The laws of 25 of 26 European countries surveyed – all except Germany – apply to all three of these levels: Albania, Armenia, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Georgia, Hungary, Ireland, Latvia, Macedonia, Moldova, Montenegro, Netherlands, Norway, Romania, Serbia, Slovakia, Slovenia, Sweden, Turkey and the United Kingdom.
Most RTI laws of countries with federal systems or that grant considerable autonomy to sub-national government entities – including Australia, Austria, Canada, Germany, Mexico and the United States – apply only to the federal (central) government. However, the RTI law of a few countries with federal systems or autonomous regions are applicable to all levels of government, most notably, India, Portugal and the United Kingdom (not including Scotland, which opted to enact its own FOIA and establish its own Information Commissioner). Moreover, the federal laws of Austria and Mexico expressly require the state and local governments to adopt their own laws; this requirement was reinforced in Mexico by a constitutional amendment in 2007. (Click here.) Most states (or provinces) have adopted laws that apply to local as well as state agencies even in countries where not required to do so (e.g. Australia, Canada, Germany, the United States). What follows is more information about RTI laws in countries with federal systems.
The federal FOI Act 1982 provides for access to documents held by Commonwealth (national government) agencies created after December 1, 1977. All six states and two territories now have freedom of information laws.[1]
The 1987 Auskunftspflichtgesetz (Federal Law on the Duty to Furnish Information) obliges federal authorities to disclose information. Article 1 requires the Länder (states) and municipalities to adopt ATI laws: “The organs of the Länder, of the municipalities as well as of the self administering agencies as regulated by Länder legislation, shall give information on matters within the scope of their activities, to the extent not in conflict with a statutory duty of secrecy.”
Canada is a federal state with ten provinces, each with wide-ranging powers, and three territories. The federal Access to Information Act applies to all federal government institutions. All of the provinces have ATI laws. The laws of the common law provinces (all except Quebec) are similar. Quebec’s Act respecting Access to documents held by public bodies and the Protection of personal information (Loi sur l'accès aux documents des organismes publics et sur la protection des renseignements personnels) and the Act respecting the protection of personal information in the private sector (Loi sur la protection des renseignements personnels dans le secteur privé) provide interesting models, especially for francophone countries. The website of Quebec’s Commission on Access to Information (la Commission d’accès à l’information du Québec - CAI) provides a great deal of useful information in both English and French.[2]
Although Germany has a federal FOI law, the law does not require the Länder to adopt laws recognizing the right to information. As of December 2008, eight Länder had adopted such laws: Berlin, Brandenburg, Bremen, Hamburg, Mecklenburg-Vorpommenn, Nordrhein-Westfalen, Saarland and Schleswig-Holstein. When Germany ratifies the Council of Europe Convention on Access to Official Documents, Länder will be required to adopt such laws, pursuant to Article 3.
The RTI Act 2005 applies to the central (federal), state and local governments, including panchayats and municipalities. The Act applies to all States except Jammu and Kashmir. However, people living in Jammu and Kashmir can seek and receive information from the Central Government, public sector enterprises and banks and all government departments in other states except those belonging to their own State. They may use the Jammu and Kashmir Freedom of Information Act 2004, to seek information from the departments of the Government of Jammu and Kashmir
The December 2004 version of the RTI Bill applied only to public authorities at the central (federal) level. Thanks to civil society advocacy, the Parliamentary Standing Committee vetting the draft legislation recommended expansion of the Bill’s scope to include state governments as well. These recommendations were accepted by the Central Government and are in the version of the bill that was finally adopted.
The LFTAI (Federal ATI Law) applies directly to all federal agencies and institutions. It also requires Mexico’s states to enact their own protections of the right. (It should be noted that state laws apply to local as well as state governments and agencies.) However, by 2006, only some 20 states had enacted ATI laws and many of these were weak. In June 2007, a second paragraph was added to Article 6 of the Constitution requiring all 32 states and the Federal District to enact or revise their ATI laws within a one-year period so as to meet certain specified standards. For these standards, see section on Constitutional Protections: Mexico.
The United Kingdom’s FOI Act applies to central government departments and agencies and local authorities in England, Wales and Northern Ireland. A separate information act applies in Scotland.
The FOIA applies only to national departments and agencies in the Executive Branch. The states and the District of Columbia each have their own access to information provisions governing state and local records.[3]
[1] See Australian Privacy Foundation, Privacy Laws - States and Territories of Australia. http://www.privacy.org.au/Resources/PLawsST.html, quoted in Banisar, http://www.freedominfo.org/regions/oceania/australia/
[2] The Commission on Access to Information, http://www.cai.gouv.qc.ca/index-en.html
[3] See http://nfoic.org/state-foi-laws and e.g. California Public Records Act, http://www.thefirstamendment.org/publicrecordsact.pdf
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.
The Right to Information Act 2005 applies to any ‘public authority’ that is covered by criteria laid down in section 2(h). A public authority includes any authority or body or institution of self-government established or constituted:
a) by or under the Constitution;
b) by any other law made by parliament;
c) by any other law made by State Legislature;
d) by notification issued or made by the appropriate Government.
No public authority is completely excluded from the coverage of the RTI Act. All three armed forces, the Ministry of Defense, the Coast Guard, the Department of Atomic Energy, nuclear power plants and aeronautics and space research organizations (except the Aviation Research Centre) and state civilian and armed police organizations are covered by the RTI Act.
There are many reasons why intelligence and security agencies should not be exempted from disclosure obligations:
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[2] and Germany.[3] 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.[4] Significantly, Serbia’s Information Commissioner ruled in 2007 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[5] .
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.[6]
Brazil, Canada, the Netherlands, Serbia, the United Kingdom and other states routinely disclose baseline intelligence spending information.[7] 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.[8]
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.”[9]
Most parts of the Defense Department (except for agencies expressly exempted, such as intelligence offices) are covered by the ATI laws of several additional countries, including Australia[10] .
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.”[11] In the United States, “operational files” of intelligence agencies may be exempted from the FOIA, but only by statute duly passed by both Houses.[12] So, for instance, a bill to exempt the files of the Defense 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.
The RTI Act allows for partial exclusion of intelligence and security organizations from the purview of the RTI Act.[13] Schedule II of the RTI Act 2005 lists intelligence and security organizations to which the law does not apply. Section 24 of the RTI Act provides that the Central Government and any state governments may, by notification in the Official Gazette, amend the schedule to include any other intelligence or security organization. The Central Government had exempted 26 paramilitary forces and revenue and military intelligence organizations in this manner as of June 2007. Most states have partially exempted the intelligence wing of their police departments and other similar bodies from the Act.
Nonetheless, and importantly, the Act requires that “information pertaining to allegations of corruption and human rights violations shall not be excluded”.[14] Rather, such information shall be provided within 45 days from the date of the receipt of the request after the approval of the Central Information Commission, regarding information held by a Central government agency, or the approval of the State Information Commission, regarding state information.[15]
No federal agencies are fully exempted from the FOIA. However, “operational files” of several intelligence agencies – including the Central Intelligence Agency, the National Geospatial-Intelligence Agency, the National Reconnaissance Office and the National Security Agency – are exempted from the FOIA. The operational files exemptions were enacted in separate laws and apply as FOIA exemptions under exemption (b)(3), which exempts materials “specifically exempted from disclosure by statute . . . provided that such statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (A)(ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”[16] There are many problems associated with the broad “operational files” exemption. Thanks to the opposition of the non-governmental National Security Archive, a bill introduced in 2000 that would have exempted the operational files of the Defense Intelligence Agency was defeated; the NSA and others successfully argued that the bill, if passed, would have shielded the activities of foreign death squads, torturers and kidnappers from public scrutiny and thereby would have undermined the efforts of official truth commissions.[17]
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),[18] Greece[19] and Iceland (Council of State and Cabinet of Ministers)[20]. 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.
Section 4 of the FOI Act states that the Act applies to “official documents of a Minister”, defined as “documents in the possession of the Minister in his or her capacity as a Minister and … relat[ing] to the affairs of an agency or Department of State”.
The Prime Minister’s Office and the Office of the Minister of National Defence are not included within the scope of coverage of the ATI law.[21]
The Information Commissioner determined that records of the Taoiseach (Prime Minister) that related to his functions and activities as a member of a political party were exempt from disclosure – and that other records (not subject to specific exclusions) are subject to disclosure.[22]
The request concerned correspondence between the Taoiseach Department’s communications unit and the Taoiseach, including records created for the Taoiseach by his Special Advisor. Section 2 of the FOI Act defines an “exempt record” to include “(b) a record that is created for or held by an office holder and relates to the functions or activities of—(i) the office holder as a member of the Oireachtas (parliament) or a political party, or (ii) a political party”. The Commissioner reasoned that where a particular record is concerned with the conduct of the business of Government, it cannot fall within the scope of section 2. If, however, a communication relates to a political party in terms of promotion of its own political message or philosophy or its potential for election to Government, then it does fall within the scope of that exemption. The Commissioner concluded that the bulk of the records concerned were clearly of a political party nature and that while some of the records contained references to policy matters, they were not concerned with those policies but rather with the public’s perception of members of the Government in their party political role. The Commissioner noted that the fact that the record was created by someone paid out of public money was relevant to deciding whether s.2 applies but, having noted that Special Advisors are not excluded from providing advice to office holders in their roles as members of political parties, he found that s.2 applied and that the refusal of access was therefore justified.[23]
The Law Concerning Disclosure of Information Held by Administrative Organs provides that any person may request that an administrative organ covered by the statute disclose administrative documents. The term “administrative organ” is defined in Article 2(1) to include Cabinet bodies and bodies under Cabinet jurisdiction that were established by law.
The Official Information Act applies to information held by a Minister of the Crown “in his official capacity.”[24] However, in one New Zealand case in which a Minister acquired the requested information through membership on a caucus committee and had not used it in relation to her portfolio, the Ombudsman found that the Minister did not hold the information in her official capacity as Minister of the Crown and so the information did not come within the scope of the Act.[25]
The FOIA does not apply to the Offices of the President and the Vice President, and other entities within the Executive Office of the President whose functions are limited to advising and assisting the President (including the National Security Advisor, National Security Council, and White House Counsel). However, documents concerning the White House held by other agencies, such as the Secret Service, are subject to the FOIA.
Executive privilege is the power claimed by the President and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches. The Supreme Court confirmed the legitimacy of the doctrine in United States v. Nixon, but only to the extent of confirming a qualified privilege.[26]
Once invoked, a presumption of privilege is established, requiring the prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."[27] . Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
The courts have typically been deferential to the privilege, presuming that it holds unless someone can prove an overwhelming interest in obtaining the information. Executive privilege usually applies to White House deliberations, on the theory that the President needs candid and confidential advice from his staff. The privilege also protects national security matters, especially when they involve military and foreign affairs, and protecting such information as the names of spies and informers and the progress of delicate negotiations.
President George Bush (2000-08) invoked executive privilege "in substance" at least six times. One of these cases was decided favorably by the courts; the other five were not judicially challenged.
