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15 October 2007:

Council of Europe Treaty on Access to Documents

Civil Society Calls for Urgent Action
-- Draft Convention Fails to Ensure Adequate Protection of Right to Information



The world’s first treaty to guarantee the right of access to information, currently being drafted by the Council of Europe, risks falling below prevailing European standards according to civil society groups from across Europe. The treaty, which will become the “European Convention on Access to Official Documents”, is being drafted by a Group of Specialists, chosen by 15 of the 47 governments that are members of the Council of Europe. The Group of Specialists is mandated to finish its work by the end of 2007. The last drafting session was hold 9-12 October in Strasbourg.

The future European Treaty on Access to Official Documents establishes a right to request “official documents”, which are broadly defined as all information held by public authorities, in any form. On the positive side, the future Convention will establish that the right to “official documents” can be exercised by all persons with no need to demonstrate a particular interest in the information requested, and at no charge for filing requests and viewing documents.

However, the draft treaty has three major flaws:



1. Failure to include all official documents held by legislative bodies and judicial authorities within the mandatory scope of the treaty;


2. Failure to include official documents held by natural and legal persons insofar as they perform public functions within the mandatory scope of the treaty;


3. Failure to specify certain basic categories of official documents, such as those containing financial or procurement information, that must be published proactively.

The right to access information held by the State has developed rapidly. In 1990, only 12 countries had access to information laws. Now, more than 75 countries do. In the Council of Europe region, 24 of the 47 member states have enshrined the right in their constitutions (for example Norway amended its Constitution in 2004 to specifically recognise the right); Spain is the only member with a population over 1 million that does not have a dedicated access to information law. At the international level, the right to information has been confirmed as a basic human right in national constitutions and jurisprudence, as well as by the specialised representatives on freedom of expression of the United Nations, the Organization for Security and Cooperation in Europe, and the Organization of American States (see text here). In September 2006 the right to information was affirmed as a fundamental human right by the Inter-American Court of Human Rights (judgement in English here).

A substantial majority of the 47 member states of the Council of Europe grant access to a wide range of information held by their legislatures and judicial bodies, either under access to information laws or other legislation (norms that often predate the access to information regimes).

In addition to the three most serious problems highlighted above, there are several other deficiencies with the current draft of the Convention:

4. Absence of a guarantee that individuals will have access to an appeals body which has the power to order public authorities to disclose official documents.


5. Absence of a guarantee that individuals will be able to appeal against violations of the right of access other than "denial" of a request (such as unjustified failures to provide access in a timely fashion or in the form preferred by the requester).


6. Lax drafting of exceptions that permit withholding of official documents under the internal deliberations and commercial interest exemptions:
a. There are no time limits on the application of the internal deliberations exemption; such documents may be withheld indefinitely, even after a final decision on the matter has been taken;

b. The treaty should protect only “legitimate commercial interests,” not all and any “commercial interests,” as in the present draft.


7. Absence of a requirement that states set statutory maximum time-limits within which requests must be processed.


Of particular concern here is the issue of judicial protection of the right of access (point 4). The current draft of the Convention grants applicants whose request for information has been denied “access to a review procedure before a court of law or another independent and impartial body established by law.” It fails to specify, however, that the non-judicial body of appeal should have the legal authority to order disclosure of official documents. In the absence of such a guarantee, the applicant’s theoretical right of access would be denied effective judicial protection – in violation of one of the basic principles of human rights law.

We suggest the following improvements:

1. Include all official documents held by legislative bodies and judicial authorities, irrespective of their nature, within the mandatory scope of the treaty;

2. Include all documents held by natural and legal persons insofar as they perform public functions within the mandatory scope of the treaty, if necessary further defining the meaning of “public functions”;

3. Introduce a provision that requires regular, proactive publication of certain basic, specifically defined categories of official documents including information about the structure of each government body, personnel, activities, rules, guidance, decisions, and public procurement;1

4. Introduce a guarantee that individuals will have access, in all cases, to an appeals body with the power to order government agencies to disclose official documents and ensure compliance with the right of access;

5. Introduce language to the effect that in addition to a right to appeal against “a denial of a request”, individuals shall have the right to appeal all administrative actions or omissions that violate their right to information;

6. Redraft the exemptions relating to internal deliberations and commercial interests to ensure:
a. that there is a time limit on the applicability of the internal deliberations exemption (i.e. following the conclusion of internal deliberations on a matter or within a reasonable period thereafter);
b. that the treaty refers to legitimate commercial interests only;

7. Introduce a requirement that states set statutory maximum time-limits within which requests must be processed.


The draft Convention, was finalised by the Group of Specialists 9. to 12. October, passes to the Council of Europe’s Steering Committee on Human Rights (likely to consider the draft 8. November) and then to the Committee of Ministers for approval and eventual adoption, which could happen as early as the first quarter of 2008.

In a 10 to 4 vote, a group of 14 country specialists meeting on 9-12 October in Strasbourg refused to consider proposals to bring the future European Convention on Access to Official Documents into line with the prevailing standards in the 47 countries of the Council of Europe.

Rejecting separate calls by the OSCE, six information commissioners, the Slovenian government, and 245 civil society groups, the specialists rejected further consideration of key aspects of the right to information such as the right to request access to all documents held by the judicial and legislative branches of government. They also dismissed further discussion of the right to appeal administrative failures to respond to an access request – a common problem in many countries. These provisions are currently not included in the draft Convention.

 

In a further blow to the right to information, the group refused to limit reservations to the future Convention, in effect permitting any State to enter reservations on any aspect of the right.
 

Helen Darbishire, Director of Access Info Europe, who was present as an observer at the discussions, commented: “It is highly disappointing that a Group dominated by the established democracies of Northern/Western Europe should refuse even to consider some very concrete language that would have ensured that the world’s first treaty on access to information sets acceptable standards.”

“Rather than acting as independent specialists, a number of members of the Group have openly stated that they have instructions from their governments to ensure that the future Convention requires no changes to domestic law. The result is a draft treaty that accommodates the flaws and idiosyncratic features of the domestic legislation of countries represented in the Group, and hence falls below prevailing standards. This is a betrayal of the Group’s mandate.”


Read the draft Convention here - full text in French and English

Source: http://www.access-info.org/

PS:

Colours on picture: dark green: FOIA enacted. Yellow: pending law. FOIA= Freedom of Information Act 

Informationsfreiheit in Europa