Information commissioners from 35 countries Sept. 20 issued a resolution stating that “in principle, even intelligence services cannot deny the public’s entitlement to transparency.”
The specific reference was influenced by revelations about government secrecy during “the summer of Snowden,” a frequent topic of conversation at the Eighth International Conference of Information Commissioners in Berlin Oct. 18-20.
The U.S. surveillance programs into telephone and Internet communications were referenced in worried terms by commissioners, many of whom also oversee privacy laws. The Slovenia information commissioner, scheduled to chair a panel, was instead in Washington as part of a five-person ad hoc committee from the European Union assigned to explore U.S. surveillance efforts disclosed by whistle-blower Edward Snowden.
The ensuing two-page resolution (below) devotes a paragraph to the topic. It says that the work of government security agencies “profoundly intrudes on citizens’ fundamental rights. As a result, they “must be subject to constitutional oversight that is verifiable and comprehensible to the public.” The statement continues: “Exempting this area entirely from the right of access to information is incompatible with this principle.”
Other Topics Emphasized
The international commissioners typically issue a resolution endorsing the value of access to information, as this one does, with nuanced emphasis on areas of current concern, noted here a “big gaps.”
Another such gap, the commissioners said, concerns corporate information.
“Transparency is also necessary where businesses influence political and administrative decisions on a transnational level. Particularly in these cases, binding guarantees of transparency under international law and greater international public oversight are essential in order to control the power of private companies more effectively.
This year’s resolution also makes special mention that access obligations should apply not only at the national level, but also at the “supranational level.”
Also, the resolution says that access laws should provide for “effective active provision of information which takes advantage of all methods of communication, especially the options offered by information technology.”
The commissioners said governments should joint the Open Government Partnership, a mulitlateral group that host Germany has so far chosen not to join.
The commissioners dropped proposed language (not released) that would have called l a new, separate United Nation’s protocol on access to information, apparently bending to arguments that UN Article 19 of the International Covenant on Civil and Political Rights sufficiently established assess to information as an internationally recognized human rights. (See previous Freedominfo.org report.)
Summer of Snowden Discussion
The topic of privacy and disclosures about U.S. government surveillance efforts also was addressed during one panel at the conference.
The revelations are “a game changer,” according to Ben Scott, a former U.S. State Department official who now works at the Open Technology Institute at the New America Foundation in Washington.
No company or government alone can protect privacy, he said, “And if they can, nobody will believe it.” The power of technology now vastly exceeds the ability of the law to regulate it, according to Scott, who asked whether it is possible to rebuild public trust in the Internet.
Renewing confidence can’t be done on the national level, so it must be done with specific international controls, Scott said. Increased national security controls may lessen the value of the Internet as a platform for free expression.
Several commissioners said they are examining the consequences in their own country. Christian Graham said he has established a technical specialists unit on the topic and will discussing it with the UK surveillance commissioner and the interception of communications commissioner.
Berlin commissioner Alexander Dix said he has “serious doubts” whether the United States has an adequate data protections regime in place and EU officials should consider whether to refuse to authorize data transfers there. It would be a “radical measure,” he said, “But we are looking for individual cases where that would be necessary to do” in order to put pressure on the United States.
Canadian information commissioner Suzanne LeGault said “a huge warrantless search” has occurred” without much information about the justification. One impact of the Snowden disclosures, she said, may be to shift the way the courts look at access issues.
Text of Resolution
Resolution of the 8th International Conference of Information Commissioners from 18 to 20 September 2013 in Berlin
Berlin Declaration on Strengthening Transparency at the National and International Level
20 September 2013
“Transparency: the Fuel of Democracy”
Bearing in mind that· the willingness of citizens to exercise their fundamental rights and to actively participate in the political process is crucial for democracy,
· information is an indispensable requirement of political opinion forming and participation,
· compliance with constitutional requirements (rule of law), the transparency of government action and a strong judicial review legitimize government action,
· transparency and the rule of law strengthen confidence in the law-abiding behaviour and ability of federal, regional and local functionaries and institutions to learn, the Information Commissioners gathered in Berlin at their 8th International Conference resolve:
Transparency is not possible without legally guaranteed access to information. Therefore, binding legal entitlement to access to information at the national and supranational level is necessary.
Rights to information guaranteed under international law justify individual claims to access to information from supranational bodies and oblige governments to share their knowledge with citizens. The actions of governments and of the community of states must be based on discourse and participation even more so than in the past. If they want to attain their objectives, they need to make a greater effort than in the past to gain the public’s confidence.
Democracy, the rule of law and the fight against the evil of corruption can grow only where national authorities and international organizations are willing to account for their actions and share information with citizens. In this way, transparent action is an important weapon in the fight against global corruption, which thrives in a climate of secrecy when citizens are prevented from participating in decision-making processes.
Today, many states and international institutions already disclose a range of information regarding the environment, parliamentary activity and many other areas. This form of transparency strengthens citizens’ confidence in their work.
But there are still major gaps that must be closed.
In principle, even intelligence services cannot deny the public’s entitlement to transparency. Precisely because their work profoundly intrudes on citizens’ fundamental rights, it too must be subject to constitutional oversight that is verifiable and comprehensible to the public. Exempting this area entirely from the right of access to information is incompatible with this principle. The Conference recalls in this respect the decision of the European Court of Human Rights of 25 June 2013 (Youth Initiative for Human Rights v. Serbia), which recognizes in principle that the right to information guaranteed in the European Convention on Human Rights also applies to intelligence services.
Transparency is also necessary where businesses influence political and administrative decisions on a transnational level. Particularly in these cases, binding guarantees of transparency under international law and greater international public oversight are essential in order to control the power of private companies more effectively.
Transparency is also an important instrument to fight corruption within and by Companies.
The International Conference of Information Commissioners
· advocates the creation, at the national and supranational level, of comprehensive and effective legal obligations for access to information upon request and of an effective active provision of information which takes advantage of all methods of communication, especially the options offered by information technology;
· supports the recognition of an international fundamental right to information, and draws attention to Article 19 of the International Covenant on Civil and Political Rights (Civil Covenant, ICCPR) of 16 December 1966 as an international covenant stipulating that everyone has the right to hold opinions without interference, incorporating the freedom to obtain, receive and share information across national borders;
· reaffirms its support, resolved in Ottawa in 2011, that all eligible states should join and actively support the Open Government Partnership;
· notes that the Council of Europe Convention on Access to Official Documents of 18 June 2009 (Tromsö Convention), being the first international instrument to make provision for the right of access to information at government agencies, is open for accession by all states of the world, and recommends that all states consider ratifying the Convention.
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