The favorable decision came in December 2007, when the District Court for the District of Columbia (court of first instance) ruled that the White House visitor logs were public records, and that the administration should stop withholding them from public scrutiny.[28] The suit was brought by a watchdog group, Citizens for Responsibility and Ethics in Washington, which has been trying to determine how often several conservative religious leaders entered the White House during the Bush administration. The court rejected administration arguments that the visitor records should be shielded under executive privilege. “Because the Secret Service creates, uses and relies on, and stores visitor records, they are under its control,”[29] Judge Lamberth wrote. “Knowledge of these visitors would not disclose presidential communications or shine a light on the president’s or vice president’s policy deliberations.”[30] Accordingly, the court ordered the Secret Service to find the requested visitor logs and apply for any specific exemptions it considered applicable. The ruling means that such records cannot be destroyed without prior approval of the Archivist. The Secret Service appealed.
In June 2008, the United States Court of Appeals for the District of Columbia Circuit ruled that it would be premature to consider reversing the lower court’s decision. Rather, the appeals court stated that the dispute should go back to the district court so that the Secret Service could apply for exemptions for specific documents. The court noted that the watchdog group’s request was narrowly drawn and should not create a burden for the Secret Service.
Following are the five instances in which President Bush’s claim of executive privilege was not challenged in the courts, but were instead resolved through political compromises: in December 2001, to refuse to disclose details regarding a scandal involving Federal Bureau of Investigation misuse of organized-crime informants, and Justice Department deliberations about President Bill Clinton's fund-raising tactics; in June 2008, to refuse to respond to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor; in July 2007, to block a congressional subpoena requiring the testimonies of Taylor and Miers; again in July 2007, to block release of documents related to the 2004 death of Army Ranger Pat Tillman under friendly fire; and in August 2007, to reject a subpoena for Karl Rove to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. None of these confrontations were appealed to the courts but instead were resolved through political compromises.[31]
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.
Agendas of government meetings in Estonia are public and are published some days before the meetings. Additionally, agendas of “working meetings” of government members, meetings where various issues are discussed but no binding decisions are taken, are published.
The EU Commission publishes both its meeting agendas at least one day in advance of the meeting.
In Germany, the governmental press office publishes every week a short agenda. Users can subscribe to receive this by e-mail.
Government meetings in Israel are held on a Sunday and the agenda is normally made available to the press on the Thursday before.
Agendas of Council of Ministers in Italy are published at least one day before the meeting takes place.
The Latvian Cabinet publishes the agenda and almost all of the documents that will be reviewed at the Cabinet meeting. Here is the official text in English describing the procedure.
In Romania, agendas are provided at least 20 hours before the meeting will take place. An example can be found here. There is an e-mail subscription service to receive the agendas.
The Russian government publishes cabinet agendas at least one day in advance.
Cabinet meeting agendas are public in Slovakia in advance of the meetings.
In Slovenia, the agendas are published one or two days before the meeting, along with the materials to be discussed (with the exception of classified documents). This information is also available by RSS feed.
| Case title | Country | Year |
|---|---|---|
| Zoya Dimitrova v. Secretary of the President | Bulgaria | 2005 |
| Canada (Attorney General) v. Canada (Information Commissioner) | Canada | 2000 |
| The Sunday Times and Department of the Taoiseach & Hogan and Department of the Taoiseach | Ireland | 1999 |
| Serbian Information Commissioner's decision 07-00-00297/2005-03 | Serbia | 2007 |
| Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others | United States | 2007 |
| United States v. Nixon | United States | 1974 |
[1] See National Security Archive.
[2] Freedom of Information Act 2000 Article 23 (3).
[3] Federal Act Governing Access to Information held by the Federal Government, Art. 3 Nr. 8.
[4] See Bulgaria, Zoya Dimitrova v. Secretary of the President, (security services are covered by APIA).
[5] Serbian Information Commissioner's decision 07-00-00297/2005-03.
[6] 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.
[7] SN 06/12/03, 10/08/03, 10/24/03.
[8] See http://www.fas.org/irp/world/uk/mi5/budget.htm.
[9] Freedom of Information Act, Schedule 1, Art 6.
[10] Freedom of Information Act, Section 11.
[11] Right to Information Act, Section 24 (4). See also section on India.
[12] Freedom of Information Act, 5 U.S.C. § 552(b)(3). See also section on United States.
[13] Section 24(1) and (2) and 24(4) of the Right to Information Act 2005 empower the Central and State Governments respectively to notify such organizations.
[14] Sec. 24(2) and Sec. 24(4), Right to Information Act 2005.
[15] Right to Information Act, Section 24 (4).
[16] Freedom of Information Act, 5 U.S.C. § 552(b)(3).
[17] See National Security Archive.
[18] Danish Access to Public Administration Files Act (1985), Part III, 10(1).
[19] Greece Law No. 2690, Administrative Procedure Code (1999), Article 5(3).
[20] Iceland Information Act of 1996, Art. 4(1).
[21] Canada (Attorney General) v. Canada (Information Commissioner) (2000), [2000] F.C.J. No. 1648, affirmed in part (2001), [2001] F.C.J. No. 283 (Fed.C.A.), leave to appeal refused (2001).
[22] The Sunday Times and Department of the Taoiseach & Hogan and Department of the Taoiseach Long Form Decision Nos. 98125 and 99056, March 22, 1999.
[23] Information in this subsection on Ireland was supplied by Prof. Maeve McDonagh, including excerpts from her book, Freedom of Information Law in Ireland (Round Hall Sweet & Maxwell, 2nd ed., 2006), http://foilinks.ucc.ie/.
[24] Official Information Act 1982, s.2.
[25] 9 CCNO 87 (G.F. Robertson).
[26] United States v. Nixon, 418 U.S. 683 (1974).
[27] United States v. Nixon, 418 U.S. 683 (1974) at 713-14.
[28] Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others (D.D.C December 17, 2007), Civ. Ac. No. 06-1912 (RCL).
[29] Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others (D.D.C December 17, 2007), Civ. Ac. No. 06-1912 (RCL) p.35.
[30] Citizens for Responsibility and Ethics in Washington v. US Department of Homeland Security and Others (D.D.C December 17, 2007), Civ. Ac. No. 06-1912 (RCL) p.38.
]]>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 favor 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,[1] Georgia, Germany and the Netherlands[2] - the public has a right of access to legislative information pursuant to laws other than the ATI law.
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".[3]
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.[4]
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.
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.[5] 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).
The Freedom of Information Act, according to Part I, Section 4 (on Interpretation), applies to, among other entities, a body "established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council," other than certain named bodies, including the Australian Capital Territory House of Assembly; the Legislative Assembly of the Northern Territory, and the Legislative Assembly of the Territory of Norfolk Island. All other legislative bodies, including the Federal Parliament, come within the FOI Act's reach.
Article 3 of the Freedom of Access to Information Act defines public authority to include "legislative authority."
The Access to Public Administration Files Act contains an unusual provision making clear that the Act applies to legislative activity. Article 2(2) states: "This Act shall apply to matters relating to the making of laws, including any Act for the purpose of appropriations, subject to the Bill in question having been introduced in the Folketing."
Section 4(6) of the Act on Openness of Government Activities defines "authorities" subject to the Act to include "parliamentary agencies and institutions."
The Grand Chamber of the Court of Justice issued a landmark judgment in July 2008 in the case of Sweden and Turco v. the Council of the European Communities and Others, holding that a legal opinion given to the Council (which has legislative responsibilities) concerning proposed legislation had to be disclosed because (a) the Council had provided no concrete reasons as to why disclosure would undermine the protection of legal advice, and (b) there was an overriding public interest in disclosure.[6]
The case began in October 2002 when Mr. Turco, a resident of Italy, submitted a request to the Council for access to documents appearing on the agenda of the Justice and Home Affairs Council meeting, including an 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. The Council refused to disclose the document.
Mr Turco asked the Court of First Instance to annul the Council's decision, but it declined, citing Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001, which provides that any citizen of the European Union and any person residing in a Member State has a right of access to documents of the institutions.[7] Article 4 sets forth exceptions to that general principle, including, in paragraph 2, where disclosure of a document would undermine the protection of legal advice, "unless there is an overriding public interest in disclosure."[8] The Court of First Instance concluded that disclosure of legal opinions such as that in question could give rise to lingering doubts as to the lawfulness of legislative acts to which such advice related and could also compromise the independence of the opinions of the Council's legal service. The Court moreover held that the overriding public interest in disclosure must be distinct from the principles underlying Regulation No 1049/2001, in particular the principle of openness, relied on by Mr Turco.
Sweden and Mr Turco, supported by the Netherlands, appealed to the Grand Chamber of the Court. The Court noted that the Council was obliged to undertake a three-part examination before reaching a decision as to whether or not to disclose requested documents. First, the Council had to satisfy itself that the requested document did in fact concern legal advice. Second, the Council had to examine whether disclosure of the parts of the document in question would undermine the protection of legal advice. The Court construed the exception relating to legal advice in Regulation No 1049/2001 as aiming to protect an institution's interest in seeking frank, objective and comprehensive advice. It noted, and rejected the Council's abstract submissions that (a) disclosure could lead the public to doubt the lawfulness of a legislative act, or (b) could undermine the Council's interest in seeking frank advice. Regarding the first point, concerning impact on the public's perception of the lawfulness of a legislative act, the Court reasoned:
[I]t is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.[9]
The Court concluded that there appeared to be "no real risk that is reasonably foreseeable and not purely hypothetical" that disclosure of opinions of the Council's legal service issued in the course of legislative procedures might undermine the protection of legal advice within the meaning of Article 4(2).[10]
Third, the Court stated that it was incumbent on the Council to ascertain whether there was any overriding public interest justifying disclosure. Even if the Council had a legitimate concern that disclosure could harm important interests, it nonetheless had to weigh that risk against the overriding public interests which underlie Regulation No 1049/2001. The Court concluded:
[S]uch an overriding public interest is constituted by the fact that disclosure of documents containing the advice of an institution's legal service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinize the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of the preamble to Regulation No 1049/2001.
Accordingly, the Court set aside the judgment of the Court of First Instance and, pursuant to Article 61 of the Statute of the Court (which provides that the Court itself my give final judgment in a matter where the state of proceedings so permit) annulled the Council's decision refusing to allow Mr. Turco access to the legal opinion in question.
Section 2(h) of the Right to Information Act sets forth the Act's broad coverage, including all legislative bodies.
The Freedom of Information Law covers all three branches of government, including the legislative branch. The Knesset (parliament) as such is covered, not necessarily the individual representatives. Information that is covered includes materials prepared for committees, expenses of the Knesset, information collected by the Knesset for its purposes, and information held by the chair of each house. Individual Knesset members are required to disclose allowances they receive as members and expenses reimbursed to them, but probably would not be required to disclose other information, for instance, concerning their meetings and strategies under development.[11]
Parliament is covered by the scope of the Freedom of Information Act. However, a range of parliamentary records are excluded or exempt:
Parliamentary Questions. The exclusions referred to in points 3 and 4, above, were added via a 2003 amendment to the original 1997 Act; political parties were unhappy that members of opposing parties could gain access under the Act to details of their proposals especially in the run-up to elections and ministers did not like members of the opposition being able to gain access to all of the background documentation relating to their answering of parliamentary questions.
