International Day for Universal Access to Information

COMMENTARY – In November 2015, UNESCO adopted Resolution 38 C/70 declaring 28 September of every year as International Day for Universal Access to Information. This Day is particularly relevant in relation to the new 2030 Development Agenda - specifically with Sustainable Development Goal (SDG) target 16.10 which calls for ensuring public access to information and protection of fundamental freedoms. Hence, this day marks the importance of the right to receive information and the right to access it. This is an essential element for the full enjoyment of many fundamental human rights and for the implementation and enactment of essential democratic values.

English

International Day for Universal Access to Information - Source: UNESCO.

Freedom of expression and freedom to receive information

As UNESCO1 has pointed out, universal access to information implies the exercise of the right to seek and receive information, which is part of freedom of expression, as per Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states:

“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”2

Without access to information, citizens are not able to make free choices and to determine their opinions and ideas and, thus, cannot exercise their right to freedom of expression.


The 28th of September 2016, very first International Day for Universal Access to Information, also marks the anniversary of the world’s first freedom of information law, which was adopted 250 years ago in today’s Sweden and Finland. Since then, the adoption of freedom of information laws became a global trend, involving more than 100 countries, including developing ones. UNESCO highlighted that freedom of information legislation “reflects the fundamental premise that all information held by governments and governmental institutions is in principle public and may only be withheld if there are legitimate reasons, such as typically privacy and security, for not disclosing it.”3 Hence, importantly, the presence of freedom of information legislation safeguards the right to access information and, at the same time, improves the exercise of freedom of expression for the citizens. The right to information, in fact, encourages transparency and clarity promoting a fair and just exchange between the governors and the citizens.


Therefore, Roberts4 asks: what institutions should be subject to an access law? The rule traditionally used to set the limits of access to information law is that the provision should include public, not private, organisations. Nevertheless, this rule has always had important exceptions. “For example, few laws establish a right of access to information held by legislators or legislative officers. The rationale is that the operations of legislatures are sufficiently transparent that a right of access is unnecessary.”5 However, remarkably, there are no real definitions for these exceptions and no clear burdens determining what is public and what is private. The blurred lines that define the rules concerning the right to access information surely do not consolidate the implementation of the right itself.


Hence, are governments actually encouraging and facilitating access to information for their citizens? This is debatable. As Neuman explained, the best approach that governments should adopt is the “right to know approach.”6 Governments should “automatically publish as much information as possible […] reducing costs for both the state and the requestor, and making the law more convenient.”7 Essentially, the more information is made available without the need for each person to ask for it, the less costly and more efficient the process will be. Neuman noted that this approach is found in South African law and in Australian State laws. However, this is not always the case for each state and there are many problems that can be encountered when citizens seek information.

 


Democracy, information and beyond

“The free flow of information and ideas lies at the heart of the very notion of democracy and is crucial to effective respect for human rights”8, UNESCO commented.

Receiving information is an essential part of the democratic process: democracy requires individuals that are able to participate actively in decision making and assess the performance of their government.9 This depends on access to a variety of information held by public bodies: information on the laws or rights applicable in a country, or about the state of the economy etc. This is why freedom of information is absolutely fundamental for full functioning democracies. Institutional authorities are more open and held accountable for their actions. As Neuman pointed out, “democracy depends on a knowledgeable citizenry whose access to a broad range of information enables them to participate fully in public life.”10 Moreover, freedom of information “can also help increase government efficiency and responsiveness, along with civic trust. Indeed, one of the most effective ways of addressing poor governance is through open, informed debate.”11 Thus, transparency becomes a key word in this context, and the need to pursue it is extremely clear nowadays, especially considering the new technological tools we’re provided with and the ways in which information can be kept away from us.


The importance of the right to access information in a political context is clear; however, a wider perspective can and should be adopted when considering this right.

Apart from the UDHR and the ICCPR, Donders12 noted that the Human Rights Committee included the right of access to information as a specific item in the General Comment No.34 on freedom of opinion and expression. In fact, the rights to seek and to have access to information, as well as the right to receive information, have traditionally been considered in the context of civil and political rights. “However, the right to information is also a significant element in good governance regarding the implementation of economic, social and cultural rights, such as the right to education, the right to health, the right to food and the right to an adequate standard of living.”13

Similarly, Roberts noted that “a right of access to information held within government institutions is usually justified as an instrument for promoting political participation.”14 However, this is an instrument for citizens to exercise some of their most fundamental human rights, such as the right for the press to publish and the right to intellectual and artistic creativity. Thus, it’s important to point out that the implications are not only political or strictly connected to the enforcement of democratic instruments.

