We bring together information on the legal frameworks for the right to information from more than 100 countries.
You are here: Home Archived Content Scope of Bodies Covered Legislative Branch

Legislative Branch

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THIS IS AN ARCHIVED PAGE.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

Fewer countries, pursuant to ATI laws, grant access to information held by the legislative (or judicial) branch than to the executive branch.

There are, however, virtually no principled reasons for treating legislative or judicial bodies any differently than executive bodies. Legislative bodies and judicial authorities perform public functions and are financed with public money; the rationales that call for transparency of the executive apply with equal force to the legislature and judiciary. Maximum transparency of these institutions would increase public confidence in them, enable the public to reach informed opinions concerning their functioning, foster efficiency and reduce corruption.

Opposition to applying an ATI regime to legislative bodies and judicial authorities stems principally from two notions. The first is that existing mechanisms, such as the right to a public trial or the right to attend meetings of legislative bodies, adequately ensure transparency of the activities of the legislative and judicial branches. The second is the view that an overarching access to information regime for all three branches of government would contravene the principle of separation of powers.

It is certainly the case that many countries, especially mature democracies, have traditions of openness concerning the conduct of legislative and judicial proceedings. In the case of judicial authorities, however, it is generally only the courts that carry out their business in public, and not other bodies in the judicial branch, such as those that make decisions regarding selection, promotion and discipline of judges. Furthermore, openness in the judiciary is limited to what is necessary to ensure the fairness of trials and does not take into account wider considerations of the public interest. In the case of legislative bodies, meetings and their records will usually be open to the public, but this is not always true of the documents and reports on which legislators base their decisions. In any case, the fact that a considerable degree of openness exists already in the legislative and judicial branches of many countries should argue in favour of, rather than against, extending the scope of ATI laws to these branches.

Having openness addressed by a comprehensive ATI law rather than by a patchwork of laws serves the virtue of promoting consistency, especially concerning interpretation and application of exceptions to disclosure.

Countries can readily address the second objection, regarding the separation of powers, by adopting measures that comply with their own legal systems and traditions. Some countries may prefer to have separate laws that address the legislative and judicial branches but basically mirror the substantive and procedural protections of the general ATI law. The Mexican Congress has dealt with the separation of powers issue by declaring the substantive provisions of the ATI law to be applicable to the judiciary and legislature but requiring the judiciary and the legislature to set up their own institutions for overseeing the law's implementation and deciding disputes.

Some countries in Europe extend the right of ATI to legislative (as well as judicial)  bodies only "insofar as they perform administrative functions as provided for by national law". This, for instance, is the language in Article 1(2)(a)(i)(2) of the Council of Europe Convention on Access to Official Documents. However, requiring the legislative and judicial branches to disclose only the "administrative information" or "information about administrative functions" they hold runs into another problem: there is no clear understanding of those terms. The information that in fact is treated as administrative information varies from country to country. See section on Administrative Information and Proactive Publication.

The public has a right of access to legislative information held by legislative bodies in at least 25 countries of Europe. In 20 of those 25 countries, legislative information comes within the scope of the ATI laws themselves: Albania, Armenia, Bosnia & Herzegovina, Bulgaria, Croatia,  Finland, Ireland, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Sweden and the United Kingdom. Of these, ten expressly mention application of the law to the legislature: Bosnia & Herzegovina, Denmark, Finland, Ireland, Moldova, Montenegro, Russian Federation, Slovakia, Sweden and the United Kingdom. See country entries below. ATI experts in 10 other countries have confirmed that the law applies to legislative bodies concerning their legislative as well as administrative activities. In at least five other countries - Czech Republic, France, Georgia, Germany and the Netherlands- the public has a right of access to legislative information pursuant to laws other than the ATI law. In France the Law on Access to Administrative Documents does not apply to legislative bodies and separate legislation covers access to information held by such bodies. In the Netherlands the Act on Public Access to Government Information applies only to the executive branch; however, the parliament has set rules for transparency of its own which are more liberal than the ATI Act

Countries outside of Europe whose ATI laws provide access to legislative information held by legislative bodies include Australia, India, Israel, Mexico, South Korea and the Philippines.

