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Duty to Produce Information

last modified Sep 11, 2013 01:45 PM

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Overview

Most traditional (20th century and earlier) access to information regimes have only required authorities to provide information to requesters that they hold or control. Some laws and courts have gone further, and now expressly require public bodies to: a) search for information that they should hold; b) analyse information that they hold and/or generate statistical information; and c) collect or create new information. Moreover, increasingly, modern laws have imposed a duty to proactively disclose information, which implicitly imposes a duty to collect or generate certain listed categories of information.

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Duty to Search for Records

The Model Inter-American Law on Access to Information states that “the public authority in receipt of the request [for information] must undertake a reasonable search for records which respond to the request” (Article 32). The authority also carries the burden of proving that the searches conducted were adequate (Article 54(2)). Since the State, unlike the requester, has exclusive and privileged access to the information on the availability of records, courts arguably should subject the claims on the adequacy of the searches to strict scrutiny.

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Duty to Analyse Information and Generate Statistical Information

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

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

The Bucharest Tribunal’s Administrative Division found in favour of RHC on the grounds that (a) the information is of public interest, and (b) synthetic information is not personal data and does not fall under any exception from free access. The MPF appealed to the Bucharest Court of Appeal (BCA). The BCA upheld the first instance decision. It reasoned that there is public interest in the information and MPF should organize its activity to be able to provide information in due time (Romanian Helsinki Committee v. Minister of Public Finances, Bucharest Court of Appeal (BCA), file no.115/2003, decision no. 76/03.02.2003).

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Duty to Collect or Create Information Not Held by the Public Body

For instance, Latvia’s Freedom of Information Law ensures access to information “which an institution in conformity with its competence has a duty to create” (Article 5.1.).

Under the Indian Right to Information Act (Section 2(f)), if public authorities have not collected and maintained information that they are authorized to collect from a private body under any law, citizens may request such information and the public authority will have to collect that information and make it available to the requestor.

Under the Model Inter-American Law, “[w]hen a public authority is unable to locate information responsive to a request, and records containing that information should have been maintained, it is required to make reasonable efforts to gather the missing information and provide it to the requester.”(Article 34).

In Asociación Civil por la Igualdad y la Justicia v. City of Buenos Aires an Argentine court ordered the City of Buenos Aires, upon application by an information requester, to comply with a separate law that required it to “develop a diagnostic map of the food and nutritional situation” in the city with a view to identifying malnutrition in disadvantaged communities. The City had failed to comply for more than ten years (Asociación Civil por la Igualdad y la Justicia v. City of Buenos Aires, Judgment of November 7, 2008, Amparo No. 27599).

In 2006, the Constitutional Court of Hungary ruled that the government is under a general obligation to maintain records, because failure to do so would directly and seriously restrict the public’s right of access to information and, accordingly, instructed the legislature to pass a law requiring records to be kept of cabinet sessions. The legislature duly passed such a law which, among other things, amended the regulations on preparation of minutes of cabinet meetings.

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Duty to Proactively Publish Information

Increasingly, freedom of information regimes are requiring public authorities to proactively collect, generate and publish several categories of information that are often considered basic administrative documents but indeed can be helpful in promoting democratic accountability. [1] Thus, the Model Inter-American Law requires authorities to proactively publish and regularly update some 16 different categories of information, which relate to their respective internal policies, services and operations, financial management, senior officials, and record-keeping systems (Article 12).

Courts in various countries have similarly recognized state obligations to generate information. The duty to gather or collect information – proactively or in response to a request –is most developed in the context of information of concern for public oversight and to ensure the responsibility of public officials. [2]

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Americas and the Caribbean[3]

Argentina

Argentina’s Regulations on Access to Public Information of the Federal Executive Branch (Annex to the Decree on Access to Public Information) contemplates the duty of the responsible parties to generate and update basic information, an undetermined concept that must be specified in each institution. Thus, Article 10 of the regulations states that “the subjects in whose control the information lies must… generate, update, and make known basic information, in sufficient detail for it to be singled out, in order to guide the public in exercising its right.” And in terms of producing information to respond to requests, paragraph 2 of Article 5 is very clear in determining that while the party that is asked for information may be required to provide it, that does not imply “the obligation to create or produce information it does not have at the moment the request is made, unless the State is legally obligated to produce it, in which case it must produce it."

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Chile

In Chile, the second paragraph of Article 17 of the draft that would become the Law on Access to Public Information established that “the institutions of the State Administration are not obligated to produce information that is not in their possession to satisfy the request for access to information.” However, that paragraph was eliminated as the legislation went through Congress (Decision No. A97‐09 of the Transparency Council, para. 6(a)). But Article 21 of the law, which establishes the secrecy or confidentiality grounds that allow access to requested information to be completely or partially denied, provides in subparagraph c) of paragraph 1, that such a denial would be possible “[w]here there are requests of a generic nature that refer to a great number of administrative acts or background information, or for which a response would unduly divert officials from carrying out their regular job duties."

The Council on Transparency of Chile has ruled on this point on several occasions. In its Decision No. A97‐09 of 2009, it stated the following with respect to how to interpret the removal of the second paragraph of Article 17 from the original draft legislation:

Thus, the removal of the provision establishing that institutions of the State Administration were not required to prepare information, and restricting their duty to providing only information that already existed, was not an involuntary omission on the part of the legislator. On the contrary, the legislator’s intention was to eliminate this restriction so as to allow asking government agencies to prepare documents, as long as the information involved is in the administration’s possession and there is a financial limit: not to cause excessive costs or unforeseen expenses in the institution’s budget.