Information created by or about individual Members of Parliament. The Act only applies to records held by public bodies. Individual MPs, including those who are also Ministers, and local government representatives are not considered public bodies for purposes of the Act. Thus, the Act only applies to records relating to the activities of MPs and local government representatives that are held by parliamentary or other government bodies.
The first exclusion above defines "private papers" of members of the Oireachtas (parliament) by reference to Article 15.10 of the Constitution.[13] However, Article 15.10 neither defines "private papers," nor prohibits their disclosure. Nor are there any references to the private papers of Oireachtas members in the Standing Orders of the Houses of the Oireachtas.[14] Rather, as explained by Prof. Maeve McDonagh, the motivation for excluding such papers from the scope of the Act was to ensure the compatibility of the Act with the separation of powers doctrine as set out in the Constitution. In particular, it was felt that the Executive could not introduce provisions which might interfere with the right of the Houses of the Oireachtas to make their own rules in relation to the private papers of Oireachtas members.
This exclusion may be considered in conjunction with the second exclusion. Taken together, the two provisions provide a high level of protection against disclosure of records of members of the Oireachtas. In the case of Ministers and the Attorney General, the protection afforded extends to their private papers as well as to records created for or held by them and which relate to the functions and activities of political parties or to their own functions and activities as members of the Oireachtas or political parties.
It is not always easy to distinguish the private papers of Oireachtas members from their official records. Records received in a private capacity, for example, complaints received from constituents, can later become official records where the complaint is followed up at an official level. The Information Commissioner concluded, in Oakley and Sunday Tribune and Office of the Houses of the Oireachtas, that details of expenses paid to Members of Parliament were subject to disclosure.[15]
Severals Oireachtas members had sought to prevent their expenses from being disclosed to media requesters on the grounds that such records constituted either private papers of Oireachtas members or else "official documents" of the Houses of the Oireachtas that are "required ... to be treated as confidential." The Information Commissioner rejected the claim that details of the members' expenses could amount to private papers since the records were created and held by a public body, not by the members, and the records did not concern the private business of the members or their dealings with constituents or other third parties, but related instead to the discharge of their public duties as Oireachtas members. The Commissioner also concluded that, whatever was meant by the phrase "official documents," it could not be interpreted to cover records that individual members themselves had contended dealt solely with their private business. For exclusion of records that relate to functions of Ministers as members of political parties, see section on Heads of State/ Government and Cabinets.
The Official Information Disclosure (OID) Act applies, among other entities to "any State agency." "Any Stage agency" covers the three branches of the government - i.e., the National Assembly, the judicial branch, and the executive branch - as well as the Constitutional Court, and the National Election Commission.[16]
The Federal Law of Transparency and Access to Public Government Information (LFTAIPG) recognizes and protects the free access to public information held by all three branches of the federal government (as well as by the autonomous constitutional organs, such as the National Human Rights Commission, and any other federal organs). Pursuant to Article 61 of the Law, each branch of government and other bodies were required to adopt regulations to implement the law. As regards the Legislature, the Chamber of Deputies and Senate adopted different regulations. In 2003, the Special Rapporteur on Freedom of Expression of the Inter-American Commission traveled to Mexico to inquire, among other matters, about implementation of the law. At that time, he noted that the regulations did not comply with certain basic principles concerning access to public information; for instance, the regulations of the Chamber of Deputies did not provide for the right to appeal to an independent administrative institution in the event that the Chamber denied an information request.[17]
Article 5(2) of the Law on Access to Information defines "information providers" to include the Parliament.
Article 4 of the Law on Free Access to Information defines "government agency" subject to the Act to include any "state authority (legislative, executive or judicial)."
The Constitution's guarantee of the public's right to information - in Section 7 of Article III (Bill of Rights) of the Constitution - does not specify which governmental bodies are covered.[18] As it is applied, it covers all branches of government including the legislature.[19] Moreover, Section 16(4) of Article VI (re the Legislative Branch) of the Constitution states:
Each House shall also keep a Journal of its proceedings, and from time to time publish the same, excepting such parts as may, in its judgment, affect national security ...
Section 20 of Article VI further provides:
The records and books of accounts of the Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish annually an itemized list of amounts paid to and expenses incurred for each Member.
Article 2 of the Freedom of Information Act 2000, as amended, provides, among other things, that the National Council of the Slovak Republic is obliged to disclose the following information, in addition to information that all state bodies are required to disclose:
a. dates of its sessions and the sessions of its committees and draft session agendas,
b. minutes from public sessions,
c. copies of acts submitted [to the National Council] within three days after their filing with the Office of the National Council,
d. copies of acts passed [by the National Council] within three days after the third reading,
e. information on the attendance of MPs at the sessions of the National Council and the sessions of its committees within three days after their end,
f. information on voting of MPs after each session of the National Council of the Slovak Republic, with the exception of secret voting and voting at a closed session.
Article 1 of the Act on Access to Information of Public Character provides that the law applies to all state bodies; the only exceptions are named in Article 6. The Information Commissioner has confirmed that the Act applies fully to the legislative branch.
Under Chapter 2, Article 5 of the Freedom of the Press Act (which has constitutional status), the Parliament and "any local government assembly vested with powers of decision-making" are deemed public authorities subject to the Act's disclosure requirements.
The Freedom of Information Act applies to the Houses of Parliament though information held by MPs and peers in their personal capacities or as members of political parties is outside the Acts' scope. The devolved assemblies in Wales and Northern Ireland are also covered. (Scotland has its own FOI legislation which applies to the Scottish Parliament.) Section 3(1) of the Freedom of Information Act 2000 states that "public authority" means:
(a) subject to section 4(4), any body which, any other person who, or the holder of any office which
(i) is listed in Schedule 1, or
(ii) is designated by order under section 5, or (b) a publicly-owned company as defined by section 6.
Schedule 1, Part I on Public Authorities, lists the following institutions, in sections 2-5: the House of Commons, the House of Lords, the Northern Ireland Assembly and the National Assembly for Wales.
The Georgian Constitutional Court ruled, in the case of Rusudan Tabatadze and Georgian Young Lawyers Association vs Georgian Parliament that " the administrative function of legislative and judicial bodies are the same as public function and therefore freedom of information affects it in all cases".[20] In addition, separate legislation requires the Parliament to publish its decisions.
Legislative bodies are obliged to make public only administrative information, pursuant to Article 19 of the former ATI Act on Protection of Personal Data and Publicity of Data of Public Interest.[21] In addition, Article 33 (2)-(4) of the 2011 ATI law requires a number of public bodies to create home pages and sets out in an annex an extensive list of information that needs to be released.
The Access to Information Act applies to federal government institutions. Subsection 3(1) defines "government institution" to include any department or ministry of state of the government of Canada listed in Schedule 1 or any body or office listed in Schedule 1. The Access to Information Review Task Force in 2002 recommended extension of coverage of the ATI Act to a wider range of federal institutions, including to Officers of Parliament and Parliament itself (with certain protections), but these recommendations have yet to be adopted.[22]
Parliament is not covered by the Official Information Act; nor is the Parliamentary Counsel Office. Definition of "official information" in section 2 of OIA does not list information held by these bodies.
[1] The Law on Access to Administrative Documents 1978 does not apply to legislative bodies. Separate legislation covers access to information held by such bodies. Information supplied by Sophie Lieber, staff member of the Conseil d'Etat.
[2] 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. Information supplied by Roger Vleugels, a lecturer and legal advisor on FOI and editor and publisher of Fringe.
[3] See Rusudan Tabatadze and GYLA vs. Georgian Parliament, 2/3/364, 2006.
[4] Act relating to Public Access to Documents in the Public Administration, Article 1
[5] This view is shared by Article 19, the Global Campaign for Freedom of Expression, www.article19.org, and several other freedom of expression and information organizations.
[6] Judgement of the Court of Justice (Grand Chamber) of 1 July 2008 in Joined Cases C-39/05 and C-52/05, Sweden and Turco (supported by the Netherlands, intervenor on appeal) v Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities.
[7] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, (OJ 2001 L 145, p. 43).
[8] Article 4(2) of Regulation (EC) No. 1049/2001 reads in relevant part: "The institutions shall refuse access to a document where disclosure would undermine the protection of ... legal advice ... unless there is an overriding public interest in disclosure."
[9] Judgement of the Court of Justice (Grand Chamber) of 1 July 2008 in Joined Cases C-39/05 and C-52/05, Sweden and Turco (supported by the Netherlands, intervenor on appeal) v Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities., at para. 59.
[10] Judgement of the Court of Justice (Grand Chamber) of 1 July 2008 in Joined Cases C-39/05 and C-52/05, Sweden and Turco (supported by the Netherlands, intervenor on appeal) v Council of the European Union, Denmark, Finland, United Kingdom, and Commission of the European Communities, at para. 66.
[11] Information supplied by Roy Peled, Movement for Freedom of Information, Israel.
[12] Information in this subsection on Ireland was supplied by Prof. Maeve McDonagh, including excerpts from her book, Freedom of Information Law in Ireland (Round Hall Sweet & Maxwell, 2nd ed., 2006).
[13] Article 15.10 reads as follows: "Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties."
[14] Dáil Éireann, Standing Orders Relative to Public Business (2002); Seanad Éireann, Standing Orders Relative to Public Business (1995).
[15] Long Form Decision No. 99168, July 27, 1999.
[16] Information supplied by Prof. Kyu Ho Youm, University of Oregon.
[17] Annual Report of the Special Rapporteur for Freedom of Expression 2003, Inter-American Commission on Human Rights, Chapter IV - Report on Access to Information in the Hemisphere, at para. 148.
[18] For more re constitutional protections, and their self-executing status, see section on Constitutional Protections: Philippines.
[19] Information supplied by Nepomuceno Malaluan, Action for Economic Reforms.
[20] Rusudan Tabatadze and Georgian Young Lawyers Association vs Georgian Parliament, 2/3/364, 2006.
[21] Act LXIII of 1992, as amended 2003, on Protection of Personal Data and Publicity of Data of Public Interest.
[22] Access to Information Review Task Force, Access to Information: Making It Work for Canadians, Queen's Printer of Canada, Ottawa, 2002.
]]>Such terms as “administrative information” and “information about administrative functions” are not particularly helpful, however, as they cover different information in different countries, as discussed in the section on Administrative Information and Proactive Publication.
Many countries have increasingly recognized a public right of access to all (or virtually all) judicial information, including final and interim case orders, case files, criminal investigations and hearings. In some countries, the right is codified in an ATI law; in others, access is provided pursuant to constitutional principles of “transparency,” “publicity” or “democratic accountability;” criminal and civil procedure codes; laws on public procurement and ethics; judicial regulations; or simply the court’s own conclusion that transparency builds public confidence and reduces opportunities for maladministration and corruption. See subsection on Judicial Branch: Case Information.
Even in countries without an ATI law applicable to the judicial branch, judiciaries are required to, and/or do in fact, make public a considerable amount of information about their judicial functions – including case law, case files and judicial proceedings – as well as administrative functions, although in general, less information than in countries with ATI laws.
Two main arguments are generally advanced as to why both the judical and legislative branches should be exempted from full coverage of ATI laws. For a summary of these arguments and reasons as to why we find them unpersuasive, see the opening paragraphs of the section on the Legislative Branch.
