Right to information experts have recommended that the United Nations Human Rights Committee expand its draft interpretation of Article 19 of the UN Universal Declaration of Human Rights which states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.”
The committee in October proposed Draft General Comment No. 34, provides a detailed examination of the scope and implications of Article 19. It will replace General Comment No. 10, also on Article19, which was adopted by the committee in 1983.
Some of the comments touch directly in right to information issues specifically while also addressing other issues.
The London-based group, ARTICLE 19, called the draft “a progressive interpretation of the right to freedom of expression,” and on the RTI front welcomed “the explicit recognition that Article 19 of the ICCPR encompasses “a general right of access to information.”
Notable weaknesses exist, however, the group said in its comments, including that the draft “overlooks a number of important aspects of the legal protection for “the right to information”, including the need for an independent and autonomous oversight body, proactive disclosure of information by public bodies and the protection of whistleblowers.”
Article 19 further noted that the draft “fails to highlight basic principles concerning the exercise of freedom of expression through information and communications technologies.”
An analysis by the Centre for Law and Democracy (CLD) notes that the 1983 General Comment “is not only outdated but, being only a few paragraphs long, it fails to address man important freedom of expression issues.” It also finds “much to commend” in the draft General Comment.
CLD welcomed the recognition, in paragraph 18 of the draft General Comment, that Article 19 protects the right to access information held by public bodies. CLD recommended that this right be extended to cover legislative bodies, “as well as bodies which are owned, controlled or funded by public bodies.”
CLD criticized Paragraph 19 and Paragraph 20 for a variety of reasons, suggesting reorganization and additions. For example, it is suggested that right to information legislation should place an obligation on public bodies to disclose on a proactive basis a wide range of information of significant public interest, including on the internet.
OSI Submits Comments
The Open Society Institute Justice Initiative also sent in comments on the right of access to information (To be posted soon). OSI stressed that the General Comment should make clear that requesters do not need to state reasons for their requests. It notes that at least one application to the UN HRC, against Kyrgyzstan, was dismissed as admissible on the ground that the applicant failed to allege any specific interest in the information
OSI attached a chart of statutory and constitutional provisions from 86 countries addressing the question: who may request information? OSI found that in 70% of the countries, the right is held by everyone, 10 percent by citizens and residents, and 20% by just citizens (plus legal persons in the country) or other designations.
OSI also emphasized the need for rapid processing of requests and clear procedures. Arrangements should be put in place for appeals, and fees for the processing of requests should not constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information, OSI also said.
States should make every effort to ensure easy, effective and practical access to state-controlled information in the public domain, OSI also recommended. OSI also said public servants should not be punished for releasing information which they in good faith believed should be disclosed pursuant to law or which they believed disclosed wrongdoing or a serious threat to public health, safety or the environment, so long as they (a) attempted to draw attention to the issues through internal reporting, or else is able to demonstrate that internal reporting would likely have been ineffective, and (b) any harm from the disclosure was outweighed by the public interest in the information.
Extreme care must be taken, OSI further said, to ensure that treason laws and similar provisions relating to national security, such as official secrets and sedition laws, are crafted and applied in a manner that does not suppress or withhold from the public information of legitimate public interest that does not harm national security. Also, states should not prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information of legitimate public interest.
Nor is it generally appropriate to include in the remit of a state secrets law such categories of information as those relating to the commercial sector, banking and scientific progress, according to the group. OSI noted that the Committee has found in one case that a restriction on the issuing of a statement in support of a labor dispute, including for the convening of a national strike was not permissible on the grounds of national security.
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