European standards for public access to official information

by Helena Jäderblom

1. Introduction

Constitutional provisions or ordinary law relating to a general right of public access to official information exist in most European countries. More than 30 of the Council of Europe’s current 45 Member States have access legislation. Within the EU 21 of the 25 Member States have adopted access legislation and throughout the world over 50 countries have introduced such legislation. Many of these laws were introduced quite recently, from the 1990’s up until now.

Legislation on the principle of public access to official information is since long spread throughout Scandinavia; The Swedish system is by far the oldest as it dates back to 1766. Finland adopted legislation in this field in 1951, which is in the main accordance with the Swedish rules, and Finland has recently revised its system. Denmark and Norway followed in 1964 and 1970 respectively.

2. The individual right of access to official information in international law

2.1 The European Convention on Human Rights

The fundamental right to freedom of expression under Article 10 of the European Convention for Human Rights includes the right to receive and impart information without interference by public authorities.

The boundaries of the protection afforded by Article 10 as regards the right of access to information have been examined in some cases by the European Court of Human Rights. The Court has distinguished between on the one hand public and media access and on the other hand individual access to information, including the right of access to documents by individuals with a particular interest in obtaining the information.

The Court has stated that it is important that the public be enabled to obtain access to information from the authorities. The protection afforded by Article 10 has not been interpreted as to include a general right of access to information from authorities, but it has indicated that the public has a right to receive information of public interest and significance (e.g. the Observer and Guardian judgement, Series A no. 216, paragraph 59) and that media enjoys a privileged form of freedom of expression and information because of its role to inform about matters of public interest and the public’s right to receive such information (e.g. the Sunday Times judgement, Series A no. 30, paragraph 65).

The European Court of Human Rights has interpreted Article 8 of the Convention - the right to respect for privacy - in some cases regarding individual requests for access to information concerning the applicants (the Leander judgement, Series A no. 116, the Gaskin judgement, Series A no. 160 and the Guerra judgement, Reports 1998-1). The Court has stated that the right according to Article 10 to receive information forbids the State to interfere with an individual’s right to receive information, but does not impose on the State a positive obligation to collect, impart or disseminate information to individuals. Article 8, however, confers a right for individuals to receive from the authorities essential information concerning or affecting them personally.

To conclude, no general right of access to official information follows from the European Human Rights Convention, but the Convention encompasses, through Article 8, a limited right of access to information of personal interest to individuals.

2.2 The UN universal declaration on human rights

Article 19 of the UN universal declaration on human rights could in one respect be said to go one step further compared to the European Convention on Human Rights regarding freedom of information as it is inherent in this right not only the right to disseminate information but also ”to seek information”.

2.3 European Co-operation

2.3.1 The Council of Europe

The subject of public access to official information is on the agenda in various forums for European co-operation. The first step that was taken within the Council of Europe was the adoption in 1981 of the Recommendation No. R (81) 19 on the Right of Access to Information held by Public Authorities. In 2002 a new recommendation was adopted by the Committee of Ministers: Recommendation Rec (2002) 2 on access to official documents. This recommendation contains a number of principles that can be seen as a revision and development of the 1981 recommendation, mainly the following.

• Member states should guarantee a right of access, on request, to official documents held by public authorities, without discrimination on any ground, including national origin. (Principle III)
• Possible limitations (for the protection of national security, defence and international relations; public safety; prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; commercial and other economic interests, be they private or public; equality of parties concerning court proceedings; nature; inspection, control and supervision by public authorities; economic, monetary and exchange rate policies of the state; confidentiality of deliberations within or between public authorities for an authority’s internal preparation of a matter) should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting the listed interests. Access may be refused if disclosure of the information would be likely to harm such an interest, unless there is an overriding public interest in disclosure. (Principle IV)
• Applicants should not be obliged to specify any reason for their requests. (Principle V. 1)
• Formalities for requests should be kept to a minimum. (Principle V. 2)
• Requests should be dealt with by any authority holding the document. (Principle VI. 1)
• Requests should be dealt with on an equal basis. (Principle VI. 2)
• Requests should be dealt with promptly. (Principle VI. 3)
• Access should be allowed in the form of inspection of original documents or copies, taking into account, within reasonable limits, the preference by the applicant. (Principle VII. 1)
• Partial access to documents should be allowed if only part of the document is secret. (Principle VII. 2)
• Access to original documents on the premises of an authority should be free of charge, although a self-cost fee may be charged for supplying copies. (Principle VIII)
• Refusals should be possible to appeal before a court or another independent and impartial body established by law. (Principle IX)

The recommendation was elaborated within the Council of Europe by a group under the remit of the Steering Committee for Human Rights: The group of Specialists on Access to Official Information. This group has thereafter been instructed to evaluate, in the light of the recommendation “the existing national legislations in this field with a view to examining the advisability of elaborating a legally binding instrument on access to official documents”. The majority of experts in the group are of the opinion that work on elaborating a legally binding instrument should now begin. They decided at its last meeting in September 2004 to ask for new terms of reference allowing the group to pursue their work with a view of discussing the best type of convention, the possibility of monitoring machinery, and possibly preparing a draft convention.

2.3.2 The European Union

Within the EU the Treaty revisions in 1997 led to the inclusion of a provision in the EC Treaty (Article 255) that states that the European Parliament and the Council have to adopt rules on access to the documents of the European Parliament, the Council and the Commission, i.e. the three most important EU institutions. This has been done through a legal act adopted by the European Parliament and the Council in May 2001: The Regulation (1049/2001) on public access to European Parliament, Council and Commission documents. The EU regulation includes the following main features.

• All documents held by one of the three institutions, including both documents produced by the institutions and documents handed in by third parties, are covered by the scope of the rules. However some documents, inter alia documents from a member state that the member state has requested should not be released without permission from that state and documents classified for the protection of vital interests such as defence matters, are subject to special treatment. (Articles 3 and 4)
• Exceptions to the main rule of access shall be made in order to protect certain interests: public security, defence and military matters, international relations, the financial, monetary or economic policy of the union or one of its member states, physical or legal persons’ economic interests, judicial proceedings and legal advice, the purpose of inspections, investigations and audits, privacy and personal integrity and preliminary internal deliberations. All these exceptions are conditioned by a harm-test. Some of them do not apply even if a specific harm can be established as a consequence of the release of the document in question, if there is an overriding public interest in disclosure. (Article 4.1-3)
• If only part of a document is covered by a secrecy exemption the remaining parts shall be released. (Article 4.6)
• Each institution shall set up a public register of its documents. (Article 11)
• Documents shall be provided in the form requested by the applicant, either as a copy, including electronic copies if the documents exists in such a form, or in the original form at the premises of the institution. (Article 10)
• Applications for access to a document must be made in writing and specify to a certain degree what document is requested. The written applications can be made through e-mail or fax. (Article 6)
• Final decisions by the institutions refusing access can be appealed to the EC Court. (Article 8)

2.3.3 The Aarhus Convention