Regarding the judiciary a third argument is often advanced as well, namely that judicial authorities should be exempt because they hold mainly sensitive information, such as materials in case files and investigations in criminal proceedings. This argument contradicts the very idea of a right of access to information, however, which implies that information should be open unless a compelling public or private interest demands otherwise.
Recommendation: The fact that a document is held by a particular type of institution is irrelevant to whether its disclosure affects a compelling public or private interest. Just because some institutions hold more sensitive information than others does not mean that they should categorically be removed from the ambit of the law; they still hold some information that is not exempt. The deciding factor should always be whether disclosing a particular document will lead to an overriding harm to another important interest, not what type of body holds the document. Any other rule is bound to lead to information being withheld against the greater public good.
Major categories of important information that often are not required to be disclosed include statistics, e.g. concerning the number and length of cases handled by each judge or court; statements about the procedures courts follow in handling cases; and information about judge’s qualifications and the processes and criteria by which they are selected, promoted and disciplined. Moreover, in many countries, courts are not obliged to publish their decisions and the reasoning for those decisions, in part owing to exaggerated concerns to protect privacy of litigants, and in part because the guiding culture of the judiciary is to protect the interests of litigants and not wider societal interests. Fortunately, this culture is changing in many parts of the world, as demonstrated by the information collected in the sub-sections below.
Most of the detailed information in this section concerns 10 countries in Latin America, six of which have ATI laws that expressly apply to the judiciary (Dominican Republic, Ecuador, Honduras, Mexico, Panama and Peru); three of which have constitutional but not statutory protections of access to information held by the judiciary (Argentina, Chile and Colombia[1]); and one of which has neither constitutional nor statutory protections (Uruguay). This information is drawn from a study, Disclosing Justice. Access to Judicial Information in Latin America (2007), published by the Due Process of Law Foundation (DPLF). The information in the DPLF study is organized by country, with an analytic chapter at the end. The Justice Initiative rearranged the information so that it is presented on this website by subject matter. Any errors that have resulted from this restructuring are the responsibility of the Justice Initiative.
Information concerning European countries was provided by Access Info Europe, and experts from several countries: Professor Dr. Frankie Schram; Leuven and Antwerp Universities, and Member and Secretary of the federal Commission for Access to Documents, Belgium; Paul Schabas, partner, Blake, Cassels & Graydon LLP; Oluf Jørgensen, Journalisthøjskolen, Århus, Denmark; Roger Errera, member of the Conseil d’Etat, France; Professor Dr. Dr. Christian Tomuschat, Humboldt University (Berlin); Professor Maeve McDonagh, University College Cork, Ireland; Professor Wouter Hins, Constitutional and Administrative Law, University of Amsterdam, and Media Law, Leiden University; Nataša Pirc Musar, Commissioner for Access to Public Information of the Republic of Slovenia; Advokat Ulf Öberg, Managing Partner, and Gunnar Persson, juris doctor, of the law firm Öberg and Associés (Stockholm). The US-based law firm Ropes & Gray LLP made available an analysis of the rules and practices governing access to court records in various jurisdictions, including Canada and the United States. Roy Peled contributed information about Israel, and the Commonwealth Human Rights Initiative sent information about India.
[information about particular countries to be uploaded soon]
[1] Colombia has an ATI law – Act 57 (1985) – which includes the essential guarantees, but it was enacted more than 20 years ago and needs to be updated. In particular, none of its provisions apply to the judiciary.
The Procuración General de La Nación has established that all its opinions should be made public – except those that, according to the law, cannot be published – based on the republican rule of publicity that calls for justice to be open to the public and recognizes the need for public control over government acts.[1] However, as of September 2007, only the decisions of the Procuraduría General de la Nación, and not those of the Ministerio Público Fiscal, were in fact being published, and the decisions of the Procuraduría General were published as part of database that was neither well organized nor well maintained. As of September 2007, the public could only gain access to a limited number of opinions, and only via the website.
The Procuración has established a mixed system, publicizing its opinions in full on its website, but withholding some information when information is included in a database, based on a series of exceptions, namely to protect minors, family matters and privacy; when the reserve is necessary to ensure the interests of justice; or when the files refer to secret information or are related to criminal investigations.
The Law on the Office of the Prosecutor establishes that its public function will be transparent, in such a way as to allow and promote knowledge about its procedures and their content, as well as the reasoning for every decision.[2] The law clearly establishes that the administrative information from this body, including background information, is deemed public. Access may be denied, however, if its secret character is established by law or statute; when publicity collides with the accomplishment of the office’s functions; when the person affected by such disclosure requests that the information be withheld; when the dissemination affects the rights or interests of third parties; or when it affects national security or related interests.[3] The Regional Prosecutor is required to offer an annual public account of the activities of its office, including statistics, the use of funds, and problems.[4]
The law requires transparency to be a criterion in the development of functions of the Office of the Public Prosecutor. Its statute requires its administrative acts to be public, subject to exceptions established by law. Information related to investigations is also not to be disclosed.[5]
The public prosecutor and his office are covered by the ATI Act.
The Regional Court of Appeals determined that the Prosecutor General’s office was an administrative institution for purposes of the ATI Law. By the time the case was decided, however, the status of the Prosecutor General’s Office as an administrative body had already been confirmed by a law relating to the structure of government and administration.[6]
Panama’s Access to Information Act, passed in January 2002, expressly states that its provisions are applicable to the Office of the Prosecutor in addition to the Judicial Branch. [7]
In a decision of 2002, a Court of Appeals ordered the executive branch to release information related to an arrest request by Argentina concerning two former members of the military and an ex-policeman for alleged human rights abuses. The information included reports of the Public Prosecutor and the Attorney General. The Court ruled that exceptions to the principle of access to information shall be clearly stated, noting the importance of international human rights provisions, freedom of information as a means to build public opinion, and the essential character of public opinion in a democratic society.[8]
[1] Procuración General de la Nación, Ministerio Público, Res. PGN No. 15/07, 07 March, 2007.
[2] Ley 19640, Organizational Law of the Office of the Prosecutor (Ley Orgánica del Ministerio Público) Art. 8.
[3] Ley 19640, Organizational Law of the Office of the Prosecutor (Ley Orgánica del Ministerio Público) Art. 8.
[4] Ley 19640, Organizational Law of the Office of the Prosecutor (Ley Orgánica del Ministerio Público), Art. 36.
[5] Statute of the Office of the Public Prosecutor, Art. 14.
[6] Transparency International – Latvia (Delna) v. Prosecutor General’s Office, Judgment of January 27, 2005, Nr. AA 51-05/4 of the Regional Administrative Court. This case is discussed at greater length in the section on Law Enforcement Records.
[7] Ley No.6 que dicta normas para la transparencia en la gestión pública, establece la acción de Hábeas Data y dicta otras disposiciones, at Art. 1.8.
[8] A. Alsina c. Estado, 4 March 2002, para XVIII to XX.
First, there are state owned enterprises (SOEs), also called government owned corporations, which are defined by wikipedia as "legal entities created by a government to undertake commercial or business activities on behalf of an owner government. ... The defining characteristics are that they have a distinct legal form and they are established to operate in commercial affairs. While they may also have public policy objectives, SOEs should be differentiated from other forms of government corporation or entity established to pursue purely non-financial objectives ...."[1] Most SOEs are established by government, but some commenced as private entities that were then nationalized. SOEs can be fully or partially owned by the government. For instance, in Israel, Jamaica and Serbia, a "government owned company" is defined as any company in which the government holds more than 50% of the shares.
SOEs are generally fully guaranteed by the government; For example, in Finland, state-run corporations (liikelaitos), even though responsible for their own finances, cannot be declared bankrupt; the state is the ultimate guarantor of their liabilities. In contrast, the state may own an interest, even a controlling interest, in ordinary limited liability corporations (discussed below as private entities that receive government funding).
SOEs are covered by most ATI regimes in Europe, the Americas and Africa (including Angola, South Africa and Uganda), by several in Asia (notably India, Japan, Nepal, the Philippines, South Korea and Thailand), and by Israel, Jamaica and New Zealand. However, China's Disclosure of Government Information Regulations, which entered into force in May 2008, do not apply to SOEs, and Indonesia's Law on Public Information Transparency, passed in April 2008, applies to SOEs only to a limited extent, pursuant to a compromise reached after civil society strongly objected to the government's efforts to exclude SOEs entirely. See subsection on Indonesia. The contentiousness of the issue in Indonesia suggests that coverage of SOEs, as well as private bodies that exercise public functions or receive private funds, is likely to be a major area of controversy as new laws are adopted, especially in Asia.
Second, there are private entities that exercise administrative authority, perform public functions or receive substantial public funds. These three elements are closely related, and there are considerable variations and lack of precision concerning what is understood to constitute "administrative authority" and "public functions," as well as concerning the amount of funding that constitutes "substantial."
Administrative authority in many countries means the authority to regulate, for instance, by professional licensing and standard-setting bodies. Such bodies are the subject of administrative (or public) law. Regarding the definition of "public function," not only are there variations among countries, but within countries. "Public functions" may be limited to public safety and security (protection of life and property), or may encompass a broad range of services, e.g., including health care. Trash collection is considered a public function in most jurisdictions, but not in all. Armenia's ATI law enumerates functions of "public importance" expansively to include "sport, education, culture, social security, transport, communication and communal services."
Most entities that perform public functions also exercise administrative authority. Notable exceptions include government-financed broadcasters (whether state-controlled or independent), which do not exercise administrative authority, but in many countries are considered to perform a public function. Virtually all entities that perform public functions or exercise administrative authority receive substantial public financing, but some - such as professional licensing boards in some countries - may be substantially funded by membership dues. Moreover, an entity could receive substantial public funding and yet perform other than public or administrative functions. For instance, private institutions that receive funding for scientific research generally are not considered to perform a "public function" although their work furthers the public interest. In addition, different objectives justify the varying transparency requirements. Knowing how public funds are spent is just one objective; holding an entity accountable that has authority over people's lives is a separate one.
Information held by private bodies that exercise "administrative authority" or perform "public functions" appears to be covered by the ATI laws of most European countries (though not the United Kingdom), as well as at least 11 other countries: 2 in Africa (Angola, South Africa); 6 in the Americas and Caribbean (Antigua and Barbuda, Belize, Canada, the Dominican Republic, Ecuador, Peru, and Trinidad and Tobago), and 3 in Asia and the Pacific (Australia, New Zealand and South Korea). Moreover, the Constitution of Panama was amended in 2004 to provide, in Article 43, for the right to access information held by private companies involved in work of a public nature as well as by the state.[2] In a few additional countries, e.g., Israel and Jamaica, application of the ATI law to private bodies requires an order of the Minister of Justice or other responsible Minister. The laws of several of these countries - e.g., Canada, the Czech Republic, Hungary, Iceland, India, the Netherlands, Peru and Slovakia - specify that only information related to the public functions is subject to disclosure. Hungary's law usefully extends coverage so as also to include "matters related to their [the entities'] financial management," an extension which is implicit in most of the other laws.
