The Laws of Transparency in Action

This chapter addresses the topic of access to documents and more broadly transparency at the level of Community bodies, in the context of a mounting criticism regarding their opaque nature. It first investigates the outdated Directive No. 1049/2001 as well as the interplay of actors and regulations which shape this field. It then moves on to examine the case law of Court of Justice of the European Union (CJEU) and European Ombudsman in the area of exceptions from free access. Exceptions represent perhaps the most challenging aspect of access, as EU bodies in many areas enjoy a wide discretion which needs to be balanced with the right of the EU citizens to know. The chapter includes a significant number of statistics and secondary data compiled by the authors from various reports drafted by EU bodies, which illustrate the practice of these institutions in terms of granting access to documents.

In France, a legislation on freedom of information (FOI) granted every person the right to obtain communication of documents held by an administration within the framework of its public service mission, regardless of their form or medium, in 1978. This marked a stark break away from a tradition of administrative secrecy and sought to improve the relations between the French State and its citizens.

The French FOI act aims to find a balance between the right to access public information (a democratic requirement and a prerequisite for the exercise of fundamental rights), and other competing interests (privacy, competition, and public order and security). This equilibrium is constantly reshaped under the influence of technological developments and an increasing commodification of public information.

Changes and adaptation occur through legislative changes (such as the 2016 statute on ‘Republique numérique’) and through practice, for example, through the combined interaction of an independent authority—the Commission d’accès aux documents administratifs (CADA)—and the French administrative judge, the Council of State.

This chapter seeks to provide an assessment of how the law works in practice, thanks to interviews with senior practitioners in this matter such as legislators, judges, and information commissioners and the analysis of empirical data such as CADA’s annual reports, opinions, and advice. Three main issues emerge from this assessment: firstly, administrative inertia is still very strong nearly 40 years after the first FOIA was adopted; secondly, the exceptions to the principle of access to administrative documents have grown over time, reducing the actual scope of FOI; thirdly, fragmentation of the special regimes may lead to more confusion than transparency.

Prior to the Second World War, freedom of expression and freedom of the press were mainly seen from the view point of being an active right of the press to provide information without interference from the government. Since then there has been an evolution where freedom of information is also seen from the point of view of the recipient as a passive right to be informed. At the same time, there has been an evolution resulting in an active obligation for the government to create policy and infrastructure that allow the freedom of expression to become a fundamental social right.

Guaranteeing open access to government information by means of freedom of information (FOI) laws has long been considered to be a powerful measure for achieving a variety of goals such as increasing accountability, improving governance, decreasing public sector corruption, empowering citizens and journalists, constraining politicians, and increasing bureaucratic efficiency. In light of these expectations, it is not surprising that over 80 countries around the world—including Germany—have passed FOI laws. Due to the nature of the federal system, the development of FOI legislation in Germany has taken place at different levels, namely, the federal and the state levels. At the federal level, FOI legislation reached its pinnacle at the end of 2005 when the Bundestag passed a comprehensive FOI law denoted as the Federal Act Governing Access to Information held by the Federal Government (IFG). Before the IFG came into force, four federal states already had started to pass FOI laws at the state level. By May 2018, 12 out of 16 German federal states had passed FOI laws. The distinction between FOI laws at the federal and the state level in Germany is crucial because both types of laws bind different types of governmental bodies, institutions, and organisations. Although both the IFG as well as the FOI laws at the state level are worthy of discussing, we focus on the IFG in this chapter. We present empirical evidence on the total number of requests and the beneficiaries of access to information and describe the entities bound by the law, the nature of the request for access, and the nature of the response/answer. We continue with providing insights into the relationship between documents and information, the methods of providing public information ex officio, and excepted information. Finally, we outline the timeframes for answering the requests, we describe the administrative and judicial remedies,and we provide some insights into the fees and expenses charged for requests. We conclude with a brief overall assessment of the IFG.

In the Italian legal system, according to Law No. 241/1990, access to administrative documents may be asked for by private parties, to protect their legal interests. According to Legislative Decree No. 33/2013, then, anyone can obtain so-called civic access to documents, information or data that are compulsorily to be published. Finally, Legislative Decree No. 97/2016 has introduced a new kind of civic access to data and documents held by public authorities, which may be asked for by anyone without giving a reason, with the exception of information about secrets to be kept in the public interest or private confidential data. The co-existence of the three forms of access has produced some problems, especially in their implementation. The analysis focuses on the rules in force and considers case law and interviews with practitioners. The conclusion of the analysis is that the legal framework complicates the practice of access to information, and the legal texts are not properly implemented in practice.

Access to information is guaranteed in Slovenia by the Freedom of Information Act adopted in 2003, which determines a broad scope of public information, the entities that are bound by law to disclose public information, including publicly owned companies, and ensures the right to information to any interested applicant. Furthermore, the reuse of information and proactive measures are regulated and implemented by the coordinating body, that is, the Ministry of Public Administration. The proceedings are conducted in compliance with the Administrative Procedure Act. The article addresses the respective provisions implemented in the practice of public bodies, the appeal procedures of the Information Commissioner, and the case law in Slovenia. Finally, an overall assessment is given based on normative analysis, a comparative review, statistical data, case studies, and in-depth interviews. The results reveal a rather high level of transparency; however, there is still an implementation gap.

