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Information Commission/ers and Other Oversight Bodies and Mechanisms

This section provides an overview of the main roles and functions of Information Commission/ers and other Oversight Bodies and Mechanisms. It is still in the process of being updated to provide a full global overview. This section is largely based on a paper by Helen Darbishire, Executive Director, Access Info.

What are the typical Oversight Bodies for Access to Information laws?

At a global level, there are four main types of oversight bodies:

  • Information Commissioner (UK, Slovenia, Serbia, Hungary,[1] Scotland)
  • Commission / Institute (Mexico, France, Portugal)
  • Ombudsman given oversight of the right (Sweden, Norway, Bosnia, New Zealand)
  • Other body given oversight of the right (South Africa, Turkey)

The global trend is towards either Information Commissioners or Information Commissions. Indeed, there is very little difference between the two: essentially it is a question of whether one or more individuals are charged with the role of Commissioner, but apart from that the functions of these offices remain the same. More information on the typical powers of information commissioners can be found in the chart below and in subsequent sections.

 

 

 

 

 

 

 

 

 

 

Information Commission/ers and Other Oversight Bodies and Mechanisms


Structure of Supervisory Mechanisms

Powers and Responsibilities of Supervisory Officials


Appeals Other than Courts?

What type of
Ombudsman or Commissioner?

Selection Process

Establish Regulations, Guidelines

Review Refusals

Order Disclosure

Sue Public Bodies

Train Officials

Raise Public Awareness

Report Data to Parliament

Armenia

Yes

General ombudsman

Appointed by President, pending an amendment


Yes

Not binding



Yes

Yes

Bulgaria

No

No

-

-

-

-

-

-

-

-

Hungary[2]

Yes

Data protection & info commissioner

President proposes, Parliament elects

Yes

Not binding

Cannot be advocate

Yes

Yes

Yes

Ireland

Yes

Information commissioner

Parliament proposes, President appoints

No

Yes

Yes


No


Yes

Latvia

Only administrative procedure

No

-

-

-

-

-

-

-

-

Netherlands

Yes

No

-

-

-

-

-

No

No

-

New Zealand

Yes

Maladministration ombudsman

Appointed by governor general

No

Yes

Can negotiate


Yes, by choice

No mandate

Yes

Panama

No

Delegate ombudsman

Independent

Yes

Yes

Can negotiate

Yes

Yes

Yes

Yes

Romania

Administrative complaint

General ombudsman

Parliament appoints

No


No

No

No

No


Scotland

Yes

FOI commissioner

Parliament nominates, crown confirms

Yes

Yes

Yes


No

Yes

Yes

Serbia

Yes

FOI commissioner

National assembly elects

Yes

Yes

Yes


Yes

Yes

Yes

UK

Yes

Information commissioner

Appointed by crown

Yes

Yes

Yes



Yes

Yes

USA

Only internal appeals

No federal mechanism

-

-

-

-

-

-

-

-

FRANCE

Yes

Information Commission for administrative documents

Commission President appointed by highest ad. Court of appeal. Other members appointed by different bodies

Yes.

Yes

Not binding

No

-

Yes

-

Totals

11 Yes
2 No

5 Specific
4 General
4 None

5 Executive
3 Legislative

4 Yes
3 No

8 Yes

4 Yes
5 Not Binding

1 Yes
2 No

4 Yes
4 No

6 Yes
3 No

8 Yes

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Why Create an Information Commissioner?

The reasons for establishing an Information Commission include the goals of promoting the right of access as well as hearing appeals against violations of the right. The first reason, the promotion of the right, should not be underestimated. Introducing a modern access to information regime often requires many procedural and cultural changes within the administration, the introduction of new systems for managing and archiving information, support in transferring data into electronic format, and restructuring of internal decision-making procedures. All this requires provision guidance and technical assistance to public bodies and training of public officials.

The creation of an Information Commission can serve to protect the right of access to information by reducing the potential bottle-necks in the application of the law and the appeals process that can, over time, reduce confidence in the right of access to information.

At the same time, members of the public need to know about how the right functions, how they can apply for information, what kind of procedures to expect and how to appeal if their rights are denied. It is important that the public has a clear understanding of what information may not be released because of the exceptions under the law in order that legitimate refusals do not undermine public trust in the right to information.

