UK government will not sign World’s First Treaty on Access to Information
Freedom of Information campaign groups today criticised the UK Government’s decision not to sign the world’s first binding treaty on access to official information. Despite the Prime Minister’s recent statement promising greater freedom of information, the Government has confirmed it will not currently sign the Council of Europe Convention on Access to Official Documents.
The Campaign for Freedom of Information and Access Info Europe said there would be real benefits if the UK signed the Convention. First, it would encourage European countries with no or weak access to information laws to introduce effective legislation. Second, it would make it more difficult for any government in the UK to weaken the UK FOI Act.
“We’re concerned that one possible reason behind the Government’s decision is that it intends to introduce new exemptions to our FOI Act, which may not be compatible with the Convention. The Prime Minister recently announced that the Government would introduce two new exemptions to the Act for cabinet documents and communications with members of the Royal Family. In both cases the information would be excluded from the scope of the FOI Act altogether for 20 years, an extremely retrograde step” said Katherine Gundersen of the Campaign for Freedom of Information.
On 24 June the UK Government stated that it “does not intend to sign the Convention at this stage” adding that it “does not rule out signing in the future”. An official statement from the Ministry of Justice observed that “The UK's Freedom of Information legislation has been a success story, providing a regime for freedom of information that is among the most open and rigorous in the world. It already goes further than the standards of the Convention in a number of areas.”
“This is clearly a spurious argument, because nothing stops any country having a higher standard than the Convention. The reluctance to sign the treaty sets a bad example for the new democracies of central and eastern Europe”, said Helen Darbishire of Access Info Europe.
The UK was active in negotiating the Convention and worked to ensure that it did not go above the standard of the UK’s FOI law. The Convention’s drafters were also anxious to ensure it was capable of being accepted by the greatest number of Council of Europe member states, 40 out of 47 of which have access to information legislation.
The Convention requires signatory states to recognise a right of access for anyone, on request, to official documents held by public authorities and take the necessary measures in domestic law to meet the minimum standards set out in the Convention. It was adopted by the Council’s Committee of Ministers on 27 November 2008 and has so far been signed by 12 other European countries.
The 12 countries who signed the Convention at a ceremony in Tromso, Norway, on 18 June 2009 are Belgium, Estonia, Finland, Georgia, Hungary, Lithuania, Macedonia, Montenegro, Norway, Serbia, Slovenia, and Sweden. The Netherlands announced on 19 June that it will also sign the Convention.
Read the full press release here
This map shows the countries who signed or will sign the Convention, those who have said they will not, countries with laws who have not yet announced a decision, and countries without laws. Map by Frakton/Deebeeduss/Access Info.
12 States Sign World’s First Treaty on Access to Information
- What about the other 35 Council of Europe Member States?
12 European countries - Belgium, Estonia, Finland, Georgia, Hungary, Lithuania, Macedonia, Montenegro, Norway, Serbia, Slovenia, and Sweden - today became the first states to sign the world’s first treaty on access to information; the Council of Europe Convention on Access to Official Documents at a meeting of Ministers of Justice held in Tromso, Norway.
Access Info Europe, a human rights group dedicated to promoting open government, welcomed the leadership shown by these 12 countries, and called the Council of Europe’s other 35 member states to demonstrate their commitment to government transparency by signing and ratifying the Convention.
“Countries like the UK, France, Germany, Denmark, and the Netherlands were all present during the negotiation of the treaty. Responding to civil society concerns that the treaty set a low standard, they argued that a minimum-standard Convention would attract more signatures. Why then have they not signed? Where is their commitment to the public’s right to know?” said Helen Darbishire, Executive Director of Access Info.
- The Convention on Access to Official Documents sets a low minimum standard on the right of access to information. Positive features include that it establishes a right to request “official documents”, which are broadly defined as all information held by public authorities, in any form. The right can be exercised by all persons with no need to demonstrate a particular interest in the information requested,and at no charge for filing requests and viewing documents.
- Signature of the Convention is the first step, and must be followed by ratification. The Convention contains optional provisions such as whether judicial and legislative bodies will be fully subject to the right to request and receive information. It will enter into force once 10 states have ratified.
- Slovenia is one country taking a lead on ratifications, having already included ratification of the Convention in its legislative programme; it plans to ratify the optional provisions on access to legislative and judicial information, setting a high standard for other states in west, central, and Eastern Europe.
- In April 2009, the European Court of Human Rights ruled that access to government-held information is a right protected by Article 10 of the European Convention on Human Rights.
News, 14 April 2009
European Court of Human Rights takes a huge step towards recognising Right of Access to Information
Access Info Europe welcomes today’s ruling by the European Court of Human Rights in which it recognises that when public bodies already hold information that is needed for public debate, the refusal to provide it to those who are seeking it is a violation of the right to freedom of expression and information.
In this case the Hungarian Civil Liberties Union asked Hungary’s Constitutional Court to disclose a parliamentarian's complaint questioning the legality of a new drugs policy law. The Constitutional Court refused to release the information. The European Court of Human Rights found this refusal to be a violation the European Convention on Human Rights.
The Court’s decision refers to the “censorial power of an information monopoly” when public bodies refuse to release information needed by the media or civil society organisations to perform their “watchdog” function.
Ádám Földes, lawyer with Access Info, who worked previously with the Hungarian Civil Liberties Union and was deeply involved in the preparation of this case, said “this extension of freedom of expression to the right to request and receive information from public bodies is a huge step towards full recognition of the right of access to information.”
Access Info notes that the Court decision itself refers to recent judgments in which it has moved “towards the recognition of a right of access to information”.
“This ruling is a cautious confirmation that the right of access to information is a human right” added Helen Darbishire, Executive Director of Access Info Europe.
