Freedom of Expression
Press Release about the Special Study on the Right of Access to Information
PRESS RELEASE
No. 175/07
OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION ASKS FOR STATES’ COMMITMENT IN ENSURING ACCESS TO INFORMATION
Washington, D.C., September 12, 2007— States that do not already have laws ensuring access to information as a human right should demonstrate a greater commitment to create such legislation, in order to help strengthen the region’s democracies. That recommendation was made by the Office of the Special Rapporteur for Freedom of Expression in its Special Study on the Right of Access to Information, which is available in Spanish on its Web page.
In the report, which will soon be published in English, the Office of the Special Rapporteur requests that States adopt the necessary legislative measures and practices to guarantee this right and that they allocate resources for their implementation. It also invites States to submit information on any measures they may adopt to fulfill their international obligations.
The main purpose of this study is to analyze the impact of the decision by the Inter-American Court of Human Rights in Claude Reyes et al. and the capacity of this case to serve as a reference point for States to use in moving forward on this issue. This case marked the first time an international court recognized the right of access to information as a human right within the broader right to freedom of expression.
The Special Study on the Right of Access to Information reviews regional and international case history related to this issue, lays out principles that should be included in any legal framework, and evaluates conditions that should be taken into account in establishing a system of restrictions to this right.
"Access to information constitutes an essential tool to combat corruption, bring about real transparency in government and improve the quality of our democracies. Democracies, which are of themselves marked not only by a culture of secrecy and but by public bodies whose policies and practices for physically managing information are not designed to facilitate people’s access to it," says the Special Rapporteur for Freedom of Expression, Ignacio J. Alvarez, in a foreword to the study.
The purpose of the study is "to facilitate understanding of the right to access of information, its scope and its limits, and to serve as a useful working tool in promoting the right to access of information," the Special Rapporteur adds.
The Special Study on the Right of Access to Information recognizes as a step forward the conception of access to information as a human right, but it insists that this recognition must be accompanied by a legal framework that includes certain elements and guarantees to make it effective.
Among the elements and guarantees that should be considered within the framework of access to information, the study notes the principle of maximum disclosure, which establishes a presumption that all information is accessible except when it has been subject to a system of restrictions. Individuals do not have to prove a direct interest in order to obtain information, since the States must give them the information they are seeking unless a legitimate restriction can be applied to the request.
Furthermore, States and public institutions should promote a culture of transparency in society and in the public sector for the exercise of the right to access information. The study also affirms that in any legislation related to this right, the obligation to provide information should be broad and encompass all public bodies as well as private entities that exercise public functions. It further adds that when they are solicited for information they do not have on hand, States should generate it and/or gather it together from different sources. The Office of the Special Rapporteur estimates that the principles of maximum disclosure, public dissemination of information and transparency also imply the State’s basic, official duty to gather, register and distribute information.
Meanwhile, the study holds that any system of restrictions on access to information should be based on the limitations allowed under the American Convention. For that reason, restrictions must be clearly established by law and their aims must be legitimate under the American Convention (rights or reputations of others; national security; public order; and public health or morals). For a denial of a request for information to be considered legitimate, States should respond in writing to the party making the request and should specify the reasons and legal bases that justify the restriction.
The Office of the Special Rapporteur also considers that any limitations to access information should be proportional to the interests that justify them, necessary in the context of a democratic society and temporary, continuing only until such limitations are no longer justified.
The Spanish version of the study is now available in its entirety (http://www.cidh.oas.org/relatoria/section/Estudio%20Especial%20sobre%20el%20derecho%20de%20Acceso%20a%20la%20Informacion.pdf), and the English version will be posted in the near future.