The Right to Information
Content List:
Strategic Use: Why would you want to access information?
Exercising the right to access information
What kind of information can you request?
Who can you ask for information?
Procedure: How to ask for information
Before you start
How to file a request
What if the information's not held
What are the deadline's for a response
In which form must the reply be given
In which form must the information be provided
A guide to the Right to Education in South Africa
Overview of the right to information
Meaningful access to information is a key for communities and individuals to participate in decision-making that affects them, such as the establishment of a mine or another industrial project. It can also play a decisive role in uncovering corruption, providing a better understanding of how well basic public services function and enable the right to a fair trial.
Access to information laws and their implementation vary from one country to another. In some countries, a lot of information is published proactively, while in others, the purpose of the law is to block access to information or poor implementation prevents transparency.
This module focuses on the main concepts common to many countries and how to request information and deal strategically with situations where information is denied or unfair obstacles are imposed. We also discuss how to deal with information after disclosure.
Strategic Use: Why would you want to access information?
Information is often at the heart of successful legal action, as it will inform you about what has happened, who are the parties involved and allow you to tell what legal action you can take. Often it will be linked to events and cases in other legal areas, such as land rights or corruption to name a few, but sometimes it may purely be linked to the right of the public or individuals to get access to information.
The actual request itself can put pressure on government and/or involved parties and serve as part of an advocacy campaign.
Where to find information
There are three main routes to obtaining information:
1. Publicly available information
The first step is to check whether the information you need is already publicly available. Some governments publish documents in official registers or through libraries, which may be accessible online.
EXAMPLE:
An example of an online register can be found here
http://europa.eu/publications/official-documents/index_en.htm.
This is the register of official documents of EU institutions.
Some documents are available directly through the website,
others can be requested.
2. Obtaining information from public bodies and private bodies with a public function
Many countries and international organisations have adopted access to information rules that prescribe what information can be requested, by whom and how. In some countries these rules also apply to private bodies that perform a public function, such as a power company or privately run hospital.
3. Obtaining information from private bodies
In general, private bodies like companies are not required to disclose their internal documents by law (although they may have to if they perform a public function - see above). In some cases, a court may order a private body to disclose documents to an opponent in legal proceedings.
#See also the guide on obtaining disclosure during civil proceedings.
TIP: Before disseminating information obtained in any of these ways further, check whether there are any limitations attached to its use. Sometimes, information may be copyrighted, even if it is found in a public register. The disclosing body will usually inform you whether the information must be treated confidentially or whether other restrictions apply. Also consult the #guidance on dealing with information after disclosure below.
Exercising the right to access information
Increasingly, the principle is recognised that public bodies are not the owners of the information they hold and that the public should have access to this information, unless there are important, legally recognised, reasons to withhold it. International law requires governments to facilitate access to the information they hold. Many countries have enacted laws to enable access, although their quality and implementation varies widely. In the section on #finding applicable law we provide an overview of the relevant international treaties and how to find national laws.
Several non-governmental organisations have summarised good practice that promotes meaningful access to information for the public. These include principles such as maximum disclosure, the obligation to publish information proactively, clearly defined and limited exceptions, the establishment of processes that facilitate access to information for citizens, low costs, open meetings and protection for whistleblowers. Together they provide an example of best practice, which will often not be met in practice and must be advocated for.
REFERENCE: Article 19 Principles on Freedom of Information Legislation
REFERENCE: Right2info.org - good law and practice
Who can request information?
Most modern access to information laws grant the right to request information to any person or organisation, without discrimination on any grounds. In some countries, the applicant must be a resident. Usually, requests for information can be made by mail, e-mail, telephone or fax.
NOTE: Many national laws and some international instruments prohibit discrimination on the basis of *domicile (place of residence).
EXAMPLE: Article 3(9) of the Aarhus Convention states:
Within the scope of the relevant provisions of this Convention, the public shall
have access to information, have the possibility to participate in
decision-making and have access to justice in environmental matters
without discrimination as to citizenship, nationality or domicile and,
in the case of a legal person, without discrimination as to where it
has its registered seat or an effective centre of its activities.
What kind of information can you request?
Generally, you can ask for disclosure of any kind of information held by a public body regardless of its form (written, visual, aural, electronic and so on) or its owner or author.
Some laws give you the right to access 'information', and others guarantee access to 'documents’,whereby the word ‘document’ is usually defined broadly and includes records of any kind, including audio and video recordings or electronic files. In most cases this distinction is not of much importance. Under both systems, public bodies are usually only required to disclose information that is contained in an existing document, and are not under an obligation to generate new information or documents.
