Policy guidelines for the development and promotion of governmental public domain information

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II.3. Second key element: Establish the legal right of access to and use of public information

One of the major features of a comprehensive approach to promoting access to and use of governmental public domain information is the adoption of a positive legal right of access through national legislation. This could be called either a “Freedom of Information” (FOI) law, or a “Freedom of access to public information” law.
There has, in fact, been a recent global trend toward greater government openness with public information. Over the past decade, many countries have enacted such legislation, which is an essential aspect of this trend. Over 40 countries now have legislation that facilitates access to governmental information and over 30 more are in the process of enacting such a law.27
Freedom of Information laws reverse the presumption of government secrecy in favour of a principle of availability. Under such laws, the information held by the government that is not otherwise made routinely available can be accessed by its citizens on request. FOI laws are intended to guarantee the right of citizens to access the information that was created by their government on their behalf.
Therefore, countries that do not yet have a Freedom of Information law for their public information should adopt one, following a comparative analysis of such similar laws in other countries.28 Those countries that already do have such a law may wish to further revise their existing legislation. The following guidelines should be considered:
a. The right of citizens to access governmental information should have its basis in law through the national Constitution, and be implemented by statute;
b. The type of governmental information that should be actively disseminated should be defined. It is also important for the legal system to recognize the legal value and authenticity of electronic formats. The concerned information sources should be defined as well. In this process, there is a great opportunity for a nation to achieve a more complete understanding and appreciation of its information richness and diversity.
c. A public body requested to give access to a given item of information should not control the particular interest the requestor has in accessing it.
d. Exceptions to the principle of availability should be carefully balanced. There may well be interests that justify the withholding of certain governmental information, just as there may be for not designating certain types of information as being in the public domain. For this reason, FOI laws contain exemptions to allow a public entity to refuse to release requested information on the specific grounds set out in the law.
Common reasons for withholding governmental information are: to protect the privacy of individuals, to safeguard a country's intelligence and national security secrets, to avoid prejudicing a criminal investigation, to enable advisers to give frank advice to their ministers, or to protect a commercial confidence or private proprietary information. Provisions that restrict access to protected governmental information are frequently enforced by the use of criminal penalties. Specific considerations in this context include the following:
National security restrictions. Many developing countries still protect the vast majority of their governmental information under national security and administrative confidentiality statutes, thereby withdrawing most governmental information from public domain status and availability to the public. While legitimate national security priorities must be protected through information confidentiality, national security concerns should not be used to create unnecessary secrecy over governmental information.29 Any classification regime also must include a declassification schedule that establishes a timetable for placing previously restricted information in the public domain.
Protection of personal privacy. Many countries have already enacted legal protection for data related to individuals. The protection is usually based on legislation covering data held by both the private and public sectors. The UN guidelines30 on the matter state several basic principles that Member States need to take into account when implementing national rules:

  • The lawfulness and fairness of data collection and processing;

  • The accuracy and relevance of the data;

  • Respect for the purpose served by the information, which means inter alia that personal data cannot be used or disclosed without the consent of the person concerned;

  • Access to the data by the person concerned (with the right to obtain the change or deletion of inaccurate personal information);

  • No compilation of data likely to give rise to unlawful or arbitrary discrimination;

  • Exceptions to protect national security, public order, public health or morality, or the rights and freedom of others are allowed, but only within limits and safeguards given by the domestic law (and by the Universal Declaration of Human Rights for cases related to the prohibition of discrimination); and

  • Effective data security.

If a nation has already adopted personal data protection legislation, this legislation and the FOI law should be mutually consistent.
Protection of trade secrets. Secrecy over commercial know-how can also be a legitimate reason to restrict access to information held by the government. A trade secret is commercially valuable information that is legally protected as long as it remains secret, by laws that prevent the acquisition of the secret by commercially unfair means or through unauthorized disclosure. In the context of government activities, a public entity must protect a private sector trade secret that is disclosed to the government in confidence. Also, in many jurisdictions, a trade secret can be protected by a publicly-funded organization, such as a state-owned company.
e. If the information is not directly accessible through an electronic network, the public authority allowing or denying access should be required to take its decision in a certain specified period, and the reasons for denying access should be sufficiently detailed, so that the requestor can determine the basis for an appeal of the decision.
f. An independent office needs to be established to handle appeals of decisions denying access to the information. This office may be referred to as “ombudsman”. The boundaries for determining what information can be released and what should remain confidential to the government can in some cases be quite subtle, however, and difficult to apply. The approach adopted in many FOI laws has been to apply a “harm test,” which allows the government to withhold the disclosure of the information, and the concept of an overriding public interest, or “public-good test,” to require the disclosure of the requested information.
The process by which the ombudsman is asked to intervene has to be clearly stated and must be performed on a reasonably expeditious basis and be sufficiently transparent. States should define whether the ombudsman’s decisions are binding or not, and establish a mechanism for a final review of access denials. An effective model should avoid charges for filing an FOI request that are so high as to amount to a barrier to access preventing ordinary citizens from obtaining requested information.
g. Although Freedom of Information laws are an essential factor in implementing the presumption that governmental information is of a public nature, and in promoting an open society and transparency in governance, they are not in themselves sufficient. In practice, such laws typically involve a bureaucratic, cumbersome, and relatively expensive process that the citizen must undertake in order to obtain information that is legally in the public domain and should be made public. Moreover, the citizen also may need to investigate what information the government may have in order to identify what information to request. Government bureaucracies frequently resist the release of their information and the access and enforcement mechanisms may be weak or unenforceable. Finally, political pressures on either the government entity that holds the information, or on the citizen requesting its release, may make a FOI request ineffective or even unwise.31 Such situations can be alleviated by the development of a comprehensive Information Policy Framework for the management and active dissemination of governmental information, as outlined in section II.4 below.

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