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Information of High Public Interest

last modified Oct 24, 2011 03:00 PM

The right to information increases with the importance of the information at issue to the individual or society. Matters of particular importance include the competency for public service of public officials and candidates, the functioning of government and public agencies, and public health issues. The laws of several countries contain an explicit public interest override concerning some or all of the permissible grounds for exceptions to access, compelling the disclosure of information in the public interest.

The Inter-American Court of Human Rights and several national courts have also ruled that information must be disclosed when to do so serves a public interest, even if an important public or private interest could thereby be harmed, so long as the public interest in disclosure outweighs the likely harm. The Inter-American Court on Human Rights in its landmark Claude Reyes judgment became the first international court to recognize and affirm the vitality of the public interest and harm tests. It ruled that in all cases, a restriction of the right of access: "... must not only be related to one of the [legitimate] objectives [that justify it], but it must also be shown that disclosure could cause substantial prejudice to this objective and that the prejudice to the objective is greater than the public interest in having the information (evidence of proportionality)" (para. 77).

The European Union has expressly recognized the public interest override in relation to commercial confidentiality. Article 4(2) of Regulation (EC) No 1049/2001, provides that, “[t]he institutions shall refuse access to a document where disclosure would undermine the protection of . . . commercial interest of a natural or legal person . . . unless there is an overriding public interest in disclosure”.