Benchmarks for Right to Information Legislation
by Toby Mendel
A number of authoritative sources have elaborated on international standards in the area of access to information. Furthermore, there is now an extremely well-developed base of country experience in this area, with some 80 right to information laws having been adopted around the world. This document sets out key benchmarks for evaluating whether right to information laws conform to best international standards and comparative practice. It is drawn from authoritative international standard-setting sources and best national practice in this area.
General guarantee of the right of access
Is there a clear statement recognising a strong right of access (subject to limitations established by law)?
Is there a clear statement of purpose or objectives which supports this?
Who may request information: everyone or only citizens?
What is covered: all information held or only some information (e.g. information of public importance or information relating to official functions); information or documents or both?
Which public bodies are covered: bodies established by law; all branches and levels of government; bodies owned, controlled or financed by public funds; bodies carrying out a public function?
Are private bodies also covered; which ones?
Duty to publish
Are public bodies under an obligation to publish on a proactive or routine basis key categories of information? Is a wide variety of information covered? Does this include key financial information?
Are systems in place to lever up the amount of information to be published over time?
Are there requirements to make sure the information is accessible to the public; are special rules in place to ensure that those affected by the subject matter of the information (decision, policy, development plans) will be able to access it?
It is relatively simple to place requests: can they be made at different locations around the country; can they be made electronically, orally, etc.; is the form for filing requests simple or complex; are reasons required to be provided for requests?
Do public bodies have to provide assistance to requesters, for example in case of illiteracy or disability, or where they are having difficulty formulating their request?
Are requesters provided with a receipt upon lodging a request?
Are clear procedures in place for transferring requests and/or for consulting with third parties?
Are clear and appropriate timelines for responding to requests in place (normally about 15-20 working days); are clear conditions placed on extensions to these timelines; what happens when requests are transferred or third parties need to be consulted; are shorter timelines in place for urgent requests?
Can requesters specify the form in which they would like to receive the information (such as inspection of the record, getting or making a copy of the record, getting a transcript from the record, etc.)? Are any grounds for refusing to provide access in the form specified clear and reasonable (such as that it would harm the record)? Can requesters receive information in any language in which is it available?
Where access is refused, is adequate notice provided, setting out the precise grounds for the refusal, including the exception relied upon, as well as the right and means of appealing such refusal?
Are clear and reasonable rules relating to fees in place?
What costs are allowed to be billed back to requesters: for duplicating and communicating the information or also for searching for and assessing it?
Are there set rules for all public bodies or is each public body allowed to set its own rules; are standard rates for things like photocopying in place?
Are fee waivers in place, for example for impecunious requesters, or for requests in the public interest or for personal information?
i. Does the regime of exceptions include a comprehensive list of grounds for refusing to disclose information?
ii. In case of conflict, does the access law override secrecy laws and classification rules?
iii. Do all exceptions incorporate a harm test, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused?
iv. Is there a public interest override so that information must be disclosed where this is in the overall public interest, even though this may harm a protected interest?
v. Is there a severability clause, so that only that part of a record that is covered by an exception may be withheld, while the rest is disclosed?
vi. Are there overall historical time limits beyond which exceptions either do not apply or apply only with special justification?
i. Are there any blanket exclusions from the law (for example for intelligence bodies, the cabinet, etc.)?
ii. Does the exception for personal information apply to information about the functions of officials?
iii. Can officials issue certificates designating information as secret and beyond review (for example for security or defence information)?
iv. If there is an exception in favour of internal deliberations, how broad is it? Are specific protected interests (such as the free and frank provision of advice) listed or is all internal advice covered? Are background studies for decisions covered?
Independent administrative oversight body
Is there an independent administrative oversight body with various powers relating to implementation of the right to information?
How is the independence of that body protected: explicitly in the law; through the appointments process; by requiring the person to be politically impartial; in other ways?
Does the body have the necessary powers to undertake its tasks: legal personality and the power to acquire and deal with property; to appoint staff; to review any record; to investigate matters fully, including by compelling witnesses; etc.?
Is the mandate of the body broad: does it have a mandate to monitor and report on compliance by public bodies with their obligations; to make recommendations for reform; to adjudicate appeals regarding failures by public bodies to respect their obligations; to report to the legislature?
Does it have broad and binding remedial powers to compel public bodies to take appropriate action to bring themselves into compliance with the law (including by disclosing information or taking such other action as may be required to this end)?
Are public bodies required to appoint special officers with a responsibility for ensuring that they comply with their legal information disclosure obligations?
Is there an obligation on some public body to produce and widely disseminate a guide for the public on their right to information and how to exercise it?
Is there a system in place for ensuring minimum standards in relation to information management?
Are public bodies required to put in place training programmes on the right to information for their staff?
Are public bodies required to report annually on the actions they have taken to implement their disclosure obligations?
Sanctions and protections
Are public officials protected against sanction for good faith acts taken to implement the law?
Is the independent administrative oversight body and its staff protected against legal suit for actions taken in pursuit of its mandate?
Are there sanctions for those who wilfully act to undermine the right to information?
Are there protections for those who, in good faith, release information which discloses wrongdoing (whistleblowers)?