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Legislative Branch

last modified Sep 13, 2013 10:15 PM

Overview

Fewer countries, pursuant to ATI laws, grant access to information held by the legislative (or judicial) branch than to the executive branch.

There are, however, virtually no principled reasons for treating legislative or judicial bodies any differently than executive bodies. Legislative bodies and judicial authorities perform public functions and are financed with public money; the rationales that call for transparency of the executive apply with equal force to the legislature and judiciary. Maximum transparency of these institutions would increase public confidence in them, enable the public to reach informed opinions concerning their functioning, foster efficiency and reduce corruption.

Opposition to applying an ATI regime to legislative bodies and judicial authorities stems principally from two notions. The first is that existing mechanisms, such as the right to a public trial or the right to attend meetings of legislative bodies, adequately ensure transparency of the activities of the legislative and judicial branches. The second is the view that an overarching access to information regime for all three branches of government would contravene the principle of separation of powers.

It is certainly the case that many countries, especially mature democracies, have traditions of openness concerning the conduct of legislative and judicial proceedings. In the case of judicial authorities, however, it is generally only the courts that carry out their business in public, and not other bodies in the judicial branch, such as those that make decisions regarding selection, promotion and discipline of judges. Furthermore, openness in the judiciary is limited to what is necessary to ensure the fairness of trials and does not take into account wider considerations of the public interest. In the case of legislative bodies, meetings and their records will usually be open to the public, but this is not always true of the documents and reports on which legislators base their decisions. In any case, the fact that a considerable degree of openness exists already in the legislative and judicial branches of many countries should argue in favour of, rather than against, extending the scope of ATI laws to these branches.

Having openness addressed by a comprehensive ATI law rather than by a patchwork of laws serves the virtue of promoting consistency, especially concerning interpretation and application of exceptions to disclosure.

Countries can readily address the second objection, regarding the separation of powers, by adopting measures that comply with their own legal systems and traditions. Some countries may prefer to have separate laws that address the legislative and judicial branches but basically mirror the substantive and procedural protections of the general ATI law. The Mexican Congress has dealt with the separation of powers issue by declaring the substantive provisions of the ATI law to be applicable to the judiciary and legislature but requiring the judiciary and the legislature to set up their own institutions for overseeing the law's implementation and deciding disputes.

Some countries in Europe extend the right of ATI to legislative (as well as judicial)  bodies only "insofar as they perform administrative functions as provided for by national law". This, for instance, is the language in Article 1(2)(a)(i)(2) of the Council of Europe Convention on Access to Official Documents. However, requiring the legislative and judicial branches to disclose only the "administrative information" or "information about administrative functions" they hold runs into another problem: there is no clear understanding of those terms. The information that in fact is treated as administrative information varies from country to country. See section on Administrative Information and Proactive Publication.

The public has a right of access to legislative information held by legislative bodies in at least 25 countries of Europe. In 20 of those 25 countries, legislative information comes within the scope of the ATI laws themselves: Albania, Armenia, Bosnia & Herzegovina, Bulgaria, Croatia,  Finland, Ireland, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Sweden and the United Kingdom. Of these, ten expressly mention application of the law to the legislature: Bosnia & Herzegovina, Denmark, Finland, Ireland, Moldova, Montenegro, Russian Federation, Slovakia, Sweden and the United Kingdom. See country entries below. ATI experts in 10 other countries have confirmed that the law applies to legislative bodies concerning their legislative as well as administrative activities. In at least five other countries - Czech Republic, France, Georgia, Germany and the Netherlands- the public has a right of access to legislative information pursuant to laws other than the ATI law. In France the Law on Access to Administrative Documents does not apply to legislative bodies and separate legislation covers access to information held by such bodies. In the Netherlands the Act on Public Access to Government Information applies only to the executive branch; however, the parliament has set rules for transparency of its own which are more liberal than the ATI Act

Countries outside of Europe whose ATI laws provide access to legislative information held by legislative bodies include Australia, India, Israel, Mexico, South Korea and the Philippines.

ATI laws provide access to administrative information held by legislative bodies in virtually all European countries. In some countries this has been confirmed by jurisprudence. For example, in Georgia, the Constitutional Court ruled: "the administrative function of legislative and judicial bodies is the same as public function and therefore freedom of information affects it in all cases" (Rusudan Tabatadze and GYLA vs. Georgian Parliament).

Norway is one of the few countries in Europe which does not grant a right of access to at least administrative information held by its parliament (Act relating to Public Access to Documents in the Public Administration, Article 1).

