Information vs. Documents and the Duty to Compile Information

The current draft text of the European Convention on Access to Official Documents sets forth a broad definition of information subject to disclosure, similar to definitions in many ATI laws, especially those adopted in the past decade. Article 1 of the draft treaty states that “official documents” which are subject to disclosure include “all information recorded in any form, drawn up or received and held by public authorities.”

This language represents an expansion of the definition of “official documents” set forth in the Council of Europe’s Recommendation (2002)2 on Access to Official Documents, adopted by the Committee of Ministers on February 21, 2002. That definition includes, word for word, the draft treaty text, with the following proviso: “and linked to any public or administrative function, with the exception of documents under preparation.”

The draft treaty text thus constitutes an expansion in the understanding of what constitutes “information” in two respects: (a) information no longer must be linked to “any public or administrative function”; and (b) documents under preparation are no longer exempted. Rather, the treaty opens up the possibility of access to quasi-public information (see section on Private Bodies that have a Public Character); and includes documents under preparation, which are, however, subject to withholding if they constitute “deliberations within or between public authorities concerning the examination of a matter.”[1] This removal of the term “documents under preparation” followed submission to the drafting group of considerable comparative information documenting that most Council of Europe Member States no longer exclude “documents under preparation”. See Documents Under Preparation,

The draft treaty’s use of both terms “documents” and “information” reflects the reality that many Access to Information (ATI) laws, especially the older ones, explicitly provide only for “access to documents,” whereas other laws, especially those adopted since the early 1990s, provide for “access to information,” often in addition to documents.

An information-based regime requires authorities to be responsive to requests for information, and to search documents and extract and compile information from various documents if the requested information has not already been compiled. Public authorities should, for instance, be under an obligation to answer questions about the types of documents they hold, or to report on how much funding was invested in certain types of equipment over a given multi-year-period. 

Most information-based regimes only require authorities to compile existing information; a few have gone further to require the processing of information and even the generation of new information. For instance, Latvia’s ATI law applies to “information or compilations of information under the control of an institution or which it is obliged to create for the performance of its specified functions.” Under India’s RTI Law, even if public authorities have not collected and maintained information that they are authorized to collect from a private body under any law, citizens may request such information and the public authority will have to collect that information and make it available to the requestor.[2] The majority of ATI laws, however, are limited to information held or controlled by the public body.

Under a strict information regime, requesters are not entitled to inspect or receive particular documents (or copies thereof); agencies may decide, for instance, to make available only a summary of the original. The drawbacks of this approach were recently illustrated when the UN Development Program Public Information and Documentation Oversight Panel refused to grant access to certain documents on the basis that a 300-word summary of their contents had satisfied the request.[3]

A document-based regime, in contrast, requires the production only of existing documents, with privileged information redacted. This approach severely limits access to information given that many requests on topics of great public interest relate to information that is not recorded in one or a small number of documents, but can nevertheless be derived with relative ease from existing files. A different problem occurs when certain information is not actually registered as an “official document” even though it is held by a public body. Older regimes that only give access to documents that are registered as official documents tend to be more limited. In practice, however, most access to information regimes also make provision for access to documents, with wide definitions of what is a document.

Access to documents is a significantly narrower right than access to information. A comparative study of 26 member states of the Council of Europe shows that in 23 of the countries surveyed, individuals enjoy a right of access to information, often in addition to a right of access to documents: Albania, Armenia, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Georgia, Germany, Hungary, Ireland, Latvia, Macedonia, Moldova, Montenegro, Netherlands, Norway, Romania, Serbia, Slovakia, Slovenia, Turkey and the United Kingdom. Many laws do not draw any sort of distinction between information and documents and assume that both are covered. For example in Turkey, documents subject to the ATI law’s coverage are defined as “all information included in the records of an institution” and may be of any format. See Turkey’s ATI Law.

The three countries in which neither the Constitution nor law grants access to information are Denmark, France and Sweden. Howevever, in Sweden, a request cannot be refused if it is possible to extract the information required by some routine measure. In France, although only existing documents are subject to the ATI law and the administration is not compelled to create a document to meet a request, documents which can be created through a computerized process have to be produced (such as lists, for instance).

This is the practice in many countries, particularly where the administration does not hold information in a form best suited to respond to the information needs of the public. In this sense, access to information laws can be an important motor of reform of government information management, requiring authorities to organize information in a form that better suits decision-making and public participation.

In sum, few countries still maintain a strict distinction between access to information and access to documents. Experience suggests that a flexible approach to ATI that grants access to both documents and information best serves the interests of transparency. The public authority should be required (at the least) to provide full documents, if so requested, rather than summaries, and information compiled from existing documents.

Bulgaria

Public information in the meaning of the Act is “any information relating to social life in the Republic of Bulgaria, and giving opportunity to the citizens to form their own opinion on the activities of the persons having obligations under this act.” (Art.2(1) of APIA.). For several years, courts interpreted the right to information narrowly and required requestors to specify information rather than documents in their requests. This requirement has been abandoned over time and now the courts’ practice clearly allows for requests for documents as well as information.

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Dominican Republic

The law provides for the right to access records of meetings and files of the public administration, as well as to be informed periodically of public activities, subject to enumerated exceptions.[4] This provision does not provide access to drafts or documents that are not part of an administrative procedure.[5] Article 6 of the Law states that “information” that should be made public includes any financial information related to budgets or official meetings in which administrative issues are discussed.[6]

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India

The RTI Act provides for access to information held by public authorities and not merely access to official documents and records. The law defines information in Section 2(f) as: “material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” “Samples” includes samples of materials used in public works and offices. Moreover, even if public authorities have not collected and maintained information that they are authorized to collect from a private body under any other law, citizens may request such information and the public authority will have to collect that information and make it available to the requestor.

Romania. The Romanian Helsinki Committee (RHC) asked the Minister of Public Finances (MPF) for various statistics on the handling of requests to waive court fees including the number of requests for different types of fee waivers, how many of those were granted between 1990-2002, the number of cases in which a different type of fee waiver was granted than requested, the number of complaints against the amount of court fees, and how many of those were approved. The MPF did not answer and denied the information after administrative appeal on the following grounds:

1. the information was not of public interest because it concerned personal data;
2. the MPF did not hold such information, and
3. data processing would take longer than the maximum legal time-limit (30 days).

The RHC challenged the denial of information before the Bucharest Tribunal’s Administrative Division. The Court found in favor of RHC on the grounds that (a) the information is of public interest, and (b) synthetic information is not personal data and does not fall under any exception from free access. The MPF appealed to the Bucharest Court of Appeal (BCA). The BCA upheld the first instance decision. It reasoned that there is public interest in the information and MPF should organize its activity to be able to provide information in due time. The MPF did not comply with the decision in due time. Accordingly, the RHC brought court proceedings against the Minister and the Ministry seeking penalties, and only then was the information released.[7]

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United Kingdom 

The FOI Act and Environmental Impact Regulations apply to any recorded information held by or on behalf of an authority.

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United States

The FOIA applies to “agency records,” but provides no definition of this term.   FOIA has been interpreted to include a presumption of disclosure, such that all agency records are public records except those narrowly exempted under the law.[8] The Supreme Court has established a two-part test, holding that "agency records" are records that are (1) either created or obtained by an agency; and (2) under agency control at the time the FOIA request is made.[9]

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