ISSN 1313-6496

International Standards on Access to Public Information

Alexander Kashumov

The right of access to information is among the comparatively “young” rights. Although the first national law in the area was adopted in Sweden in 1766, international documents, regulating this specific areas have appeared as late as the last quarter of the XX century. During the last 15 years, the number of states which have adopted access to information laws has increased enormously, and in 2014 reached hundred.

Recognition of the right to receive information set forth by international documents related the protection of human rights

The basis for the recognition of the right to information at an international level was set after the Second World War. At its first session in 1946, the General Assembly of the United Nations  adopted Resolution 59 (I), which proclaimed: “Freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.” Article 19 of the Universal Declaration on Human Rights sets forth the right of everyone to seek, receive, and impart information. With the same content, the right is set forth as a fundamental human right by Art. 19 of the International Covenant on Civil and Political Rights (ICCPR), which is a legally binding document.

Parallel to the regulation of the fundamental human rights within the work of the UN, the legal framework for their protection in democratic Europe was being established. Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, ECHR) guarantees the right of everyone to receive and impart information. The provision of Art. 11 of the Charter of Fundamental Rights of the European Union, which is in Title “Freedoms” of the Charter, provides for protection of the same value. Further in the Charter, Art. 42 guarantees the right of every citizen of the Union, or every natural or legal person residing or having its registered office in a Member State, to access the documents of the institutions, bodies, offices, and agencies of the Union. Article 13 of the American Convention on Human Rights guarantees the right of freedom to seek, receive, and impart information. The right of everyone to receive information is protected by Art. 9 of the African Charter on Human and People's Rights.

The difference in the wording of Art. 19 of the ICCPR on one hand, which includes the right of everyone to “seek information”, and Art. 10 of the ECHR on another, which does not contain this right, is one of the reasons why until 2009 the right of access to public information was perceived as out of the scope of the Convention. 

In 2006, the Inter-American Court of Human Rights delivered a decision which recognized the right of access to information held by the state, as a part of the right of everyone to seek, receive, and impart information, set forth by Art. 13 of the American  Convention on Human Rights.[1] With a decision as of 2009, the European Court of Human Rights assumed that the refusal to provide information, held by a public institution, is a form of a breach of the right of everyone to receive and impart information as guaranteed by Art. 10 of the ECHR.[2] The monopoly of information by the state amounts to a form of a censorship and interferes with the exercise of the functions of a social watchdog by nongovernmental organizations and media.[3] The right of access was recognized to researchers as well.[4]

Recognition of the right of access to information held by public authorities as a right

The first document, within the Council of Europe, which recognized the right of citizens of access to information held by public authorities is Recommendation R (81) 19 as of November 25, 1981 of the Committee of Ministers of Council of Europe Member States. The document sets forth that all persons within the jurisdiction of the member-states have a right of access to information held by public bodies and such cannot be denied on the ground that the requesting person has not a specific interest in the matter. The restrictions to the access to information are permissible only if necessary in a democratic society for the protection of legitimate public interests, listed in the Recommendation. Almost twenty years later, Recommendation R (2002) 2 of the Committee of Ministers of the Council of Europe was adopted to the Member States regarding the access to official documents. It contains definitions of the terms “official documents” and “public authorities,” regulation of the restrictions of the right of access to documents, of the procedure for the provision of access to information at a request, the forms of access, the fees, the review procedure, and additional measures related to raising public awareness on their rights and the training of officials with regard to the fulfillment of their obligations. Due to the increasing significance of the right to information and the fast-lane adoption of national laws in the area, the idea that the Recommendation should become a legal-binding document, a Convention, grew for a short time.

The Convention on Access to Official Documents was adopted on November 27, 2008. On June 18, 2008 in Tromso, Norway, the Convention was open for signature. Up to now, it is signed by Belgium, Bosnia and Herzegovina, Estonia, Finland, Georgia, Hungary, Lithuania, Macedonia, Montenegro, Norway, Serbia, Slovenia, and Sweden. It will enter into force when ten Member States ratify it. Up to now, this have been done by Bosnia and Herzegovina, Lithuania, Norway, Sweden, Hungary, and Montenegro. The Convention introduces a minimum standard for access to official documents by providing for national laws to recognize a wider right of access to official documents.[5] The term “official documents” and the scope of obliged bodies are defined. It sets forth the necessary approaches towards the restrictions to the access to information, as well as a list of acceptable grounds for restrictions of the right. It introduces the obligation for proactive publication, the procedure for filing a request and the review of the refusals.

Recognition of the right of access to official documents of the European Union bodies

In 2001, on the ground of Art. 255 of the Amsterdam Treaty, the Regulation 1049/2001 of the European Parliament and the Council regarding the public access to official documents of the European Parliament, of the Council and of the Commission was adopted. The refusals to provide information under this document could be appealed before the European Ombudsman or before the Court of the European Union. Pursuant to the Lisbon Treaty, a new Art. 10, Para. 3 is introduced in the Treaty on European Union, providing that “Every citizen has the right to participate in the democratic life of the Union. The decisions are taken as open as possible, and as close as possible to the citizens.”

The Lisbon Treaty also introduced a new provision in the Treaty on the Functioning of the EU (TFEU) – Art. 15 which replaces the Art. 255 of the Amsterdam Treaty. The new provision establishes an obligation for the institutions, bodies, offices, and agencies of the Union to work as openly as possible for the purpose of promoting good government and ensuring the participation of the civil society. Article 15.3 of the TFEU guarantees the right of any citizen of the Union, or any natural or legal person residing or having its registered office in a Member State to have a right of access to documents of the Union's institutions regardless of their medium.

At the same time, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted with Regulation (EC)1367/2006 of the European Parliament and the Council. The Directive 2003/4/EC regarding the public access to information on the environment establishes the legal regime for such an access as a binding rule for all EU member states.

Regardless of the different matter subject to legal regulation, the institute of the “re-use of public sector information” is also related to the access to official documents regime. The effective mechanism in the area is the Directive 2003/98/EC of the European Parliament and the Council regarding the re-use of public sector information adopted in 2003. The Directive was revised with Directive 2013/37/EU which is to be introduced in the national legislation of member states by July 18, 2015.