The Information Commission should have as a major task hearing appeals against failures to respect the right to information, whether it be by a formal refusal, administrative silence (still a common problem in many countries) or other issues that have arisen during the filing and processing of a request.

Another positive role of the Information Commission is to gather information about the functioning of the right: statistics on the number of requests filed, the number answered, the time frames, and the nature of the problems that have arisen, all of which will in turn guide more effective implementation of the right in the future.

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Is there an obligation under international law to create an oversight body for access to information?

There is no specific obligation under international law to create an oversight body such as an Information Commission. There are, however, certain obligations with which states must comply with respect to the right to information.

The first is that the right of access to information imposes a positive obligation on governments to protect the right. This obligation was recently affirmed by an international human rights tribunal, the Inter-American Court of Human Rights, in a case against Chile (Claude Reyes et al vs. Chile) in which the Court noted the “positive obligation” of the state to ensure that the right to information is protected, underlining that this entails both an obligation not to interfere with the right and also to take positive measures to ensure that it can be exercised.

The Court concluded that such measures include “an appropriate administrative procedure for processing and deciding requests for information” and also that:

the State should provide training to public entities, authorities and agents responsible for responding to requests for access to State-held information on the laws and regulations governing this right; this should incorporate the parameters established in the Convention concerning restrictions to access to this information that must be respected [paragraph 165].

Although this decision does not specifically recommend the creation of an oversight body, it is clear that one of the most effective means of ensuring that civil servants are trained on the right is to set up a specialized body that will conduct such training (indeed, the decision prompted the Chilean government to establish such a body).

Other international bodies have been more specific in recommending that an oversight body should be established. The Council of Europe in its 2002 Recommendation on Access to Official Documents states at Principle IX that:

An applicant whose request for an official document has been refused, whether in part or in full, or dismissed, or has not been dealt with within the time limit … should have access to a review procedure before a court of law or another independent and impartial body established by law. [emphasis added]”

The Organization for Security and Cooperation in Europe in its May 2007 review of the right of access to information in the OSCE region, included in its analysis of the core elements of the right the existence of a dedicated oversight body and recommended all member states to create such a body:

There should be an adequate mechanism for appealing each refusal to disclose. This should include having an independent oversight body such as an Ombudsman or Commission which can investigate and order releases. The body should also promote and educate on freedom of information.

Similarly the Open Society Justice Initiative in its 10 Principles on the Right to Know includes Principle 10, which provides that:

An independent agency, such as an ombudsperson or commissioner, should be established to review refusals, promote awareness, and advance the right to access information.

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Can an Ombudsperson or Anti-Corruption body serve this role?

As noted above, in some countries the Ombudsperson is charged with oversight of the exercise of the right to information and hearing appeals against violations of that right.

There is experience of this from other countries. The access to information regimes of Sweden, Norway and New Zealand give the Ombudsman oversight of the right to information, which is reported to work well in general. These are however countries with long traditions of democracy and access to information, as well as being countries with efficient and well-organized administrations.

By contrast, in countries in transition to democracy, the Ombudsman is normally occupied by a wide range of other human rights issues and does not have sufficient time and resources to dedicate to the right of access to information. Examples where the role of the Ombudsperon has been less successful in promoting the right to information include Bosnia, Slovakia and Peru or the role of the South African Human Rights Commission. The Peruvian Ombudsman’s office has been very supportive of access to information but has had little time to promote good practices on implementation and is not empowered to do even basic monitoring, such as collecting statistics from public bodies. The Bosnian Ombudsman and the South African Human Rights Commission have likewise had other major issues to deal with. Other models such as the Turkish Board that oversees 2003 access to information have functioned less well in practice, due to their political nature and/or limited powers. For these reasons it is strongly recommended not to allocate the task of oversight of the access to information law to the Ombudsman or similar body.

Another alternative that has in some countries been proposed is allocation of oversight of the access to information law to an anti-corruption commission. This idea has never been carried out in practice for the very good reason that it would be entirely inappropriate to limit the right to information to being an anti-corruption tool alone, even though it is an important such tool. It must be recognized that access to information has a number of important functions including promoting citizen participation in governance or protecting other rights (environment, health) which have nothing to do with the fight against corruption.

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What about a joint Information and Data Protection Commissioner?

There is a clear and direct link between access to information and protection of privacy: the right to privacy is a right that either complements or has to be balanced against the right of access to information on a day-to-day basis.