Moreover, we need to understand the right to access information in a wider perspective also in relation to the specific country that is taken into account. Neuman, in fact, pointed out that “each access to information law will be unique, depending upon the context in which it will function.”15 Thus, this right should not be considered in a narrow way. On the contrary, its characteristics should be understood and molded in relation to the context – social, legal, economic, geographical, historical and political.


In terms of what can be done, realistically, to improve access to information worldwide, the Open Government Standards have highlighted that “in  a  modern  democratic  state  the  mechanisms  which  ensure  accountability  and  integrity  and which guard against conflicts of interest and corruption are multiple and interwoven.”16 There is the need for different instruments such as: a thorough criminal code and precise legislation concerning the area. Furthermore, impunity must be constantly addressed and efforts to decrease it must be implemented. Notably, the press needs to be protected as well as advocacy groups and NGOs. Both Neuman17 and Roberts18, in fact, claim that the role of the civil society in improving access to information is crucial in the flourishing process of this right. For instance, Neuman recalled that “in countries such as South Africa, Bulgaria, India, Mexico, Peru, and Jamaica widespread civil society campaigns augmented and encouraged the government efforts to pass enabling legislation.”19


These combined efforts are absolutely fundamental in a democratic society or there will be serious consequences on the solidity of the social and political structure. An example of lack of information has been given by Access Info Europe: they reported that the absence of “information about the number of migrants and asylum seekers in detention across Europe is impeding informed public debate.”20 Following submission of access to information requests in 33 countries, the NGO based in Madrid stated that many of their requests were refused with growing concerns on behalf of the NGO regarding the condition of refugees currently in Europe. However, not all cases end up in the same way.

 


Youth Initiative for Human Rights v Serbia21

This case concerned an organisation called Youth Initiative for Human Rights (YIHR), which aims at monitoring the implementation of transitional laws in Serbia. Particularly, the NGO attempted to receive some factual information concerning the use of electronic surveillance measures in 2005 by the intelligence agency of Serbia. At first, the agency refused to give any information but subsequently stated that they didn’t have the information requested. Thus, the YIHR went to European Court of Human Rights (ECtHR) in Strasbourg complaining that there had been a violation of their right to a fair trial (Article 6 of the European Convention on Human Rights, ECHR) and a violation of the right to freedom of expression (Article 10 of the ECHR.)


This time, the Court decided in favour of the NGO. In spite of dismissing the claim under Article 6, they found a violation of Article 10 which states:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”22

The judges recognised de jure that “freedom to receive information embraces a general right of access to information.”23 In fact, Article 10 of the Convention includes the right of access to data held by an intelligence agency. Consequentially, “a public body cannot evade requests for information by simply declaring that it does not hold the information.”24 The Court interestingly pointed out that the NGO had a role as important as the one of the press in a democratic society, acting as a “watchdog” that safeguards human rights.


Moreover, as Voorhoof rightfully noted, considering the current heated discussion regarding the lack of transparency of the functioning of intelligence agencies, “it is reassuring to see how the European Court of Human Rights once more made very clear that national security and intelligence agencies are also to respect the rights and freedoms of the European Convention.”25 The ECtHR confirmed that national authorities need to take appropriate steps to provide protection against unlawful interferences with fundamental rights.


The best way to conclude is surely by mentioning the wise words of the concurring judges Sajó and Vučinić: “There can be no robust democracy without transparency, which should be served and used by all citizens.”26 This powerful and solid statement should always be reminded, especially on a day like the 28th of September. In light of this positive judgement among many troublesome facts, we strongly hope, now, that this day will pave the way for new improvements in the exercise of the right to access information as a fundamental human right that should never be underestimated.

 

 

1 UNESCO, “International Day for Universal Access to Information.” Available at: http://en.unesco.org/iduai2016/about-day

2 Article 19, International Covenant on Civil and Political Rights 1966. Available at: http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf

3 UNESCO, Op.Cit.

4 ROBERTS Alasdair (2002) “Access to Government Information: An Overview of Issues.” In “Access to Information: A Key to Democracy”, The Carter Center, Emory University. Available at: https://www.cartercenter.org/resources/pdfs/peace/americas/ati_key_to_de...

5Ibidem

6NEUMAN Laura (2010) “Access to Information Laws: Pieces of the Puzzle. An Analysis of the International Norms”, The Carter Center, Emory University. Available at: https://www.cartercenter.org/resources/pdfs/peace/americas/ati_pieces_of...

