2010 Access to information regulations of target countries
The following is an overview of fundamental characteristics of the legislation and regulations governing access to information of the countries selected for this comparison.
In 1966 and long after SwedenFootnote 30 did so, the U.S. adopted the Freedom of Information Act (5 U.S.C. # 552), which inspired almost all access legislation later enacted throughout the world. Finland pioneered the movement in 1951. The phenomenal development of the machinery of government at the time of the New Deal, the proliferation of secrecy in administrative activities during World War II and the Cold War led Congress to turn the page and encourage this effort toward transparency. The FOIA, acronym adopted by most public administrations, has in fact served as a basis for legislation later implemented in the West, Oceania and, finally, on all continents.Footnote 31
The American access to information legislation was profoundly reworked in 1974. It has gone through various periods where attempts to increase transparency alternated with sometimes brutal efforts to stop the trend. George W. Bush’s administration was notable for the implementation of a series of obstacles justified by the fight against terrorism. As soon as President Obama entered the White House, he had the Open Government Act of 2007 enacted. Since then, a whole series of measures and innovations have given concrete expression to the President’s wish to encourage a culture of transparency throughout the machinery of government using new information and communications technologies.Footnote 32
According to the Act, any person, whether corporation or private individual, may exercise the right to access federal administration documents, including any documents produced by agencies, departments and entities in the machinery of federal government.
American legislators did not set out an administrative or quasi-legal mechanism to settle disputes relating to refusals to disclose documents by any component of the federal structure. Beyond a simple administrative review, the author of a request must go to court in the hope of having the refusal to disclose reversed, either in total or in part, under the provisions of the Freedom of Information Act.
The Department of Justice plays the role of legal advisor to all entities subject to U.S. access legislation. With the publication of the Freedom of Information Act Guide, the Department explains the provisions of the Act for the benefit of officials responsible for its implementation.
Australia’s Parliament adopted The Freedom of Information Act in 1982. The legislation has since undergone a number of changes and has only recently been profoundly reworked.Footnote 33 It is nevertheless from the 1982 legislation, which is still in force, that useful information was collected for this study.
Any “person” may request access to public administration documents as well as any personal information concerning him or her that are held by any political or administrative entity.
In cases of unsatisfactory response or dispute, the author of a request must first ask the government department or agency concerned to reconsider the decision. Thereafter, the individual may submit a request to the Administrative Appeals Tribunal, whose decisions may be appealed to the federal court and, finally, to the High Court. Outside this process, the Ombudsman may be asked to intervene.
The 1982 legislation targets all government departments and agencies. Courts are also subject to the Act with regard to administrative issues.
In recent years, the unit responsible for implementing the Act and promulgating directives and advice has been installed within the Prime Minister’s Cabinet. The entity is under the authority of the Cabinet Secretary and Special Minister of State to the Parliament on the Operation of the Act.
New Zealand is one of the small group of countries that implemented a system governing access to information in the early 1980s. The Official Information Act was adopted by its Parliament in Wellington in 1982.
Only citizens and permanent residents as well as companies established in New Zealand may exercise the right to access the administration’s documents.
The Ombudsman’s office, which comprises a group of individuals, is responsible for settling any disputes in addition to fulfilling other duties. The recommendations of the Ombudsman may be appealed to higher courts.
The legislation covers practically the entire public system, from central ministries to cities and municipalities, and concerns all documents produced and held in government offices.
The original law had established an “Information Authority” whose mandate was to promote access to information and support government departments and agencies; this institution was abolished in 1988. Since then, the Ministry of Justice has been responsible for developing and distributing document listings but does not play an overall role similar to that of Canada’s Treasury Board Secretariat.
Finally, the Ombudsman offers advice to government departments and agencies in published information documents intended for individuals looking for a particular document as well as guides to facilitate the work of government officials responsible for handling access requests.
The United Kingdom enacted access to information legislation in 2000 following long internal debate and numerous consultations with other countries in the Westminster system, including Canada. It was the fulfilment of an old electoral promise made by the Labour Party that had been put aside at the end of the 70s when Margaret Thatcher took office.
This legislation gives everyone access to the administration’s documents, without any particular restrictions such as citizenship or residence.
The 2000 legislation came into force in January 2005 and concerns almost all the United Kingdom’s public sector, except for Scotland. It also includes the two Houses of Parliament, as evidenced by the “expense claim scandal” that dogged members of Parliament just last year.
With the adoption of the Act in 2000, the Westminster Parliament divided related responsibilities and mandates between two government departments and created two new entities.
(1) Parliament established the position of Information Commissioner under the authority of the Minister of Justice, who also publishes statistics on the processing of access requests by all government offices.
The Commissioner of Information is mandated to ensure the respect of both the access legislation and the Data Protection Act, 1998 being its latest version.
The Commissioner of Information settles disputes resulting from the legislation’s implementation by officials responsible for the task in various government departments and agencies. His decision-making power is enforced with the issue of “notices” after he has received and studied a case.
(2) The Commissioner of Information’s decisions may be appealed to the Information Tribunal, created by the same legislation. Also included in the Act is the possibility of appealing decisions rendered by that Tribunal before the High Court of Justice.
The Secretary of State is responsible for developing and distributing a code of practice to government offices in order to provide guidance in processing access to information requests.
Finally, the Ministry of Justice, created in 2007 and placed under the authority of the Lord Chancellor, is responsible for developing a code of practice on document management, from production to destruction, for the files and records produced by the public administration and agencies targeted by the legislation.
The Mexican federal state passed access to information and privacy protection legislation in 2002. This law established the proactive disclosure of a considerable number of documents.
Anyone may exercise the right to access documents held by any component of government, including Parliament and the judicial system.
The Mexican system of access to information and privacy protection is under the authority of the Instituto Federal de Acceso a la Información (IFAI), composed of five commissioners.
The IFAI carries out all mandates related to access to information and privacy legislation, including dispute settlement, and renders its decisions in public hearings. Decisions may be appealed to federal courts, but only the original requestors may pursue this option; the IFAI’s decisions against government departments and agencies are final.
The IFAI is responsible for applying the law throughout the federal political system. It has the mandate to enact implementing regulations relating to the legislation and establish standards on document classification.Footnote 34
- Footnote 30
Comeau, Paul-André (2006) - “Accès à l’information : perspectives internationales,” Barreau du Québec (Service de la formation continue), Cowansville, Éditions Yvon Blais: p. 38.
- Footnote 31
The most recent listing of countries having enacted legislation on access to information is dated 2008. It is the work of Roger Vleugels – Overview of all 86 FOIA Countries: http://right2info.org/laws/Vleugels-Overview-86-FOIA-Countries-9.08.pdf
- Footnote 32
Davies, Alysia and Dara Lithwick (2010). Government 2.0 and Access to Information: 2. Recent Developments in Proactive Disclosure and Open Data in the United States and Other Countries, Ottawa, Library of Parliament, April 15, p. 1 – 5.
- Footnote 33
Davies Alysia and Dara Lithwick – See note 17: pages 8 – 12.
- Footnote 34
IFAI assumes responsibilities similar to those born by the Canadian Treasury Board Secretariat.