In its decision in Kenedi v. Hungary, the Court has held that "access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant's right to freedom of expression (see, mutatis mutandis, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, §§ 35 to 39, 14 April 2009)". There is no further discussion on the question of whether access to documents/information in general does or does not fall under the guarantee of Article 10, but this decision represents yet another step in that direction.
(See also the Court's recent decision in Társaság a Szabadságjogokért v. Hungary)
Showing posts with label freedom of information. Show all posts
Showing posts with label freedom of information. Show all posts
Monday, June 01, 2009
Tuesday, April 14, 2009
Access to Information: New Article 10 Decision
The Court has today notified its judgment in Társaság a Szabadságjogokért v. Hungary, a case which concerned an access to information request filed by the Hungarian Civil Liberties Union to the Hungarian Constitutional Court and rejected by that court on data protection grounds.
In an interesting if somewhat enigmatic judgment, the Court found a violation of Article 10:
"The law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom. The function of the press includes the creation of forums for public debate. However, the realisation of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The purpose of the applicant's activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society's important contribution to the discussion of public affairs. The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterised, like the press, as a social “watchdog”. In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.
The subject matter of the instant dispute was the constitutionality of criminal legislation concerning drug-related offences. In the Court's view, the submission of an application for an a posteriori abstract review of this legislation, especially by a Member of Parliament, undoubtedly constituted a matter of public interest. Consequently, the Court finds that the applicant was involved in the legitimate gathering of information on a matter of public importance. It observes that the authorities interfered in the preparatory stage of this process by creating an administrative obstacle. The Constitutional Court's monopoly of information thus amounted to a form of censorship. Furthermore, given that the applicant's intention was to impart to the public the information gathered from the constitutional complaint in question, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information was clearly impaired.
...
The Court recalls at the outset that “Article 10 does not ... confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual” and that “it is difficult to derive from the Convention a general right of access to administrative data and documents”. Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” and thereby towards the recognition of a right of access to information.
...
In any event, the Court notes that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him”. It considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. In this connection, a comparison can be drawn with the Court's previous concerns that preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny. Moreover, the State's obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The Court notes at this juncture that the information sought by the applicant in the present case was ready and available and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant.
...
The Court observes that the applicant had requested information about the constitutional complaint eventually without the personal data of its author. Moreover, the Court finds it quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint. It is true that he had informed the press that he had lodged the complaint, and therefore his opinion on this public matter could, in principle, be identified with his person. However, the Court considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent. These considerations cannot justify, in the Court's view, the interference of which complaint is made in the present case.
The Court considers that obstacles created in order to hinder access to information of public interest may discourage those working in the media or related fields from pursuing such matters. As a result, they may no longer be able to play their vital role as “public watchdogs” and their ability to provide accurate and reliable information may be adversely affected.
The foregoing considerations lead the Court to conclude that the interference with the applicant's freedom of expression in the present case cannot be regarded as having been necessary in a democratic society. It follows that there has been a violation of Article 10 of the Convention."
In an interesting if somewhat enigmatic judgment, the Court found a violation of Article 10:
"The law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom. The function of the press includes the creation of forums for public debate. However, the realisation of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The purpose of the applicant's activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society's important contribution to the discussion of public affairs. The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterised, like the press, as a social “watchdog”. In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.
The subject matter of the instant dispute was the constitutionality of criminal legislation concerning drug-related offences. In the Court's view, the submission of an application for an a posteriori abstract review of this legislation, especially by a Member of Parliament, undoubtedly constituted a matter of public interest. Consequently, the Court finds that the applicant was involved in the legitimate gathering of information on a matter of public importance. It observes that the authorities interfered in the preparatory stage of this process by creating an administrative obstacle. The Constitutional Court's monopoly of information thus amounted to a form of censorship. Furthermore, given that the applicant's intention was to impart to the public the information gathered from the constitutional complaint in question, and thereby to contribute to the public debate concerning legislation on drug-related offences, its right to impart information was clearly impaired.
...
The Court recalls at the outset that “Article 10 does not ... confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual” and that “it is difficult to derive from the Convention a general right of access to administrative data and documents”. Nevertheless, the Court has recently advanced towards a broader interpretation of the notion of “freedom to receive information” and thereby towards the recognition of a right of access to information.
...
In any event, the Court notes that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him”. It considers that the present case essentially concerns an interference – by virtue of the censorial power of an information monopoly – with the exercise of the functions of a social watchdog, like the press, rather than a denial of a general right of access to official documents. In this connection, a comparison can be drawn with the Court's previous concerns that preliminary obstacles created by the authorities in the way of press functions call for the most careful scrutiny. Moreover, the State's obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The Court notes at this juncture that the information sought by the applicant in the present case was ready and available and did not require the collection of any data by the Government. Therefore, the Court considers that the State had an obligation not to impede the flow of information sought by the applicant.
...
