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Harm and Public Interest Test

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.

Pursuant to the harm test, a public authority must demonstrate that a disclosure threatens to cause harm to a protected interest to justify withholding. The harm test requires that the state shows a risk of a substantial and demonstrable harm to the legitimate interest. It must de demonstrated that the limitation is related to the identified legitimate aim, the disclosure would cause substantial harm to the aim and harm is sufficiently specific, concrete, imminent and direct and not speculative or remote.  The proportionality also requires a balancing act, whereby the harm of disclosure is weighed against the public interest. The explicit and detailed public interest overrides are offered under national RTI laws. The mandatory public interest override in case of information related to human rights violations or crimes against humanity is recognized under many models, including Inter-American and African systems.

The public interest test requires that a public authority, or oversight body, weigh the harm that disclosure would cause to the protected interest against the public interest served by disclosure of the information. The existence of public interest test in an access to information law is considered as a sign of the strength of the right. Analysis of national information laws identified that public interest tests are strong and effective when they (i) are mandatory; (ii) apply to all exceptions; (iii) are structured to favour disclosure; and (iv) set out the relevant factors to consider. Nearly half of the laws surveyed in a 2012 comparative analysis included a public interest test. (Maeve McDonagh, The public interest test in FOI legislation.)

The definition of what constitutes a public interest varies across jurisdictions and often requires a case-by-case assessment. In general terms public interest issues favouring disclosure usually involve matters of public debate, public participation in political debate, accountability for public funds and public safety. The issues related to safety and environment, significant threats to health and information relating to grave human rights violations are considered to be subject of mandatory public interest override.

The principle that a State must shed light on gross human rights violations or serious violations of international humanitarian law, the right to truth, has been recognized by various specialized bodies and authorities—including the Inter-American Court of Human Rights, the European Court of Human Rights, the UN Human Rights Committee, the UN Human Rights Council, and the Office of the High Commissioner for Human Rights. A 2006 Office of the U.N. High Commissioner of Human Rights study concluded, after an extensive review of international law and practice, that “[t]he right to truth about gross human rights violations and serious violations of humanitarian law is an inalienable and autonomous right, recognized in several international treaties and instruments as well as by national, regional and international jurisprudence and numerous resolutions of intergovernmental bodies at the universal and regional levels.” State duties corresponding to the right to truth include the duties (a) to archive, prevent the destruction of, and permit access to records; (b) to limit restrictions on disclosure, and prove the need for secrecy before an independent court or tribunal; (c) to search for records, and in some circumstances, to gather, generate and reconstruct unavailable information; (d) to ensure effective and untainted oversight of records; and (e) to fulfill obligations within a reasonable time.

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