The complementary nature of these two rights is that individuals have a right to request and obtain copies of information that contains their personal data (with the adjunct rights to request modification or removal of such data). The conflictual nature of these two rights is that at times a request will be made for information that contains personal data and the public body holding this information will have to take a decision on whether the information should be withheld or whether there is a greater public interest in disclosing it (the difference, for example, between disclosing the salary of a private person and that of the prime minister).

There is a clear trend in Europe to combine the functions of data protection commissioner (which all EU and a number of other countries have) with that of the Information Commissioner or Commission. Examples of countries which have established such joint bodies include Germany, Hungary,[3] Ireland, the UK, and Slovenia. It is appropriate to combine the roles of promoting access to information and protecting personal data, but if this task is given to a pre-existing body, sufficient resources must be allocated to the Information commission function.

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Independence of the Information Commissioner: whose interests does it serve?

The independence of the oversight body is essential to it playing a successful role. Such independence stems from the way in which the body is financed, its mandate and powers, and the process of election of the Commissioners.

It should be noted that the role of an oversight body is not to defend the rights of requestors in a partisan manner nor to defend government bodies, but rather to defend the right of access to information, taking into consideration the limits established by law and the public interest test. The role of the oversight body is to define the scope of the right of access case-by-case and so map out the scope of the right. It is for this reason that it is necessary that the oversight body has a wide range of responsibilities and powers along with sufficient resources to fulfill its mandate.

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Typical powers and functions

There are a number of functions which are common to the information commissioners surveyed and to other information commissioners. These include the following:

Receiving and Reviewing Complaints from requestors

The function of reviewing complaints from requestors was the initial raison d’être for the creation of Information Commission/ers and continues to be their fundamental task. Requestors should be able to turn to an Information Commissioner for a rapid resolution of appeals against refusals or failures to provide information, thereby avoiding the necessity for long and costly judicial procedures. Requestors should also be able to appeal against authorities when they have been obliged to publish information proactively and it is not in fact available.

The role that the Information Commissioner plays can range from a mediation role to that of a judge taking a final decision on an appeal. It is important that, in the first instance, through a communication with the public authority, the Information Commissioner can try to resolve the problem without the need for an overly formal procedure.

At the same time, it is important that the Information Commissioner has all the necessary powers to consider the complaint and to reach an appropriate decision. For this the powers established by law should include:

  • Power of review of contested information: When it receives a complaint on the part of a requestor, the Information Commissioner needs to have the right to review the document(s) at issue and to establish, with a binding decision, whether or not such information should be released. This right of insight should apply even if the information at issue falls under an exemption established by law. In order to do this, the Information Commissioner needs to have the necessary security clearances to be able to review such material where an issue of national security or international relations is at stake.
  • Right to consult on public interest: In order to ensure that there is due consideration of the potential harm that release of specific information could cause and of the public interest in its release, it is important that the Information Commissioner is empowered to hold consultations with all relevant persons, including other parts of the government, experts on the issue, members of civil society, and with the requestor, as it deems necessary.
  • Powers of on-site inspection: It should also be possible for the Information Commissioner to inspect on site the way in which public bodies are managing information. For example, the right of inspection should include the right to review information management systems, to visit archives to asses the state of storage of information and to verify the procedures and physical locations for storage and protection of classified information.

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Order Release of Information (binding)

It is important that the Information Commissioner, once it has reached a decision on an appeal, has the power to order the public body to release the information should it find in favour of the requestor. Such a decision should be binding, in other words that the public body must release the information as ordered by the Information Commissioner.

As will be seen in Chart 1 below, four (4) out of the five (5) countries surveyed establish that the decisions of the Information Commissioners are binding on public bodies. In Hungary,[4] the decisions of the Commissioner are only recommendations to the public bodies. However, this is compensated for by the fact that the Commissioner has additional powers under the LIX Act of 1993 to follow up with the public body and to require it to provide, within 30 days, information on the measures taken in response to one of the Commissioner’s recommendations. The Information Commissioner can also initiate disciplinary proceedings against the responsible body and to raise concerns with the state prosecutor. In addition, he can request that Parliament investigate a case.

In the remainder of the countries surveyed, the decisions of the Commissioner are binding. If an authority fails to bide by such a decision, there are a range of measures that the Information Commissioner can take.

