Government PublicationsReview, Vol. 10, pp. 81-8’7, 1983 Printed in the USA. All rights reserved.

0177-9390/83/010081-07$3.00/O Copyright @ 1983 Pergamon Press Ltd

FREEDOM OF INFORMATION ACTS: A COMPARATIVE PERSPECTIVE

TOM RILEY * International Freedom of Information Institute, London International Press Centre,

76 Shoe Lane, London EC4A 3JB UK

Abstract-“Freedom of information,” as a policy concept, has come to mean many things to many people. As used here, it refers to the statutorily guaranteed right of a citizen to obtain official records, with certain specified exceptions, so that he or she may know what the government is doing and why. Two of the most difficult and general exceptions to the rule of presumptive government information accessibility are “national security” and the “public interest.” The manner and extent to which these two referents, or their approximations, impinge upon freedom of information guarantees in some access statutes is explored, together with some consideration of differing mechanisms for assuring that freedom of information is fully realized.

It is important when dealing with the multi-faceted aspects of Freedom of Information (FOI), such as I will attempt to do in this summary, that some sort of definition is given of what Freedom of Information itself really means. This is especially important when trying to come to grips with the dividing line between the “public interest” and “national security,” those most ambiguous of phrases, and the invasion of privacy.

The term “freedom of information” is, in many ways, all-embracing and has come to mean many things to many people. To those in the media it implies more the right to publish infor- mation and the right of the free flow of information without undue government restrictions. It means their implicit right to inform the public in the way they think is best and without be- ing fettered by stifling regulations which in any way unnecessarily restrict this right. This, in itself, is subject to major debate in the western press due to the controversial report from UNESCO in 1980 which, essentially, recommended different forms of press controls and a new world information order [ 11. The controversy ensuing from this is perhaps the most ma- jor crisis facing the free press today.

The definition I shall be dealing with here relates to information held in government files. Some critics have argued that freedom of information is far too loose a term and that the American statute of that title is improperly named. Access to Government Information is a more preferable term as this limits it to the kind of information being sought and implicitly holds that it is this “Access” which is being requested by the citizen.

However, the important thing is what is actually meant by the term, whether it be Freedom of Information or Access to Information. What it means is that legislation with this type of right guarantees to the citizen a right to information, with certain exceptions as government cannot be run in a fishbowl (and these particularly contentious exceptions are what shall be

*Tom Riley is executive secretary of the International Freedom of Information Institute and an editorial contributor with ~~~~s~fff~onu~ Data Report, for which he reguiarly writes on various information policy developments. Together with Harold Relyea, he co-edited Freedom of Information Trends in rhe Information Age (1983).

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82 TOM RILEY

explored here) [2]. It means that the citizen will then be in a position, if one so chooses, to know what his government is doing and why. It means that the citizen who pays taxes for the gathering of the information will have the right to scrutinize the information- but this is in

theory, not necessarily in fact, as any well informed member of the press, who has attempted to dig out government scandals, wrongdoing, or corruption, knows. It means, in other words, that there shall exist the opportunity for an electorate to be informed. It guarantees a right expressed by U.S. President James Madison in 1822 when he said:

A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or Tragedy, or perhaps both. Knowledge will forever govern ignorance. And the people who mean to be their own Governors, must arm themselves with the power, which knowledge gives [3].

This type of law then implies that there shall exist an accountability by the government of the day for what it is doing and for the policies it implements in the name of the people it is governing.

The above statements and definitions really are expressions of the ideal couched in very broad, philosophical terms. The reality of what such laws can accomplish is, as we all know,

much different. It is evident that even in countries where there are laws giving a statutory right to know

there is a constant struggle between those who hold the information and those trying to get hold of the information. Never is this clearer than when the controversy involves the grey areas of “national security” or the “public interest.”

These two phrases are perhaps the most difficult and general of all the exceptions to the rule of presumptive government information accessibility. It is clear that any law which seeks to exempt some form of informaton will create ambiguities and uncertainties, but it seems

these two particular exemption concepts are the ones which cause the most difficulties. Different constituencies take very different approaches to how such exemptions shall be

applied. The Canadian Access to Information and Privacy Act, just passed by Parliament on July 7, 1982 and scheduled to become operational early in 1983, does not use the phrase “na- tional security” whatsoever.

