Access to Information Laws: Overview and Statutory Goals

Overview

As of June 2008, at least 78 countries had nationwide laws on access to information (ATI), freedom of information (FOI), or right to information (RTI), establishing mechanisms for the public to request and receive government-held information.

The first ATI law was enacted by Sweden in 1766, largely motivated by the parliament’s interest in access to information held by the King. Finland was the next to adopt, in 1953, followed by the United States, which enacted its first law in 1966, and Norway, which passed its laws in 1970.  The interest in ATI laws took a leap forward when the United States, reeling from the 1974 Watergate scandal, passed a tough FOI law in 1976, followed by passage by several western democracies of their own laws (France 1978, Netherlands 1978, Australia 1982, New Zealand 1982, Canada 1982, Denmark 1985, Greece 1986, Austria 1987, Italy 1990). By 1990, the number of countries with ATI/FOI laws had climbed to 13.

The fall of the Berlin Wall and the rapid growth of civil society groups demanding access to information – about the environment, public health impacts of accidents and government policies, draft legislation, maladministration, and corruption – gave impetus to the next wave of enactments, which peaked in the late 1990s and early 2000s. Between 1992 and 2006, 27 countries in Central and Eastern Europe and the former Soviet Union passed ATI laws, of which Hungary and Ukraine were among the first.

During that same period through to the present, at least 37 countries in other regions of the world enacted laws, including some ten in Latin America, several in the Caribbean, ten more in Europe, and six in Asia. In Africa, five countries passed laws beginning with South Africa in 2000 (although Zimbabwe’s Access to Information and Privacy Act has been used more to suppress information in the name of privacy than to make information available and accordingly is often not included in ATI counts). The momentum for adoption of ATI laws is building in Africa, where at least seven countries have bills tabled, or soon to be tabled, with their legislatures as of July 2008 (Ghana, Kenya, Liberia, Morocco, Nigeria, Sierra Leone, Tanzania, Zambia) and civil society groups are actively working with the government on drafts in several more countries (including Cameroon). Momentum is also developing in Asia, boosted by China’s adoption of nationwide regulations (applicable to all levels of government) in 2007 and Indonesia’s adoption of a nationwide law in 2008. The region least touched by the right to information movement is the Middle East. Only Jordan has a law and that law is weak and was driven by the government rather than civil society. Nonetheless, civil society groups are pressing for a law in Morocco, and groups in Egypt have expressed interest.

For lists of countries and territories with ATI/FOI/RTI laws compiled by Dutch FOI expert Roger Vleugels, click here.

A constitutional right of access to public information is enforceable by the courts of at least three additional countries – Costa Rica, South Korea and the Philippines – by virtue of rulings by the top courts of those countries. See country paragraphs in Constitutional Protections.

In many countries, the courts, the ATI laws, or introductory language thereto have set forth the fundamental purposes of the laws. Following are a few examples.

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Europe

The draft European Convention on Access to Official Documents, expected to be adopted by the Council of Europe in late 2008, provides in preambular paragraph 6 that exercise of the right to access official documents:

(i) provides a source of information for the public;

(ii) helps the public to form an opinion on the state of society and on public authorities; [and]

(iii) fosters the integrity, efficiency, effectiveness and accountability of public authorities, so helping affirm their legitimacy […] .

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Ecuador

In 2004, the Transparency and Access to Public Information Act (TAPIA) was enacted. Article 1 of the law establishes that the principle of disclosure applies to all information held or produced by public institutions, except for exclusions established by law.[4] The TAPIA includes provisions that establish the principle of disclosure for public duties, and requires transparency of public information in such a way as to ensure participation of citizens in the decision-making process, and accountability of authorities who exercise public duties.[5]

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Indonesia

The Law on Public Information Transparency, passed in April 2008 and which will enter into effect in May 2010, states (in Article 3) an extensive and well-considered list of objectives intended to be advanced by the law:

a. to secure the right of the citizens to know the plan to make public policies, public policy programs, and the process to make public decisions, as well as the reason of making a public decision;

b. to encourage the participation of the society in the process of making a public policy;

c. to increase the active role of the people in making public policies and to manage the Public Agencies properly;

d. to materialize good governance, i.e., transparent, effective and efficient, accountable and responsible;

e. to know the rationale of a public policy that affects the life of the people;

f. to develop sciences and to sharpen the mind of the nation; and/or

g. to enhance the information management and service at Public Agency circles, so as to produce good quality information service.

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Japan

The purpose of Japan’s Act on Access to Information Held by Administrative Organs, 1999 is set forth in Article 1:

In accordance with the principle that sovereignty resides in the people, by providing for the right to examine administrative documents, the purpose of this law is to strive for greater disclosure of information held by administrative organs thereby ensuring that the government is accountable to the people for its various operations, and to contribute to the promotion of a fair and democratic administration that is subject to the accurate understanding and criticism of the people.

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Mexico

The Mexican Federal Transparency and Access to Public Government Information Law, commonly referred to as the LFTAIPG, for its Spanish acronym (Ley Federal de Transparencia y Acceso a La Información Pública Gubernamental) sets forth general principles that illustrate the fundamental goals of freedom of information laws. These include making public administration transparent by disclosing the information generated by the government; encouraging accountability to citizens, so that they may evaluate the government’s performance; and contributing to the democratization of society and the full operation of the rule of law.[6] In relation to case law, there have been isolated opinions (tesis aisladas) on access to information in general, but the system requires at least five tesis to build a binding jurisprudence. As of March 2007, jurisprudence had been established only concerning access to electoral information.

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Peru

Law 27806 on Transparency and Access to Public Information  (Ley de Transparencia y Acceso a la Información Publica) was enacted in 2002 with the goal of “promoting transparency in the acts of the State and regulating the fundamental right to access of information that is enshrined in Section 5 of Article 2 of the Political Constitution of Peru.”[7]

The English version of the law of transparency and access to public information can be found here.

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United States

The basic purpose of the US Freedom of Information Act is, according to the US Supreme Court, “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”[8] 

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