In the UK, if a public authority fails to comply with a decision notice, information notice or enforcement notice, the Commissioner may certify that fact in writing to the High Court. The court may then enquire into the matter and deal with the public authority “as if it had committed contempt of court”. Similarly, in Macedonia the Commission can initiate a court procedure, while in Serbia the law establishes that the Commissioner shall refer the case to the Ministry of Culture and Information, which shall initiate proceeding before the competent misdemeanor courts.

In Ireland, failure to comply with a decision of the Commissioner on review could be viewed as hindering or obstructing the Commissioner in the performance of his or her duties and would therefore be an offence under section 37(7). It would also appear to be open to the Commissioner to apply by way of judicial review for an order of mandamus requiring the public body to comply with the Commissioner’s decision.

The Slovenian Commissioner on the other hand has the power to impose fines directly on public bodies which fail to comply with decisions that require them to release information. The Commissioner reports that she has not yet had to levy such fines, and has only even had to threaten fines on a very small number of occasions. Otherwise public bodies tend to comply with the decisions to release the information.

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Monitoring of Compliance with the law, including Proactive Disclosure

As noted in Chart 1, all Information Commissioners have some role established by law to monitor the implementation of the law and collect statistics on its functioning. In some cases this is part of the oversight function, and in some cases it is defined as part of the regular reporting function (including annual reports to Parliament which all Information Commissioners have to submit).

To facilitate this task, public bodies should be obliged to provide to the Information Commission a series of regular reports on the number of requests received, the number answered, the number refused, the time-frames for responses, and other aspects of compliance with the law.

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Training of public officials

An important function of the Information Commissioner is to create a “culture of transparency” within the public administration. This can be achieved by a number of means, including by training of public officials so that the interpretation of the law and the handling of requests is consistent across all government bodies. This training function is also, as noted earlier with respect to the decision of the Inter-American Court of Human Rights, an essential component of the Right to Information and therefore a positive obligation upon all government bodies.

Monitoring by the Open Society Justice Initiative[5] has shown that one of the biggest problems with the implementation of access to information laws is the lack of training of public officials and the failures to develop internal information-management and decision-making systems to ensure that requests are answered adequately and on time. Further empirical evidence from Mexico and the UK shows the benefits of such training in ensuring that requests for information are answered satisfactorily within the required time-limits.

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Guidance for public authorities on interpreting and implementing the law

An important role for Information Commissioners is to consult with and provide support to Information Officers and other relevant officials inside each public body. Such support should focus in particular on the application of exemptions, as this is often one of the hardest tasks for civil servants trying to implement a new access to information law. As such, the Information Commissioners should provide guidance on the criteria for taking decisions on whether or not to provide information.

It is noted here that part of the role of the Information Commission is to protect legitimate interests such as national security, international relations, public health and private rights to commercial confidentiality and privacy, as well as to protect the right to information. It is also the role of the Information Commissioner to help public bodies avoid violations of the right to privacy or other interests in the information they release or post on their websites. The public bodies should be able to consult with the information commissioner when in doubt as to whether or not to release information, and it is recommended that the law leave open to public officials two means of requesting an opinion by the Information Commissioner: the formal and the informal. In the informal the Information Commissioner will give advice and direction that will not be binding (although may be taken into account in any future case) or the formal, in which the public body will have to abide by the decision (ie: may not classify information) without a further appeal against the Information Commissioner’s decision.

In order to facilitate this process, the Information Commissioner should develop a series of guidelines that can be referred to by public officials when trying to take a decision (A particularly good example here is the series of “Awareness Guides” of the UK’s ICO[6] as well as the publications of the IFAI in Mexico.)

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Awareness raising among public and provision of advice

Promoting awareness of the right to information and encouraging public requests for information is important for at least two reasons. The first is that the public needs to be informed of their right to information; the second is that it is only when requests are filed with public bodies that internal systems for processing them and for managing information start to improve, which in turn has a broader impact on government efficiency.

To this end the Information Commissioner should be empowered to undertake a wide range of activities aimed at improving the public’s understanding of the right of access to information. Such activity can include training of civil society groups, briefing of journalists and appearances in the electronic media, production of leaflets and other informative materials, etc. In Mexico the Information Commissioner produces a regular radio programme on issues relating to access to information in order to keep the public informed of the latest developments.