This omission stemmed from a recommendation by the Canadian Bar Association, which lobbied on this legislation in Canada for a number of years, which contended that the term “national security” itself had never been fully defined and that to incorporate such an excep- tion would only lead to immense difficulties and create opportunities for both bureaucrats and the government of the day to bring far too much information under its umbrella. As a consequence, the approach taken by the Canadian government when drafting the legislation was to include better identified classes of information which presumably fell under this category. These included such things as national defence, communications between interna- tional organizations, governments of other nations, if the information was given in secret, and activities related to terrorism or subversion. However, even in the case of “subversion,” difficulties are foreseen as there could be a propensity by security agencies to bring under this definition information about many groups they consider “subversive,” but in fact might only be so termed due to the prejudice of a presiding officer [4].

One potential safeguard against this kind of discretionary withholding is the office of the proposed Information Commissioner, who will be able to study any document denied a citi- zen and enter any premise and see any form of data, with the exception of Cabinet docu- ments and discussions and related papers (laid out in the Act). This Commissioner will not only be able to study the denied documents in question, but recommend release to a Minister. If the Minister denies release then the applicant has a review in the courts.

Freedom of information acts 83

This is similar to the American Freedom of Information Act, but the difference here is in the case of “sensitive documents” (considered political in nature). The judge in a court of law can only determine if the Minister was reasonable in making his decision (i.e., his conduct is judged, not the exemption itself). The judge in these instances cannot decide on the validity of the document being exempt as per the law, but rather if the Minister’s actions were justi- fied. This applies only to national defence, international organizations, Federal/Provincial relations or certain economic information. All other information, if denied, would be reviewed by the judge in terms of the wording of the exemption in the law, thus subject to in- terpretation by the courts, and if the court ordered disclosure, the Minister is bound to release the information.

The other facet of this law is the Information Commissioner is responsible to Parliament and may report on special matters to Parliament. It is felt that this will act as a publicity mechanism for those who may try to withhold information capriciously. However, the weakness of the Canadian law is felt to be in the exemption of Cabinet discussions and documents, as there could be a tendency by a department towards labelling far too much in- formation by simply stamping it a Cabinet document. A major difference from the American law is that even if a document is classified as Top Secret, Secret, Confidential, or Restricted, it may still be released if it is not an exempt document. Classification has nothing to do with whether or not a document can be released.

From a press viewpoint, difficulties could arise in Canada when trying to dig out informa- tion leading to scandals in high places. Also, much of the press in Canada are of the opinion the exemption on Cabinet documents will mean they will not be able to get anywhere near the information hoped for under such a law. However, this is mere speculation at this point as the test of the law will be in its implementation.

For example, what could evolve is a situation as in the United States where many reporters state that they do not have to make formal requests for information as the very existence of the access law enables them to call up a government department or agency and readily obtain documentary information informally. This is by no means the case when trying to get the type of information which can be categorized as “sensitive” or “sensational,” but over and above this, the point is that in these countries where laws are in place, there is much more in- formation available. But, by the same token, there is always human frailty and the impulse to hide behind the cloak of secrecy when it is politically expedient to do so. Where there is wrongdoing to hide, the fight is on to protect one’s own skin.

Another aspect of this problem is that with these exemptions dealing with national defence and other “matters dealing with security,” it becomes a question of how much does the public have a right to know, combined with how much can the press get (leaks aside) to expose such information for the public good. (The problem of definition again arises.)

In this respect the Swedish and Finnish laws are unique, especially the Swedish laws which, through the Secrecy Act, list precisely what sensitive information is exempt. This is different from most other jurisdictions which opt instead for listing “classes” of information which are exempt. Experts are divided about which type of approach is best, with some saying in the Swedish case at least there is more of a chance for publicity as the exempt information is clearly laid out, whereas with the classes of exempt information there is a problem of inter- pretation which can be time consuming and costly, especially if one has to go through a review process.

The Swedish example, of course, has its grey areas as evidenced by the case of Owen Wilkes of the Stockholm International Peace Research Institute, prosecuted for collecting military secrets even though the information was readily available to the public in different forms.

84 TOM RILEY

In Australia, the term “national security” is used in their Freedom of Information Act, given Royal Assent on March II, 1982 and operational on December 1.

If denied an information request, a citizen will have the right of appeal to the Adminis- trative Appeals Tribunal and in the case of maladministration, will be able to appeal to the Ombudsman. There is a further right of appeal to the Federal Court, but this is somewhat limited. However, there is no appeal if the information falls under four broad categories of information. These are: Cabinet documents; Executive Council documents; documents af- fecting national security, defense, international relations and relations with the States; and internal working documents.