Laws that apply to entities that receive public funds regardless of the functions they perform. A smaller, but steadily growing number of countries extends coverage, in addition, to entities that receive public funds without reference to whether or not they perform public functions. Applying ATI laws to such entities makes good sense: the approach (a) avoids the uncertainties that flow from a lack of agreement as to what constitutes "public functions;" (b) is rational, given that (i) the public should be entitled to obtain information from, and hold accountable, entities that receive substantial public funds, and, in any event (ii) most entities that receive public funds perform functions that benefit the public; and (c) is fair, applying a common test across the board. In contrast, laws that are applicable to an enumerated list of entities, including some private entities, comply with the interest in certainty, but lack fairness.
Among the countries whose laws apply to private entities that receive substantial public funds regardless of the functions they perform are India and at least four European countries - Denmark, Ireland, Montenegro and Serbia. However, it should be noted that the ATI laws of two of these countries - Denmark and Ireland - provide that coverage shall be extended to private entities only pursuant to a specific order issued by the relevant minister and, at least in Ireland, few such private entities have yet been so designated. In the United Kingdom, the FOI Act similarly contemplates extension of its application to private entities pursuant to order of the Secretary of State; the government started a consultation in 2008 to consider whether the Act's coverage should indeed be so extended.
What constitutes "substantial public funds"? An interesting question is the amount of public funds required to subject private entities to ATI requirements. The laws of Denmark, Ireland, Serbia, and India suggest that more than 50% public funding should suffice: Denmark's law requires that the entity be "mainly" funded by government funds; Ireland's law requires that the entity be financed "wholly or in part" from the public purse; Serbia requires that an entity be "wholly or predominantly" funded; and India offers the most thoughtful (and far-reaching) approach . The RTI law applies to bodies that receive "grants or loans" (emphasis added) from Central or State government (presumably not including local governments) totaling more than the equivalent of about US$60,000 or 75% of their total budgets.
To whom are information requests submitted? Most laws that apply to private bodies treat them as public authorities for purposes of the ATI law and accordingly hold them responsible not only to publish information proactively but also to respond to ATI requests. However, the ATI laws of several countries - including Ireland and New Zealand - deem information held by private contractors that perform work for a government agency to be held by the contracting agency, and thus hold the contracting agency responsible to respond to ATI requests.
Problems with ATI laws that apply to private entities based on the functions they perform or the way in which public funds are granted or functions are delegated. Some ATI laws that apply to private entities that perform public functions or operate with public funds do so only if the delegation of public authority or grant of funding was pursuant to a law. For instance, the Council of Europe Convention on Access to Official Documents gives states the option to declare their intent to extend the coverage of their ATI laws to "natural or legal persons insofar as they perform public functions or operate with public funds, according to national law," pursuant to Article 1(2)(a)(ii)(3). The treaty's language is disappointing in at least three respects. First, the phrase "as provided for by national law" is unnecessarily restrictive. Entities may "perform public functions or operate with public funds" pursuant to a law (national or state), regulation, contract or other agreement, yet only those that do so pursuant to "national law" are covered by this optional treaty provision. Second, the very fact that the provision is optional is disappointing, reflecting the drafters' decision to exclude from the treaty's mandatory provisions all but the minimum standards accepted by influential Council of Europe member states. Third, the term "public function" is unclear; different countries understand the term differently. The drafters of the European Convention on Access to Official Documents recognized this ambiguity in paragraph 13 of the Explanatory Memorandum that elaborates the Convention, yet provided no guidance.[3]
Recommendation: It is important that bodies that rely significantly on public Funds to perform public functions should be covered by ATI legislation in order to address the specific problem of state functions being devolved to private bodies, sometimes precisely to avoid transparency and accountability requirements. ATI laws should apply to "natural or legal persons insofar as they perform public functions, exercise administrative authority or are substantially financed by public funds".
Alternatives to applying ATI laws to private entities based on functions they perform. Because of the difficulty of defining "public function," courts have tended to apply other tests, such as assessing the amount and impact of public funding, or the degree of control exercised by the government. For instance, in South Africa between 1994 and January 2000, the right of access to information was guaranteed by the Interim Constitution, which provided access to "all information held by the state or any of its organs [...] in so far as that information is required for the exercise or protection of any of their rights." The courts determined that a body constituted an "organ of the state" if the state exercised control over the body in question; the control test was easier to apply than one based on evaluating whether the functions were primarily public. As a result, coverage was extended to entities controlled by the state even if their nature might be private.[4]
Several courts and tribunals - including in India and South Africa - have held that privatized companies come within the scope of their country's ATI law, even though they might not be controlled by government, by virtue of the fact that (a) they were substantially financed by the government given that the government had turned over significant assets to the company; or (b) they performed what traditionally had been a government function.
Recommendation: Businesses often complain about the extension of transparency requirements to private entities. They make several claims, to which there generally are sound responses. To the extent that they raise legitimate concerns, some adjustments to ATI laws could be made. First, while businesses may not relish transparency, most legitimate businesses do not object to transparency per se; rather they seek a basic level of predictability, rationality and fairness.[5] Concerning the level of public funding that should subject an entity to disclosure requirements, such terms as "mainly" or "predominantly" funded by government should suffice, to the extent that they are understood to mean more than 50 percent government ownership. In contrast, application of an ATI law, such as Armenia's, to "private organizations that have a monopoly or leading role in the goods market," runs into predictability and rationality problems. What constitutes a "leading role"? And, if the phrase is to apply at all, why only to the goods market? Why not also to services? Making an ATI law applicable to private entities that receive substantial public funding (more than 50% of their income, or over a certain absolute amount, or substantial public assets at less than fair market value), responds to public and business interests in rationality, certainty and fairness.
Second, SOEs and other private entities often complain that transparency obligations impose unfair competitive disadvantages vis-à-vis non-obliged private competitors. One response is that government funding gives entities a substantial competitive advantage; this is all the more the case regarding SOEs, which generally are fully or largely indemnified by the government. A second response is that studies have shown that in fact transparency requirements do not place SOEs at a comparative disadvantage, or at least not a significant one.[6] A third response is that private entities should only need to disclose information about their public functions. This is an approach taken by several countries, including the Netherlands. The Netherlands, furthermore, has charted an unusual approach by requiring private entities that could be viewed as competitive with public entities to be subject to the same transparency obligations as the public entities. However, this approach raises a rationality question: why should information that was available to the public be removed from public reach simply by virtue of the privatization of what was once a public company? If the only reason for transparency were to be able to monitor the expenditure of public funds, such a step could make sense, but generally transparency requirements are justified by other reasons as well, such as the public's right to know about decisions that will affect their lives concerning basic services, such as electricity, natural gas or water.
Below is information about the law and jurisprudence of various countries.
Most ATI laws in Europe apply to state-owned enterprises and most laws also apply to private bodies that exercise administrative authority or perform public functions, with some variations in definition. The laws of several countries - including Denmark, Ireland, Montenegro and Serbia- also expressly apply to private bodies that operate with public funds regardless of the functions they perform.
The Law on Freedom of Information applies to "organizations financed from the state budget, as well as private organizations of public importance and their state officials." Article 3 defines "organization of public importance" expansively to be "private organizations that have a monopoly or a leading role in the goods market, as well as those providing services to the public in the spheres of health, sport, education, culture, social security, transport, communication and communal services." In other words, the law applies to private entities based on their functions, not on their receipt of public funds, and considers "public functions" to include a wide range of enumerated functions.
The Access to Public Information Act extends to state institutions and other entities funded by the state budget and exercising public functions.
The Law on Free Access to Information applies to entities that exercise administrative authority, but only concerning matters related to the exercise of such authority. Article 2(2) of the Law states that "obliged entities" includes "those subjects to whom the law has entrusted deciding about legal matters, legally protected interests or duties of natural persons or legal entities in the area of public administration, but only to the extent of this decisive activity."
The Danish Access to Public Administration Files Act, by Article 1(2), applies to: "1º any public utility generating, transmitting, or distributing electricity at voltages of 500 volts or more; 2º Any company, partnership institution association etc. carrying on the business of natural gas suppliers; 3º Any collective district heating plant falling under the Danish Heating Act and having a capacity of 10 MJ/s or more." In addition, Article 1(3) reads:
Upon consultation with the Minister for Justice, the minister concerned may by Order provide that this Act shall apply also to specified companies, partnerships, institutions, associations etc. that cannot be classified as part of the public administration, provided that the operating expenses of such entities are mainly covered by central or local government funds or to the extent that by or pursuant to statutory provision they are empowered to make decisions on behalf of central or local governments. The minister concerned may under this provision lay down more detailed rules on filing etc. of documents.
The Public Information Act defines "holders of information" to include "legal persons in public law and private entities that are conducting public duties including educational, health care, social or other public services."
Art 5(2) of the Law on FOI states that "Every individual has the right to have access to any official document of ... state enterprises, if they do not contain state, professional or commercial secrets." The FOI provisions (Chapter III) of the General Administrative Code of Georgia affect all (a) persons of private law that "exercise public authority in accordance with law," and (b) artificial persons of private law funded by the State or local government budget. A problem arises because (a) the term "exercise public authority" is not defined and often is difficult to prove, and (b) government funding subjects only artificial persons and not private persons to FOI obligations.
Article 19(1) of the Act on Protection of Personal Data and Publicity of Data of Public Interest stated that "organs and persons ... fulfilling state or local government duties and other public duties defined in legal rules," shall provide precise and timely information to the public in connection with "matters coming within their sphere of duties, and also matters related to their financial management."
The 2011 ATI Act defines data of public interest as "information or data other than personal data registered in any mode or form concerning activities undertaken and controlled by the body or individual carrying out state or local government responsibilities, as well as other public duties defined in relevant legislation, regardless of their mode of control, independent or collective nature; therefore, with special regard to […] data concerning financial management and concluded contracts."
The Information Act (Article 1) expressly applies to "the activities of private parties insofar as they have been entrusted with official power to take decisions regarding people's rights or obligations."
The FOI Law in Ireland, like the law of New Zealand, applies to records held by private sector organizations carrying out activities under contract to an agency. The Act also allows bodies financed from the public purse (either wholly or in part) to be covered but only pursuant to an express regulation; to date few such bodies have been brought within the scope of the Act.
Under Law No. 241, the right of access to information extends to "public entities and the providers of public services, as well as guarantee and supervisory authorities."
Section 1 of the Freedom of Information Law defines institutions to which the law applies as, among others, "persons who implement administrative functions and tasks if such person in the circulation of information is associated with the implementation of the relevant functions and tasks."
The Information Act allows any person to obtain files from state and municipal organs and private individuals who are conducting public tasks.[7]
Article 6(7) of the ATI law states: "Other institutions or enterprises, as well as political parties, trade unions, political, public and other organizations, shall provide public information producers and other persons with public information concerning their own activity, according to the procedure established in the bylaws of these institutions, enterprises or organizations."
Article 3 of the Law on Free Access to Information of Public Character defines "information holders" to include "public enterprises, and legal and natural persons performing public competencies and activities of public interest determined by law."
