Access to public information in Europe
[8] More than 100 countries around the world have now adopted national access to information laws to make the right to know effective.
During the 1970s and 1980s there has been a small but constant growth in FOI's laws, with a real expansion after 1989 due to the activism of civil society groups in Central and Eastern Europe during the post-Communist transitions to democracy.
A 1992 decision of the Hungary's Constitutional Court established that access to information is a "fundamental right" that enable citizens to have an oversight on the lawfulness and efficiency of the government.
In principle, all the main information held by public bodies should be available, while exceptions to disclosure should be grounded on the protection of other values, such as privacy, national security or commercial interests.
On the occasion of the first officially recognised Access to Information Day celebrated on 28 September 2016, European civil society groups working to enhance the right of access to public information raised some concerns as, despite significant progress, there are still far-reaching shortcomings especially with regard to transparency of decision-making.
[15] Progressively, several national and international courts decisions have been treating access to information as a basic human right, thus providing a strong legal case for citizens resorting to courts to defend any refusals by authorities to provide access to public information.
[12] Transparency enhanced through the right to access public information entails a series of core benefits for democratic societies, in particular accountability, participation and efficiency.
In addition to national legislation, principles and standards for access to public information are set forth into several international declarations and treaties that have authoritatively recognised the fundamental and legal nature of the right to freedom of information along with the need for effective legislations that should guarantee the respect of that right in practice.
The principle of maximum disclosure provides for a broad definition of "public bodies" which are subject to the duty of releasing information.
Principle 1 requires the law to establish minimum standards regarding the maintenance and preservation of documents by public bodies.
This is important as experiences in different countries have shown that recalcitrant public authorities can undermine the application of even the most progressive legislations.
[22] An important step in this direction has been adopted in 2011 with the establishment of a new global alliance of democratic countries committed to the promotion of transparency, accountability and participation under the label Open Government Partnership[11] Exceptions to disclosure should be grounded on clearly and narrowly defined exceptions.
Such a list should be narrowly defined and include only highly relevant interests to be protected, such as law enforcement, privacy, national security, commercial and other confidentiality, public or individual safety and the integrity of the decision-making process.
[22] According to this principle requests for public information should be processed quickly and fairly and an independent review of any refusals should be made available to the applicant.
[22] This principle states that costs for accessing public information should not be so high as to deter applicants from making the request.
[22] Freedom of information comprises the public's right to know how the government behaves on behalf of people and to participate to decision-making.
Freedom of information law should thus incorporates the presumption that all relevant meetings of governing bodies, i.e. those involved in decision-making, should be open to the public.
[23] Whistleblowers, i.e. individuals who make publicly available information on government's wrongdoings - including for instance corruption, dishonesty, maladministration, serious threat to health, safety or the environment, etc.
This applies in particular when there are exceptionally serious reasons for releasing a certain information, such as a serious threat to public health or safety, or when there is a strong evidence that wrongdoing will be concealed or destroyed.
One noteworthy exception among the world's democracies is Canada where only citizens and residents are entitled to submit access to information requests.
[12] Despite this, a major practical obstacle to the universal exercise of the right to access information is due to the obligation to submit the requests in the official language of the country which may hamper the exercise of the right to know for people that does not have a command of a country's official language.
Usually "documents" and "information" should be made available whatever its medium, e.g. written on paper or in electronic format, or as a sound, visual or audiovisual.
[12] The EU Regulation 1049/2001 specifies that documents subject to access to information are those concerning "policies, activities and decisions falling within the institutions’ sphere of responsibility" and this applies to all documents held by the EU institutions "in all areas of activity of the European Union".
While the EU has defined a set of rules regulating access to information held by EU institutions, the debate is still open about whether the right of access information applies to inter-governmental organisations which are outside the scope of national laws and have not signed international human rights conventions.
If released this information can violate some "legitimate interests", disturb public life or undermine other societal values.
To justify the withhold of public information, authorities have the burden of the proof, thus have to demonstrate that disclosure would cause harm to a legitimate interest as specified by the law.
The first is the right of partial access according to which authorities have the duty of removing sensitive information and release the rest of the document.
The majority of countries in the Council of Europe region comply with this rule, even if there are notable exceptions, such as Ireland and Germany where, however, the required fees can be significantly reduced on the ground of public interest.
On the contrary, the Albanian and Austrian access to information laws give the authorities a period of respectively 40 and 60 days to respond to people's requests.
