(ARTICLE 19/IFEX) – The following is a memorandum on the draft Romanian Freedom of Information law, prepared by ARTICLE 19: MEMORANDUM on the draft of the Law on Access to Information of Public Interest in the Republic of Romania by ARTICLE 19 The Global Campaign for Free Expression London August 2000 Introduction ARTICLE 19, The […]
(ARTICLE 19/IFEX) – The following is a memorandum on the draft Romanian Freedom of Information law, prepared by ARTICLE 19:
MEMORANDUM on the draft of the Law on Access to Information of Public Interest in the Republic of Romania
by ARTICLE 19
The Global Campaign for Free Expression
London
August 2000
Introduction
ARTICLE 19, The Global Campaign for Free Expression, has been asked to comment on the draft of the Law on Free Access to Information of Public Interest in the Republic of Romania. We have been informed that this is one of two competing draft laws on freedom of information.
ARTICLE 19 welcomes the draft and regards it as a very positive step to advance freedom of expression and information in the Republic of Romania. The draft has many of the key elements needed in an effective freedom of information law, including a definitions section, an obligation to publish, a procedure for accessing information, time limits for disclosing information, an exemptions section, and an appeals process.
There are, however, areas in which the draft law could be improved in order to safeguard the public’s right to know. The following analysis deals with ARTICLE 19’s major concerns and draws upon our publication entitled, The Public’s Right to Know: Principles on Freedom of Information Legislation, which sets out principles of international and comparative best practice in relation to freedom of information legislation.
The Republic of Romania’s International and Domestic Obligations to Protect of Freedom of Expression and Access to Information
The Republic of Romania is a party to both the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Article 10 of the ECHR and Article 19 of the ICCPR protect freedom of expression in similar terms. Article 10 of the ECHR states:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
Freedom of information is an important element of the international guarantee of freedom of expression, which includes the right to receive, as well as to impart, information and ideas. There can be little doubt as to the importance of freedom of information. During its first session in 1946, the United Nations General Assembly adopted Resolution 59(1) which stated:
Freedom of information is a fundamental human right and…the touchstone of all the freedoms to which the UN is consecrated.
Its importance has also been stressed in a number of reports by the UN Special Rapporteur on Freedom of Opinion and Expression, while Freedom of Information Acts have been adopted in almost all mature democracies and many newly democratic countries, including Hungary, the Czech Republic, Latvia, Georgia, and Albania.
International human rights law is incorporated into Romanian law, and, where there is a conflict between the two, has superior status. Article 11 of the 1991 Constitution states:
The Romanian State pledges to fulfil as such and in good faith its obligations as deriving from the treaties it is a party to.
Treaties ratified by Parliament, according to law, are part of national law.
In addition, Article 20 of the Constitution states:
Constitutional provisions concerning the citizens’ rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to.
Where inconsistencies exist between the covenants and treaties on fundamental human rights Romania is a party to and internal laws, the international regulations shall take precedence.
Freedom of expression and information are also explicitly protected in the Constitution. Article 30 states:
Freedom of expression, of thoughts, opinions, or beliefs, and freedom of creation, by words, in writing, in pictures, by sounds, or other means of communication in public are inviolable.
Any censorship shall be prohibited.
…
4. No publication may be suppressed.
…
Freedom of expression shall not be prejudicial to the dignity, honor,
and privacy of person, and the right to one’s own image.
7. Any defamation of the country and the nation, any instigation to a
war of aggression, to national, racial, class or religious hatred,
any incitement to discrimination, territorial separatism, or public
violence, as well as any obscene conduct contrary to morality shall
be prohibited by law.
Article 31 states:
A person’s right to access to information of public interest cannot be restricted.
The public authorities, according to their competence, shall be bound to provide for correct information of the citizens in public affairs and matters of personal interest.
The right to information shall not be prejudicial to the protection of the young or to national security.
…
A proper freedom of information regime is a vital aspect of open government and a fundamental underpinning of democracy. It is only where there is a free flow of information that accountability can be ensured, corruption avoided and the public’s right to know satisfied. Freedom of information is also a crucial prerequisite for sustainable development. Resource management, social initiatives and economic strategies can only be effective if the public is informed and has confidence in government.
