An overview of the different types of national legislation and procedures on access to information, with practical tips on how to plan and submit an access to information request.
Most modern access to information laws grant the right to request information to any person or organisation, without discrimination on any grounds.
In some countries, however, the applicant must be a resident or citizen, even though some international instruments prohibit discrimination on the basis of domicile (place of residence).
EXAMPLE: Article 3(9) of the Aarhus Convention states:
“Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.”
See further: Aarhus Convention (pdf) *
Generally, you can ask for disclosure of any kind of information held by a public body regardless of its form (written, visual, aural, electronic, etc.), its owner, or its author.
Some national laws give you the right to access “information”, and others guarantee access to “documents”, whereby the word “document” is usually defined broadly and includes records of any kind, including audio and video recordings or electronic files.
In most cases this distinction is not important. It is only significant if you need a copy of the original document to inspect a visible feature of it. Examples of such features would be the original document’s format, a signature or a stamp that would not necessarily be visible in other content forms.
Whether the approach is “access to information” or “access to documents”, public bodies are usually only required to disclose information that is contained in an existing document. They are not obligated to generate new information or documents.
EXAMPLE: You would be able to request the budget of a specific governmental department, but a request for a ministry’s opinion on a particular matter would normally fall outside the access to information law, unless that opinion had already been recorded and held in any form by the requested agency.
Electronic documents
In many countries it is unclear to what extent public bodies are required to respond to requests for an extract from an electronic database. A sensible approach followed in some countries is that public bodies are required to create the extract if the necessary search query can be created without an unreasonable effort.
For more information, see the see the
LegalLeaks toolkit Guide for journalists on how to access government information, [pdf], chapter: “Access to an entire database”.
Limitations: documents related to official functions
In some countries, the right of access is limited to information or documents that are related to the public body’s official functions. Under such legislation, it would not be possible to request, for example, personal documents held by a civil servant in his or her office, since these are not “official documents”.
Other laws would deal with this issue at the level of exceptions (meaning that a request of this kind might be refused on specific grounds, such as privacy).
See further Section 8 on “Exceptions”.
There are three main routes to obtaining information:
a) Publicly available information
Check whether the information you need is already publicly available in any recorded form. Some governments publish documents in official registers or through libraries, which may be accessible online.
EXAMPLE: An example of an online register is the register of official documents of EU institutions. Here is a link to the Commission’s register. Some of the documents listed are available directly through the website; others can be requested.
There are also traditional ways of publishing information, such as a notice board of the local council, a printed official gazette, television or radio broadcasts of plenary sessions of Parliament or local council.
b) Information from public bodies and private bodies with a public function
Many countries and international organisations have adopted access to information rules that explain what information can be requested from public bodies, from whom, by whom and how. In some countries these rules also apply to private bodies that perform a public function, such as a power company or privately run hospital.
c) Information from private bodies
In general, private bodies, such as companies, are not required to disclose their internal documents by law (although they may have to if they perform a public function).
However, companies must provide a minimal degree of transparency through company registers. The information contained in these registers varies from country to country, but basic details such as the official name, seat, names of representatives, registration number, tax number and so on are likely to be recorded and accessible for the public.
In some cases, a court may order a private body to disclose documents to an opponent in legal proceedings.
TIP: Before further disseminating information obtained in any of these ways, check whether there are any limitations attached to its use. Sometimes, information may be copyrighted, even if it is found in a public register. The body or entity that provides this information will usually inform you whether the information must be treated confidentially or whether other restrictions apply.
Step 1: find out:
Step 2: Assess where the best place to request the information is.
Usually you will want to file the request where you are most likely to get disclosure. You may also choose to request the information from several different places at the same time. Consider what fees will apply to each request when forming your strategy.
It varies from country to country which bodies are covered by the access to information law.
Normally the freedom of information law also lists all the bodies that are exempted from the law. However in some countries exemptions are scattered in other pieces of legislation.
Even if a body is exempted, it is still worth trying to file a request for information, although it may be more difficult to appeal if your request is refused.
RESOURCE: For more considerations on where to file a request, see the LegalLeaks toolkit Guide for journalists on how to access government information. [pdf]
EXAMPLE 1: Which country to request information from?
If you are investigating corruption in relation to a project in country A, the information you need may include the minutes of meetings between a company and a government representatives in country B, which may have a better access to information law.
EXAMPLE 2: Requests to multiple sources.
A group of European journalists wanted to know who benefits from the agricultural subsidies given by the European Union. They requested information from both the individual EU member states and from the EU itself and succeeded in obtaining detailed accounts of farm subsidies from multiple sources. This information now forms the basis of a website aimed at improving the transparency of the subsidy system. (see: Farmsubsidy.org: frequently asked questions )
Right to information laws exist in more than half of the countries of the world.
However, if your country has no standalone right to information law, there are three places where you may find such legal provisions:
EXAMPLE:
“Everyone has the right of access to:
a. any information held by the state; and
b. any information that is held by another person and that is required for the exercise or protection of any rights.”-Constitution of the Republic of South Africa (pdf) (1996), Article 32, Access to Information.
Before you make a request for information, consider whether there may be any risks in doing so and if there are, think about how you can manage those risks. Ask yourself:
a) is there a risk to your security?