Law on Access to Information defines "information providers" to include "c) individuals and legal entities that, under the law or contract with public authorities, are empowered to provide some public services and to collect, select, preserve and hold official information, including data of private character."[8]
Article 4 of the Law on Free Access to Information defines "government agency" subject to the Act to include any "public company or other business entity that has been granted to perform public functions, which is founded by the State or a local self-government authority, or which is funded from public revenues and with which the information are filed."
The Dutch FOIA states, in section 1a, that it applies to all administrative authorities -- including a) ministers; b) administrative authorities of provinces, municipalities, water boards and regulatory industrial organizations; and c) administrative authorities whose activities are subject to the responsibility of the authorities referred to in a) and b) - except those excluded by order in council. However, the explanatory memorandum that accompanies the Act and Dutch litigation and disclosure practice and jurisprudence establish that not all bodies are obliged to disclose the same categories of information. Essentially, there are three different levels of application.
First, some bodies must disclose all documents they hold (subject, as always, to specified exceptions); these are:
Second, some bodies are required to disclose only information related to their public functions:
Third, requesters are able to obtain some documents concerning private entities from agencies that are entitled to possess or have access to those documents. These entities include:
Treatment under the Dutch FOI law of entities in the last above-mentioned category, namely that that operate in sector that includes at least one public company, is clear but complex. Dutch administrative law jurisprudence states that as long as at least one of the companies is public, and thus subject to the FOIA, the Act applies also, flowing from notions of parity and fair competition, to all of the private companies. However, as soon as the last public company in an industry or sector is privatized, transparency is gone. [9]
In addition, requesters are entitled to gain access to documents which are held by the public partner in a private-public partnership; these documents tend not to be the most operational or detailed.
Article 4(1) of the Act on Access to Public Information provides that entities that are obliged to make public information available are "the public authorities as well as other entities performing public functions, in particular:
Article 2 of the Law Regarding the Free Access to Information of Public Interest defines "authority or public institution" to which the law applies to include "any state company (régie autonome) which uses public financial resources and carries on its activities on Romania's territory, in accordance with the Constitution."
Article 3 of the Law on Free Access to Information of Public Importance defines "public authority body" to include (1) an organization vested with public authority, and (2) a legal person founded by or funded wholly or predominantly by a state body."
Article 2(1) of the Freedom of Information Act 2000, as amended, provides that "entities obliged to provide access to information under this Act" include "legal entities and natural persons that have been given the power by law to make decisions on the rights and responsibilities of natural persons or legal entities in the area of public administration," and the obligation to disclose applies "only [to matters] within the scope of their decision-making power."
Article 1(1) of the Act on Access to Information of Public Character provides:
This Act governs the procedure which ensures everyone free access to and re-use of public information held by state bodies, local government bodies, public agencies, public funds and other entities of public law, holders of public powers and public service contractors.
"Public funds," which disburse and manage public funds, form a sub-set of holders of public powers; they include such bodies as the Housing Fund of Slovenia, which finances and manages the National Housing Program, and the Farmland and Forest Trust, which manages the farmland, farms and forests owned by the state. Holders of public powers refer to bodies that exercise public (or administrative) authority. It is understood that companies that do not perform public functions but receive public funds - such as farm subsidies, subsidies for film-making and other cultural activities - are not covered by the Act. Thus, if a company is only receiving public funds this does not mean that it is an obliged body, although of course the public body that pays the public funds is obliged to provide information.
The right to request information applies to legal persons owned or controlled by municipal authorities and some other private bodies performing public functions explicitly mentioned in an annex to the Secrecy Act.
Article 2 of Law No. 4982 on the Right to Information provides "This law is applied to the activities of the public institutions and the professional organizations which qualify as public institutions."
Publicly-owned companies (such as Royal Mail) are covered by the UK FOI Act, pursuant to Section 3(1) of the FOI Act. However, "publicly-owned company" is defined narrowly in Section 6 to be one which is wholly owned by a public authority. Section 6 reads:
(1) A company is a "publicly-owned company" for the purposes of section 3(1)(b) if:
(a) it is wholly owned by the Crown, or
(b) it is wholly owned by any public authority listed in Schedule 1 other than:
(i) a government department, or
(ii) any authority which is listed only in relation to particular information.
(2) For the purposes of this section:
(a) a company is wholly owned by the Crown if it has no members except:
(i) Ministers of the Crown, government departments or companies wholly owned by the Crown, or
(ii) persons acting on behalf of Ministers of the Crown, government departments or companies wholly owned by the Crown.
(b) a company is wholly owned by a public authority other than a government department if it has no members except:
(i) that public authority or companies wholly owned by that public authority, or
(ii) persons acting on behalf of that public authority or of companies wholly owned by that public authority.
Companies that are partly owned or companies that are jointly owned by two or more public authorities are not covered. Network Rail, for example, is not covered because its members are drawn from the rail industry and general public as well as from the Department for Transport. Transparency advocates find this to one of the unsatisfactory, and indefensible, provisions of the Act. The issue of publicly-owned companies and FOI arose in early 2008 when the Government introduced emergency legislation to nationalize the Northern Rock Bank. As a publicly owned company wholly owned by the Treasury, Northern Rock should automatically have been covered by the Act, but the Government included a specific provision in the legislation to exclude it from the FOI Act.
In mid-2008, the Government initiated a consultation on extending the scope of the FOI Act to some private entities. Section 5(1) of the Act authorizes the Secretary of State to designate as a public authority for purposes of the Act any person who "(a) appears to the Secretary of State to exercise functions of a public nature" or "(b) is providing under a contract made with a public authority any service whose provision is a function of that authority". As of August 2008, the Government had not concluded the consultation, nor had the Secretary of State made any such designations.[10]
At least six countries in the Americas apply their ATI laws to entities that are government owned or controlled: Argentina, Canada, the Dominican Republic, Ecuador, Peru and the United States. The Dominican Republic, Ecuador, and Peru appear to also apply their laws to private bodies that perform public functions.
The Federal ATI Act applies to federal government institutions. Subsection 3(1) defines "government institution" as "any department or ministry of state of the government of Canada or any body or office listed in Schedule 1" and "any parent Crown corporation, and any wholly-owned subsidiary of such a corporation". Schedule 1 lists hundreds of federal departments, ministries, administrative boards, tribunals and review agencies, as well as hundreds of Crown corporations and their subsidiaries. The list is frequently updated. Pursuant to s.77(2) the Governor in Council may, by order, amend Schedule 1 by adding thereto any department, ministry of state, body or office of the government of Canada. Deletions from the list of government institutions must be approved by parliament.
In addition, a private entity that does business with the Government of Canada is subject to the federal Access to Information Act and the Privacy Act concerning matters within the scope of their work for the Government.[1]
The ATI Law (Article 1) recognizes a right to request and receive comprehensive, truthful, adequate and timely information from any state institution, including state enterprises, and private entities that receive public money to conduct state business.
Section 5(1)(a) of the Access to Information Act 2002 provides that the Act applies to all public authorities. "Public authorities" is defined in the Act to include any government company which is wholly owned by the Government or an agency of the Government, or in which the Government holds more than 50% of the shares. Section 5(3) states:
The Minister may by order, subject to affirmative resolution, declare that this Act shall apply to ... "(b) any ... body or organization which provides services of a public nature which are essential to the welfare of the Jamaican society, or to such aspects of their operations as may be specified in the order.
Section 5(3) has not yet been applied to an actual case.
The Law on Federal Transparency and Access to Public Government Information does not appear to apply to private bodies of any kind or even to state owned enterprises. Article 3, para. XIV of the Law lists the bodies that are compelled to provide information, namely: the Federal Executive Power, the Federal Public Administration, the Office of the Attorney General; the Federal Legislative Power; the Federal Judicial Power; any autonomous constitutional body; any federal administrative court; and any other federal body.
The constitutional reform to Article 6 of the Constitution published in July 2007 includes an obligation to publicize any public funds given to private bodies or individuals. Subsection VI states that "[t]he laws will define the form in which the obliged entities will have to make public information related to public resources which they give to legal or moral persons [meaning individuals and public or private legal entities]." [unofficial translation] This reform is now the law of the land although the law to implement the provision has not yet been passed.[11]
The Constitution of Panama was amended in 2004 to provide for the right of access to information held by the state or by private companies involved in work of a public nature.[12] The ATI law applies to, among other bodies, any private entity that offers public services or executes administrative functions.
Article 9 of the Law on Transparency and Access to Public Information 2003 requires private sector bodies that offer public services or are responsible for public administrative duties to report the characteristics, costs and functions of services.
The FOIA expressly applies to any "government corporation" or "government controlled corporation." 5 U.S.C. sec 552(f)(1). The FOIA does not apply to private entities and any bodies that "are neither chartered by the federal government [n]or controlled by it." Forsham v. Harris, 445 U.S. 169, 179-80 (1980). See also Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980). However, government agencies may be obliged to disclose information submitted to them by private entities pursuant to the FOIA or other laws. Information generated by private entities that could be disclosed to the public (pursuant to FOI or other laws) includes the following.[13]]
Subject to FOIA
1. Information prepared by the private sector and submitted to the government, whether voluntarily or pursuant to other laws, is fully subject to FOIA (subject, as always, to various exceptions, e.g., for trade secrets, commercial confidentiality or national security).
2 FOIA amendments passed in 2007 inserted in the statute an expanded definition of "record" subject to FOIA to include information "maintained for an agency by an entity under Government contract, for the purposes of records management." (Sec. 552(f)(2)(B).) This is a narrow provision, but is not inconsequential.
3. Records that are created or maintained by a private contractor under contract with an agency may be considered "agency records" under the control of the contracting agency in certain circumstances, depending on the degree of government control over those records.
Not subject to FOIA
4. Information that is collected and maintained by a private entity is not automatically subject to the FOIA even though it may both be paid for by the government and intended for use in agency decision-making. . Forsham v. Harris, 445 US 169 (1980). Even where the government contracts out government functions, the FOIA does not apply to the contractor and - under Forsham - the government has no responsibility to take possession of the information and make it available under FOIA. This is a major loophole in U.S. law.
Subject to Disclosure Pursuant to Laws other than FOIA
5. Some laws require the government to collect information for the express purpose of making it available to the public. A great deal of environmental information (about toxic releases; air pollutants; effluents into waterways) falls into this category. Examples include campaign finance information and the Environmental Protection Agency's toxic release inventory.
6. Other laws require private entities to provide information to the government - such as chemical facility worst-case scenario reporting - to which the public has limited availability.
7. Private entities are required to make some types of information available to the public as well as the government. This category includes pharmaceutical product package inserts, and some tax forms and annual reports. For instance, nonprofit organizations are required to publish their annual Tax Form 990, which includes the salaries of top paid Board and staff members and other major expenditure lines; income, including total amounts from private and public donors (without needing to name the sources); names of any top-paid staff or Board members who are related to each other; and statement of accomplishments.