As an aspect of the international guarantee of freedom of expression, freedom of information is commonly understood as comprising a number of different elements. One such element, and a key one in the present context, refers to the right of individuals to access information and records held by public authorities, both through routine government publication of information and through provision for direct access requests.
To comport fully with the right to freedom of information, the State must establish cheap and efficient procedures for the public to access official information, ensure that record-keeping procedures make this possible, and ensure that the access regime facilitates the maximum disclosure of information.
Romania has remarkably strong treaty and constitutional protection for freedom of information. Consequently, legal drafting, which is consistent with Romania’s treaty and constitutional obligations, should produce an effective freedom of information law.
Analysis of the Draft Law
Chapter I: General Provisions
Chapter I is essentially the definitions section of the law. In a freedom of information law, the definitions section should define who can access information and key terms such as “information” and “public body”.
Who can access information
Article 1 provides that “citizens” have free and unlimited access to information of public interest. The right of a citizen to access information, regardless of whether he or she is present in the country or outside of it, is consistent with international standards. However, the term “citizens” is restrictive and would presumably deny access rights to individuals in Romania, who do not have citizenship, including residents and refugees. Under international standards, every person present in the country has the right to access information.
Recommendation: Article 1 should be amended to include the provision that every person present in Romania has the right to free and unlimited access to information of public interest. Subsequent parts of the law which use the term “citizens” in a similarly restrictive manner, whether in relation to Article 1 or in another context, should also be amended.
Definition of information
Article 2, which defines “information of public interest”, is consistent with international standards, but could be expanded to provide more clarity. “Information” should be defined as broadly as possible in order to cover all the information that a public body holds.
Recommendation: In Article 2, “information” should be defined as all records held by a public body, regardless of the form in which the information is stored (document, tape, electronic recording, and so on), its source (whether it was produced by the public body or some other body), and the date of production.
The distinction made between information regarding “public matters” and “personal matters” in Articles 3 and 4 is justifiable, but the requirement in Article 4 that, in order to access information about the personal matters of a third party, a person must demonstrate a “legitimate personal interest in the person” whom the information refers to, is problematic.
The real issue over disclosure of personal information about a third party is not whether the applicant has a personal interest in the third party, but whether there is a threat of harm to a privacy interest of the third party (for example, personal medical records), or a public interest in disclosing personal information about the third party (for example, the personal financial records of a corrupt politician). Furthermore, in cases where the third party has consented to personal information about him or herself being disclosed, the information should simply be disclosed without the application of a further test.
Recommendation: In Article 4, the “legitimate personal interest in the person” test should be replaced with a test reflecting the following approach. A refusal to disclose personal information about a third party is not justified if:
the third party has consented to disclosure;
disclosure does not threaten substantial harm to a legitimate privacy interest of the person or his or her family; or
the public interest in having the information outweighs the harm to the privacy interest.
Definition of public body
Chapter I refers, in Article 2, to “information regarding the activities or resulting from the activities of a public authority,” but does not define a “public authority”. In order to implement the goal of maximum disclosure of information, a “public authority” or “public body” should be clearly and broadly defined.
Recommendation: Chapter I should include a definition of the term “public authority”, which focuses on the type of service provided rather than a formal designation, and includes all branches and levels of government, including local government, elected bodies, bodies which operate under a statutory mandate, nationalised industries and public corporations, non-departmental bodies or quangos (quasi non-governmental organisations), judicial bodies, and private bodies which carry out public functions (such as maintaining road or operating rail lines). Private bodies themselves should also be included if they hold information whose disclosure is likely to diminish the risk of harm to key public interests, such as the environment and health.
Chapter II: Securing Access to Information of Public Interest
Obligation to publish
A freedom of information law should establish both a general obligation to publish and key categories of information that must be published. Public bodies should, at a minimum, be under the obligation to publish the following categories of information:
operational information about how the public body functions, including costs, objectives, audited accounts, standards, achievements and so on, particularly where the body provides direct services to the public;
information on any requests, complaints or other direct actions which members of the public may take in relation to the public body;
guidance on processes by which members of the public may provide input into major policy or legislative proposals;
the types of information which the body holds and the form in which this information is held; and
the content of any decision or policy affecting the public, along with reasons for the decision and background material of importance in framing the decision.