Recommendation: ATI laws should extend to the legislative (and judicial) bodies. In actual practice, most countries allow for access to considerable information held by these branches pursuant to various other laws. Having openness addressed by a comprehensive ATI law rather than by a patchwork of laws serves the virtue of promoting consistency, especially concerning interpretation and application of exceptions to disclosure. Any concerns regarding separation of powers can be addressed by allowing the judicial and legislative branches to establish their own implementation and oversight mechanisms.

Application of ATI laws to Information Held by Individual Members of Parliament

In countries that recognize a right of access to information held by the legislative branch a major issue is the extent to which individual members of parliament (MPs) are or should be subject to disclosure requirements. Information commissioners and courts in several jurisdictions - including Israel, Japan, South Korea, Scotland and the United Kingdom - have established that claims of MPs for expenses and reimbursement, including for food and travel, are subject to disclosure.

The laws of most countries, at least in Europe, apply only to parliamentary bodies and not to individual MPs or local representatives. ATI laws often apply only to records generated by or relating to MPs and local representatives that are held by parliamentary or other governmental bodies. In several countries, such as the UK, information generated by MPs and peers in their personal capacities or as members of political parties is outside the FOI Act's scope. Requests for information are made to the parliamentary or other governmental body that holds the desired record, and individual MPs may intervene to object to disclosure.

Recommendation: There is a sound argument as to why MPs should not be required to disclose certain information, e.g., about their meetings and strategies under development: MPs are leaders of political parties and should be able to pursue their political work free from the scrutiny of government or their political opponents. However, if one starts from the presumption, as do we (the editors) that entities that perform public functions or are funded by public monies should be covered by RTI laws, then elected representatives should themselves be covered. Elected representatives are different from public employees, whose acts undertaken in the course of their employment may be imputed to their employers, and thus subject to RTI coverage as the acts of their public employers. Rather, each elected representative arguably is a public body. The regime of exceptions should apply to elected representatives as it does to all other public bodies; a proper regime of exceptions should address all legitimate concerns regarding privacy and independence of political parties. Having made this recommendation, we also note that few countries currently follow this approach. What is clear is that the courts of several countries have ruled that documents produced by representatives that are held by public bodies are thereby subject to RTI coverage, and in addition that individual MPs are required to disclose information about their use of public funds (including reimbursements for expenses).

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Relevant cases

 

Relevant Cases

Title:Country:Year:Court / Arbiter:
Ciarán Toland supported by Sweden, Finland and Denmark v. European Parliament European Union 2011 International / EU Parliament may not refuse to disclose audit reports unless it explicitly determines that (i) disclosure of a requested document would specifically and actually undermine a protected interest, and there is no overriding public interest justifying disclosure, and (ii) the risk of the protected interest being undermined is reasonably foreseeable and not purely hypothetical.
Corporate Officer of the House of Commons v. Information Commissioner, Brooke, Leapman, and Ungoed-Thomas United Kingdom 2008 Appellate Given legitimate public interests at stake, specific details regarding the expenditures and addresses of Members of Parliament are to be disclosed under the Freedom of Information Act of 2000, notwithstanding protections under the Data Protection Act of 1998 against disclosure of personal information.
Empresa Folha da Manhã S/A v. the President of the House of Representatives Brazil 2009 Supreme The House of Representatives has a duty to disclose to the media information about expenses of its members.
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.
Incorporated Trustees of the Citizens Assistance Centre v. Honourable S. Adeyemi Ikuforiji & Lagos State House of Assembly Nigeria 2012 First instance The Freedom of Information Act 2011 cannot be applied retroactively to requests for information that originated prior to the enactment of the Act. An order of mandamus is an extraordinary remedy that should only be granted when all other judicial remedies have been exhausted.
Legal Defence & Assistance Project (Gte) Ltd. V. Clerk of the National Assembly of Nigeria Nigeria 2012 First instance The salaries of the Members of Parliament are not personal information and should be disclosed.
Office of Government Commerce v. Information Commissioner United Kingdom 2008 Appellate In the absence of a public interest in preserving confidentiality, there is a presumption of public interest in the disclosure of information held by public authorities.
Sweden and Turco v. Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities European Union 2008 International / EU The Court annulled the decision of the Council that refused access to a document containing the opinion of the Council's legal service on a proposal for a directive laying down minimum standards for the reception of applicants for asylum in Member States.
Union of India v. Namit Sharma; State of Rajasthan & Anr v. Namit Sharma India 2013 Supreme Recalling key components of an earlier judgment reading into the Right to Information Act a requirement that appointees to the Information Commission possess judicial qualifications, the Supreme Court of India concluded that it was ultimately for Parliament to decide whether such a requirement was appropriate.