ATI laws provide access to administrative information held by legislative bodies in virtually all European countries. In some countries this has been confirmed by jurisprudence. For example, in Georgia, the Constitutional Court ruled: "the administrative function of legislative and judicial bodies is the same as public function and therefore freedom of information affects it in all cases" (Rusudan Tabatadze and GYLA vs. Georgian Parliament).

Norway is one of the few countries in Europe which does not grant a right of access to at least administrative information held by its parliament (Act relating to Public Access to Documents in the Public Administration, Article 1).

Recommendation: ATI laws should extend to the legislative (and judicial) bodies. In actual practice, most countries allow for access to considerable information held by these branches pursuant to various other laws. Having openness addressed by a comprehensive ATI law rather than by a patchwork of laws serves the virtue of promoting consistency, especially concerning interpretation and application of exceptions to disclosure. Any concerns regarding separation of powers can be addressed by allowing the judicial and legislative branches to establish their own implementation and oversight mechanisms.

Application of ATI laws to Information Held by Individual Members of Parliament

In countries that recognize a right of access to information held by the legislative branch a major issue is the extent to which individual members of parliament (MPs) are or should be subject to disclosure requirements. Information commissioners and courts in several jurisdictions - including Israel, Japan, South Korea, Scotland and the United Kingdom - have established that claims of MPs for expenses and reimbursement, including for food and travel, are subject to disclosure.

The laws of most countries, at least in Europe, apply only to parliamentary bodies and not to individual MPs or local representatives. ATI laws often apply only to records generated by or relating to MPs and local representatives that are held by parliamentary or other governmental bodies. In several countries, such as the UK, information generated by MPs and peers in their personal capacities or as members of political parties is outside the FOI Act's scope. Requests for information are made to the parliamentary or other governmental body that holds the desired record, and individual MPs may intervene to object to disclosure.

Recommendation: There is a sound argument as to why MPs should not be required to disclose certain information, e.g., about their meetings and strategies under development: MPs are leaders of political parties and should be able to pursue their political work free from the scrutiny of government or their political opponents. However, if one starts from the presumption, as do we (the editors) that entities that perform public functions or are funded by public monies should be covered by RTI laws, then elected representatives should themselves be covered. Elected representatives are different from public employees, whose acts undertaken in the course of their employment may be imputed to their employers, and thus subject to RTI coverage as the acts of their public employers. Rather, each elected representative arguably is a public body. The regime of exceptions should apply to elected representatives as it does to all other public bodies; a proper regime of exceptions should address all legitimate concerns regarding privacy and independence of political parties. Having made this recommendation, we also note that few countries currently follow this approach. What is clear is that the courts of several countries have ruled that documents produced by representatives that are held by public bodies are thereby subject to RTI coverage, and in addition that individual MPs are required to disclose information about their use of public funds (including reimbursements for expenses).

[top]

ATI Laws that Apply to Legislative Information

Australia

The Freedom of Information Act, according to Part I, Section 4 (on Interpretation), applies to, among other entities, a body "established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council," other than certain named bodies, including the Australian Capital Territory House of Assembly; the Legislative Assembly of the Northern Territory, and the Legislative Assembly of the Territory of Norfolk Island. All other legislative bodies, including the Federal Parliament, come within the FOI Act's reach.

[top]

Bosnia and Herzegovina

Article 3 of the Freedom of Access to Information Act defines public authority to include "legislative authority."

[top]

Denmark

The Access to Public Administration Files Act contains an unusual provision making clear that the Act applies to legislative activity. Article 2(2) states: "This Act shall apply to matters relating to the making of laws, including any Act for the purpose of appropriations, subject to the Bill in question having been introduced in the Folketing."

[top]

Finland

Section 4(6) of the Act on Openness of Government Activities defines "authorities" subject to the Act to include "parliamentary agencies and institutions."

[top]

European Court of Justice

The Grand Chamber of the Court of Justice issued a landmark judgment in July 2008 in the case of Sweden and Turco v. the Council of the European Communities and Others, holding that a legal opinion given to the Council (which has legislative responsibilities) concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure.