Corporations are required to make public, in their tax forms and annual reports, audited financial data, compensation and benefits for top officials, and any events that may have a material affect on the value of their shares.[14] The Securities and Exchange Commission has explained the rationale for such transparency as follows: "The laws and rules that govern the securities industry in the United States derive from a simple and straightforward concept: all investors, whether large institutions or private individuals, should have access to certain basic facts about an investment prior to buying it, and so long as they hold it. To achieve this, the SEC requires public companies to disclose meaningful financial and other information to the public. This provides a common pool of knowledge for all investors to use to judge for themselves whether to buy, sell, or hold a particular security. Only through the steady flow of timely, comprehensive, and accurate information can people make sound investment decisions."[15]
8. Private companies are required to make a great deal of consumer information public, even though not required to submit the information to government. This information includes privacy policies, credit disclosure terms, food labeling and health warnings.
ATI laws apply to government owned or controlled enterprises in at least six Asian countries -India, Japan, Nepal, the Philippines, South Korea and Thailand - and one territory, namely Hong Kong. Indonesia's ATI law, passed in April 2008, requires state owned enterprises (SOEs) to disclose certain information, primarily of an administrative nature. China's Disclosure of Government Information Regulation, which entered into force May 2008, does not extend to SOEs at all. The laws of at least two countries - India and South Korea - extend to private bodies that perform public functions, and India's law also applies to private bodies based solely on their receipt of private funds.
Authorities subject to the Act's coverage include "a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order-in-Council," other than several exemptions, or "(b) any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act ...."
The Code on Access to Information lists, in Annex A, the departments and other bodies to which the law applies. Some of the bodies appear to be state-owned enterprises, such as Invest Hong Kong and the Telecommunications Authority.
The RTI Act covers any body that is owned, controlled or substantially financed directly or indirectly by funds provided by the Central or State Governments (section 2(h)(d)(i)). and any non-governmental organization that is substantially financed directly or indirectly by funds provided by the Central or State Governments (section 2(h)(ii)). However there is little clarity and hardly any implementation guidelines for identifying bodies in the private and NGO sectors under these criteria.
The Central Information Commission has used the criterion provided in another law to determine whether a body is substantially financed by the Central Government. The law governing the powers and duties of the Controller and Auditor General (C&AG) states that a body will be considered to be substantially financed by the government if it receives grants or loans from the Central or State Governments totalling more than (a) INR 2.5 million (about US$ 60,000) or (b) 75% of its total budget.[16]
All estates and properties of a religious nature including mosques, madrassas and other Islamic charities in India are controlled by Wakf Boards set up under various state and central laws (see Wakf Act 1995), and so are covered by the RTI Act directly.
The State Information Commission of Goa has found all Hindu temples managed by a body of trustees to be public authorities for purposes of the RTI Act as they are effectively controlled by the State Government under existing statutes.[17]
Some states like Madhya Pradesh and Chhattisgarh have established minimum amounts of grants or funding received from government during a given financial year that subject an NGO to direct coverage by the RTI Act. However, these guidelines have not been used adequately to identify all bodies covered by the RTI Act in those states.
In Electronics and Computer Software Export Promotion Council, the Delhi High Court ruled that a "trade facilitation organization" is a "public authority" because of (a) financial support and (b) administrative control, and therefore must abide by the RTI Act. The applicant alleged sexual harassment against two officials of the Electronic and Computer Software Export Promotion Council (ESC). When she requested information about the committee that was established to investigate the allegation, ESC argued it did not need to release the information because it was not a "public authority" for purposes of the RTI Act because it had autonomy to make its own rules and its employees were not government employees. First the Central Information Commission, then the High Court, disagreed. An organization is a "public authority" if it discharges public functions and meets financial and administrative criteria. The High Court relied on the fact that ESC receives over half of its budget from the central government. Significant administrative factors included the fact that ESC is audited by a government department, reported to the central government through a department, and received department assignments. This "public authority" nature was not negated by the ESC's autonomy in framing its rules governing the service conditions of its employees or by the fact that ESC employees are not considered government servants.[18]
In a separate case, the Central Information Commission held that all electricity distribution companies (DISCOMS) in the national capital Delhi are public authorities within the meaning of the RTI Act. The DISCOMS challenged this decision before the High Court claiming that they are privately owned and managed companies and did not meet the criteria mentioned in the RTI Act. The High Court referred the matter back to the Central Information Commission with the advice that the matter be heard once again by the full bench and an opportunity be given to the DISCOMS to present their case. After conducting more hearings the CIC arrived at the unanimous decision that the DISCOMS were indeed substantially financed by the Government of Delhi because assets of huge monetary value had been handed over to the DISCOMS when the original public sector power utility was privatized and split into multiple entities. The DISCOMS challenged this order before the High Court for a second time, with the same result.[19]
Article 14 of the Law on Public Information Transparency provides a list of the kinds of information that "a State Corporation, a Regional Corporation and/or other state-owned corporations" are obliged to provide under the law:
a. the name and domicile, purposes and objectives as well as the type of business activities, period of establishment, and the capital, as stated in the Articles of Association;
b. the full name of the shareholders, members of the board of directors, and members of the board of commissioners of the corporation;
c. the annual report, financial report, balance of profit and loss account, and the audited report on the social responsibilities of the corporation;
d. the result of the evaluation by an external auditor, a credit rating institute, and other rating institutes;
e. the system and allocation of the remuneration fund of the members of the board of commissioners/board of supervisors and board of directors;
f. the mechanism of appointment of the board of directors and the board of commissioners/the board of supervisors;
g. legal cases that under the Law are open as Public Information;
h. the implementation directives for the proper management method of a company, based on the principles of transparency, accountability, independency and fairness;
i. the announcement on the issue of stocks on credit;
j. the substitution of an accountant who is the company's auditor;
k. the change of the company's fiscal year;
l. government assignment activities and/or public service or subsidized service obligations;
m. the mechanism of the procurement of goods and services; and/or
n. other information determined by the Law pertaining to a State Corporation/a Regional Corporation.
The above list, while detailed, does not cover a great deal of information of public interest. For instance, while the law covers "the mechanism of the procurement of goods and services," it does not necessarily require disclosure of the criteria for evaluating bids, and it clearly does not require disclosure of the contracts actually awarded. Nor does it require disclosure of information that would enable the public to evaluate an SOE's efficiency or effectiveness, such as statistics concerning output.
Indonesia's law also requires political parties and non-governmental organizations (NGOs) to disclose certain kinds of information, albeit fewer categories than required to be supplied by state owned enterprises. One requirement for NGOs raises concerns: namely, a requirement that they disclose "the management and use of funds originating from the state budget and/or the regional budget, contributions from the people and/or from overseas sources". If that provision merely requires disclosure of "the management and use of funds" from whatever sources, then it raises no concerns, but if NGOs are required to disclose the names of, and amounts contributed by, individuals and overseas sources that would be problematic.
Japan's Law Concerning Disclosure of Information Held by Administrative Organs gives a legally enforceable right to any person to request administrative documents from administrative organs covered by the statute. A separate law, enacted in November of 2001, extended the coverage of the Act to public service corporations.
The Official Information Disclosure Act covers any "government-invested institution provided for in Article 2 of the Framework Act on the Management of Government-Invested Institutions, and other institutions prescribed as such by the Presidential Decree."[20] Article 2 states that institutions subject to the Act are "corporations in which the Government invests 50 percent or more of paid-in capital," except for several named corporations, including the Korea Broadcasting Corporation.[21]
New Zealand's Official Information Act (OIA) applies to state-owned enterprises. Section 12 allows requests to be made to "a Department or Minister of the Crown or organization," and section 2 and the First Schedule define "organization" broadly. When the State-owned Enterprises Act was passed in 1986, it provided (in section 31) for a Select Committee review of the operation of the OIA and Ombudsmen Acts to SOEs after three years. That review reported to the House in 1990, and did not recommend any changes. Despite occasional complaints from SOEs that the OIA regime impairs their competitiveness, they remain subject to the OIA. In addition, Section 2(5) of the Act deems information held by private contractors that perform work for a government agency to be held by the contracting agency.
The Constitution's guarantee of the right to information covers government-owned and controlled corporations. However, there is no legal basis for extending the scope of coverage to private entities. Disclosure of information by private bodies is governed by government regulatory bodies, such as the Securities and Exchange Commission and the Energy Regulatory Commission. The public does not have a direct right of access to such information.
The African Commission on Human and Peoples' Rights, in its Declaration of Principles on Freedom of Expression in Africa, declared in Article 4(2) that "The right to information shall be guaranteed by law" in accordance with several principles, including that "everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right .. . ."[22]
Law No. 11/02 on Access to Administrative Documents applies to private bodies that exercise public functions.
Until 2007, the Israeli FOI Act did not apply automatically to government-owned corporations. The law was amended in 2007 and now includes all government owned corporations; the Justice Minister, with consent of parliament, is authorized to exempt, and has on occasion exempted, certain activities of a company, for instance, on national security grounds. A "government owned company" is defined in Israeli law as any company in which the government holds more than 50% of the shares. There are more than one hundred government-owned corporations including the national water, electricity and cross-Israel highway companies.
The FOI Act applies to some specified not-for-profit private entities, including universities and health service providers, that receive funding from the government based on the number of students or patients they serve. The FOI Act does not expressly apply to any other private entities. There has been some dicta (court statements that are not part of a ruling) suggesting that some privately-held information could be subject to the Act based, however, on principals outside the Act. In addition, information that private entities submit to government agencies whether voluntarily or pursuant to law is subject to disclosure by the agencies that hold the information. Considerable information is covered, especially concerning environmental issues (for instance, information gathered on industrial waste from private entities).[23]
In the Mittal Steel case, the respondent company had at one time been a state-owned company (then named Iscor) that was then privatized. The requester - a "determined student," according to the Supreme Court of Appeal - sought the records as a part of his academic study of state corporations in the 'old' South Africa. In a well-reasoned judgment, Judge Conradie observed [at para. 22] that:
In an era in which privatization of public services and utilities has become commonplace, bodies may perform what is traditionally a government function without being subject to control by any of the spheres of government and may therefore, despite their independence from control, properly be classified as public bodies. [24]
In finding that Iscor not only was under the control of the state at the time but was performing a public function in providing South African industry with a supply of government-regulated steel, the SCA made clear that the term "public bodies" within the meaning of the PAIA includes previously public bodies that had been privatized.
The ATI Act 2005, by Articles 2 and 4, applies to "statutory corporations."
A few ATI laws expressly exempt public media from their coverage. For instance, Canada's ATI Act (s. 68.1) provides that its provisions do not apply to the work of the Canadian Broadcasting Corporation. In contrast, the FOI laws of the United Kingdom and Ireland cover public broadcasters (including the BBC, Channel 4 and Gaelic Media Services) except for information that is held, in the United Kingdom, for the purposes of journalism, art or literature,[25] and in Ireland, covering information only in respect of non-programmatic functions (management, administration, finance, commercial communications and the making of contracts). The UK's Information Tribunal, which decides appeals from the Information Commissioner's decisions, in 2007 ruled that the BBC had to disclose minutes of a meeting of the BBC Board of Governors regarding the BBC's coverage of a news story of high public interest and the termination of employment of its Director General.[26] Slovene National TV is covered by the ATI Act because it is a public service contractor.[27] The Information Commissioner has decided a few cases ordering SNTV to disclose information, including salaries of the management and top ten paid journalists.
From time to time, public broadcasters have argued that they should not be required to disclose information because compelled disclosure would violate their media freedom and independence. The following case from Korea provides sound reasoning for rejecting that broad claim under the given circumstances.
