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Über dieses Buch

This book presents a comparative study on access to public information in the context of the main legal orders worldwide(inter alia China,France,Germany,Japan,Russia,Sweden,United States).The international team of authors analyzes the Transparency- and Freedom-to-Information legislation with regard to the scope of the right to access, limitations of this right inherent in the respective national laws, the procedure, the relationship with domestic legislation on administrative procedure, as well as judicial protection. It particularly focuses on the Brazilian law establishing the right of access to information, which is interpreted as a benchmark for regulations in other Latin-American states.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Essentials of the Right of Access to Public Information: An Introduction

The first freedom of information law was enacted in Sweden back in 1766 as the “Freedom of the Press and the Right of Access to Public Records Act”. It sets an example even today. However, the “triumph” of the freedom of information did not take place until much later. Many western legal systems arose from the American Freedom of Information Act, which was signed into law by President L.B. Johnson in 1966. This Act obliges all administrative authorities to provide information to citizens and imposes any necessary limitations. In an exemplary manner, it standardizes the objective of administrative control to protect citizens from government interference with their fundamental rights. Over 100 countries around the world have meanwhile implemented some form of freedom of information legislation. The importance of the right of access to information as an aspect of transparency and a condition for the rule of law and democracy is now also becoming apparent in international treaties at a regional level. This article provides an overview on the crucial elements and the guiding legal principles of transparency legislation, also by tracing back the lines of development of national and international case-law.
Hermann-Josef Blanke, Ricardo Perlingeiro

Fundamental Issues on Access to Information

Frontmatter

Chapter 2. Principles of the Right of Access to Official Information in Latin America

This article takes as its starting point the 10 principles of right to access information declared in 2008 by the Inter-American Juridical Committee (CJI) of the Organisation of American States (OAS), and the OAS’s Inter-American Model Law on Access to Public Information, published in 2010, which systematise the case law of the Inter-American Court of Human Rights. It is a comparative study, which – in light of the theory of fundamental rights – contrasts the level of influence of the Inter-American System of Human Rights in terms of the legislation and judicial precedents of the 18 Latin-American countries that are of Iberian origin and subject to the American Convention on Human Rights (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, El Salvador, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). Consequently, it points out the positive and negative aspects of the national laws governing information access in Latin America.
Ricardo Perlingeiro, Milena Liani, Ivonne Díaz

Chapter 3. Scope and Aim of a General Regulation on Access to Public Information

The right of access to information gives the citizens a tool to attract the attention of a requested public authority, and to link the public to a particular issue. Access to information, on the other hand, means that public authorities or private bodies carrying out governmental tasks pass on personal data or information that may affect important public interests, such as national security or the functioning of state institutions. In these cases, the transparency legislation restricts access to information. Secrecy of information, such as the defence strategies and national security, is a legitimate interest of the respective legal entity affected, which needs to be balanced with conflicting interests in access to official documents pursuant to the principle of proportionality. In the light of the objectives of national transparency laws the contribution aims to analyze at the constitutional and statutory level the interrelation between the core scope of freedom of information and the legal restrictions to which this right is subject.
Hermann-Josef Blanke

The Access to Public Information in the United States of America, Europe and Asia

Frontmatter

Chapter 4. Access to Information Under the Federal Freedom of Information Act in the United States

The federal Freedom of Information Act in the United States is one of the oldest in the world. In Sects. 2–5, United States District Court Judge Peter J. Messitte describes the history of the law and sets out its structure. Although a portion of the law requires that Government make public administrative rules and regulations, this chapter focuses on the process by which persons make requests for information. In this context, that process and the review of rejections of requests emphasize the importance of judicial review of these rejections by Government officials. For this reason, this chapter does not consider obligations imposed in the last two decades that place affirmative obligations on the government to disseminate information.
Robert G. Vaughn, Peter J. Messitte

Chapter 5. The Swedish Legal Framework on the Right of Access to Official Documents

The Swedish legal framework on the right of access to information—or more precisely the legal framework on the right of access to official documents—is not only distinctive because it is the worlds’ oldest, since its first adoption dates back to 1766. It is also distinguished by virtue of its legislative technique, as the right of access to official documents is partly regulated at the constitutional level as opposed to being solely mentioned and guaranteed in general terms in the constitution, as it is common in national legal systems.
Patricia Jonason

Chapter 6. Right of Access to Public Documents in France

“Freedom of information is a fundamental human right and […] the touchstone of all freedoms to which the United Nations is consecrated”. Its practical application underpins two distinctive principles of a democratic republican system of government: the publicity of acts and the transparency of public administration. In this context, information is a tool of democratic control over State institutions, intimately linked to the concept of participatory democracy and the respect for fundamental rights.
Constance Chevallier-Govers