The Court observes that the applicant had requested information about the constitutional complaint eventually without the personal data of its author. Moreover, the Court finds it quite implausible that any reference to the private life of the MP, hence to a protected private sphere, could be discerned from his constitutional complaint. It is true that he had informed the press that he had lodged the complaint, and therefore his opinion on this public matter could, in principle, be identified with his person. However, the Court considers that it would be fatal for freedom of expression in the sphere of politics if public figures could censor the press and public debate in the name of their personality rights, alleging that their opinions on public matters are related to their person and therefore constitute private data which cannot be disclosed without consent. These considerations cannot justify, in the Court's view, the interference of which complaint is made in the present case.
The Court considers that obstacles created in order to hinder access to information of public interest may discourage those working in the media or related fields from pursuing such matters. As a result, they may no longer be able to play their vital role as “public watchdogs” and their ability to provide accurate and reliable information may be adversely affected.
The foregoing considerations lead the Court to conclude that the interference with the applicant's freedom of expression in the present case cannot be regarded as having been necessary in a democratic society. It follows that there has been a violation of Article 10 of the Convention."
Wednesday, December 03, 2008
Council of Europe Convention on Access to Official Documents
The Council of Europe has adopted a Convention on Access to Official Documents. Cause to celebrate for the worldwide FoI movement, you'd think, but no. The Convention has been criticised for having been developed in secret, with little or no public access to the text in crucial final stages of development. The text of the Convention is also severely lacking, according to NGOs as well as to the Council of Europe's own Parliamentary Assembly who called for a redraft to broaden the scope of authorities covered, impose time limits on the handling of requests, and strengthen the nature of the review processes available to people whose access requests have been denied.
On the bright side, this is still the first international treaty to establish an unequivocal right to access documents held by public bodies, subject to fairly limited exceptions. Exceptions must be precisely laid down in law, be necessary in a democratic society and must be proportionate to the protection of
On the bright side, this is still the first international treaty to establish an unequivocal right to access documents held by public bodies, subject to fairly limited exceptions. Exceptions must be precisely laid down in law, be necessary in a democratic society and must be proportionate to the protection of
- national security, defence and international relations;
- public safety;
- the prevention, investigation and prosecution of criminal activities;
- disciplinary investigations;
- inspection, control and supervision by public authorities;
- privacy and other legitimate private interests;
- commercial and other economic interests;
- the economic, monetary and exchange rate policies of the state;
- the equality of parties in court proceedings and the effective administration of Justice;
- environment; or
- the deliberations within or between public authorities concerning the examination of a matter.
Friday, July 11, 2008
House of Lords rules on Freedom of Information case
The House of Lords has ruled on the first case before it involving the Freedom of Information Act: Common Services Agency (Appellants) v. Scottish Information Commissioner (Respondent) (Scotland). The decision concerned a request in 2005 by a Green Party researcher for data showing the incidence of childhood leukaemia at ward level in Dumfries and Galloway. The Commissioner ordered release of this statistical data in 'barnardised' form – a method for disguising statistical information to prevent identification. The Court of Session upheld the Commissioner's decision on appeal, after which the CSA took their case to the House of Lords.
The Lords ruled to allow the appeal and have remitted the decision back to the Commissioner, to establish whether or not the statistical information can be released without the risk of identifying individuals.
The Lords ruled to allow the appeal and have remitted the decision back to the Commissioner, to establish whether or not the statistical information can be released without the risk of identifying individuals.
Tuesday, June 03, 2008
CoE Access to Information Convention now at PACE
Just a note here: the Committee of Ministers has transmitted the draft Convention on access to official documents and the draft Explanatory Memorandum to the Parliamentary Assembly. Another lobbying opportunity.
Tuesday, May 27, 2008
South Africa Constitutional Court on open justice and national security
The South African Constitutional handed down its judgment in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services last week. In what seems like a reasonably good judgment, the Court ruled that the in-camera evidence in the case of former National Intelligence Agency chief Billy Masetlha be made available to the public, but that certain disputed parts should not be published. This follows Independent Newspapers' application to get access to restricted material in the case of the former spy boss. The Minister for Intelligence Services, Ronnie Kasrils, had opposed the application on the grounds that the material was classified and could not be divulged, citing national security concerns.
The following is from the Court's press release:
Writing for the majority, Moseneke DCJ considered the cluster of rights that establish the right to open justice. He observed that the right to open justice is not absolute, but that a court must decide in all the circumstances of a particular case whether its limitation is in the interests of justice. Moseneke DCJ recognised that what is in the interests of justice has to be considered in the light of two competing constitutional claims: the first being open justice; and the second being the government’s obligation to pursue national security. In considering the Minister’s argument that the fact that documents are classified renders them immune to disclosure, he held that the mere fact that the documents in a court record carry a security classification does not oust the jurisdiction of a court to decide whether they should be protected from disclosure to the media and public.