Transparency, as the principle of the availability of information on the organisation, processes, and decision-making of public authorities, is becoming increasingly important in contemporary governance. It enables the functioning of democratic processes and the accountability mechanism, the exercise of individual rights, as well as the overall effectiveness of the public sector. Consequently, a satisfactory level of transparency and openness is beneficial for the functioning of democracy and public administration as well as for the individual and for community development. However, the necessity to convert political and administrative principles into legal form has stimulated a trend of adopting legislations on the right of access to information (RTI). The first contemporary RTI Law was adopted in the United States in 1966 (Freedom of Information Act), while currently more than 100 countries grant their citizens the RTI. The process was induced by the spreading democratisation and anti-corruption processes as well as by the diffusion of the good governance concept, with user-oriented public administration and an increased use of information technology (e-government). The content of the laws and the best examples of RTI provisions have been widely discussed and determined in various model laws. The recognised RTI standards include, among others, the principle of maximum disclosure, a broad scope of application (public administration, judiciary, legislature, public sector), the definition of information (any written or recorded data), a limited list of exceptions that are subjected to the public interest test, the flexibility of the procedure, as well as the right to appeal and sanctioning by independent institutions.

Hungary in the twentieth century experienced a totalitarian regime where the state held absolute power over information, secluding its citizens from diverse information sources, centrally feeding its propaganda to the public, while fervently collecting data on its subjects through an expansive network of informants. With the change of political regime, this system was gradually transformed, aspiring towards a transparent state through unrestricted access to data of public interest and the exercise of democratic control. Concomitantly, guarantees for the protection of personal data were also laid down. In the 1990s, Hungary boasted a modern, technology-neutral, synoptic legislation guaranteeing informational self-determination and freedom of information, which served as a model to other countries in the region. The institutional underpinnings of information rights were developed in a two-tier system, relying on ombudsman-like and judicial protection. In what follows, I describe the legislative development and concept of information rights in Hungary, detailing the most relevant sources. Next, I turn to the data categories under Hungarian law and the conditions for requesting access. Finally, I discuss available remedies and the overall performance of the system.

The access to public information was guaranteed in Romania starting with 2001 within the context of the country accession to the European Union. The adoption of the Freedom of Information Act (FOIA) was a great achievement for the government and civil society; however, The efforts toward building administrative capacity for enforcing FOIA provisions were gradual, and they lacked a strong coordination agency. The overall assessment of FOIA shows a decline in the number of requests for information of public interest in the context of an increase in the amount of information disclosed ex officio by the public institutions; however, few public institutions proactively disclose public information. The number of cases brought to courts of appeals increased as the citizens and legal entities became more educated about their rights. The courts were instrumental in interpreting the law, and NGOs and think tanks also played an important role in creating precedent cases as grounds for future decisions by bringing strategic litigations to courts and allowing judges to pass rulings in this field.

One of the key principles of (the Czech Republic as) a democratic state (and also of its good governance) is the principle of transparency (freedom of information). Based on the above (and on the Article 17 of the Czech Charter of Fundamental Rights and Freedoms), this chapter presents, interprets, analyzes and evaluates both the legal regulation and the state (public administration) practice of the access to information in the Czech Republic (with particular emphasis on beneficiaries of access to information, entities bound by law, the request for access, the response / answer and the timeframes for responding / answering, providing public information ex officio as well as excepted information and fees and costs).

Serbia introduced the Free Access to Information of Public Importance Act (FOIA) (Official Gazette of the Republic of Serbia, no. 120/2004, 54/2007, 104/2009 and 36/2010) in 2004. The right to free access to information in public authorities’ possession has been elevated to a constitutional rank in 2006 (Art. 51, par. 2 of the Constitution) (Official Gazette of the Republic of Serbia, no. 98/2006). Transparency legislation has been completed by enactment of the Personal Data Protection Act (Official Gazette of the Republic of Serbia, no. 97/2008, 104/2009, 68/2012 and 107/2012) and the Secret Data Act (Official Gazette of the Republic of Serbia, no. 104/2009). This also rounded up the competence of the national access to information authority—the Commissioner for Free Access to Information of Public Importance and Personal Data Protection (hereinafter: Commissioner).

In Austria, law on access to public information is a scattered matter the most important parts of which are not to be found in the general acts (on federal and regional levels, respectively). Nevertheless, the failure of a recent attempt to codify the issue by adopting a new constitutional provision and, on this basis, a Federal Implementing Act on “Freedom of Information” seems to show that the traditional system, including a considerable amount of proactive information management by the State, is working satisfactorily. This finding implies that the structure of this contribution has to differ from those reports where in fact the presentation can focus on the application of one general act.

The Nordic countries are often inherently associated with openness and transparency as far as public administration is concerned. Openness is part of the stereotype Nordic “brand”. The brand is not surprisingly promoted by Danes with a tendency to take credit for being a pioneer within the field of open administration although history does not fully confirm that claim. Actually, the world’s first Freedom of Information Act is the Swedish one. Even when confronted with historical facts, however, Danes continue to claim that Denmark is a frontrunner in the battle against closed doors within the administrative house. In this respect, Danes suffer from not only from an occasional Freudian slip but from recurrent Freudian slips.

The aim of this chapter is to look at legal systems in this book from the point of view of parties, procedure, and exceptions from free access to information, and summarize the main features from a comparative perspective. The comparative chapter on parties, procedure, and exceptions tries to bring together the main features of these three aspects of the Freedom of Information Laws and how they are dealt with in the jurisdictions covered by this book. Parties relate to who is requesting information and who is bound to provide the information, procedure relates to formalities of requesting information and answering to requests, and the part on exceptions is meant to show similarities and differences among different jurisdictions in terms of types of information that can be kept secret by governments.

No right is fully guaranteed unless legal protection is provided. There must be a right of appeal to a court or an independent body that can issue binding final decisions, and a regulated appeal procedure. This is firmly acknowledged by many international organisations, such as the United Nations and the Council of Europe, or under regional charters. In this respect, legal remedies should be effective within the scope of the right in question, which in the case of the right(s) to information (RTI) presents some specifics.