Article 7, which establishes both a general obligation to publish and key categories of information that must be published, is justifiable, except for the requirement that every public authority must provide a list of the documents “of interest” they have issued.
The words “of interest” introduce a subjective test, which could be used to deny access to information that should be disclosed. In fact, every public authority should be required to publish a list of all the documents they have issued.
Recommendation: In Article 7, the words “of interest” should be deleted from the phrase “documents of interest”.
Time limits
Article 9 sets out a deadline of 10 days for responding in writing to an access to information request, and 3 days if the request is refused. The prescription of short timelines for the processing of access to information requests is consistent with international standards, but the deadlines are probably too short, particularly if the access to information request is complex. If deadlines are not met or information is released in an incoherent or disorganised manner, the underlying objective of the law will be undermined. One solution to this problem is to include a proviso that, if the request is exceptionally complex, the deadline for responding may be extended by 10 days.
In addition, Article 9 is not clear about whether a refusal to release information must be accompanied by reasons. In fact, the refusal should be accompanied by substantive written reasons, in order to allow the applicant to make a full and proper appeal, among other things.
Recommendation: Article 9 should be amended to provide for a 10 day deadline both for releasing information and issuing a refusal with substantive written reasons, with the possibility of a 10 day extension of time for exceptionally complex requests.
Record-keeping
Article 12 provides that the standards for the processing and storing of information records will be set out in a special law. It would be preferable if the freedom of information law also imposed a general requirement for good record-keeping and the imposition of criminal sanctions against individuals who tamper with or destroy records.
Recommendation: Article 12 should be amended to include the following provisions: (1) public bodies are required to allocate sufficient resources and attention to ensure that record-keeping is adequate, and (2) doctoring, obstructing access to, or wilfully destroying records is a criminal offence.
Regime of exemptions
Article 14, which sets out the exemptions regime, is perhaps the most problematic part of the law. The categories of exemption are consistent with international standards, but the tests for striking a balance between the right to access information and the exemptions are either insufficient or non-existent.
“Harm” and “public interest” test
Under international standards, a refusal to disclose information is not justified unless the public authority can show that the information meets a strict three-part test:
the information must relate to a legitimate aim listed in the law;
disclosure must threaten substantial harm to that aim; and
the harm to the aim must be greater than the public interest in having the information.
It is not sufficient that information simply falls within the scope of a legitimate aim listed in the law. The public body must also show that the information would cause substantial harm to that legitimate aim. In some cases, disclosure may both internally benefit and harm that aim. For non-disclosure to be legitimate in such cases, the net effect of disclosure must be to cause substantial harm to the aim. In addition, even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the public interest benefits of disclosure outweigh the harm. In such cases, the harm to the legitimate aim must be weighed against the public interest in having the information made public.
Without the “harm” and “public interest” components of the test, public authorities will have wide discretion to deny requests for information, and the underlying objective of the law could be defeated.
Article 14 sets out a list of legitimate aims in (a)-(g), which is consistent with the first part of the test. The problem with Article 14 is that the “harm” component of the test is not applicable to all the exemption categories and the “public interest” component is totally absent.
Article 14 (c)-(g) all have a “harm” component, which makes it clear that information should be disclosed unless it causes harm to a legitimate interest, but (a) and (b) do not. Instead, there is a reference to exemption categories “classified as secret by a special law.” The law on freedom of information should cover the field in relation to access to publicly-held information, and not allow other laws to introduce different, potentially more restrictive procedures (see Omissions, Primacy of freedom of information legislation, below). Secrecy laws, in particular, have the potential to seriously undermine freedom of information legislation by widely extending the restrictions on access to information. This underlines the need for a “harm” test in the freedom of information law, which is applicable to all the exemption categories.
The other problem with Article 14 is that (a)-(g) all lack a “public interest” component (the third part of the test). In certain cases, it may be in the public interest to disclose information, even if it causes harm to a legitimate interest.
