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Asha Kanta Sharma

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Right to Information - International Positions



Right to Information - International Positions

Right to Information (hereinafter read as RTI) which is the cynosure of this discourse is not something new. In fact there is a long history at international level towards the attainment of this right and mobilization of the masses for achieving it. With development
of human ideals and establishment of democratic governments in most of the civilized countries, this topic came to the fore.
The United States and Sweden constitute the two main models for Freedom of Information. While the Swedish law is a precedent to the American one by 200 years, both are considered important legal precedents that helped shape other Freedom of Information (hereinafter read as FOI) laws around the world.

i) Sweden
Sweden is a constitutional monarchy, with a king or queen as the head of state (the King or Queen who occupies the throne of
Sweden in accordance with the Act of Succession shall be the Head of State). But like in most liberal democracies, the royal head of state has no real political power. The Swedish system is unique because of a high degree of institutional autonomy underlying power dispersal to various levels of government. The Swedish system is known for ―its ideology of local government, which basically means that local governments enjoy a great deal of autonomy, limited only by the legislative powers of its national counterpart. The father of the Swedish Freedom of Information Act (hereinafter read as FOIA), Chydenius, was a member of the Captions party who introduced freedom of information as a means of ―promoting social reforms and opposing the supremacy of the nobility.‖ Chynedius was inspired by John Locke among other political philosophers during that era (which is known in Sweden as ―the age of Liberty).‖ John Locke saw ―the supreme power of the State residing in a legislature and behind the legislature in the people. The people would govern, but ―they were not the government.‖ Chydenius considered the introduction of the right to access for citizens as his greatest lifetime achievement. The Swedish parliament passed the legislation in 1766, and established the world‘s first parliamentary Ombudsman (the word itself is Swedish for delegate and has been imported directly into the English language). Birkinshaw observes that ―a very large degree of Swedish public administration is depoliticized in so far as many, sometimes important, decisions are not taken by political overlords.‖ The principle of openness ―Offentlighetsgrundsatsen‖ (in Swedish public sector) has been long enshrined in Swedish politics.

The major underlying incentive for adopting the FOIA in Sweden, was ―an information-starved political opposition that was given a rare chance to pass legislation that would grant them and all citizens access to government-held documents and information‖. The
introduction to the Swedish Constitution describes a time of great change: ―the death of Carl XII in 1718 brought to an end not only
Sweden‘s great power status but autocratic rule as well. The pendulum now swung back in the other direction. A new form of
government took shape, which became significantly known as the Age of Liberty government‖ Swedish FOI system is found in the Swedish Constitution (in the basic principles of the form of government):

―All public power in Sweden proceeds from the people. Swedish democracy is founded on the free formation of opinion and on
universal and equal suffrage. It shall be realized through a representative and parliamentary polity and through local self government. Public power shall be exercised under the law.‖ This premise resulted in four fundamental laws found in the Swedish Constitution. One of these laws is the ―Instrument of Government and the Freedom of the Press Act,‖ which specifically provides for freedom of information and the right of citizen‘s access. Chapter 2, Article 1 of ‗the Instrument of Government‘ guarantees that all citizens have the right of: ―freedom of information: that is, the freedom to procure and receive information and otherwise acquaint oneself with the utterances of others.‖ Specific rules on access are contained in the Freedom of the Press Act, which was first adopted in 1766. The current version was adopted in 1949 and amended in 1976.

Sweden was the first to enforce the policy of openness in administration. There all governmental information is public unless certain matters are specifically listed as exemptions from the general rule. They have provided for a system of appeal against the wrongful withholding of information by public officials, as long ago as 1766. It provided constitutional safeguards under Freedom of Press Act, 1766, the oldest and probably still the most liberal of its kind in the world. It has been revised and modernized a number of times, most recently in 1978. Sweden has proved that legitimate national interests can as well be safeguarded under conditions of  administrative openness. Sweden has established cultures that access to government department and documents as a right and non-access an exception. The principle gives any one, actually even aliens, the right to turn to a State or municipal agencies and ask to be shown any document kept in their files, regardless of whether the document concerns him personally or not. Officials are legally required to comply and even to supply copies of the document requested if this is feasible. In Sweden and other Scandinavian countries documents dealing with national security, foreign policy and foreign affairs can be withheld from public scrutiny but the government is bound to give a written statement quoting legal authority for withholding the document

ii) United States of America
The US constitutional fathers created the three arms of government legislative (Congress), executive (President) and judiciary
(the Courts); the separation of powers accounts for a system of checks and balances. At the heart of the US political system is the concept of the ‗balance of power.‘ According to some sources, the US is indeed an important role model for FOI worldwide. Lidberg (2006) notes that, ―the US FOI model grew out of a global move towards more open government following World War II.‖