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

Mr Turco asked the Court of First Instance to annul the Council's decision, but it declined, citing Article 4(2) of Regulation (EC) No 1049/2001, which provides that any citizen of the European Union and any person residing in a Member State has a right of access to documents of the institutions. Article 4 sets forth exceptions to that general principle, including, in paragraph 2, where disclosure of a document would undermine the protection of legal advice, "unless there is an overriding public interest in disclosure." The Court of First Instance concluded that disclosure of legal opinions such as that in question could give rise to lingering doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council's legal service. The Court moreover held that the overriding public interest in disclosure must be distinct from the principles underlying Regulation (EC) No 1049/2001, in particular the principle of openness, relied on by Mr Turco.

Sweden and Mr Turco, supported by the Netherlands, appealed to the Grand Chamber of the Court. The Court noted that the Council was obliged to undertake a three-part examination before reaching a decision as to whether or not to disclose requested documents. First, the Council had to satisfy itself that the requested document did in fact concern legal advice. Second, the Council had to examine whether disclosure of the parts of the document in question would undermine the protection of legal advice. The Court construed the exception relating to legal advice in Regulation (EC) No 1049/2001 as aiming to protect an institution's interest in seeking frank, objective and comprehensive advice. It noted, and rejected the Council's abstract submissions that (a) disclosure could lead the public to doubt the lawfulness of a legislative act, or (b) could undermine the Council's interest in seeking frank advice. Regarding the first point, concerning impact on the public's perception of the lawfulness of a legislative act, the Court reasoned:

[I]t is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole (para. 59).

The Court concluded that there appeared to be "no real risk that is reasonably foreseeable and not purely hypothetical" that disclosure of opinions of the Council's legal service issued in the course of legislative procedures might undermine the protection of legal advice within the meaning of Article 4(2) (para. 66).

Third, the Court stated that it was incumbent on the Council to ascertain whether there was any overriding public interest justifying disclosure. Even if the Council had a legitimate concern that disclosure could harm important interests, it nonetheless had to weigh that risk against the overriding public interests which underlie Regulation (EC) No 1049/2001. The Court concluded:

[S]uch an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution's legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of the preamble to Regulation (EC) No 1049/2001.

Accordingly, the Court set aside the judgment of the Court of First Instance and, pursuant to Article 61 of the Statute of the Court (which provides that the Court itself my give final judgment in a matter where the state of proceedings so permit) annulled the Council's decision refusing to allow Mr. Turco access to the legal opinion in question.

[top]

India

Section 2(h) of the Right to Information Act sets forth the Act's broad coverage, including all legislative bodies.

[top]

Israel

The Freedom of Information Law covers all three branches of government, including the legislative branch. The Knesset (parliament) as such is covered, not necessarily the individual representatives. Information that is covered includes materials prepared for committees, expenses of the Knesset, information collected by the Knesset for its purposes, and information held by the chair of each house. Individual Knesset members are required to disclose allowances they receive as members and expenses reimbursed to them, but probably would not be required to disclose other information, for instance, concerning their meetings and strategies under development.

[top]

Ireland

Parliament is covered by the scope of the Freedom of Information Act. However, a range of parliamentary records are excluded or exempt:

  1. "[A] record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential."  (s. 46(1)(e))
  2. Records "created for or held by Government Ministers [or Ministers of State] or the Attorney General that relate to (a) the functions and activities of political parties or (b) to their own functions and activities as Members of Parliament or political parties" (s. 2).
  3. Records relating to the "costing, assessment or consideration by a public body of a proposal of a political party," added by s.29 of FOI (Amendment) Act 2003.
  4. "[P]arliamentary briefing records including records created for the purpose of briefing for parliamentary questions (whether oral or written)," added by s.29 of FOI (Amendment) Act 2003.
  5. "[T]he private papers of a representative in the European Parliament or a member of a local authority or a health board" (s.22(1)(c)(i)).
  6. Opinions, advice, recommendations, or the results of consultations, considered by:
  • a) the Houses of Parliament or by any member of either House or by a member of the staff of the Office of the Houses of Parliament for the purposes of the proceedings at a sitting of either such House, or
  • b) a committee appointed by either House of Parliament where the information has been considered for the purposes of proceedings at a meeting of such a committee (s.22(1)(c)(ii)).