Another range of activities aimed at stimulating and facilitating public use of the right to information include working with public authorities to establish reception areas and public reading rooms. The installation of computer terminals in public spaces such as government and buildings (especially local government) and public libraries can help requestors who do not have Internet at home to file electronic requests for information and to look for information on government websites.

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Recommendations on existing and proposed legislation

It is important that an Information Commissioner has the mandate to evaluate the existing national legal framework as it impacts upon access to information and to make recommendations for reform and harmonization of laws. This is be particularly important in countries where a number of pre-existing laws have the potential to clash with the provisions of an access to information law, such as laws on state secrets and archives. In addition, many states are in the process of adopting new legislation in areas related to transparency such as e-governance and public participation.

As such, it is recommended that any law that establishes an Information Commissioner specifically requires that it analyse and develop recommendations on the relationship between the access to information law and other legislation which relates to transparency and secrecy, and establishes that the Information Commissioner should submit to the government and/or parliament recommendations for law reform where necessary.

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Other powers

The law that establishes the Information Commissioner should make clear that he/she has the freedom to undertake other initiatives that are necessary and relevant for promotion of the right to information.

Included amongst these additional powers, is the possibility of submitting amicus curiae briefs and appearing as an expert in other court processes where questions of government transparency and the right to information are being discussed (apart from court appeals of its own decisions, where it would of course be a party).

In addition, the Information Commissioner should be given free rein to coordinate with other state bodies to ensure that administrative procedures and structures maximize compliance with the right to information. Similarly, the Information Commissioner should be encouraged to engage in international cooperation with the aim of ensuring that the government and the public are kept up to date on the latest global developments in the law and practice of the right to information

Chart 1.[7]

Chart 1

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Elements of the Structure and Functioning of Information Commissioners with Recommendations for future legislation

This section is based on an analysis of the oversight bodies of Ireland, Hungary,[8] Macedonia, Serbia, Slovenia, and the UK, which are examined in detail as representative bodies which serve as relevant models for other countries in Europe.

Nature and Legal Basis of the Oversight Body

In the countries studied, in keeping with trends in Europe, five out of six bodies that were surveyed are Information Commissioners, and one is an Information Commission (5 members, of whom 4 are full-time).

Another clearly identifiable trend is that 4 of the 6 bodies surveyed also perform the functions of Data Protection Commissioners. This reflects a trend in Europe where in addition to these countries Estonia, Germany, and Switzerland have combined data protection and information commissioners. Similarly in the USA the body currently responsible for oversight of the federal FOIA is also responsible for data protection (Office of Information and Privacy, Department of Justice).

Chart 2.[9]

Chart 2.


 

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Number of Commissioners, Status (Salary Level), and Term


 

As noted above there is little substantive difference between a single commissioner with deputies and an office of staff, and a commission composed of more than one commissioner. This is true at least where the Commission is composed of full-time members (as in Mexico for example). However, where the Commission is part-time (France or Portugal) this can pose problems as infrequent meetings can reduce the rapidity of decision-making. A smaller commission with full-time commissioners and staff has the benefit that these persons will build in-depth expertise in access to information. The trend in Europe is marginally in favour of one full-time Information Commissioner with a well-staffed office (UK, Slovenia, Germany, Serbia, Hungary[10] ).

The process of nominations for the Commissioners and deputies should be an open process with a public hearing for the pre-selected candidates. They should be appointed by president based on the recommendations of the parliament.

In terms of the length of the mandate for the Commissioner(s), the typical range is 5 to 7 years, for example: Slovenia 5 years, Macedonia 5 years, Mexico 7 years, Serbia 7 years.

Chart 3.[11]

Chart 3.

 

Recommendations: States can opt whether to establish an Information Commissioner with his/her office and an Information Commission with its office. Whichever body is selected, the persons who perform the role of Commissioner/s should be given a senior status that will help ensure that they can carry out their functions and command respect and authority in government and in wider society. The Commissioner/s should be appointed for a term of between 5-7 years which should be renewable at least once. If more than one Commissioner is to be elected, consideration should be given to establishing rotation in the election of the Commissioners with the dual goals of ensuring that there is continuity of knowledge and case-work, and to avoid stacking the Commission with political appointees each time the government changes.

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Selection Process & Qualifications of the Commissioners

For the right of access to information to be upheld by an Information Commissioner, that body must be independent and lead by a dedicated, competent and independent Commissioner. To this end, the process of selecting the Commissioner is absolutely vital. Chart 4 below examines the appointment process of commissioners, what their qualifications must be and who may not be a commissioner.