America and democracy are generally synonymous. America apparently proclaims it to the torchbearer of the plethora of democratic rights that ought to be the part of a true democratic framework. The same applies on the dispensation of information too. Antipathy towards the inherent secrecy is therefore not a surprising attribute exhibited by the Americans. Schwartz observes, ―Americans firmly believe in the healthy effects of publicity and have a strong antipathy to the inherent secretiveness of government agencies.‖ The Freedom of Information Act, 1966 and The Administrative Procedure Act, 1946 are two main statutes which confer RTI. The Constitution of America does not deal specifically with RTI. However, such right is considered to be corollary of the First Amendment freedoms. A provision of a statute was held to be a restriction on the unfettered exercise of First Amendment Rights and hence was declared invalid by the Supreme Court. Similarly in Stanley v. Georgia it was observed that freedom of speech necessarily protects the right to receive information. In America there are three Acts which upheld the freedom of press and information. (A) Freedom of Information Act was made in 1966, which was amended in 1974 to make it more effective, (B) The Privacy Act, 1974 protected individual privacy against the misuse of federal records while granting access to records concerning them which are maintained by federal agencies and (C) The Government in the Sunshine Act, 1976 provided that meetings of government agencies shall be open to the public. The US Supreme Court has recognized the right to know more than fifty years ago. The right to freedom of speech and press has broad scope. This freedom embraces the right to distribute literature and necessarily protects the right to receive it."

First Amendment contains no specific guarantee of access to publications. The basis of right to know is the freedom of speech,
which is protected under Bill of Rights. The policy behind the Freedom of Information Act is to make disclosure a general rule and
not the exception, to provide equal rights of access to all individuals, to place burden on the government to justify the withholding of a
document, not on the person who requests it, to provide right to seek injunctive relief in the court if individuals are denied access

Right to know is the cornerstone of citizen participation. Under the Information Act any person, nor merely an affected individual or
group, is eligible to ask for information because what is aimed at is not merely redressal of grievances but encouragement of an informed citizenry.

The 1966 Freedom of Information Act requires executive branch agencies and independent commissions to make available to citizens, upon request, all documents and record except those, which fall into the following exempt categories:

1. Secret national security or foreign policy information.
2. Internal personnel practices.
3. Information exempted by law.
4. Trade secrets or other confidential commercial or financial information.
5. Inter agency or intra-agency memos.
6. Personal information, personnel or medical files.
7. Law enforcement investigatory information.
8. Information related to reports on financial institutions.
9. Geological and geophysical information.

But there are major problems. They are: Bureaucratic delay and cost of bringing suit to force disclosure, and excessive charges levied by the agencies for finding and providing the requested information.

To meet these problems, Act was amended in 1974. Main provision of amendment is allowing federal judge to review a decision of the government to classify certain material. Another provision set deadlines for the agency to respond to a request for information under the law. Another amendment permitted judges to order payment of attorney's fees and court costs for plaintiffs who won suits brought for information under the act.

Other Countries like Mexico, Peru, Thailand, Australia, Canada, Uganda, the United Kingdom,261 New Zealand and South Africa have also enacted similar legislations to enforce a measure of accountability and transparency on the agencies of the State.

To say in the spirit of a democratic world order, it is necessary that each one of us everywhere on this earth under the Sun has a
right to know and a duty to shape the course of things, on a national also as on international level. The philosophy of freedom of
information and open government has been well described by the U.S. House Committee on Government Operations, which approved the Feedom of Information Act, in 1966,

"A democratic society requires an informed, intelligent electorate, and the intelligence of the electorate varies as the quantity
and quality of its information varies. A danger signal to our democratic society in the United States is the fact that such a truism
needs repeating....". The root truth is that freedom without information is meaningless and liberty without light will perish because "all governments are obscure and invisible." There is a burden on the government to justify secrecy. Failure on this front is bound to spell dangerous consequences. In a democracy, citizens' right to know is assumed rather than guaranteed. This right is derived from the accountability and answerability of the government to the people.