In these instances, the document is declared exempt by the Minister who heads the depart- ment concerned by signing a “conclusive certificate” (which effectively blocks the appeal to the Administrative Appeals Tribunal). However, as a mechanism for some form of checks and batances, the Act creates a body to review a document if it falls into one of the above four categories and is denied. This body will be called the Document Review Tribunal and will consist of judges and ex-judges. They will normally sit in public to review the documents in question, but their findings are merely advisory. They can recommend that a Minister disclose a document, but the final decision will still rest with the Minister. It is thought that if a Minister consistently overturns and rejects the recommendations of the Documents Review Tribunal, it could become politically embarrassing both for the Minister concerned and the government of the day. It is also an avenue of publicity which can be used by a vigilant F.O.I.-supportive public but, of course, this still leaves release to chance.

For the press, there is the additional problem of time. Though the review process itself can be helpful in exposing a scandal or wrongdoing, the timeliness of it can be lost in the endless review process.

The other interesting aspect of the Australian law is that it does not allow for the release of government documents (except personal information going back five years) created prior to the passage of the law. The only exception could be in the case of applying for a document which came into existence after December 1, 1982, and prior documents are necessary to make the most recent documents being applied for understandable.

Under the proposed Official Information Act under discussion in the New Zealand Parlia- ment in 1982, the approach to sensitive information takes a rather different tack. There is a section entitled “Conclusive reasons for withholding information” which states:

Good reason for withholding information exists, for the purpose of (the principle of availability) of this Act, if the making avaihtble of that information would be likely to prejudice- (a) The security, defence, or international relations of New Zealand; or (b) The entrusting of information by the Government to New Zealand on a basis of confidence by-

(i) the government of any other country or any agency of such a government; or (ii) Any international organisation or agency of an international organisation; or

(c) The maintennance of law and order, including the investigation and detection of offences; or (d) The substantial economic interesfs of New Zealand.

The significance of this type of exemption is that the wording is so ironclad that it does not leave much interpretation for release by either a government official or the Ombudsman (in the event of a request for a review by an applicant).

Further, Section 30 of the Act enables the Attorney-Genera1 to certify information in cases of the security, defence, or internationa1 relations of New Zealand; or the investigation or

Freedom of information acts 85

detection of defences, in which case the Ombudsman is unable to recommend release though he can recommend further consideration of the matter by the appropriate Department or Minister of the Crown or organisation.

Thus, there are “conclusive” exemptions and what could be termed “permissive” exemp- tions, that is, types of information which “may” be released in the public interest. Another feature of the proposed New Zealand bill is that an Information Authority is to be set up which will determine what categories government information shall fall into.

The French law, passed in 1978 and based very much on the American Freedom of Infor- mation Act, includes a list of “types” of documents which may be withheld. The list is short, leaving to the independent review Commission- the Commission on Access to Administra- tive Documents (CADA)-and the courts, room for interpretation of what may or may not be withheld. Thus, the law states access to documents may be refused only if their release “would adversely affect” the following general matter:

1) The secrecy of the deliberations of the government or of authorities whose powers are derived from the executive;

2) Secrecy related to national defence or foreign policy; 3) Currency or public credit, state authority and public safety; 4) Proceedings before the courts or steps preliminary to such proceedings; 5) Personal privacy, including personal and medical files; 6) Commercial and industrial secrecy; 7) Investigations by competent authorities into breaches of fiscal or customs regulations; 8) In general, secret matters protected by law. In essence, the wording “would adversely affect” inserts a form of harms test (that is to

say, would the release injure the public interest) into the law in which the government official must show demonstrable harm would be caused by information release. This type of harms test is omitted in most of the exemptions in the Canadian Access to Information and Privacy Act, the Australian Freedom of Information Act and the proposed New Zealand Official In- formation bill.

One interesting sidelight to the French law is that though it is quite a liberal law and far reaching in allowing the release of administrative documents, there is no evidence to date of widespread use by the press. Thus, there does not appear to have been any controversial mat- ters arising over so-called “sensitive information.”

These are some aspects of laws or proposed laws which are of special interest to the press. There are currently laws in other countries not mentioned here. In Austria in 1973 the Federal Ministries Act was amended to give a limited right of access to documents. Essen- tially, the amendment stated that a Minister had a duty to give out information and he was to see that his departments were informed of this duty.

However, there is no administrative right of access outlined in this law. More specifically, a Minister or his subordinate officials do not have to release the information in a document, but can just orally state what is there. As this is an administrative matter, there is an appeal under the law governing appeals to the administrative courts.

Another aspect of the law in Austria is that for an appeal to be made, it must first be out- lined in a letter to the Minister concerned. If the Minister does not answer this within a cer- tain time span, there will be no appeal. In brief, the Austrian duty to inform does not refer to documents but to matters, and thus the right to know is severely restricted. There are no in- dications that the Austrian government is considering any changes, though a study of the Swedish and American laws has just been completed for them by a private group.