The following is from the Court's press release:
Writing for the majority, Moseneke DCJ considered the cluster of rights that establish the right to open justice. He observed that the right to open justice is not absolute, but that a court must decide in all the circumstances of a particular case whether its limitation is in the interests of justice. Moseneke DCJ recognised that what is in the interests of justice has to be considered in the light of two competing constitutional claims: the first being open justice; and the second being the government’s obligation to pursue national security. In considering the Minister’s argument that the fact that documents are classified renders them immune to disclosure, he held that the mere fact that the documents in a court record carry a security classification does not oust the jurisdiction of a court to decide whether they should be protected from disclosure to the media and public.
Moseneke DCJ then considered each of the documents separately. He ruled that the whole of the in camera affidavit made by Mr Masetlha should be made available to the public but that the three disputed annexures to the affidavit should not.
Yacoob J further held, in relation to the interlocutory application, that it would have been in the interests of justice for the documents to be made available to the legal representatives of Independent Newspapers and some of their senior personnel to help Independent Newspapers prepare their case.
Sachs J in his judgment, which aligns itself with the outcome proposed by Yacoob J, placed reliance on the constitutional principle of openness to justify the disclosure of the relevant material. In contrast to the hegemonic and secretive agencies of the past, he reasoned, the South African intelligence services are required at all times to act within the limits defined by the Constitution, and in line with the spirit and purport of the Constitution. Sachs J concluded that more damage would be done to the national interest in general, and to the vitality of the intelligence service in particular, by withholding stale and routine information about the workings of the agency, than by allowing the normal rules governing public access to all court documents to apply.
Monday, December 11, 2006
240th Anniversary of the first FOI law
A nice little celebratory press release by the OSCE Representative on Freedom of the Media:
Forty five out of 56 OSCE participating States have adopted national laws giving specific rights to citizens and journalists to obtain information from government bodies.
The first access to information act took effect in the then Kingdom of Sweden and Finland on 2 December 1766. Since then, many democracies worldwide have adopted freedom of information laws and set up transparent principles of classification.
More
OSCE media freedom representative marks 240th anniversary of first access to information law
VIENNA, 1 December 2006 - Marking the 240th anniversary of the world's first freedom of information act, the OSCE Representative on Freedom of the Media, Miklos Haraszti, encouraged those OSCE participating States which have not yet developed and enforced access to information legislation to speed up this process.Forty five out of 56 OSCE participating States have adopted national laws giving specific rights to citizens and journalists to obtain information from government bodies.
The first access to information act took effect in the then Kingdom of Sweden and Finland on 2 December 1766. Since then, many democracies worldwide have adopted freedom of information laws and set up transparent principles of classification.
More
Wednesday, November 15, 2006
European Treaty on Access to Information
For some years now, since 1998 in fact, the Council of Europe has been talking about agreeing a treaty or other international document on freedom of information - the right of every person to have access to information held by or on behalf of the state. This is an important issue for two reasons: first, because access to information is crucial to democracy and key to enforcing other human rights, and second, because unlike the other major global and regional human rights treaties, the European Convention on Human Rights does not confer a right of access to information.
The early efforts culminated in a Recommendation on Access to Official Documents, adopted in 2002, which is pretty good in terms of substance but which is unfortunately not binding in law. The Council's "Group of Specialists on Access to Official Information", or DH-S-AC in bureacracy-speak, has therefore continued work on putting a treaty together and they are now in fact pretty close to agreeing something. Unfortunately it looks like it'll be a watered-down version of the 2002 Recommendation, which is a shame, and the provisional draft so far has been much criticised by the three civil society groups that have observer status on the Group of Specialists. Criticism of the latest draft of the treaty - which itself has not been made public, as far as I can ascertain - by ARTICLE 19 and others can be found here; an earlier civil society letter criticising the draft treaty can be found here.
No word yet on when the treaty might be ready for consideration by States - the draft is now at the 'expert group' level, and needs to go through at least one further layer of bureaucracy before it'd be ready for signature - but it does feel as though they have some momentum going right now. Mid-2007 perhaps?
The early efforts culminated in a Recommendation on Access to Official Documents, adopted in 2002, which is pretty good in terms of substance but which is unfortunately not binding in law. The Council's "Group of Specialists on Access to Official Information", or DH-S-AC in bureacracy-speak, has therefore continued work on putting a treaty together and they are now in fact pretty close to agreeing something. Unfortunately it looks like it'll be a watered-down version of the 2002 Recommendation, which is a shame, and the provisional draft so far has been much criticised by the three civil society groups that have observer status on the Group of Specialists. Criticism of the latest draft of the treaty - which itself has not been made public, as far as I can ascertain - by ARTICLE 19 and others can be found here; an earlier civil society letter criticising the draft treaty can be found here.
No word yet on when the treaty might be ready for consideration by States - the draft is now at the 'expert group' level, and needs to go through at least one further layer of bureaucracy before it'd be ready for signature - but it does feel as though they have some momentum going right now. Mid-2007 perhaps?
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