In the period of analysis immediately after the war, he US and several other members of the newly formed United Nations concluded
that too much secrecy in too many countries had provided fertile soil for conflict. The case of the US displays is a struggle of maintaining the principle and practice access to public records. One expert on US FOIA explains why this is a struggle, the legacy acquired from the British Empire is for bureaucracies to be secretive; since those times knowledge and information meant power; and trading information was ―power trading‖ among bureaucratic agencies. Today, standards should allow for power sharing. Everyone, everywhere has the right to know. In the 1970s in the US, the Department of Defense showed high compliance to FOIA because the military were used to obeying legal orders. Whereas, the Department of Agriculture struggled with the newly adopted practice of power sharing and exercised high levels of secrecy; the bureaucrats were simply not used to openness.‖ In addition, Court records and legislative materials have been open to the public for a long time. In 1946, Congress enacted the Administrative Procedures Act. It required ―that government bodies publish information about their structures, powers and procedures and make available all final opinions or orders in the adjudication of cases (except those required for good cause to be held confidential and not cited as precedents) and all rules.‖ During the 1950‘s both Congress and media groups started to advocate for a more wideranging and assertive law.

The first effective attempt for a FOIA came in 1958 in the form of an amendment to the 1946 Administrative Procedure Act, which
made it mandatory for government agencies to ―keep and maintain records.‖ FOIA forced agency compliance and required that proof of justification be given when denying access to records. Following a long period of hearings based on the 1958 amendment the Freedom of Information Act (FOIA) was enacted in 1966 and went into effect in 1967. The US FOIA is inspired from and based on the First Amendment of the Constitution. Before 1966, statutes had existed but only allowing the public ―access to government documents if a need to know was established,‖ this also allowed agencies the prerogative to hold withhold information for a good cause. A comprehensive ―Citizens Guide to FOIA‖ published in 1966 points out the paradigm and practice shift that the enactment of this legislation caused; ―the need to know has been replaced by the right to know.‖ Thomas Susman served as Chief Counsel and General Counsel to the Antitrust and Administrative Practice Subcommittees and to the Senate Judiciary Committee. Susman was the principal Senate staff lawyer responsible for development of the 1974 Freedom of Information Act Amendments. He explains that ―prior to 1974 FOIA was ineffective and in fact the real road to change in US government transparency began with the 1974 amendments. In the 1966 version the ability to obtain court reviews was difficult for example.‖ Susman noted that ―the 1974 amendments responded to the failures in the 1966 FOIA but placing fee restrictions for instance.‖ The original 1966 Act only allowed occasional disclosure while after 1974 Americans enjoyed broader maximum disclosure. All information available today was made available because of the successful lawsuits that employed the 1974 Act. FOIA became a long term strategy for advocates,
industries, businesses, lawyers, journalists, NGOs and citizens to participate in government processes.

The Act was amended most recently in 1996 by the Electronic Freedom of Information Act (which allows any person or organization,
regardless of citizenship or country of origin, to ask for records held by federal government agencies). The Act‘s objective is ―to provide public access to an agency‘s records.‖ The applicant does not have to demonstrate a specific interest in a matter to view relevant documents – an idle curiosity suffices. Agencies covered within the Act include ―executive and military departments, government corporations and other entities which perform government functions except for Congress, the courts or the President‘s immediate staff at the White House, including the National Security Council.‖Each agency or public body that is included within the FOIA has to publish in the ‗Federal Register‘ the details of its organization as well as the rules and policies of its procedures.

There are nine categories of discretionary exemptions: ―national security, internal agency rules, information protected by other
statutes, business information, inter and intra-agency memos, personal privacy, law enforcement records, financial institutions and
oil wells data.‖ The US FOIA is similar to the Swedish FOIA in that it emphasizes that ―the request for documents should have priorities; that real avenues for citizen appeals should exist, and that legally binding rulings would ensure repercussions for the public servants that refuse to comply.‖ It differs from the Swedish FOIA because freedom of information in the United States is not a constitutional concept. Moreover, the cost of processing a request and photocopying documents is much higher in the US.