The broadcast media, both public and private, are subject to disclosure of information under the Broadcasting Act of 2000. Article 90 states: "A broadcasting business operator engaged in general programming or specialized programming of news reports shall, under the conditions as prescribed by the Presidential Decree, disclose the information concerning the broadcasting business requested by the viewers."[27] The access to information clause of the Broadcast Act covers all of the broadcasting stations, except KBS (Korean Broadcasting System), a government-invested corporation, and EBS (Educational Broadcasting System), which was established under the Korea Educational Broadcasting System Act. The Official Information Disclosure (OID) Act applies to the KBS and EBS. The application of the OID Act to the KBS was confirmed by the Seoul High Court, a court of second instance, which affirmed the ruling of the Seoul Administrative Court[28] that the KBS is a "public institution" covered by Article 2-3 of the Official Information Disclosure Act, regardless of whether, as a government-invested institution, it is subject to exemption pursuant to the Framework Act on the Management of Government-Invested Institutions.[29] The case started in November 2006 when Han, a supporter of Dr. Hwang Woo-Suk, a disgraced biomedical scientist who had been accused of fabricating stem cell research, asked KBS for a tape on Dr. Hwang that had been edited by a KBS TV producer without authorization, but had not been used for any KBS broadcast. The Court further ruled that the requested tape was "information" under the information disclosure law; although the tape was edited by a KBS employee without permission, it was still prepared, obtained, and managed by KBS. Importantly, the Court ruled that compelled disclosure of the tape would not violate media freedom under the Constitution and the Broadcasting Act. The Court reasoned as follows:
The Plaintiff's request is for disclosure of the information, not for broadcasting of the information. So, we cannot consider the request to be a direct restriction to or interference with the Defendant's freedom of the press or with its freedom and independence of programming. ... If the Defendant's argument based on freedom of the press and the broadcaster's independence is not specifically applied to any of the exempted categories under Article 9(1), freedom of the press and the freedom and independence of broadcasting cannot constitute grounds for rejection of the information request.
The Court made four other key holdings: disclosure would not violate rights to privacy or copyright, the tape was not exempt as a document under preparation, and the request could not be excluded as vexatious even though more than 23,000 others had submitted similar requests. [Note: each of the bolded words will link to different sections of this website.]
In most countries, requesters may obtain information from government agencies that the agencies have collected. In many of these countries - including India, the Netherlands and the United States - the authority for some such "indirect" public access is conferred by the RTI law itself, although other laws impose the obligation to report the information to government. India's RTI Act is exceptional in that, if a citizen requests information that a public authority may collect, but has not collected, the authority is obliged to collect the information and make it available to the requester. Many European countries grant a right of indirect access to environmental information under the Aarhus Convention.
The RTI Act, section 2(f), extends the right of access to "information" relating to private bodies, even when they are not covered directly by the RTI Act, if a public authority can access the information under any other law in force. A citizen must seek such information from that public authority and not from the private body directly. For example, it is mandatory for all industries and factories in the public and private sector to obtain environmental clearance and pollution certificates from Pollution Control Boards (PCB) at the central and state level, under The Air (Prevention and Control of Pollution) Act, 1981.. Information about these bodies is available from the PCBs. While a citizen can get this information directly from industries in the public sector, he/she can obtain this information about privately owned industrial establishments from the PCB. Even if public authorities have not collected and maintained information that they are authorized to collect from a private body under any other law, citizens may request such information and the public authority will be obliged to collect the information and make it available to the requestor.
[2D-D-D-D-D-D-D-8] Information supplied by Natasa Pirc, Information and Data Protection Commissioner, www.ip-rs.si/?id=195
[2] See paragraph on Panama in Section on Constitutional Protections. The constitutions of at least three other countries - Poland, Serbia and South Africa - expressly extend the right to information to state owned enterprises and/or private entities that exercise public functions as well as to public authorities. Indeed, South Africa's Constitution guarantees a right of access to "any information that is held by another person and that is required for the exercise or protection of any rights." See paragraphs on Poland, Serbia and South Africa in Section on Constitutional Protections.
[3] Paragraph 13 reads in part: "Nevertheless, whilst recognizing that all depends on each Party's interpretation of what is considered a public function, Parties are invited to extend the scope of the Convention to bodies exercising public functions.
[4] Directory Advertising Cost Cutters v Minister for Posts, Telecommunications and Broadcasting and Others 1996 (3) SA 800 (T); Korf v Health Professions Council of South Africa 2000 (1) SA 1171 (T); Ngubane v Meisch No and Another 2001 (1) SA 425 (N).
[5] Several of the points in this section were suggested by Thomas Susman, former partner with the law firm of Ropes & Gray LLP and, since April 2008, Director, Governmental Affairs Office, American Bar Association. He does not necessarily endorse the recommendations in this section.
[6] See, e.g., the 1990 report of New Zealand's Select Committee on review of the impact of the Official Information Act and Ombudsmen Act on SOEs, discussed in subsection on New Zealand in this section.
[7] Banisar, Liechtenstein, Survey of Freedom of Information Laws Around the World, www.freedominfo.org.
[8] Law on Access to Information, http://www.legislationline.org/documents/action/popup/id/6394.
[9] Information supplied by Roger Vleugels, lecturer and legal advisor on FOI, and editor/publisher of Fringe Splitting.
[10] Information supplied by Katherine Gunderson, Campaign for Freedom of Informahtion. The Campaign's response to the consultation is at http://www.cfoi.org.uk/pdf/CFOI_s5response.pdf.
[1] Information supplied by Sharon Polsky, President, Project Scope Solutions Group, and National Chair, Canadian Association of Professional Access and Privacy Administrators CAPAPA,
NationalChair@CAPAPA.org.
[11] Information provided on Sept. 23, 2008 by John M. Ackerman, Professor, Institute for Legal Research, National Autonomous University of Mexico.
[12] Constitución Política de la República de Panamá, Arts.42-43.
[13] Information supplied by Thomas Susman, formerly a partner with Ropes & Gray LLP and since April 2008, Director, Governmental Affairs Office, American Bar Association.
[14] While specific disclosure requirements vary, the types of information that public companies generally are required to disclose, pursuant to federal securities laws and Securities and Exchange Commission regulations, include the following:
[15] United States Securities and Exchange Commission, The Investor's Advocate: How the SEC Protects Investors, Maintains Market Integrity, and Facilitates Capital Formation, available at http://sec.gov/about/whatwedo.shtml.
[16] Section 14, C&AG's (Duties, Powers and Conditions of Service) Act, 1971. See Veeresh Malik v. Department of Sports, New Delhi, decision dated 28/11/07, Appeal No. 163/ICPB/2006.
[17] Shri Guiri S. Pai Raikar V PIO, Mamlatdar of Ponda Taluka, decision dated 19/02/2007 in complaint case no. 17-A/2006/MAM-Ponda. See http://egov.goa.nic.in/rti/docs/600000/com%2017-A-2006-Mam-Ponda.pdf
[18] Electronics and Computer Software Export Promotion Council v. Central Information Commission & Navneet Kaur (Delhi High Court Writ Petition (C) No.11434/2006, decided 19 July 2006. ESC info at: http://www.escindia.in/. CIC decision at: http://www.cic.gov.in/CIC-Orders/Decision_18052006_07.pdf
[19] Sarbajit Roy v Delhi Electricity Regulatory Commission, appeal case no. CIC/WB/A/2006/00011, decided 30/11/06, and further decision in same case dated 16/03/2006.
[20] Official Information Disclosure Act, Art. 2-3. The "other institutions prescribed as such by the Presidential Decree" under Article 2 of the Framework Act on the Management of Government-Invested Institutions refer to:
Enforcement Decree for the Official Information Disclosure Act, art. 2, Presidential Decree No. 18493, July 29, 2004.
[21] The Framework Act exempts from the ATI law's coverage "the Korea Broadcasting System established under the Broadcasting Act, the Educational Broadcasting System established under the Educational Broadcasting System Act, the Korea Development Bank established under the Korea Development Bank Act, the Industrial Bank of Korea established under the Industrial Bank of Korea Act, the Export-Import Bank of Korea established under the Export-Import Bank of Korea Act, and financial institutions as prescribed in Articles 2 and 5 of the Banking Act." Framework Act on the Management of Government-Invested Institutions, Act No. 3690, Dec. 31, 1983, last amended by Act No. 8258, Jan. 19, 2007.
[22] African Commission on Human and Peoples' Rights, adopted at its 32nd Session, 17 - 23 October, 2002: Banjul, The Gambia.
[23] Information supplied by Roy Peled, Freedom of Information Movement in Israel.
[24] Mittal Steel South Africa LTD (Formerly Iscor Ltd) v Hlatshwayo 2007 (1) SA 66 (SCA). Mr. Hlatshwayo was represented by the Open Democracy Advice Centre.
[25] UK FOIA, Schedule I, Sect 6. http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_10#sch1. The BBC (along with most other public authorities) has dedicated a webpage to FOI: http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_10#sch1. Information re: Ireland supplied by Prof. Maeve McDonagh, University College Cork.
[26] Guardian Newspapers & Heather Brooke v. Information Commissioner, Information Tribunal, Appeals Numbers EA/2006/0011 and EA/2006/0013, decision of Jan. 8, 2007, at http://foiwiki.com/foiwiki/info_tribunal/DBFiles/Decision/i81/Guardian%20Brooke.pdf. For a summary of this decision, see BBC case.
[27] Broadcasting Act. Art. 90(5), Act No. 6139, Jan. 12, 2000, last amended by Act No. 8867, 2008.
[28] These points are quoted in the decision of the Seoul High Court, in Han v. Korean Broadcasting System (defendant/appellant), Seoul High Court case no. 2007 Nu 24731, of July 2, 2008, http://www.scourt.go.kr/dcboard/DcNewsViewAction.work?bub_name=¤tPage=undefined&searchWord=%C1%A4%BA%B8%B0%F8%B0%B3&searchOption=000200&seqnum=3659&gubun=44. This case was summarized by Prof Kyu Ho Youm, who also translated excerpts of the court's opinion into English. See List of Contributors.
[29] For the text in English of the Official Information Disclosure Act, see http://www.open.go.kr/pa/html/eng_RetrieveInfoDisclosureGuide01M.htm. Article 2 of the Framework Act on the Management of Government-Invested Institutions states:
(1) Government-invested institutions which are subject to this Act ... shall be corporations in which the Government invests 50 percent or more of paid-in capital;
(2) Notwithstanding the provisions of paragraph (1), this Act shall not apply to the Korea Broadcasting System established under the Broadcasting Act, the Educational Broadcasting System established under the Educational Broadcasting System Act, the Korea Development Bank established under the Korea Development Bank Act, the Industrial Bank of Korea established under the Industrial Bank of Korea Act, the Export-Import Bank of Korea established under the Export-Import Bank of Korea Act, and financial institutions as prescribed in Articles 2 and 5 of the Banking Act.
Framework Act on the Management of Government-Invested Institutions, Art. 2, Act No. 3690, Dec. 31, 1983, last amended by Act No. 8258, January 19, 2007.
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