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Executive/Administrative Bodies

last modified Sep 13, 2013 10:15 PM

Overview

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.

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Intelligence and Security Agencies

There are many reasons why intelligence and security agencies should not be exempted from disclosure obligations:

  1. 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.
  2. 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.
  3. 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.

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Intelligence Agencies

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.

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Intelligence Budgets

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.

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Armed Forces

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.

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Heads of State/Government and Cabinets

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 Denmark (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) (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.

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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.

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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.

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Archive

You will find detailed country information that is not regularly updated in our Archive.

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
Bucur and Toma v. Romania Romania 2013 International / ECHR The criminal conviction of a public employee for revealing, in a high-profile press conference, irregularities in a government wiretapping intelligence program amounts to a violation of freedom of expression under Article 10 of the European Convention of Human Rights.
In re Articles 27 and 42 of Decree 1799 of 2000 Colombia 2003 Constitutional Information unrelated to maintaining national security and with no material link to protecting territorial integrity and defending democratic institutions or to the enjoyment of fundamental individual rights, including the right to privacy, may not be restricted.
Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others United States 2007 First instance White House and Vice Predisdential Residence visitor records are "agency records" subject to FOIA disclosure because such records are generated, routinely preserved, and selectively disposed of by the Secret Service.
Gomes Lund et. al. v. Brazil Brazil 2010 International / IACHR The right to truth about gross human rights violations arises from Article 13 of the American Convention on Human Rights in combination with other rights. A State may not legitimately deny access to information about gross human rights violations on grounds of state secrecy, and must entertain requests for such information in good faith. The burden of proof regarding the non-existence of relevant records lies with the state.
Gudiel Alvarez et al. (Diario Militar) v. Guatemala Guatemala 2012 International / IACHR The forced disappearances of 26 individuals that occurred from 1983-1985 during a period of internal armed conflict violated the right to life, personal integrity, personal liberty, and juridical personality of the victims. The state’s actions and subsequent failure to conduct a prompt, effective investigation into the forced disappearances also violated the right to truth and freedom of association of the victims’ family as well as the public at large.
Guja v. Moldova Moldova 2008 International / ECHR Severely sanctioning a civil servant for his public disclosure to the press of internal documents revealing possible governmental corruption constitutes a violation of freedom of expression under Article 10 of the European Convention of Human Rights.
In re the Constitutionality of Provisions on Record Keeping of Governmental Sessions Hungary 2006 Constitutional The government is under the obligation to keep records for public information, whether for a short or a long period of time, because it would otherwise directly and seriously restrict the right of access to public information. An act should regulate the record keeping of governmental sessions.
In re Constitutionality of Acts LXIII of 1992 and LXV of 1995 Hungary 2004 Constitutional Information created for internal use and in connection with the preparation of decisions could be withheld but only if legislation were amended to provide sufficient guarantees against abuse, namely, to ensure that access should not be restricted after a decision has been made, there must be an opportunity to challenge a decision to withhold information on the merits as well as on procedural grounds, the period for restriction must be limited, and the law must clearly define the restricted category of information.
Kariuki v. Attorney General Kenya 2011 First instance The salaries and allowances of the Armed Forces personnel are not private or confidential and must be disclosed to the requester and the Court.
Kline v. Official Secretary to the Governor General Australia 2013 Supreme Section 6A(1) of the Freedom of Information Act 1982 excludes from disclosure documents held by the Official Secretary to the Governor-General unless they relate to “matters of an administrative nature,” which does not include documents relating to substantive powers.
Lachezar Lisicov (Desant daily) v. the President of Bulgaria Bulgaria 2010 First instance The Access to Public Information Act requires public authorities to issue explicit decisions when public information is requested, and to disclose the minutes of a private meeting between heads of state where the contents of the meeting were not confidential.
Milner v. Department of the Navy United States 2011 Supreme FOIA Exemption 2, which protects from disclosure material “related solely to the internal personnel rules and practices of an agency” does not apply to military explosives data and maps because Exemption 2 covers strictly human resource matters.
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. 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.
President of the Republic of South Africa. v. M & G Media Ltd. South Africa 2010 Supreme Under the South African Bill of Rights and the Promotion of Access to Information Act of 2000, conclusory affidavits provided by the President to justify the secrecy of a report of the 2002 Zimbabwe elections prepared by two judges for President Mbeki were insufficient to justify non-disclosure.
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.
The Prosecution in the trial of Ríos Montt v. Ministry of National Defense Guatemala 2008 Constitutional The public authority must release military operational plans from the past in the prosecution of a former military leader because the plans do not constitute “state secrets” and thus are not protected from disclosure under the exemption in Article 30 of the Constitution.
Turek v. Slovakia Slovakia 2006 International / ECHR Refusal of the national authorities to give the applicant access to materials classified as top secret by the former regime violated the applicant’s right to respect for his private life, given that he needed the materials to contest the state’s determination that he had collaborated with State Security agents.
XYZ v. Victoria Police Australia 2010 First instance Freedom of information is an indispensable part of freedom of expression, but is not absolute, and protecting the integrity of an investigation into illegal police acts provides sufficient justification to overcome the personal interest of the applicant in the disclosure of documents related to an investigation.
Youth Initiative for Human Rights v. Serbia Serbia 2013 International / ECHR The freedom to receive information embraces a general right of access to information. Article 10 of the Convention includes the right of access to data held by an intelligence agency. A public body cannot evade requests for information by simply declaring that it does not hold the information.

 

Relevant Briefs and Submissions

Title:Intervener:Year:Court / Arbiter:Download Brief:
Gomes Lund et. al. v. Brazil CHRI, ODAC, OSJI SAHA 2010 Inter-American Court of Human Rights English
Portuguese
Spanish
Gudiel Álvarez v. Guatemala (Diario Militar) APRODEH, CMDPDH, Mexico, OSJI 2012 Inter-American Court of Human Rights English
Spanish