Chapter 7. Access to Information in German Law in Comparison to Brazilian Law N° 12.527/2011

From the 1970s onwards, a citizen's right to obtain in principle any information available to the state has increasingly become an international democratic standard. The publicness of the state established thereby is an expression of recognition that the people are sovereign and as such entitled to an ongoing control of the exercising of public authority. In addition, the right of access to public information is an effective means to improve a person's knowledge base for his/her personal and professional development and thus to enable the effective use of his/her fundamental rights in a society increasingly based on information. Finally, the publicness of the state is an appropriate and successful tool for preventing state corruption. Our article discusses the present state and development of freedom of information law in Germany with regard to the current legal situation in Bazil.
Arno Scherzberg, Svenja Solka

Chapter 8. Access to Administrative Documents and to Public Sector Information in Italy

Law No. 241 of 1990 on administrative procedure (Italian APA) established general rules on the right of access to administrative documents for the first time in the Italian legal system, which partly reproduced rules defined in sectorial legislations. From such very restrictive regime of access to administrative documents—lately accompanied by a rather demagogical obligation imposed on public administrations to disclose a set of information in the context of the so-called open data policies—Italy has recently moved forth to public access to data and documents held by public administrations.
Diana-Urania Galetta

Chapter 9. Right of Access to Public Information: The Portuguese Case

This chapter follows through the scope of the right of access to public (‘administrative’) documents in the Portuguese legal system, discussing the legislative evolution and the limitations of this right that derive, e.g., from the protection of public interest and personal data.
Luísa Neto

Chapter 10. Right to Information and Access to Information in the Russian Federation

The current research paper has been written on the initiative of Professor Ricardo Perlingeiro within the framework of the scientific cooperation agreement between the Institute of State and Law of the Russian Academy of Sciences and the Fluminense Federal University (Brazil). The purpose of this publication is to make a comparative analysis of the Russian and Brazilian law on access to information.
Illaria Bachilo

Chapter 11. Access to Information: A National Report About India

Access to information is one of the requirements of efficient democratic governance. It encompasses the core principles like participation, transparency and accountability. In 2005, Government of India enacted the Right to Information Act (RTI Act). It has provided a practical regime of right to information for citizens of India to access the information which is under the control of public authorities. The main aim of the act is to promote transparency and accountability in the working of every public authority. The RTI Act 2005 opens pathways to governmental policies and decisions to ensure that these are consistent with the principles of public interest, probity and justice. In this chapter, the Right to Information Act in India is compared with the Access to Information enacted in Brazil. This chapter focuses on the scope of the right to access by analyzing the aspect and provisions in Indian and Brazilian statutes. It also throws light on the issue of secrecy provisions for providing information in terms of protection of public interest and personal data, procedure and judicial decisions.
Srikrishna Deva Rao, Ravindra Chingale

Chapter 12. Japanese Information Disclosure Law

Japan’s Law concerning Disclosure of Information Held by Administrative Organs (the “Information Disclosure Law”) came into effect in 2001, the product of grass-roots campaigns by transparency advocates and the efforts of reform-minded legislators during Japan’s politically turbulent 1990s. Since 2001, the law has proved largely resistant to efforts to widen its application, with legislative priorities shifting if anything towards greater government secrecy.
In some ways, the Information Disclosure Law is already starting to show its age. Unlike Brazil’s new information access law, the Information Disclosure Law is restricted to the disclosure of “documents” rather than information per se, potentially no longer suitable in an age of “big data”. Similarly, applications for disclosure in practice remain essentially paper-based, with few agencies allowing applications online. Challenges also remain for effective judicial oversight of the law due to a (now potentially outdated) legal theory that prevents courts from viewing the underlying documents.
In other respects, however, the Information Disclosure Law shares some of the better features of Brazil’s law. Exemptions from disclosure are relatively few, and administrative discretion in applying them is constrained. Applicants’ reasons for applying are not taken into consideration. Lastly, and significantly, administrative fees are flat and relatively inexpensive, while administrators generally respond efficiently within the allotted deadline . The result is a system that, although slightly outdated, limits barriers to the realisation of the public’s “right to know”.
Narufumi Kadomatsu, Joel Rheuben

Chapter 13. The First Step in the Long March: The Legislation and Practice of Open Government Information in China

In the Spring and Autumn Period of the ancient China, Zi Chan and Shu Xiang, two politicians in the state of Zheng, once debated an issue: whether a law should be let the people know. Zi Chan released the criminal law to the public, but was strongly criticized by Shu Xiang, who believed that if the people knew the contents of that law, they would not show respect to the officials anymore. However, although this kind of tradition of disclosing laws has not wholly disappeared in the following over 2000 years, the legislation and practice of Open Government Information (OGI) in today’s China has little or nothing to do with this traditional legal legacy. In fact, it was mainly driven by the economic reform and opening up policies beginning with the year of 1978.
Ming’an Jiang, Daoming Tan