In its Decision No. A080-09 of 2009, the Council on Transparency of Chile ruled on a request for information made to the Civil Register and Identification Service, which had been denied on grounds that producing it “would involve unduly diverting officials from the fulfillment of their regular job duties.” In deciding on the case, the Council concluded that it was possible to require the entity subject to the law to collect, process, and systematize information in its possession, without that implying that a duty to create information was being imposed:

That by virtue of what was previously indicated, it can be concluded that the Civil Register only includes part of the information that was requested, and that collecting, processing, and systematizing it along the lines requested, albeit with the limitations that have been noted, would not imply creating information. Neither does the collection, processing, and systematization of that information so that it be turned over as requested with the above mentioned restrictions imply, in this Council's judgment, unduly diverting officials from their regular duties, and so the grounds cited are inadmissible.

Dominican Republic

The Law on Access to Information does not expressly establish rules on this subject. However, Article 4 of the law orders the public authorities to systematize information of public interest, “both to provide access to interested parties and to publish it via any means available.”

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Ecuador

Article 20 of Ecuador’s Organic Law on Transparency establishes that a request for access to information “does not imply that public administration entities and other bodies indicated in Article 1 of this Law have the obligation to create or produce information that they do not have or are not required to have at the time the request is made. However, the second paragraph of Article 20 clarifies that “producing” information is not understood to mean “gathering or compiling information that may be dispersed in the various departments or areas of the institution, in order to provide summaries, statistics, or indexes requested by the petitioner.” In other words, Article 20 implies that public bodies should gather or compile information even if dispersed in various departments, in order to provide “summaries, statistics or indexes” if such information is requested.

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Mexico

In Mexico, Article 42 of the Federal Transparency and Access to Public Governmental Information Act establishes that “departments and agencies are only required to release the documents found in their archives.” However, both the IFAI and the Supreme Court Committee on Access to Information have found that the right of access to information is only satisfied when the information requested is made available to the applicant, even if that means processing or assembling information that is dispersed across different administrative units. Along these same lines, entities subject to the law have taken the initiative to produce information without the need for a request. That is what happened with the Investigative Commission created by the Supreme Court of Justice in the case of the Guardería ABC (ABC Daycare Center) [4] ,in which the Supreme Court ruled that the Commission “shall establish whether these events involved a serious violation of individual guarantees, and shall analyze the overall performance of the system of public daycare centers that operate under the same or a similar arrangement, with the goal of preventing, or at least minimizing, the possibility that another case like the Guardería ABC could happen again.” [5]

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Nicaragua

Article 3 (2) of the Law on Access to Information does not establish rules on this subject. However, its Article 6 creates offices for access to information in each entity subject to this law, in order to “facilitate access to information for those who demand it, creating a system for organizing information and archives, with a respective index for the information in its keeping.” Paragraph 3 of Article 10 of the Regulations of the Access Law assigns to these offices the duty of disseminating and collecting the basic information that public entities must disseminate proactively—a duty established in Articles 20 and 21 of the law—and making sure the entities periodically update the information.

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Relevant Cases

Case TitleCountry/ArbiterYear
Romanian Helsinki Committee v. Minister of Public Finances Romania 2003
Claude Reyes v. Chile Inter-American Court of Human Rights 2006
Asociación Civil por la Igualdad y la Justicia v. City of Buenos Aires Argentina 2008
In re the Constitutionality of Provisions on Record Keeping of Governmental Sessions Hungary 2006
Decision No. A97‐09 of the Transparency Council Chile 2009
Decision No. A080-09 of the Transparency Council Chile 2009

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Related Briefs and Submissions

Case TitleIntervenerCourt/ArbiterYearRelevant CiteDownload Brief
Gomes Lund v. Brazil
OSJI, CHRI, DAC, SAHA
Inter-American Court of Human Rights 2010 paras. 43-47, 93, English, Portuguese, Spanish
Guidel Álvarez and Others v. Guatemala

OSJI, APRODEH, CMDPDH

Inter-American Court of Human Rights 2012 paras. 58, 63 English, Spanish
Intervention Concerning the Constitutional Review of Colombia’s Proposed Transparency and Access to Information Law OSJI Constitutional Court of Colombia 2012 para. 31 English, Spanish
Thematic Hearing on ATI in the Investigation of Cases of Grave Violations of Human Rights in Peru OSJI Inter-American Commission on Human Rights 2012 para. 37 English

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[1] World Bank Institute (Darbishire), Proactive Transparency: The Future of the Right to Information? Working Paper Series.

[2] Claude Reyes v. Chile, para. 86; Joint Declaration by the Rapporteurs on Freedom of Expression from the UN, the OAS and the OSCE, December 6, 2004 (“Public authorities should be required to publish pro-actively, even in the absence of a request, a range of information of public interest.”); Inter-American Juridical Committee, Resolution 147 of the 73rd regular period of sessions. Principles on the Right of Access to Information, August 7, 2008, Principle 4; Model Inter-American Law on Access to Public Information, Articles 9 and 12 (detailing progressive obligations of proactive disclosure).

[3] The below information on the Americas and Caribbean is taken from the OAS 2012 report on The Right to Access to Information in the Americas. Inter-American Standards and Comparison of Legal Frameworks (pages 98-105).

[4] On June 5, 2009, in the city of Hermosillo, Sonora, a fire broke out in the facilities of “Guardería ABC, Sociedad Civil.” As a result, 49 children lost their lives and another 75 were injured. The daycare center involved took care of children of beneficiaries of Mexican Social Security Institute under an arrangement known as “subrogation.”

[5] Supreme Court of Justice of the Nation (Mexico). “Plenum of Ministers Approves Protocols for Commission Investigating the Events at Guardería ABC.”