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Duty to Produce Information

last modified Sep 11, 2013 01:45 PM

Overview

Most traditional (20th century and earlier) access to information regimes have only required authorities to provide information to requesters that they hold or control. Some laws and courts have gone further, and now expressly require public bodies to: a) search for information that they should hold; b) analyse information that they hold and/or generate statistical information; and c) collect or create new information. Moreover, increasingly, modern laws have imposed a duty to proactively disclose information, which implicitly imposes a duty to collect or generate certain listed categories of information.

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Duty to Search for Records

The Model Inter-American Law on Access to Information states that “the public authority in receipt of the request [for information] must undertake a reasonable search for records which respond to the request” (Article 32). The authority also carries the burden of proving that the searches conducted were adequate (Article 54(2)). Since the State, unlike the requester, has exclusive and privileged access to the information on the availability of records, courts arguably should subject the claims on the adequacy of the searches to strict scrutiny.

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Duty to Analyse Information and Generate Statistical Information

A Romanian Court ordered the Minister of Public Finances (MPF) to provide information despite the minister’s claim that he did not hold the information. The Romanian Helsinki Committee (RHC) asked the MPF for various statistics on the handling of requests to waive court fees including the number of requests for different types of fee waivers, how many of those were granted between 1990-2002, the number of cases in which a different type of fee waiver was granted than requested, the number of complaints against the amount of court fees, and how many of those were approved. The MPF did not answer and denied the information after administrative appeal on the following grounds:

  1. the information was not of public interest because it concerned personal data;
  2. the MPF did not hold such information, and
  3. data processing would take longer than the maximum legal time-limit (30 days).

The Bucharest Tribunal’s Administrative Division found in favour of RHC on the grounds that (a) the information is of public interest, and (b) synthetic information is not personal data and does not fall under any exception from free access. The MPF appealed to the Bucharest Court of Appeal (BCA). The BCA upheld the first instance decision. It reasoned that there is public interest in the information and MPF should organize its activity to be able to provide information in due time (Romanian Helsinki Committee v. Minister of Public Finances, Bucharest Court of Appeal (BCA), file no.115/2003, decision no. 76/03.02.2003).

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Duty to Collect or Create Information Not Held by the Public Body

For instance, Latvia’s Freedom of Information Law ensures access to information “which an institution in conformity with its competence has a duty to create” (Article 5.1.).

Under the Indian Right to Information Act (Section 2(f)), 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.

Under the Model Inter-American Law, “[w]hen a public authority is unable to locate information responsive to a request, and records containing that information should have been maintained, it is required to make reasonable efforts to gather the missing information and provide it to the requester.”(Article 34).

In Asociación Civil por la Igualdad y la Justicia v. City of Buenos Aires an Argentine court ordered the City of Buenos Aires, upon application by an information requester, to comply with a separate law that required it to “develop a diagnostic map of the food and nutritional situation” in the city with a view to identifying malnutrition in disadvantaged communities. The City had failed to comply for more than ten years (Asociación Civil por la Igualdad y la Justicia v. City of Buenos Aires, Judgment of November 7, 2008, Amparo No. 27599).

In 2006, the Constitutional Court of Hungary ruled that the government is under a general obligation to maintain records, because failure to do so would directly and seriously restrict the public’s right of access to information and, accordingly, instructed the legislature to pass a law requiring records to be kept of cabinet sessions. The legislature duly passed such a law which, among other things, amended the regulations on preparation of minutes of cabinet meetings.

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Duty to Proactively Publish Information

Increasingly, freedom of information regimes are requiring public authorities to proactively collect, generate and publish several categories of information that are often considered basic administrative documents but indeed can be helpful in promoting democratic accountability. [1] Thus, the Model Inter-American Law requires authorities to proactively publish and regularly update some 16 different categories of information, which relate to their respective internal policies, services and operations, financial management, senior officials, and record-keeping systems (Article 12).

Courts in various countries have similarly recognized state obligations to generate information. The duty to gather or collect information – proactively or in response to a request –is most developed in the context of information of concern for public oversight and to ensure the responsibility of public officials. [2]

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[1] World Bank Institute (Darbishire), Proactive Transparency: The Future of the Right to Information? Working Paper Series.

[2] Claude Reyes v. Chile, para. 86; Joint Declaration by the Rapporteurs on Freedom of Expression from the UN, the OAS and the OSCE, December 6, 2004 (“Public authorities should be required to publish pro-actively, even in the absence of a request, a range of information of public interest.”); Inter-American Juridical Committee, Resolution 147 of the 73rd regular period of sessions. Principles on the Right of Access to Information, August 7, 2008, Principle 4; Model Inter-American Law on Access to Public Information, Articles 9 and 12 (detailing progressive obligations of proactive disclosure).

Archive

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

 

Relevant Cases

Case TitleCountry/ArbiterYear
Romanian Helsinki Committee v. Minister of Public Finances Romania 2003
Claude Reyes v. Chile Inter-American Court of Human Rights 2006
Asociación Civil por la Igualdad y la Justicia v. City of Buenos Aires Argentina 2008
In re the Constitutionality of Provisions on Record Keeping of Governmental Sessions Hungary 2006
Decision No. A97‐09 of the Transparency Council Chile 2009
Decision No. A080-09 of the Transparency Council Chile 2009

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Related Briefs and Submissions

Case TitleIntervenerCourt/ArbiterYearRelevant CiteDownload Brief
Gomes Lund v. Brazil
OSJI, CHRI, DAC, SAHA
Inter-American Court of Human Rights 2010 paras. 43-47, 93, English, Portuguese, Spanish
Guidel Álvarez and Others v. Guatemala

OSJI, APRODEH, CMDPDH

Inter-American Court of Human Rights 2012 paras. 58, 63 English, Spanish
Intervention Concerning the Constitutional Review of Colombia’s Proposed Transparency and Access to Information Law OSJI Constitutional Court of Colombia 2012 para. 31 English, Spanish
Thematic Hearing on ATI in the Investigation of Cases of Grave Violations of Human Rights in Peru OSJI Inter-American Commission on Human Rights 2012 para. 37 English

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