The Council of Europe’s Committee of Ministers passed a recommendation on The Access

86 TOM RILEY

to Information Held by Public Authorities [5], on November 25, 1981 (at that time Italy and Luxembourg reserved the right of their governments to comply with it or not). The prin- ciples laid out closely followed the American Freedom of Information Act, including calling for an independent review system.

A Freedom of Information or Access to Information Act, or whatever the title of such a law, is important to the press both as a tool to gather information for the press to be able to properly do its job, and as a basic right because the ability to obtain government information is vital to preserve that most fundamental right in any democracy: Freedom of the Press.

NOTES

See International Commission for the Study of Communication Problems. Many Voices, One World. Com- munication and Society, Today and Tomorrow. London: Kogan Page; New York: Unipub; Paris: United Na- tions Educational, Scientific and Cultural Organization, 1980; also see World Press Freedom Committee. The Media Crisis . . . Miami: World Press Freedom Committee, Rex Rand Fund, [1980]; Anthony Smith. The Geo- politics of Information. New York: Oxford University Press, 1980.

2. See Harold C. Relyea. “The Provision of Government Information: The Federal Freedom of Information Act Experience.” Canadian Public Administration 20 (Summer 1977), 324-325.

3. Letter to W.T. Barry, August 4, 1822. Gaillard Hunt, ed. The Writings of James Madison. Vol. 9. New York and London: G.P. Putnam’s Sons, 1910, p. 103.

4. See, for example, U.S. Congress. House. Committee on Government Operations. Execufive Classification ofIrz- formation -Security Classification Problems Involving Exemption (b)(I) of (he Freedom of Information Act (5 U.S.C. 552). M. Rept. 93-221, 93rd Congress, 1st Session. Washington, U.S. G.P.O., 1973, pp. 61-66; also of interest is Arnold Wolfers. “ ‘National Security’ as an Ambiguous Symbol.” Political Science Quarter/y 67 (December 1952), 481-502.

5. This recommendation is attached as an appendix to this article.

APPENDIX

COUNCIL OF EUROPE COMMITTEE OF MINISTERS

RECOMMENDATION No. R (81) 19

OF THE COMMITTEE OF MINISTERS TO MEMBER STATES

ON THE ACCESS TO INFORMATION HELD BY PUBLIC AUTHORITIES’

(Adopted by the Committee of Ministers on 25 November 1981 at the 340th meeting of the Ministers Deputies)

The Committee of Ministers, under the terms of Article 15.6 of the Statute of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve greater unity be- tween its members;

‘ When Recommendation No. R (81) 19 was adopted, and in application of Article 10.2.~ of the Rules of Procedure for the meetings of the Ministers’ Deputies, the Representatives of Italy and Luxembourg reserved the right of their governments to comply with it or not.

Freedom of information acts 87

Having regard to Assembly Recommendation 854 on access by the public to government records and freedom of information;

Considering the importance for the public in a democratic society of adequate in- formation on public issues;

Considering that access to information by the public is likely to strengthen con- fidence of the public in the administration;

Considering therefore that the utmost endeavour should be made to ensure the fullest possible availability to the public of information held by public authorities,

Recommends the governments of member states to be guided in their law and practice by the principles appended to this recommendation.

Appendix to Recommendation No. R (81) 19

The following principles apply to natural and legal persons. In the implementa- tion of these principles regard shall duly be had to the requirements of good and effi- cient administration. Where such requirements make it necessary to modify or ex- clude one or more of these principles, either in particular cases or in specific areas of public administration, every endeavour should nevertheless be made to achieve the highest possible degree of access to information.

Everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities.

II.

Effective and appropriatemeans shall be provided to ensure access to information.

III.

Access to information shall not be refused on the ground that the requesting per- son has not a specific interest in the matter.

IV.

Access to information shall be provided on the basis of equality.

V.

The foregoing principles shall apply subject only to such limitations and restric- tions as are necesssary in a democratic society for the protection of legitimate public interests (such as national security, public safety, public order, the economic well- being of the country, the prevention of crime, or for preventing the disclosure of in- formation received in confidence), and for the protection of privacy and other legiti- mate private interests, having, however, due regard to the specific interest of an individual in information held by the public authorities which concerns him personally.

VI.

Any request for information shall be decided upon within a reasonable time.

VII.

A public authority refusing access to information shall give the reasons on which the refusal is based, according to law or practice.

VIII.

Any refusal of information shall be subject to review on request.