Most ATI laws apply to all agencies of the executive branch of government, with exempted agencies explicitly listed in the statute or in regulations or laws expressly referenced in the statute. In many countries, the intelligence and special services are exempted in whole or in part, although in modern statutes increasingly they are covered, subject to exceptions for national security and related grounds. Other agencies that are exempted in several countries are the military and police forces, and the offices of the head of state, head of government and ministers. Following are a few examples of laws that cover a broad range of executive/administrative agencies.
Intelligence and Security Agencies
There are many reasons why intelligence and security agencies should not be exempted from disclosure obligations:
- In several countries, application of ATI laws has led to exposure of scandals or wrongdoing that might not have come to light but for the laws.
- In practice, courts have been very deferential on intelligence and security matters, so there is little risk that they would ever order the release of truly sensitive information.
- Intelligence agencies, and also security agencies (though perhaps to a lesser extent) produce a lot of documents that are invaluable to researchers, scholars and the public that do not reveal anything about confidential government actions. For instance, in the US, the Central Intelligence Agency (CIA) held extensive documents concerning Saddam Hussein's history of human rights abuses. None of these CIA documents reveal anything about US policies or CIA activities, but they do reveal a great deal of information of public interest both about what Saddam Hussein did and what and when the US knew about his abuses.
It appears that the intelligence and special services are covered by most countries in Europe, although much of the information they hold could be covered by exceptions, in particular, for national security, including protection of state secrets and diplomatic relations. Two countries in which the intelligence services are expressly exempted are the United Kingdom (Freedom of Information Act 2000 Article 23 (3)) and Germany (Federal Act Governing Access to Information held by the Federal Government, Article 3 Nr. 8). The United Kingdom’s special forces and intelligence services are, however, covered by Environmental Information Regulations.
In some countries, courts have confirmed that secret services are covered. See cases from Bulgaria, Montenegro and Serbia. Significantly, Serbia’s Information Commissioner ruled in 2007 (decision 07-00-00297/2005-03) that the Security Services (BIA) are covered by the ATI law and should release information on the number of persons put under tape surveillance in 2005.
The Intelligence agencies are expressly exempted from the laws of several countries. For instance, section 7 of Australia’s Freedom of Information Act provides that “An agency is exempt from the operation of this Act in relation to a document that has originated with, or has been received from one of the intelligence agencies. These include the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Inspector‑General of Intelligence and Security or the Office of National Assessments, the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation, and the Defence Signals Directorate of the Department of Defence.
Brazil, Canada, the Netherlands, Serbia, the United Kingdom and other states routinely disclose baseline intelligence spending information. In 2007, the government of France published its intelligence budget total for 2004, in the amount of 291.1 million euros. In October 2006, a court in Montenegro ordered the National Security Agency to disclose its budget and staff numbers. In 1997, the aggregate figure for all US government intelligence and intelligence-related activities — of which the CIA is one part — was made public for the first time. The aggregate intelligence budget was $26.6 billion in fiscal year 1997 and $26.7 billion for fiscal year 1998. The intelligence budgets for all other years remain classified (as of January 2008). In the United Kingdom, numbers of intelligence staff, and the full budget spent on intelligence, are published.
Most armed forces are covered by ATI laws in Europe. Experts in five countries – Albania, Czech Republic, France, Germany, and the United Kingdom – expressly confirmed that the armed forces are covered by their country’s ATI laws. In the United Kingdom, the armed forces are covered, except for the special forces and “any unit or part of a unit which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in the exercise of its functions” (Freedom of Information Act, Schedule 1, Article 6.)
Most parts of the Defence Department (except for agencies expressly exempted, such as intelligence offices) are covered by the ATI laws of several additional countries, including Australia (Freedom of Information Act, Section 11).
Although India’s RTI Act allows the Central Government and state government to exempt any intelligence or security organization from the Act’s coverage by notice in the Official Gazette, the Act expressly provides that “information pertaining to allegations of corruption and human rights violations shall not be excluded” (Section 24 (4)). In the United States, “operational files” of intelligence agencies may be exempted from the FOIA, but only by statute duly passed by both Houses (Freedom of Information Act, 5 U.S.C. § 552(b)(3)). So, for instance, a bill to exempt the files of the Defence Intelligence Agency was defeated in 2000 because the bill, if passed, would have shielded he activities of foreign death squads, torturers and other human rights abusers.
Few European ATI laws expressly exempt the Council of State or Cabinet of Ministers or a comparable body from the law’s coverage. The three countries are Access to Public Administration Files Act (1985), Part III, 10(1)), Greece (Administrative Procedure Code (1999), Article 5(3)) and Iceland (Council of State and Cabinet of Ministers) (Information Act of 1996, Article 4(1)). However, it should be noted that, even though the laws do not expressly exempt these bodies, often in practice it is difficult to gain access to minutes of cabinet meetings and similar information.(exempts Council of State, comprised of all cabinet ministers and the Crown Prince or Hereditary Princess, whose role includes assenting to legislation and approving the King’s activities as head of state) (
Office of the Prosecutor
In most (but not all) civil law countries, the Office of the Prosecutor is treated as part of the judiciary, and the general rules of transparency that apply to the judiciary apply equally to the Office of the Prosecutor. See section on Judicial Branch. In addition, a few countries (see samples on this page) have special provisions that apply to the prosecutor, reflecting the important role that the office plays in criminal prosecutions, and the fact that disclosure may implicate rights to due process and privacy of criminal defendants, as well as public interests in effective prosecutions. In most common law countries, the Office of the Prosecutor or Attorney General is treated as an executive agency.
Openness of Cabinet Meetings
In many countries, the agenda of upcoming meetings and the information about what will be discussed is available in advance. A few examples gathered by Access Info Europe are mentioned below, including the EU. It is reasonable that agendas are not published far in advance because cabinet meetings always respond to current events. Nevertheless, knowing in advance when a certain issue will be discussed and having access to the materials helps the media, civil society and the general public follow what the government is doing and participate in public debate about the issues being discussed.
You will find detailed country information that is not regularly updated in our Archive.