The right to access information is not absolute. Freedom of information is subject to limitations to protect certain types of information from disclosure. However, these restrictions on access must be narrowly drawn exceptions necessary to protect legitimate interests, and strictly interpreted in line with the presumption of access. Limitations on the right to information must comply with a three-part test:
- First, there must be a clear and precise legal foundation for the limitation. The principle of legality ensures a reasonable expectation of the interpretation of the law, and that the limitation is not a result of discretionary state action.
- Second, the limitation on the right to information must respond to a legitimate purpose. The ICCPR designates an exhaustive list of legitimate aims for exceptions to freedom of expression, including the right to information. These are for (i) national security, (ii) public safety, (iii) public order, (iv) the protection of public health or morals, or (v) the protection of the rights of others.
- Third, the limitation must be necessary in a democratic society to satisfy a compelling public interest and proportionate to the interest that justifies it.
In terms of the third part of this test, for a limitation to be necessary it must be the least restrictive means for achieving the legitimate aim. For a restriction on freedom of information to be proportionate: (i) the restriction must be related to a legitimate aim; (ii) the public authority must demonstrate that disclosure of the information threatens substantial harm to the aim; and (iii) the public authority must demonstrate that the harm to the legitimate interest is greater than the public interest impeded.
The so-called harm and public interest tests flow from the requirement that restrictions on the right of access to information be proportionate and necessary. Relatedly, exceptions to disclosure should not apply in the case of information related to human rights violations or crimes against humanity.
Further, any non-disclosure should be time-limited, as any legitimate justifications for the non-disclosure of records become progressively weaker over time. Excessively long classification periods undermine the very essence of the right of access to information. For these reasons, most democratic countries have adopted regimes for the periodic or automatic declassification of reserved information.
A requester should have a right to independent and effective oversight and review of any denials of the right of access to information. The ultimate decision on whether to disclose or withhold information cannot be left to the discretion of the public authorities, but must be subject to independent review by a competent court or tribunal.
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