A review of serving Information Commissioners shows that they are generally professionals with qualifications and experience in the fields of law, media, and human rights. There is no necessity to have previous experience in government. For example, in the UK the Information Commissioner is a lawyer with experience in consumer rights, while his two deputies worked in trades unions and in local government respectively.

The Hungarian Commissioner[12] was previously a lawyer and political science professor, who had worked to promote the right to information since the pro-democracy movements of the 1980s. The Irish and Slovenian commissioners, both women, were journalists with experience in political matters and media freedom before their nominations. In Mexico the five commissioners include academics and lawyers together with persons brining experience of public administration.

It is also important that the post of Commissioner is of sufficient rank and prestige to attract a well-qualified candidate. In Slovenia and Serbia, for example, the commissioner’s salaries are pegged at the level of a supreme court judge and in Ireland is that of a high court judge. Although the amount in absolute terms in Euros varies, the important issue is that the salary has a relative value in the society and will attract the right candidates, as well as the prestige of serving as an Information Commissioner.

It is also important that the selection process be an open and consultative one that results in a candidate who is not seen as a political appointee, has the support of civil society and can win public trust. Issues over the selection process such as occurred Serbia threatened to undermine the office of the Commissioner, and this should be avoided through mechanisms such as open hearings for a short-list of proposed candidates.

Chart 4.[13]

Chart 4

Chart 4b

Recommendations: The process of nominating the Information Commissioner/s should be as open and consultative as possible, and preferably foreseen in law, but even in the even that the executive proposes, and the parliament approves, the process should be transparent. Nominations should be invited from all branches of government and all sectors of civil society. (However, it is important to avoid processes such as that which occurred in Montenegro whereby NGOs are sometimes formed specifically to participate in nomination processes where there is a political interest at stake). Open public hearings should be held by the Parliament to consider a short-list of candidates and to permit the public to be aware of the candidates (with their CVs being made public in advance of the final decision) and to raise objections should any candidates be less than completely independent and/or lacking relevant professional experience. It is recommended that, once elected, the Commissioner/s benefit from immunity from prosecution in the same way that many Ombudspersons do, in order to ensure that they are able to speak freely and to challenge government departments that do not comply with the access to information law without fear of reprisals through manipulated legal processes. Only the parliament should be able to lift this immunity for grave offences, which should not include defamation when the statements are made in connection with the Commissioner’s professional capacities.

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Budgeting and Reporting of the Oversight Body

With regard to the financing of the Oversight Body, it is clear that an Information Commission/er needs a guaranteed annual budget. As Chart 5 below shows, the budget is usually proposed by the executive (usually based on the recommendation of the Commissioner’s Office) and is approved by the parliament.

Consistent with this, reporting on the activities of the Commissioner, both on the expenditure of the budget and on the state of access to information in the country must be presented to parliament in an annual report.

Chart 5.[14]

Chart 5

 

Recommendations: The Commission should propose its budget for the forthcoming year to the executive and have these ratified by the parliament, to which the commission should report at the end of each financial year. Once set for the first year, the budget should not be reduced in subsequent years, but should rise at least the rate of inflation. The Commission should also be able to receive additional funds from other funders (such as the World Bank, EU or other international donors) provided of course that these would in no way compromise its independence. The annual report should also include information about the functioning of the access to information law (including statistics which public bodies should be obliged to submit to the Information Commissioner).

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Financial and Staff Data

It is important that an Information Commissioner be sufficiently well resourced to carry out its functions effectively. The chart below shows the annual budgets for the Information Commissioners surveyed, as well as information about the number of staff and the salary of the Commissioner him/herself. It is important that the Commissioners receive a salary commensurate with their rank, that the post has the prestige to attract qualified persons and to guarantee their independence.

Chart 6a.[15]

Chart 6a


*The Commissioner’s Annual Report for FY 2008/9 gives a figure of 268 for the average number of full-time equivalent staff. This includes staff working on freedom of information AND data protection. There is no data for those working only on FOI.

Chart 6b.

Chart 6b

Chart 6c.