7Ibidem

8 UNESCO, Op.Cit.

9Ibidem

10 NEUMAN Laura (2002) “Introduction.” In “Access to Information: A Key to Democracy”, The Carter Center, Emory University. Available at: https://www.cartercenter.org/resources/pdfs/peace/americas/ati_key_to_de...

11 UNESCO, Op.Cit.

12 DONDERS Yvonne (2015) “International Covenant on Economic, Social and Cultural Rights: accessibility and the right to information.” In “The United Nations and freedom of expression and information: critical perspectives” by T. McGonagle & Y. Donders. Available at: http://dare.uva.nl/record/1/484411

13Ibidem

14 ROBERTS, Op.Cit.

15 NEUMAN (2010) Op.Cit.

16Open Government Standards (2013) “Accountability Pillar.” Available at: https://www.access-info.org/wp-content/uploads/Accountability_Standards1...

17 NEUMAN (2010) Op.Cit.

18 ROBERTS, Op.Cit.

19 NEUMAN (2010) Op.Cit.

20 Access Info Europe (2015) “The Uncounted: Lack of Migrant Detention Data Denounced.” Available at: https://www.access-info.org/a4r/21623

21Youth Initiative for Human Rights v Serbia, Application No. 48315/06. Available at: http://hudoc.echr.coe.int/eng?i=001-120955#{%22itemid%22:[%22001-120955%22]}

22 European Convention on Human Rights 1950. Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf

23 Youth Initiative for Human Rights v Serbia, Op.Cit.

24 Right 2 Info, “International Instruments and Standards.” Available at: http://www.right2info.org/international-standards

25 VOORHOOF Dirk (2013) “Article 10 of the Convention includes the right of access to data held by an intelligence agency”, Strasbourg Observers. Available at: https://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-...

26 Youth Initiative for Human Rights v Serbia, Op.Cit.

 


MR – Research Assistant at CIPADH


Webography

Access Info Europe (2015) “The Uncounted: Lack of Migrant Detention Data Denounced.” Available at: https://www.access-info.org/a4r/21623

DONDERS Yvonne (2015) “International Covenant on Economic, Social and Cultural Rights: accessibility and the right to information.” In “The United Nations and freedom of expression and information: critical perspectives” by T. McGonagle & Y. Donders. Available at: http://dare.uva.nl/record/1/484411

European Convention on Human Rights 1950. Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf

International Covenant on Civil and Political Rights 1966. Available at: http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf

NEUMAN Laura (2002) “Introduction.” In “Access to Information: A Key to Democracy”, The Carter Center, Emory University. Available at: https://www.cartercenter.org/resources/pdfs/peace/americas/ati_key_to_de...

NEUMAN Laura (2010) “Access to Information Laws: Pieces of the Puzzle. An Analysis of the International Norms”, The Carter Center, Emory University. Available at: https://www.cartercenter.org/resources/pdfs/peace/americas/ati_pieces_of...

Open Government Standards (2013) “Accountability Pillar.” Available at: https://www.access-info.org/wp-content/uploads/Accountability_Standards1...

Right 2 Info, “International Instruments and Standards.” Available at: http://www.right2info.org/international-standards

ROBERTS Alasdair (2002) “Access to Government Information: An Overview of Issues.” In “Access to Information: A Key to Democracy”, The Carter Center, Emory University. Available at: https://www.cartercenter.org/resources/pdfs/peace/americas/ati_key_to_de...

The Universal Declaration of Human Rights 1948. Available at: http://www.un.org/en/universal-declaration-human-rights/index.html

UNESCO, “International Day for Universal Access to Information.” Available at: http://en.unesco.org/iduai2016/about-day

UNESCO “Communication and Information”, United Nations Educational, Scientific and Cultural Organization. Available at: http://www.unesco.org/new/en/communication-and-information/freedom-of-ex...

UNESCO. “Access to Information in Jordan: A Right for Everyone” (2016) In: UNESCO Amman, YouTube. Available at:  https://www.youtube.com/watch?v=RsJr-n7fzFA

UNESCO (2015) “Resolution 38 C/70.” Available at: http://unesdoc.unesco.org/images/0023/002322/232227e.pdf

VOORHOOF Dirk (2013) “Article 10 of the Convention includes the right of access to data held by an intelligence agency”, Strasbourg Observers. Available at: https://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-...

Youth Initiative for Human Rights v Serbia, Application No. 48315/06. Available at: http://hudoc.echr.coe.int/eng?i=001-120955#{%22itemid%22:[%22001-120955%22]}

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