In such cases, the lack of a “public interest” test in the exemptions section of the law may allow public authorities to withhold information that should be disclosed.
Recommendation: Article 14(a) and (b) should incorporate parts (2) and (3), and Article 14(c)-(g) should incorporate part (3), of the following three-part test. No request for information may be refused unless:
the information relates to a legitimate aim listed in the law;
disclosure threatens substantial harm to that aim; and
the harm to the aim is greater than the public interest in having the information.
Article 14(f), which deals with privacy, is parallel to Article 4, which deals with information regarding personal matters. To ensure clarity, the provisions dealing with privacy and information regarding personal matters should be together in one rather than two sections of the law.
Recommendation: Either Article 14(f) or Article 4 should be deleted and its provisions integrated into the other Article.
Chapter III: The Access of the Media to Information of Public Interest
Chapter III, which facilitates media access to publicly-held information, has one problematic provision. Under Article 18, the public authorities are given powers of accreditation, and can refuse to accredit, or withdraw the accreditation, of some journalists, without restricting the right of media organizations to get accreditation for other journalists.
A system which gives the public authorities an absolute power to accredit journalists may undermine freedom of expression and access to information. The potential for the public authorities to abuse this power by refusing to accredit, or withdrawing the accreditation, of individual journalists who are critical of them, is very high. Although media organizations can then get accreditation for other journalists, a system may be created where only journalists who are sympathetic to the public authorities can obtain and maintain accreditation.
Accreditation powers should be vested in a body which is independent of the public authorities. In many countries, accreditation of journalists is done independently by a professional body of journalists.
Recommendation: Article 18 should be amended to provide that an independent, professional body of journalists will provide accreditation to journalists, and that accreditation can only be refused or withdrawn by that body.
Chapter IV: Sanctions
Chapter IV sets out the appeal process and the remedies that a person may seek following an explicit refusal to disclose information or a tacit refusal to enforce the law by a public authority. The appeal process provides for a two-stage appeal, first to a local County Court and then to the Appeal Court, but the court system can be complicated and expensive, especially for less-educated and poor individuals.
A better system of accessibility is a three-tier system of appeals, first within the public body, then to an independent administrative body, and finally to the courts. An appeal to an independent administrative body is normally less complicated and costly than an appeal to a court, which facilitates appeals, especially by less-educated and poor individuals. In addition, an administrative body can provide an independent and expert overview of the functioning of the freedom of information law, as well as performing other useful functions, such public education and the production and submission of annual reports to Parliament.
The first level of appeal should be an internal appeal to a designated person or body within the public body to whom the request has been made.
The second level of appeal should be to an independent administrative body. This could be a body specifically set up for the purpose, or an existing body such as an Ombudsman or a Human Rights Commission. In either case, the independence of the body should be guaranteed, both formally and through the process by which staff are appointed. In order to ensure independence, such appointments should be made by representative bodies, such as an all-party parliamentary committee and the process should be open and allow for public input and nominations. Individuals appointed to such a body should be required to meet strict standards of professionalism, independence and competence, and be subject to strict conflict of interest rules.
The administrative body should have full powers to investigate any appeal, including the ability to compel witnesses and require the public body to provide it with any information or record for its consideration, in camera, if necessary. The administrative body should have the power to dismiss the appeal, to require the public body to disclose the information, to adjust the charges levied by the public body, to fine the public body for obstructive behaviour, and to impose costs on public bodies in relation to appeals.
The third level of appeal should be to a court. Both the applicant and the public body should be able to appeal the decision of the administrative body. The court should have full power to review the case on its merits.
Recommendation: The law should provide for an individual right of appeal to an independent administrative body.
Omissions
The draft law is missing some key elements that would strengthen access to information and the public’s right to know.
1. Costs
The law does not have a provision on the cost, if any, of obtaining information. In general, it is better to include such a provision in a freedom of information law to prevent public bodies from charging unreasonably high costs, which may deter potential applicants, and to ensure that costs are low for personal information and public interest requests.