Chart 6c

As can be seen from the chart there are variations in budgets which can be accounted for by variations in the cost of living (and hence staff costs) of the countries, the size of the countries (although it can also be seen that larger countries benefit from economies of scale in the functioning of their Information Commissioners with the Irish one being the most expensive and the UK ICO relatively cheaper when calculated in the per capita contribution to the body). It will also be seen that the number of staff varies (in part due to other functions such as data protection being part of the work of these bodies).

The average spent is about 17 eurocentimes per person per year, and the average number of staff per population is about one staff for every 300,000 citizens – with large countries having a lower number of staff per population (eg 1 for 500,000 citizens in Mexico), reflecting the realization of economies of scale. Serbia and Slovenia are the countries that are furthest from the average – Serbia, despite its middling population of 10.1 million has one staff for only ever 1.42 million people, and Slovenia, with 1.96 million population, has 1 staff member for every 67,000 people.

When setting the budget, it is important that national executives and parliaments ensure that the funds are available for all the activities foreseen under the law. For example, problems have arisen in Macedonia because although the law requires that the “Commission shall carry out activities regarding the education of information holders to provide information requesters with information disposed of by them,” (Article 32), no budget provision was made in 2007 for such an activity and it has not been possible to carry it out. This is particularly problematic given that, as we noted above, an international human rights tribunal (the Inter-American Court of Human Rights) has ruled that government bodies must be trained on the right to information. It is therefore strongly recommended that funds are made available for such training.

Recommendations: Ensure that a sufficient budget is allocated for the functioning of the Commission. Taking the average from the countries studied (17.6 eurocentimes), the budget for a country such as Spain with a population of 40 m would be € 7 m per year. Once set for the first year, the budget should not be reduced in subsequent years (and should be pegged to inflation to ensure the same budget in real terms). The budget lines (if predefined) should include all the activities foreseen in the law as well as giving the Commission the flexibility to respond to needs as its work progresses (such as increasing training of public officials or dedicating funds to developing systems for filing requests electronically to increase efficiency of the request process)


 

 

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[1] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[2] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[3] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[4] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[5] See Open Society Justice Initiative Transparency and Silence, 2004.

[6] See the website of the Information Commissioner’s Office.

[7] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[8] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[9] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[10] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[11] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[12] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[13] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[14] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

[15] With the coming into force of the 2011 Hungarian ATI law, the institution of the Information Commissioner was replaced with an authority as of Janury 1, 2012. Due to concerns voiced by the European Union, however, the institution might be reestablished by the Hungarian government.

Relevant cases

 