Parliamentary Questions. The exclusions referred to in points 3 and 4, above, were added via a 2003 amendment to the original 1997 Act; political parties were unhappy that members of opposing parties could gain access under the Act to details of their proposals especially in the run-up to elections and ministers did not like members of the opposition being able to gain access to all of the background documentation relating to their answering of parliamentary questions.

Information created by or about individual Members of Parliament. The Act only applies to records held by public bodies. Individual MPs, including those who are also Ministers, and local government representatives are not considered public bodies for purposes of the Act. Thus, the Act only applies to records relating to the activities of MPs and local government representatives that are held by parliamentary or other government bodies.

The first exclusion above defines "private papers" of members of the Oireachtas (parliament) by reference to Article 15.10 of the Constitution. However, Article 15.10 neither defines "private papers," nor prohibits their disclosure. Nor are there any references to the private papers of Oireachtas members in the Standing Orders of the Houses of the Oireachtas.[1] Rather, as explained by Prof. Maeve McDonagh, the motivation for excluding such papers from the scope of the Act was to ensure the compatibility of the Act with the separation of powers doctrine as set out in the Constitution. In particular, it was felt that the Executive could not introduce provisions which might interfere with the right of the Houses of the Oireachtas to make their own rules in relation to the private papers of Oireachtas members.

This exclusion may be considered in conjunction with the second exclusion. Taken together, the two provisions provide a high level of protection against disclosure of records of members of the Oireachtas. In the case of Ministers and the Attorney General, the protection afforded extends to their private papers as well as to records created for or held by them and which relate to the functions and activities of political parties or to their own functions and activities as members of the Oireachtas or political parties.

It is not always easy to distinguish the private papers of Oireachtas members from their official records. Records received in a private capacity, for example, complaints received from constituents, can later become official records where the complaint is followed up at an official level. The Information Commissioner concluded, in Oakley and Sunday Tribune and Office of the Houses of the Oireachtas, that details of expenses paid to Members of Parliament were subject to disclosure.

Severals Oireachtas members had sought to prevent their expenses from being disclosed to media requesters on the grounds that such records constituted either private papers of Oireachtas members or else "official documents" of the Houses of the Oireachtas that are "required ... to be treated as confidential." The Information Commissioner rejected the claim that details of the members' expenses could amount to private papers since the records were created and held by a public body, not by the members, and the records did not concern the private business of the members or their dealings with constituents or other third parties, but related instead to the discharge of their public duties as Oireachtas members. The Commissioner also concluded that, whatever was meant by the phrase "official documents," it could not be interpreted to cover records that individual members themselves had contended dealt solely with their private business. For exclusion of records that relate to functions of Ministers as members of political parties, see section on Heads of State/ Government and Cabinets.

[top]

Korea, Republic of (South)

The Official Information Disclosure (OID) Act applies, among other entities to "any State agency."  "Any Stage agency" covers the three branches of the government - i.e., the National Assembly, the judicial branch, and the executive branch -  as well as  the Constitutional Court, and the National Election Commission.

[top]

Mexico

The Federal Law of Transparency and Access to Public Government Information (LFTAIPG) recognizes and protects the free access to public information held by all three branches of the federal government (as well as by the autonomous constitutional organs, such as the National Human Rights Commission, and any other federal organs).  Pursuant to Article 61 of the Law, each branch of government and other bodies were required to adopt regulations to implement the law. As regards the Legislature, the Chamber of Deputies and Senate adopted different regulations. In 2003, the Special Rapporteur on Freedom of Expression of the Inter-American Commission traveled to Mexico to inquire, among other matters, about implementation of the law. At that time, he noted that the regulations did not comply with certain basic principles concerning access to public information; for instance, the regulations of the Chamber of Deputies did not provide for the right to appeal to an independent administrative institution in the event that the Chamber denied an information request (Annual Report of the Special Rapporteur for Freedom of Expression 2003, para. 148).

[top]

Moldova

Article 5(2) of the Law on Access to Information defines "information providers" to include the Parliament.

