4.4.1 Access to information [ICCPR art 19(2)] Condensed: Information includes all records held by a public body , regardless of the form in which the information is stored, its source and the date of production. Anyone has the right to obtain information from the state. Information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. Requests for access to information should be processed in a timely manner, refusal to give access should be motivated and an appeals procedure should be provided in cases of refusal or where the public body does not respond. States should also proactively put in the public domain Government information of public interest and make every effort to ensure easy, prompt, effective and practical access to such information. The right to seek and receive information may be limited in accordance with law in the interest of the rights of others, public morality or health, public security or public order to the extent strictly necessary and proportional to the purpose the limitation is designed to serve. Comprehensive: Article 19(2) ICCPR provides that freedom of expression includes the ‘freedom to seek, receive and impart information and ideas of all kinds’.[1]Information ‘includes all records held by a public body , regardless of the form in which the information is stored, its source and the date of production’.[2] Everyone has the right to apply to obtain information from the State. The duty to prove whether or not information exists or does not exist lies with the State.[3] According to IACtHR ‘[t]he information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied.’[4] Requests for access to information should be processed in a timely manner, refusal to give access should be motivated and an appeals procedure should be provided in cases of refusal or where the public body does not respond.[5]Fees for accessing information may be imposed. However, the cost of gaining access to information held by public bodies should not be so high as to deter potential applicants.[6] A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs incurred by the public authority.[7] States ‘should proactively put in the public domain Government information of public interest’ and ‘make every effort to ensure easy, prompt, effective and practical access to such information’.[8] In a case dealing with environmental pollution the ECtHR noted: ‘the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory’.[9] The Court held that the right of the applicants to private and family life in article 8 of the ECHR had been violated. A State should not restrict a person from receiving information that others may wish or may be willing to impart.[10] The right to receive information is violated if there are restrictions on the means of transmission or reception of information.[11] The issuance of an injunction prohibiting family planning counselors from providing non-directive counseling to women about where to obtain abortions outside of Ireland has been held by the ECtHR to be over-broad and constituted a violation of the right the right to receive information of women, and to impart information of the counselors.[12] The HRC held that refusal to register a newspaper violates the right to access to information of readers.[13] The right to seek and receive information may be limitedin accordance with law in the interest of the rights of others, public morality or health, public security or public order to the extent strictly necessary and proportional to the purpose the limitation is designed to serve. (See *interference with opinion held or expressed*). Hence, purely personal information may not be accessible to anyone other than the person the information relates to.[14] (See *violation of right to privacy* and *access to personal informationand records*). The prohibition on persons from disclosing certain information the exposure of which may imminently endanger public security is also a legitimate restriction on the right to seek and receive information.[15] The prohibition of provision of information protected by professional confidentiality such as between a lawyer and a client or a doctor and a patient or a priest and a confessor constitutes a legitimate and necessary limitation for justifiable reasons. Additional references UNDP, Bureau for Development Policy ‘Democratic Governance Group, A guide to measuring the impact of right to information programmes: A practical guide’ (April 2006) Article XIX ‘Access to information: An instrumental right for empowerment’ (July 2007) Article XIX ‘Background paper on freedom of information’ (December 2007) Article XIX ‘Towards a third generation of activism for the right to freedom of information (May 2008) Toby Mendel Freedom of information: A comparative legal survey (2008) Toby Mendel The right to information in Latin America: A comparative legal survey (2009) M Nowak UN Covenant on civil and political rights: CCPR Commentary (2005) N Jayawickrama The judicial application of human rights law: National, regional and international jurisprudence (2002)
[1] See also ACHPR art 9; ACHR art 13; ECHR art 10. See also the Model Inter-American Law on Access to Information (2010). The ECHR and ACHPR do not however clearly provide for the right to seek information. However the ECtHR has read the right to seek information as part of the right to freedom of expression see Társaság a Szabadságjogokért v Hungary, application 37374/05(ECtHR 2009) para 38. The ACHPR Resolution on adoption of the declaration of principles on freedom of expression in Africa (2002) principle 1 clearly indicates that freedom of expression includes the right to seek and receive information. See also AU Convention on Preventing and Combating Corruption art 9 and the Draft model law for AU member states on access to information prepared under the auspices of the African Commission’s Special Rapporteur on freedom of expression and access to information in Africa. [2] HRC general comment 34 para 18. [3]Case of Gomes Lund et al (Guerrilha do Araguaia) v Brazil.Preliminary, Series C No. 219 (IACtHR 2010) para 202&211. [4]Claude Reyes and Others v Chile, Series C No 151 (IACtHR 2006) para 77. [5] HRC general comment 34 para 19. [6] HRC general comment 34 para 19. [7]CoE Committee of Ministers, Rec(2002)2 on access to official documents, preamble principle VII(2). [8] HRC general comment 34 para 19. [9]Guerra and Others v Italy application 14967.89 (ECtHR 1998) para 60. It is noticeable that the Court did not see this as a violation of the right to access to information, see para 53. [10]Leander v Sweden application 9248/81 (ECtHR 1987) para 74. [11]Autronic AG V Switzerland, application 12726/87 (ECtHR 1990) para 63. [12]Open Door and Dublin Well Woman v Ireland, applications 14234/88; 14235/88 (ECtHR 1992) para 80. [13]Mavlonov vUzbekistan communication 1334/2004 (HRC 2009) para 8.4. [14]Z v Finland, application 22009/93 (ECtHR 1997] para 101, where it was held that the disclosure of a person’s health records including her HIV positive status in court proceedings without her consent for purposes of investigation and prosecution of crime did not constitute a violation of the right to privacy [15] ICCPR, art 19(1).