Relevant Cases

Title:Country:Year:Court / Arbiter:
Case title: Petitioner v. Centro de Investigacion y Seguridad Nacional (Centre of Investigation and National Security) Mexico 2003 Appellate The Centre of Investigation and National Security must disclose a public version of its organogram with the content required by law, excluding to that effect any information that may endanger the life, security or physical integrity of its employees, such as the name, position and contact information of certain agents
Canada (Minister of Environment) v. Canada (Information Commissioner) Canada 2007 Appellate The Minister of Environment may not deny access to discussion papers on the safety and regulatory treatment of a fuel supplement under Section 21(1)(a) (advice and recommendations), (b) (consultations and deliberations) and Section 23 (solicitor-client privilege).
City of Ottawa v. Ontario Canada 2010 Appellate The freedom of information law does not require disclosure to the public of personal emails, unrelated to work, even though sent and received by government employees on their workplace email accounts.
Electronics and Computer Software Export Promotion Council v. Central Information Commission & Navneet Kaur India 2008 Appellate The Court ruled that a “trade facilitation organization” is a public authority that must abide by the RTI Act because it (a) receives financial support from the government, and (b) is subject to some administrative control, including that it is audited by a government department, reports to the central government through a department, and receives department assignments.
Petitioner v. Centro de Investigacion y Seguridad Nacional (Centre of Investigation and National Security) Mexico 2008 Appellate The Centre of Investigation and National Security must disclose public information of 12 contracts for the provision of equipment entered with SOGAMS S.A. de C.V, outlining public information not related to the equipment or materials themselves, such as term, price and date, and disclosing the names of non-intelligence personnel. The Centre of Investigation and National Security can legally withhold information on the elements purchased, their characteristics and the intelligence personnel involved in such contracting since this constitutes reserved information.
Petitioner v. Procuraduria General de la Republica (Public Prosecutor) Mexico 2011 Appellate A government agency cannot unilaterally re-classify information that the information commission had already catalogued as public in a prior decision, but an appeal is inadmissible where a decision has been issued in a previous case that involved substantially the same parties and subject matter
Petitioner v. Procuraduria General de la Republica (Public Prosecutor) Mexico 2004 Appellate The public prosecutor must release information on the internal and preliminary investigations regarding probable crimes of genocide committed by government forces against participants in student demonstrations, notwithstanding assertions by the public prosecutor that the information does not exist, as it should be present in the government archives.
Petitioner v. Procuraduria General de la Republica (Public Prosecutor) Mexico 2004 Appellate The public prosecutor must release information on the internal and preliminary investigations regarding probable crimes of genocide committed by government forces against participants in student demonstrations, notwithstanding assertions by the public prosecutor that the information does not exist, as it should be present in the government archives.
Petitioner v. Procuraduria General de la Republica (Public Prosecutor) Mexico 2006 Appellate The public prosecutor must release a copy of the report handed by the Special Prosecutor for Political Movements of the Past to President Vicente Fox on April 15, 2006, absent proof of how disclosure would harm ongoing investigations.
Petitioner v. Procuraduría General de la Republica (Public Prosecutor) Mexico 2009 Appellate Pursuant to a provision in Article 14 of the RTI Law, which mandates disclosure of otherwise protected documents when they relate to grave violations of fundamental rights, the public prosecutor must release a preliminary investigation related to the killing of indigenous people by military personnel.
Petitioner v. Procuraduria General de la Republica (Public Prosecutor) Mexico 2007 Appellate The public prosecutor must properly disclose to Petitioner information on the number and status of preliminary investigations formerly conducted by the Special Prosecutor for Social & Political Movements of the Past.
Petitioner v. Procuraduria General de la Republica (Public Prosecutor) Mexico 2009 Appellate The public prosecutor must release a preliminary investigation related to the forced disappearance of Rosendo Radilla Pacheco under the final provision of Article 14 of the RTI Law, which mandates disclosure of otherwise reserved documents when they relate to grave violations of fundamental rights and crimes against humanity.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2007 Appellate The Secretariat of National Defence must release the name of the public officials who purchased body armour and the quantities provided to other agencies since this is public information under Article 7 of the RTI Law. Information on the security level of such armour is classified under Article 13(I) as it compromises national/public security and national defence, and – to the extent it is not already publicly available – should be kept confidential.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2007 Appellate The Secretariat of National Defence must release the name and ranks of the persons who ordered the withdrawal of a press release related to the rape and murder of Ms. Ernestina Ascension Rosaria as this constitutes public information.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2004 Appellate The Secretariat of National Defence must release the name and ranks of military personnel detained in a military prison camp during the 1970s, since its disclosure does not affect the life, security or health of former detainees and, in the case of military personnel, it is related to activities of an inherently public nature; and it must provide information on whether civilians were also interned there. The fact that civilian detention in a military base was illegal is insufficient to justify the non-existence of documents, and given existing reports, if SND cannot find such information, it must furnish proof that no such information exists.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2005 Supreme The Secretariat of National Defence must elaborate a public version of the documents sought by Petitioner which contain a description of the country’s overall defence strategy – public information – but which leaves out strategic and logistical data that, if disclosed, would naturally affect military operations and endanger national security.
Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense) Mexico 2004 Appellate The Secretariat of National Defence must fully disclose the conciliation files of the National Commission of Human Rights corresponding to proceedings where conciliation was offered to personnel of the Secretariat of National Defence and which have already been resolved. For those cases that have not been resolved, the Secretariat of National Defence must disclose the files but redact information that would allow an identification of the individuals engaged in such proceedings, to protect both their identities and the integrity of the process.
Phinjo Gombu v. Tom Mitchinson, Assistant Commissioner et al. Canada 2002 Appellate Refusal to disclose information about campaign contributions, including names, addresses and phone numbers of contributors, in electronic format was unreasonable given the importance of furthering the democratic process through public scrutiny and the minimal intrusion on privacy.
Rob Evans v. Information Commissioner United Kingdom 2012 Appellate Advocacy correspondence between the heir to the throne and government ministers does not fall within constitutional convention and does not deserve special protection; correspondence in which interests of charitable enterprises are promoted concerns matters affecting public policy and the public purse and thus there is a strong public interest in its disclosure that in this case outweighs the interests in secrecy.