Could any action be taken against you in response to your making an official request? Consider in advance how to protect yourself and whether there is a better way of getting the information. For example, could another group ask for it, such as a coalition, a national civil society group, a lawyer or journalist?
b) Is there a risk to the information that you are requesting?
Could a person or office who holds the information destroy it before you can access it? If so, are there any preliminary steps you should take? For example, could a court grant an order requiring named officials to produce the information?
If the information is available in several places, should you make several requests at the same time to the different Government offices where it is held?
Is there any (publicly available) official register that can prove the existence of the document you need?
c) Is there a risk in how you are planning to use the information?
Can you protect the security of the information once you have obtained it? For example, is there a trusted person to whom you can send it anonymously?
A request for access to information must be addressed to the relevant body. In most cases this is the body that holds the information.
There might be formal requirements on how the request itself should look. Such requirements may be found in the law providing the right of access to information.
Usually not much more is needed than stating clearly which information you want, in which form, and where it should be sent.
In some countries and cases, the person filing the request has to show that s/he has a legal interest in obtaining the information. In such cases it would be necessary, when filing the request, to argue why the information is needed.
Usually, requests for information can be made by mail, email, telephone or fax.
a) Filing a request: Dos and Don’ts
b) What if the information is not held by the body concerned?
If the information is not held by the body you requested it from, the law of most countries says that the body must either transmit your request to the body that does hold the information, or inform you where you can send your request.
When you file your request, add a line saying that in the event the information is held elsewhere, you kindly ask for your request to be transferred, and for you to be notified of this step.
c) What are the deadlines for a response?
The deadline for responding to a request for information will differ from country to country and will also depend on the kind of information requested. Typically the term is between 15 and 30 days counting from when they receive your request.
The deadline for responding to a request can be found in the law dealing with the right to access to information.
In many countries, the body which receives the request may take more time to answer a request that they consider unusually complex. For example, if a request must normally be answered within 15 days, a typical rule would be that this can be extended by a further 15 days if it is considered unusually complex.
The authorities must then notify the requester that more time is needed due to the complexity of the request.
Experience in many countries shows that requests are routinely treated as “unusually complex”.
d) In which form must the reply be given?
Typically, the answer must be given either in the same form in which the request is made – for example, a request made by telephone can be answered by telephone – or in writing.
e) In which form must the information be provided?
The law in many countries allows the person requesting information to express a preference for the form in which the information is provided. This preference should be respected, unless this causes unreasonable practical difficulties. In other countries, the law simply states that a copy of the information must be supplied.
Whatever the law states, express a preference in your request for how you would like to receive the information.
If you are requesting a spreadsheet or database, you could for example ask for a file to be sent to you by email rather than receiving a paper printout in the mail. However, make it clear that you are just expressing a preference, so that you do not give the body a reason to refuse your request entirely if the information can only be provided in a different form.
f) Will filing a request for information cost money?
In most, but not all, countries, there is no charge for filing a request for access to information. However, if the information is disclosed, you may often be charged the cost of making photocopies and sending the information to you. Normally the law either sets out the price that can be charged per page copied and letter sent, or requires this cost to be realistic and to correspond to the actual price of copying and delivery.
If you are concerned about the cost you may face, you could ask for the information to be sent to you electronically (see also: «In which form must the information be provided?” above).
In a small number of countries, the public body may charge you for the cost of searching for the information and deciding whether to disclose it, in addition to the cost of copying and sending. If this is the case in your country, ask the public body to consult you beforehand if the cost of providing the information is expected.
In no country is the right to access to information absolute. There are always exceptions that can be used to refuse disclosure of information. These exceptions differ from country to country,
Typically information can be refused if disclosure would harm interests such as:
Under more progressive access to information laws, the fact that information merely relates to one of these subjects is not enough reason to refuse disclosure.
The body that wishes to refuse access must be able to show that disclosure would cause actual harm to the interest concerned, and that this harm outweighs the importance of transparency.
In many progressive laws you will find something called a “public interest test” or “public interest override” – a clause stating that information must be disclosed if the public interest in disclosure is greater than the harm it may cause.
When you make a request for access to information, analyse which exceptions may be applicable. Explain in your request letter why there is a high public interest in disclosure.
Partial access to documents and masking
Sometimes, the documents you request may contain some legitimately confidential information, such as someone’s private telephone number or other private details. Access to information laws usually state that confidential information should be separated as far as possible from the rest of the text to be disclosed. Typically this is done by masking or blacking out confidential parts.
In practice, public bodies are sometimes keen to save time and will refuse access to a document in its entirety if it contains some confidential information. When writing your request, expressly state that if a document contains some confidential information, you would like the remainder to be disclosed.
In which form should the refusal be presented?
Normally a refusal to disclose information should be provided in writing, and should indicate the legal grounds on which the refusal is based. If the body informs you verbally that your request is being refused, ask for written confirmation of this, along with the reasons. A written refusal may make it easier for you to formulate your appeal.
So-called silent refusals are a widespread problem. In many cases, even though a body may be under a legal duty to respond to a request for information, it will not do so within the deadline or will not do so at all.
In most countries, a failure to respond within the deadline is interpreted as a refusal to disclose the information. You can lodge an appeal against such a refusal.
However, unless you have received a written refusal, you will not know on which grounds the body concerned intends to justify its refusal during the appeal. Therefore, send a reminder first and if necessary, threaten to appeal if you do not receive a reply to your request by a certain date
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