Condensed:
Information includes all records held by a public body , regardless of the form in which the information is stored, its source and the date of production. Anyone has the right to obtain information from the state. Information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. Requests for access to information should be processed in a timely manner, refusal to give access should be motivated and an appeals procedure should be provided in cases of refusal or where the public body does not respond. States should also proactively put in the public domain Government information of public interest and make every effort to ensure easy, prompt, effective and practical access to such information.
The right to seek and receive information may be limited in accordance with law in the interest of the rights of others, public morality or health, public security or public order to the extent strictly necessary and proportional to the purpose the limitation is designed to serve.
Comprehensive:
Article 19(2) ICCPR provides that freedom of expression includes the ‘freedom to seek, receive and impart information and ideas of all kinds’.[1] Information ‘includes all records held by a public body , regardless of the form in which the information is stored, its source and the date of production’.[2]
Everyone has the right to apply to obtain information from the State. The duty to prove whether or not information exists or does not exist lies with the State.[3] According to IACtHR ‘[t]he information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied.’[4]
Requests for access to information should be processed in a timely manner, refusal to give access should be motivated and an appeals procedure should be provided in cases of refusal or where the public body does not respond.[5] Fees for accessing information may be imposed. However, the cost of gaining access to information held by public bodies should not be so high as to deter potential applicants.[6] A fee may be charged to the applicant for a copy of the official document, which should be reasonable and not exceed the actual costs incurred by the public authority.[7]
States ‘should proactively put in the public domain Government information of public interest’ and ‘make every effort to ensure easy, prompt, effective and practical access to such information’.[8] In a case dealing with environmental pollution the ECtHR noted: ‘the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory’.[9] The Court held that the right of the applicants to private and family life in article 8 of the ECHR had been violated.
A State should not restrict a person from receiving information that others may wish or may be willing to impart.[10] The right to receive information is violated if there are restrictions on the means of transmission or reception of information.[11] The issuance of an injunction prohibiting family planning counselors from providing non-directive counseling to women about where to obtain abortions outside of Ireland has been held by the ECtHR to be over-broad and constituted a violation of the right the right to receive information of women, and to impart information of the counselors.[12] The HRC held that refusal to register a newspaper violates the right to access to information of readers.[13]
The right to seek and receive information may be limited in accordance with law in the interest of the rights of others, public morality or health, public security or public order to the extent strictly necessary and proportional to the purpose the limitation is designed to serve. (See *interference with opinion held or expressed*). Hence, purely personal information may not be accessible to anyone other than the person the information relates to.[14] (See *violation of right to privacy* and *access to personal information and records*). The prohibition on persons from disclosing certain information the exposure of which may imminently endanger public security is also a legitimate restriction on the right to seek and receive information.[15] The prohibition of provision of information protected by professional confidentiality such as between a lawyer and a client or a doctor and a patient or a priest and a confessor constitutes a legitimate and necessary limitation for justifiable reasons.
Additional references
UNDP, Bureau for Development Policy ‘Democratic Governance Group, A guide to measuring the impact of right to information programmes: A practical guide’ (April 2006)
Article XIX ‘Access to information: An instrumental right for empowerment’ (July 2007)
Article XIX ‘Background paper on freedom of information’ (December 2007)
Article XIX ‘Towards a third generation of activism for the right to freedom of information (May 2008)
Toby Mendel Freedom of information: A comparative legal survey (2008)
Toby Mendel The right to information in Latin America: A comparative legal survey (2009)
M Nowak UN Covenant on civil and political rights: CCPR Commentary (2005)
N Jayawickrama The judicial application of human rights law: National, regional and international jurisprudence (2002)
[1] See also ACHPR art 9; ACHR art 13; ECHR art 10. See also the Model Inter-American Law on Access to Information (2010). The ECHR and ACHPR do not however clearly provide for the right to seek information. However the ECtHR has read the right to seek information as part of the right to freedom of expression see Társaság a Szabadságjogokért v Hungary, application 37374/05(ECtHR 2009) para 38. The ACHPR Resolution on adoption of the declaration of principles on freedom of expression in Africa (2002) principle 1 clearly indicates that freedom of expression includes the right to seek and receive information. See also AU Convention on Preventing and Combating Corruption art 9 and the Draft model law for AU member states on access to information prepared under the auspices of the African Commission’s Special Rapporteur on freedom of expression and access to information in Africa.
[2] HRC general comment 34 para 18.
[3] Case of Gomes Lund et al (Guerrilha do Araguaia) v Brazil. Preliminary, Series C No. 219 (IACtHR 2010) para 202&211.
[4]Claude Reyes and Others v Chile, Series C No 151 (IACtHR 2006) para 77.
[5] HRC general comment 34 para 19.
[6] HRC general comment 34 para 19.
[7]CoE Committee of Ministers, Rec(2002)2 on access to official documents, preamble principle VII(2).
[8] HRC general comment 34 para 19.
[9] Guerra and Others v Italy application 14967.89 (ECtHR 1998) para 60. It is noticeable that the Court did not see this as a violation of the right to access to information, see para 53.
[10]Leander v Sweden application 9248/81 (ECtHR 1987) para 74.
[11] Autronic AG V Switzerland, application 12726/87 (ECtHR 1990) para 63.
[12] Open Door and Dublin Well Woman v Ireland, applications 14234/88; 14235/88 (ECtHR 1992) para 80.
[13]Mavlonov vUzbekistan communication 1334/2004 (HRC 2009) para 8.4.
[14]Z v Finland, application 22009/93 (ECtHR 1997] para 101, where it was held that the disclosure of a person’s health records including her HIV positive status in court proceedings without her consent for purposes of investigation and prosecution of crime did not constitute a violation of the right to privacy
[15] ICCPR, art 19(1).