[top]

Montenegro

Article 4 of the Law on Free Access to Information defines "government agency" subject to the Act to include any "state authority (legislative, executive or judicial)."

[top]

Philippines

The Constitution's guarantee of the public's right to information - in Section 7 of Article III (Bill of Rights) of the Constitution - does not specify which governmental bodies are covered. As it is applied, it covers all branches of government including the legislature. Moreover, Section 16(4) of Article VI (re the Legislative Branch) of the Constitution states:

Each House shall also keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security ...

Section 20 of Article VI further provides:

The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.

[top]

Slovakia

Article 2 of the Freedom of Information Act 2000, as amended, provides, among other things, that the National Council of the Slovak Republic is obliged to disclose the following information, in addition to information that all state bodies are required to disclose:

a. dates of its sessions and the sessions of its committees and draft session agendas,

b. minutes from public sessions,

c. copies of acts submitted [to the National Council] within three days after their filing with the Office of the National Council,

d. copies of acts passed [by the National Council] within three days after the third reading,

e. information on the attendance of MPs at the sessions of the National Council and the sessions of its committees within three days after their end,

f. information on voting of MPs after each session of the National Council of the Slovak Republic, with the exception of secret voting and voting at a closed session.

[top]

Slovenia

Article 1 of the Act on Access to Information of Public Character provides that the law applies to all state bodies; the only exceptions are named in Article 6. The Information Commissioner has confirmed that the Act applies fully to the legislative branch.

[top]

Sweden

Under Chapter 2, Article 5 of the Freedom of the Press Act (which has constitutional status), the Parliament and "any local government assembly vested with powers of decision-making" are deemed public authorities subject to the Act's disclosure requirements.

[top]

United Kingdom

The Freedom of Information Act applies to the Houses of Parliament though information held by MPs and peers in their personal capacities or as members of political parties is outside the Acts' scope. The devolved assemblies in Wales and Northern Ireland are also covered. (Scotland has its own FOI legislation which applies to the Scottish Parliament.)  Section 3(1) of the Freedom of Information Act 2000 states that "public authority" means:

(a) subject to section 4(4), any body which, any other person who, or the holder of any office which

(i) is listed in Schedule 1, or

(ii) is designated by order under section 5, or (b) a publicly-owned company as defined by section 6.

Schedule 1, Part I on Public Authorities, lists the following institutions, in sections 2-5: the House of Commons, the House of Lords, the Northern Ireland Assembly and the National Assembly for Wales.

ATI Laws that Apply Only to Administrative Information Held by Legislative Bodies

Georgia

The Georgian Constitutional Court ruled, in the case of Rusudan Tabatadze and GYLA vs. Georgian Parliament that " the administrative function of legislative and judicial bodies are the same as public function and therefore freedom of information affects it in all cases". In addition, separate legislation requires the Parliament to publish its decisions.

[top]

Hungary

Legislative bodies are obliged to make public only administrative information, pursuant to Article 19 of the former ATI Act on Protection of Personal Data and Publicity of Data of Public Interest (Act LXIII of 1992). In addition, Article 33 (2)-(4) of the 2011 ATI law requires a number of public bodies to create home pages and sets out in an annex an extensive list of information that needs to be released.

[top]

ATI Law does not apply to Legislature

Canada

The Access to Information Act applies to federal government institutions. Subsection 3(1) defines "government institution" to include any department or ministry of state of the government of Canada listed in Schedule 1 or any body or office listed in Schedule 1. The Access to Information Review Task Force in 2002 recommended extension of coverage of the ATI Act to a wider range of federal institutions, including to Officers of Parliament and Parliament itself (with certain protections), but these recommendations have yet to be adopted.[2]

[top]

New Zealand

Parliament is not covered by the Official Information Act; nor is the Parliamentary Counsel Office. Definition of "official information" in section 2 of OIA does not list information held by these bodies.

[top]

 


 

[1] Dáil Éireann, Standing Orders Relative to Public Business (2002); Seanad Éireann, Standing Orders Relative to Public Business (1995).

[2] Access to Information Review Task Force, Access to Information: Making It Work for Canadians, Queen's Printer of Canada, Ottawa, 2002.