federal Bureau of Investigation misuse of organized-crime informants, and Justice Department deliberations about President Bill Clinton's fund-raising tactics; in June 2008, to refuse to respond to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor; in July 2007, to block a congressional subpoena requiring the testimonies of Taylor and Miers; again in July 2007, to block release of documents related to the 2004 death of Army Ranger Pat Tillman under friendly fire; and in August 2007, to reject a subpoena for Karl Rove to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. None of these confrontations were appealed to the courts but instead were resolved through political compromises.

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Office of the Prosecutor

In most (but not all) civil law countries, the Office of the Prosecutor is treated as part of the judiciary, and the general rules of transparency that apply to the judiciary apply equally to the Office of the Prosecutor. See section on Judicial Branch. In addition, a few countries (see samples on this page) have special provisions that apply to the prosecutor, reflecting the important role that the office plays in criminal prosecutions, and the fact that disclosure may implicate rights to due process and privacy of criminal defendants, as well as public interests in effective prosecutions. In most common law countries, the Office of the Prosecutor or Attorney General is treated as an executive agency.

Argentina

The Procuración General de La Nación has established that all its opinions should be made public – except those that, according to the law, cannot be published – based on the republican rule of publicity that calls for justice to be open to the public and recognizes the need for public control over government acts ( Res. PGN No. 15/07, 07 March, 2007). However, as of September 2007, only the decisions of the Procuraduría General de la Nación, and not those of the Ministerio Público Fiscal, were in fact being published, and the decisions of the Procuraduría General were published as part of database that was neither well organized nor well maintained. As of September 2007, the public could only gain access to a limited number of opinions, and only via the website.

The Procuración has established a mixed system, publicizing its opinions in full on its website, but withholding some information when information is included in a database, based on a series of exceptions, namely to protect minors, family matters and privacy; when the reserve is necessary to ensure the interests of justice; or when the files refer to secret information or are related to criminal investigations.

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Chile

The Law on the Office of the Prosecutor establishes that its public function will be transparent, in such a way as to allow and promote knowledge about its procedures and their content, as well as the reasoning for every decision (Article 8). The law clearly establishes that the administrative information from this body, including background information, is deemed public. Access may be denied, however, if its secret character is established by law or statute; when publicity collides with the accomplishment of the office’s functions; when the person affected by such disclosure requests that the information be withheld; when the dissemination affects the rights or interests of third parties; or when it affects national security or related interests (Article 8). The Regional Prosecutor is required to offer an annual public account of the activities of its office, including statistics, the use of funds, and problems (Article 36).

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Colombia

The law requires transparency to be a criterion in the development of functions of the Office of the Public Prosecutor. The Statute of the Office of the Public Prosecutor requires its administrative acts to be public, subject to exceptions established by law. Information related to investigations is also not to be disclosed (Article 14).

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Hungary

The public prosecutor and his office are covered by the ATI Act.

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Latvia

The Regional Court of Appeals determined that the Prosecutor General’s office was an administrative institution for purposes of the ATI Law. By the time the case (Latvia (Delna) v. Prosecutor General’s Office, January 27, 2005, Nr. AA 51-05/4) was decided, however, the status of the Prosecutor General’s Office as an administrative body had already been confirmed by a law relating to the structure of government and administration.

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Panama

Panama’s Access to Information Act, passed in January 2002, expressly states that its provisions are applicable to the Office of the Prosecutor in addition to the Judicial Branch (Article 1.8.).

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Uruguay

In a decision (A. Alsina c. Estado, 4 March 2002, para XVIII to XX) of 2002, 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.

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Openness of Cabinet Meetings

In many countries, the agenda of upcoming meetings and the information about what will be discussed is available in advance. A few examples gathered by Access Info Europe are mentioned below, including the EU. It is reasonable that agendas are not published far in advance because cabinet meetings always respond to current events. Nevertheless, knowing in advance when a certain issue will be discussed and having access to the materials helps the media, civil society and the general public follow what the government is doing and participate in public debate about the issues being discussed.

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Estonia

Agendas of government meetings in Estonia are public and are published some days before the meetings. Additionally, agendas of “working meetings” of government members, meetings where various issues are discussed but no binding decisions are taken, are published.

European Union

The EU Commission publishes both its meeting agendas at least one day in advance of the meeting.

Germany

In Germany, the governmental press office publishes every week a short agenda. Users can subscribe to receive this by e-mail.

Israel

Government meetings in Israel are held on a Sunday and the agenda is normally made available to the press on the Thursday before.

Italy

Agendas of Council of Ministers in Italy are published at least one day before the meeting takes place.

Latvia

The Latvian Cabinet publishes the agenda and almost all of the documents that will be reviewed at the Cabinet meeting. Here is the official text in English describing the procedure.

Romania

In Romania, agendas are provided at least 20 hours before the meeting will take place. An example can be found here. There is an e-mail subscription service to receive the agendas.

Russian Federation

The Russian government publishes cabinet agendas at least one day in advance.

Slovakia

Cabinet meeting agendas are public in Slovakia in advance of the meetings.

Slovenia

In Slovenia, the agendas are published one or two days before the meeting, along with the materials to be discussed (with the exception of classified documents). This information is also available by RSS feed.

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