EXAMPLE:
You would be able to request the budget of a specific governmental
department, but a request for a ministry’s opinion on a particular matter
would normally fall outside the access to information law,
unless that opinion had already been recorded in a document.
NOTE:
In many countries it is unclear to what extent public bodies are required to respond to requests for an extract from an electronic database. A sensible approach followed in some countries is that public bodies are required to create the extract, if the necessary search query can be created without an unreasonable effort. For more information, see the LegalLeaks toolkit [http://www.legalleaks.info/right-to-information/6-what-about-access-to-an-entire-database.html]
NOTE:
In some countries, the right of access is limited to information or documents that are related to the public body’s official functions. Under such legislation, it would for example not be possible to request personal documents held by a civil servant in his or her office,since these are not ‘official documents’. Other laws would deal with this issue at the level ofexceptions (meaning that a request of this kind might be refused on privacy grounds). See
the #Exceptions section
Who can you ask for information?
If you are thinking about requesting information, the first step is to ask WHO holds the information and WHERE it may be held. It may be held by multiple public bodies, in the same or in different countries or regions. Try to find out exactly which public bodies are likely to hold the information.
The next step is to assess where the best place to request the information is. Usually you will want to file the request where you are most likely to get disclosure; you may also choose to request the information from several different places at the same time. You may also wish to consider what fees will apply to each request.
RESOURCE: For more considerations on where to file a request, see the LegalLeaks toolkit [http://www.legalleaks.info/journalistic-research/4-where-should-i-file-m...
EXAMPLE:
If you are investigating corruption in relation to a project in country A,
the information you need may include the minutes of meetings between
a company and a government representatives in country B, which
may even have a better access to information law.
EXAMPLE:
A group of European journalists wanted to know who benefits from
the agricultural subsidies given by the European Union, one of
the EU’s biggest annual expenses. They did so by requesting information
from the EU member states and the EU itself.
A map compares how much information is available in different countries,
putting pressure on the less transparent ones to increase disclosure.
You can request information from various bodies depending on the national law.
Finding applicable law
It is important to review your constitution to determine whether it includes an applicable provision. Many constitutions around the world include the right to access information which could open the door to streamlined processes for enforcing the law if the government body does not provide the requested information in a timely manner.
EXAMPLE:
“Everyone has the right of access to:
a. any information held by the state; and
b. any information that is held by another person and that is
required for the exercise or protection of any rights."
Constitution of the Republic of South Africa (1996), Article 32, Access to Information
Procedure: How to ask for information
Before you start
TIP: Be sure to document everything you do to seek information. If you talk to someone on the phone, be sure you record his or her name and the date and time of the call on a piece of paper and take notes about the conversation. It is good to follow up those conversations with a note to the person you talked with summarising the call. Keep a record of everything you do in case you later need to litigate.
Before you make a request for information, it can be useful to check whether there are risks in doing this, and if so, how to manage the risks. It is helpful to ask yourself:
Is there a risk to your security?
If you make an official request and believe you there is a risk that action may be taken against you in response, consider first how to protect yourself and whether there is a better way of getting the information. Is there another group who can ask for it? For example, could the request be made by a coalition, or by a national civil society group, a lawyer or journalist?
Is there a risk to the information that you are requesting?
Is there a risk that a person or office who holds the information will destroy it before you can access it? [#see Destruction of Information]. If so, are there any preliminary steps you should take? For example, could a court grant an order requiring named officials to produce the information? If the information is available in several places, should you make several requests at the same time to the different Government offices where it is held?
Is there a risk in how you are planning to use the information?
Can you protect the security of the information once you have obtained it? For example, is there a trusted person to whom you can send it anonymously? See further the section below on [#Dealing with information after disclosure]
RESOURCE: For more information regarding securing digital information (#https://securityinabox.org/en). The comments in www.legalleaks.info (#http://www.legalleaks.info/toolkit.html) are also useful.
How to file a request
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What if the information's not held
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What are the deadline's for a response
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Case Studies
A guide to the Right to Education in South Africa
Summary:
This is an useful resource on how to file right to education lawsuits in South Africa, where the Legal Resource Centre has been bringing (and winning!) such lawsuits over the last five years. The guide is intended to be accessible to the lay reader, and provides case studies and explanations, and summaries and extracts of the pleadings brought before the South African courts, from which legal arguments may hopefully be adapted to other constitutional systems. Of especial interest to public interest litigators will be the commentary on designing and perfecting a litigation strategy on page 155-165.
Weblink:
Ready to Learn: A Legal Resource for Realising the Right to Education
Click here to access the PIL Checklist which covers:
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When can I take action?
Who can take action?
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How do I deal with community security issues?
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