The United Nations Human Rights Committee has issued new guidance on the interpretation of Article 19 of the International Covenant on Civil and Political Rights, which guarantees freedoms of opinion and expression.
Two sections address the right to information.
The much-expanded guidance was praised by several international experts.
The committee conducted several years of consultations and deliberations before issuing its General Comment No. 34. Approval was given July 21 and the posted version is still called the “advance unedited version.”
The 15-page document has 54 paragraphs, compared to the three paragraphs that constituted the last general comment on freedom of expression, issued in 1983. See previous FreedomInfo.org reports on public comments, 2011 committee deliberations, and revised text. During the spring committee meetings a variety of additions were made, including a statement supportive of proactive disclosure.
The final document does not address some concerns raised in the public comments, however. For example, it does not give advice on the critical issue of exemptions or endorse the creation of information commissions.
Key Paragraphs on RTI
There are two paragraphs focused on access to information, 18 and 19 (including footnotes, however inelegantly).
Right of Access to Information
18. Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. Public bodies are as indicated in paragraph 7 of this General Comment. The designation of such bodies may also include other entities when such entities are carrying out public functions. As has already been noted, taken together with article 25 of the Covenant, the right of access to information includes a right whereby the media has access to information on public affairs33 and the right of the general public to receive media output.34 Elements of the right of access to information are also addressed elsewhere in the Covenant. As the Committee observed in its general comment No. 16, regarding article 17 of the Covenant, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to have his or her records rectified. Pursuant to article 10 of the Covenant, a prisoner does not lose the entitlement to access to his medical records.35 The Committee, in general comment No. 32 on article 14, set out the various entitlements to information that are held by those accused of a criminal offence.36 Pursuant to the provisions of article 2, persons should be in receipt of information regarding their Covenant rights in general.37 Under article 27, a State party’s decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities.38
33 Gauthier v. Canada, No. 633/95.
34 Mavlonov et al v. Uzbekistan, No. 1334/2004.
35 Zheludkova v. Ukraine, No. 726/1996.
36 General comment No. 32, para. 33.
37 General comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant.
38 Poma Poma v. Peru, No. 1457/2006.
19. To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation.39 The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failures to respond to requests.
39 Concluding observations on Azerbaijan (CCPR/C/79/Add.38 (1994)).
Coliver Praises Outcome
Sandy Coliver, Senior Legal Officer of the Open Society Justice Initiative, said the outcome “has authoritative legal credibility that will carry strong weight before courts and tribunals, and will substantially influence the development of legal norms globally.”
She praised “the clear affirmation” that Article 19 “embraces a right of access to information held by public bodies.” Coliver amplified:
This right has been recognized by the Inter-American and European Courts of Human Rights (in 2006 and 2009, respectively) and by the African Commission on Human and Peoples’ Rights of the African Union (since at least 2002). The Human Rights Committee itself clearly recognized the right in May of this year, in a case brought by a citizen of Kyrgyzstan who sought access to information regarding execution statistics. The outcome of that case likely was influenced by the committee’s work on the general comment; already in March of this year, the committee had approved the comment’s language elaborating the right of access to information.
General Comment No.34 elaborates four important components of the right of access to information. States must make every effort to ensure prompt, easy, effective and practical access to state-controlled information in the public domain. They should proactively put in the public domain information about government functions as well as other information of public interest. They must provide for appeals from failures to respond to requests as well as from explicit refusals. The right applies to information held by all public bodies—including the legislative and judicial branches—and may extend to private entities that carry out public functions.
The comment, incorporating a recommendation from the Justice Initiative, also makes clear that states may not, consistent with the covenant, “suppress or withhold from the public information of legitimate public interest that does not harm national security.” This marks a significant advance. In other words, states should not classify such information, they should release it upon request, and they should publish it proactively. Moreover, states may not “prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated such information.” It is implicit that this duty extends even to information that has been formally classified.
Commenting on another element in the General Comment, Coliver wrote:
One of the most dramatic advances is the comment’s assertion that “prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the covenant,” although restrictions on such speech may be justified in the specific circumstances envisaged in article 20(2) of the covenant, which prohibits “incitement to discrimination, hostility or violence.” While “hostility” is a vague term, the committee could not disregard this explicit treaty language.
Mendel Comments
“The Centre for Law and Democracy very much welcomes the recent adoption by the UN Human Rights Committee of General Comment 34 on Article 19 of the ICCPR, protecting freedom of expression,” according to Toby Mendel, Executive Director.
“The Comment promotes a strong interpretation of Article 19 and addresses a wide range of important freedom of expression issues, including the right to information, as well as some difficult or controversial issues,” he said.
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