Appeals of denials or complaints about extensive delays can be made internally to the agency concerned. The federal courts review
appeals and can overturn agency decisions. The courts have heard thousands of cases in the 40 years of the Act. Alongside, FOIA the Sunshine Act (also known as an ‗open meeting‘ law) allows―access to the meeting of those agencies within its scope. Its aim is to open up to the public portions of the ‗deliberative processes‘ of certain agencies.‖ A week‘s notice is required of the time, date, topic and location of the meeting. In addition, ―a named official with a publicized telephone number must be appointed to answer queries.‖

The US FOIA mode of management is characterized by decentralization; The US Justice Department (DOJ) provides some
guidance and training for agencies and represents the agencies in most court cases. The 1996 E-FOIA amendments require agencies to create electronic reading rooms and make available electronically the information that must be published along with common documents requested. In 2000, the U.S. federal government received more than two million FOIA requests from citizens, corporations, and foreigners.According to Banisar‘s 2006 survey, the American FOIA ―has been hampered further delay.

Many international organizations and regional groups recognized this right to be part of their systems. Swedish Freedom of Information Law (a literal translation of the native term indicates the Freedom of Printing Act) passed in the year 1766 is considered to be the oldest and earliest legislative recognition of RTI. This law was passed by Sweden. A large number of countries have followed the same line and have enacted access laws after it. For example, Finland in 1950, Denmark in 1950, Norway in 1970, and United States of America in 1966 enacted such laws in order to facilitate information access. Before discussing the various international instruments, let us first analyse the status of RTI in the two most developed democracies of the world U.S.A and England.

iii) Position in England
Democracy has been the basic tenet of England since ages but ‗secrecy‘ is emphasised rather than openness. This is due to the
innate tendency of legislature and executive to enshroud policies instead of making it transparent. England has enacted Freedom of
Information Act, 2005. But basically, the present law is contained in the Official Secrets Acts of 1911, 1920, 1939. Judiciary in
England has approved of openness in Government. The same is reflected in the decision of House of Lords where it established its
jurisdiction to order the disclosure of any document. However, it was also emphasized that balance between conflicting interests of
secrecy and publicity should be maintained. Importance of freedom of expression in English law can be ascertained by the observation of Lord Steyn in a case which goes as following:

―Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve;
people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country….‖ In Britain, the campaign for reduction of secrecy was going on. They have rule for non-disclosure of sensitive information for about thirty years. When 1957 documents were released, they showed that Prime Minister Harold Macmillan had ordered suppression of information on the Wind scale nuclear accident. It was a startling revelation because it was the worst known nuclear disaster before Chernobyl. But the nation came to know only after thirty years. Under their Official Secret Act some documents could even be blocked for a hundred years. Even in America the tendency is to increase the items under the list of exemptions to freedom of information. When some documents were released under the Act revealed that FBI and CIA illegally harassed Dr Martin Luther King Jr. and several other things like illegal surveillance of dozens of writers and political groups for over a period of 30 years. In 2000, the Freedom of Information Act came into existence.

Australians are amongst the world's most avid media consumers and there is legislation protecting their rights of access to Federal Government documents of interest to them. In December 1982, Australia enacted Freedom of Information legislation, which gives its citizens and persons entitled to permanent resident status in Australia a free access to various Federal Government Records. Main features of this Act are the creation of public right of access to documents, the right to amend or update incorrect government records, the right of appeal against administrative decisions barring access and the waiving of any need to establish interest before being granted access to documents.

iv) Public Charter of Official Documents in Finland
Finland has a law on the Public Charter of Official Documents in 1951. Norway and Denmark have also statutorised public access to
official information sources. Canada and Australia also made useful legislation on this subject. A French Commission on Access to
Administrative Documents has been formulated. French Constitution recognizes the free communication of thoughts and opinions as
among the most precious rights of man.

v) Open Democracy Bill in South Africa
The South African Law on this right is a unique example of principle of open governance. The South African Open Democracy Bill
provides for public access as "swiftly inexpensively and effortlessly and reasonably possible to information held by governmental and
bodies without jeopardising good governance, personal privacy and commercial confidentiality. It also empowers the public to effectively scrutinise and participate in governmental decision making that affects them. It also provided a mechanism to correct the inaccurate information possessed by the government about them and protects individuals against abuse of information about themselves held by the government or private bodies. Canada made Access to Information Act, 1980, and New Zealand enacted the Official Information Act, 1982


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