Differing systems have been employed around the world to ensure that costs do not act as a deterrent to requests for information. In some jurisdictions, a two-tier system has been used, involving flat fees for each request, along with graduated fees depending on the actual cost of retrieving and providing information. The latter is waived or significantly reduced for requests for personal information or for requests in the public interest. In some jurisdictions, higher fees are levied on commercial requests as a means of subsidising public interest requests.
Recommendation: The law should include provisions which make it clear that (1) any cost for gaining access to information cannot be so high as to deter potential applicants, and (2) costs will be low for requests for personal information and requests in the public interest.
2. Primacy of freedom of information legislation
A secrecy or other law which broadly expands the scope of exemptions has the potential to seriously undermine disclosure under freedom of information legislation.
It should therefore be clear that, in matters relating to disclosure of information, freedom of information legislation takes precedence over other legislation, and that other laws must be brought in line with it. A well-written freedom of information law, with a “harm” and “public interest” test, should strike a proper balance between freedom of information and other legitimate interests, such as national security.
Recommendation: The freedom of information law should clearly state that, in matters relating to disclosure of information, it takes precedence over all other legislation, and other legislation must be interpreted in a manner consistent with its provisions. It should also state that, over the long term, other laws relating to disclosure of information must be brought into line with the principles underpinning freedom of information law.
3. Open meetings
The public has a right to know what the government is doing on its behalf and to participate in the decision-making process. As such, the law should establish a presumption that all meetings of governing bodies are open to the public.
By “governing bodies”, we mean bodies which exercise decision-making powers, such as local government committees, planning and zoning boards, education authorities, and elected bodies performing public services. Bodies which only have advisory powers and political committees (meetings of members of the same political party) are not governing bodies.
Notice of meetings is necessary if the public is to have a real opportunity to participate in the meeting of a governing body. Therefore, the law should require that adequate notice of meetings is given sufficiently in advance to allow for attendance. Meetings may be closed, but only in accordance with established procedures and where adequate reasons for closure exist. Any decision to close a meeting should itself be open to the public. The grounds for closure are broader than the list of exceptions to the rule of disclosure, but are not unlimited. Reasons for closure might, in appropriate circumstances, include public health and safety, law enforcement or investigation, employee or personnel matters, privacy, commercial matters, and national security.
4. Protection for whistleblowers
Civil servants and other individuals in the public sector sometimes have access to information which may expose official wrongdoing, but they are afraid to release it because they may face legal or employment-related sanctions. The law should therefore provide protection for “whistleblowers” – individuals who release information on official wrongdoing.
“Wrongdoing” in this context includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public body. It also includes a serious threat to health, safety or the environment, whether linked to individual wrongdoing or not. Whistleblowers should benefit from protection as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed wrongdoing. Such protection should apply even where disclosure would otherwise be in breach of a legal or employment obligation.
In some countries, protection for whistleblowers is conditional upon a requirement to release information to certain individuals or oversight bodies. Protection should also be available, where the public interest demands, in the context of disclosure to other individuals or even the media. The “public interest” in this context would include situations where the benefits of disclosure outweigh the harm, or where an alternative means of releasing the information is necessary to protect a key interest. This would apply, for example, in situations where whistleblowers need protection from retaliation, where the problem is unlikely to be resolved through formal mechanisms, where there is an exceptionally serious reason for releasing information, such as an imminent threat to public health or safety, or where there is a risk that evidence of wrongdoing will otherwise be concealed or destroyed.
5. Promotional/educational activities
The experience of countries which have introduced freedom of information legislation shows that a change in the culture of the civil service from one of secrecy to one of transparency is a slow process, which can take ten years or more. As such, the law should provide for promotional and educational activities, both within the civil service and society-at-large, including:
the training of civil servants on the scope and importance of freedom of information, the procedures for disclosing information, and how to maintain and access records;
incentives for public bodies which effectively apply the law;
the submission of an annual report to Parliament on the progress (achievements and problems) implementing and applying the freedom of information law; and
a public education campaign on the right to access information, the scope of information available, and the manner in which a person’s rights may be exercised under the new law;
Recommendation: The law should include provisions for costs, the primacy of freedom of information legislation, open meetings of governing bodies, protection for whistleblowers, and promotional/educational activities, as set out above.