Chapter 14. Legal Situation of China in the Area of Access to Information

China adopted a model of Freedom of Information (FOI) legislation emphasizing proactive disclosure—FOI Regulations—on 17 January 2007, and brought it into effect on 1 May 2008. This legislation is an administrative regulation, which was passed by the State Council and cannot override a law and the Constitution. China’s FOI is not a “strange and intriguing” phenomenon generally held by many FOI observers. It is actually an outcome of improved information flow resulting from social, political, legal and economic factors, forming part of a much longer process of increased transparency in the Chinese information environment. This improved information flow has constituted an enabling environment for the adoption of FOI legislation in China. It is necessary to provide an overview of China’s FOI legislation and assess its five years’ implementation. This paper has five sections. The first section illustrates the access right in China. The second section explains FOI exemptions, which limit the scope of access. The third section introduces requesting procedures and access fees. The fourth section discusses the relationship between FOI legislation and other administrative laws in China. The final section overviews the judicial protection of the access right in China.
Weibing Xiao

Some Aspects of National Laws on Access to Public Information in Latin America

Frontmatter

Chapter 15. Access to Government Information under Brazilian Law N° 12.527 of 18 November 2011

The general subject of access to government information may be approached from two different angles. The first is to discuss the rights of all individuals to access their own personal information held by the State, involving questions such as the right to privacy, to exercise control of one’s own personal information and, potentially, protection against discrimination. The second concerns the right of all citizens to have ongoing access to government information about official actions and decisions of general interest, with a focus on civic activism, democratic participation and citizen oversight of the public authorities. This study focuses on this second aspect of information access.
Ana Paula de Barcellos

Chapter 16. Access to Information and Its Disclosure

Brazilian Law N° 12.527 of 18 November 2011 on Access to Information (LAI) establishes fundamental rules to ensure citizens find information on government websites (active transparency) and can request information not previously made available by the government (passive transparency). The Brazilian FOI law applies to all public entities that are members of the direct administration of the Executive, Legislative, Judiciary and Autonomous Bodies, as well as public companies, joint stock companies and other entities of indirect public administration.
Cristiana Maria Pinto e Silva Fortini, Mariana Magalhães Avelar

Chapter 17. Restrictions on Access to Information

The legal treatment of the restrictions on access to information, according to the articles of the Brazilian Law Nº 12.527/2011, is analyzed in this chapter. Although this study concerns positive law, it does a critical analysis over the options adopted by the Legislative Power, as well as it proceeds to the interpretation of the provisions given by the Brazilian Constitution.
Germana de Oliveira Moraes, Álisson José Maia Melo

Chapter 18. Procedural and Remedial Aspects of Access to Information

The right of access to information has its origin in the right of freedom of speech, insofar as the latter includes the power to express ideas and opinions freely in a State based on the rule of law. In some Latin American constitutional systems, the right to access to information is expressly codified, for example in Article 5, items 14 and 33 and, related to the knowledge of personal information and the correction of personal data in official files, in the procedural guarantee of Article 5, item 72 (habeas data) of the Brazilian Constitution, further in Article 20 subparagraph (B), item 3 of the Mexican Constitution or in Articles 28 and 143 of the Venezuelan Constitution. Yet even constitutions, which do not expressly mention that right, may incorporate it through adherence to international conventions. In Argentina, for example, the right to access to information is now considered equivalent to a constitutionally guaranteed fundamental right thanks to the country’s adherence to human rights conventions pursuant to Article 75.22 of the Constitution as amended in 1994, and it has repeatedly been interpreted as such in Argentinian Supreme Court judgments. Moreover, the Supreme Court has held that the rulings of the Inter-American Court of Human Rights and the reports of the Inter-American Commission on Human Rights are binding, an innovative interpretation in international public law that is gradually being accepted in Latin American legal systems.
Pedro Aberastury, Alexandre Arruda, Rosnell V. Carrasco Baptista, Rogelio Robles

Chapter 19. The Imposition of Sanctions Concerning Access to Information

Sanctions in the area of access to information are related to liability issues, but have not been addressed by international jurisprudence because the imposition of sanctions corresponds to national authorities under the terms established in the laws in force. Nevertheless, the non-existence of a special law or specific regulation on the imposition of sanctions or liability concerning access to information does not justify inaction or pose an impediment for the State to protect this right.
Carla Huerta

Backmatter

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