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Scope of Covered Information

last modified Sep 13, 2013 10:50 PM

The Council of Europe Convention on Access to Official Documents, adopted by the Committee of Ministers of the Council ofEurope on November 27, 2008 sets forth a broad definition of information subject to disclosure, similar to definitions in many ATI laws, especially those adopted in the past decade. Article 1(2)(b) of the Convention states that “official documents” that are subject to disclosure include “all information recorded in any form, drawn up or received and held by public authorities.”

This language represents an expansion of the definition of “official documents” set forth in the Council of Europe’s Recommendation (2002)2 on Access to Official Documents, adopted by the Committee of Ministers on February 21, 2002. That definition includes, word for word, the Convention text, with the following proviso: “and linked to any public or administrative function, with the excepation of documents under preparation” (Article 1 (ii)).

The Convention text thus constitutes an expansion in the understanding of what constitutes “information” in two respects: (a) information no longer must be linked to “any public or administrative function”; and (b) documents under preparation are no longer exempted. Rather, the treaty opens up the possibility of access to quasi-public information; and includes documents under preparation, which are, however, subject to withholding if they constitute “deliberations within or between public authorities concerning the examination of a matter” (Article 3(k)). This removal of the term “documents under preparation” followed submission to the drafting group of considerable comparative information documenting that most Council of Europe Member States no longer exclude “documents under preparation”. See Documents Under Preparation.

The Convention's use of both terms “documents” and “information” reflects the reality that many Access to Information (ATI) laws, especially the older ones, explicitly provide only for “access to documents,” whereas other laws, especially those adopted since the early 1990s, provide for “access to information,” often in addition to documents.

An information-based regime requires authorities to be responsive to requests for information, and to search documents and extract and compile information from various documents if the requested information has not already been compiled. Public authorities should, for instance, be under an obligation to answer questions about the types of documents they hold, or to report on how much funding was invested in certain types of equipment over a given multi-year-period.

Most information-based regimes only require authorities to provide existing information that they hold or control. A few have gone further to require the processing of information and even the generation of new information. For instance, Latvia’s Freedom of Information Law ensures access to information "which is at the disposal of institutions or which an institution in conformity with its competence has a duty to create" (Article 5.1.). Under India’s Right to Information Act (Section 2(f)), even if public authorities have not collected and maintained information that they are authorized to collect from a private body under any law, citizens may request such information and the public authority will have to collect that information and make it available to the requestor. See Duty to Search for, Analyse, Collect and Generate Information.

Under a strict information regime, requesters are not entitled to inspect or receive particular documents (or copies thereof); agencies may decide, for instance, to make available only a summary of the original. The drawbacks of this approach were recently illustrated when the UN Development Program Public Information and Documentation Oversight Panel refused to grant access to certain documents on the basis that a 300-word summary of their contents had satisfied the request. [1]

A document-based regime, in contrast, requires the production only of existing documents, with privileged information redacted. This approach severely limits access to information given that many requests on topics of great public interest relate to information that is not recorded in one or a small number of documents, but can nevertheless be derived with relative ease from existing files. A different problem occurs when certain information is not actually registered as an “official document” even though it is held by a public body. Older regimes that only give access to documents that are registered as official documents tend to be more limited. In practice, however, most access to information regimes also make provision for access to documents, with wide definitions of what is a document.

Access to documents is a significantly narrower right than access to information. In at least 23 member states of the Council of Europe individuals enjoy a right of access to information, often in addition to a right of access to documents: Albania, Armenia, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Georgia, Germany, Hungary, Ireland, Latvia, Macedonia, Moldova, Montenegro, Netherlands, Norway, Romania, Serbia, Slovakia, Slovenia, Turkey and the United Kingdom. Many laws do not draw any sort of distinction between information and documents and assume that both are covered. For example in Turkey, documents subject to the Law on the Right to Information’s coverage are defined as all information "included in the records of an institution” and may be of any format (Article 3(c)).

Three countries in which neither the Constitution nor law grants access to information are Denmark, France and Sweden. However, in Sweden, a request cannot be refused if it is possible to extract the information required by some routine measure (Freedom of the Press Act, Chapter 2, Article 3). In France, although only existing documents are subject to the ATI law and the administration is not compelled to create a document to meet a request, documents that can be created through a computerized process have to be produced (such as lists, for instance).

This is the practice in many countries, particularly where the administration does not hold information in a form best suited to respond to the information needs of the public. In this sense, access to information laws can be an important motor of reform of government information management, requiring authorities to organize information in a form that better suits decision-making and public participation.

In sum, few countries still maintain a strict distinction between access to information and access to documents. Experience suggests that a flexible approach to ATI that grants access to both documents and information best serves the interests of transparency. The public authority should be required (at the least) to provide full documents, if so requested, rather than summaries, and information compiled from existing documents.

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[1] Article 19, Press release, UNDP Disclosure Policy Gutted, 26 October 2006.