Today’s ruling from the European Court of Human Rights has a number of other important features:
- The Court extends the traditional protection of the media as “public watchdogs” to civil society groups who it says have a “social watchdog” function;
- The Court states that use of protection of privacy to refuse to make public information relating to the opinions of public figures on matters of public interest would be “fatal for freedom of expression”;
- The State now has an obligation not to impede the flow of information needed for public debate on matters of public importance. In other words, that the public has a right to ask and public bodies have an obligation to answer: to do otherwise would be a violation of freedom of expression;
- The decision refers to a parliamentarian and a constitutional court which implies that the scope of the right of access to information does only apply to the executive branch of power.
Access Info notes that this ruling comes just five months after the Council of Europe adopted the world’s first binding treaty on the right of access to information, the Convention on Access to Official Documents (click here to read this new Convention). The importance of the ruling is that it reinforces the right enshrined in the European Convention on Human Rights and in the new Convention on Access to Official Documents by underlining the State's obligation to provide the public with information it holds.
Read the full decision from the European Court of Human Rights by clicking here
Read the statement from the Hungarian Civil Liberties Union by clicking here
Time for NATO to come out of the cold: Access Info presents “Five Principles for an Open and Accountable NATO”
Access Info Europe today called on NATO to adopt an information openness policy consistent with the access to information laws already in place in the Alliance’s 28 member countries.
As NATO commences its 60th anniversary Summit, Access Info criticised the Alliance for being the only major intergovernmental body not to have even a basic information disclosure policy.
NATO Secretary General Jaap de Hoop Scheffer wrote recently about the lack of public understanding and knowledge about NATO and stressed the need to “make the broader public aware of this new NATO.
“As the Strasbourg protests show, the public is well aware of NATO. The problem is not lack of awareness but the fact that NATO continues to be a closed and secretive organization distant from the general public,” said Helen Darbishire Executive Director of Access Info. “It’s high time that NATO comes out of the cold and adopts an Information Openness Policy.”
On 1 April 2009 civil society groups meeting at a Shadow NATO Summit in Brussels called on NATO to “reconnect with citizens”, stating that to “deepen and extend the shared values-base within the Alliance … means an updated, more open, transparent and accountable Alliance, appropriate to 21st century expectation.
The Five Principles for an Open and Accountable NATO presented by Access Info urge NATO to meet national and international access to information standards. This means a presumption that all information held by NATO is in principle public and that the only exceptions to publication should be those which are acceptable under comparative and international law.
The principles call on NATO to establish guidelines for proactive publication of core information and to create a mechanism by which the public can file requests for information. Access Info also called on the NATO to establish an independent review body for hearing appeals against refusals or failures to make information public within a short time-frame.
Access Info Europe argues that while it is clear that NATO holds a lot of sensitive information, other information such as that relating to procurement contracts should be made public just as it is by the ministries of defence of many NATO member countries.
“The Five Principles make clear that legitimately sensitive information could still be withheld,” said Helen Darbishire, Executive Director of Access Info, “but on its 60th anniversary it is time for NATO to move into the 21st Century by opening up and being more accountable to its citizens.”
The Council of the European Union refuses to release legal advice on reform of transparency rules in contravention of European Court of Justice jurisprudence
Going against rulings of the European Court of Justice (ECJ) in the Turco case, the Council of the European Union has refused to release legal advice about its proposed reforms to the EU access to documents rules.
Access Info yesterday (23 March 2009) filed a legal appeal against this refusal arguing that recent decisions of the ECJ make clear that legal advice relating to the legislative process should be made public. On 1 July 2008 the European Court of Justice ruled in the Turco case that there is an “overriding public interest” in “disclosure of documents containing the advice of an institution’s legal service on legal questions arising when legislative initiatives are being debated”.
In a particularly ironic twist, the legal advice being sought by Access Info is about how the Turco decision would impact upon the current access to documents practice of the Council of the European Union and how it might affect the reform of the EU’s transparency rules.
“European citizens have the right to know how European Court of Justice decisions are interpreted and, potentially, being deprived of meaning by other European institutions,” commented Eva Moraga, Lawyer for Access Info who filed the requests for documents. “This right is particularly strong when the ECJ decisions impact upon legislative initiatives, and even more so legislative initiatives about transparency.”
“European citizens have the right to know how European Court of Justice decisions are interpreted and, potentially, being deprived of meaning by other European institutions,” commented Eva Moraga, Lawyer for Access Info who filed the requests for documents. “This right is particularly strong when the ECJ decisions impact upon legislative initiatives, and even more so legislative initiatives about transparency.”
Access Info calls on all governments in Europe to make public the national laws, regulations and rules relating to what passengers may not carry onto aircraft. As Franz Kafka said in his short story Before the Law, “the law should always be accessible to everyone”.
To read the full press release click here
To read the appeal ("confirmatory application") click here
To see the document with the partially disclosed legal advice most of which is deleted click here
News, 11 March 2009
Access Info welcomes European Court of Justice ruling on prohibited items on aircraft -- the law can never be secret!
Access Info welcomes the European Court of Justice ruling on 10 March 2009 that it is illegal to enforce against individuals a law which has not been made public. The case referred to rules governing what cannot be carried onto aircraft, which for years after they were first adopted in 2002 were kept secret, violating the fundamental principle that a law is not a law until it has been published.
The result of these secret “laws” has been widespread confusion and misinterpretation. Not only did an Austrian gentleman have his tennis racquet confiscated (which was the origin of the case to the European court) but many people have had nail clippers and scissors and tweezers and other small personal items confiscated when in fact the rules (which were eventually made public by the European Commission on 8 August 2008) state that only scissors and knives with blades longer than 6cm are prohibited.
“A fundamental principle of democracy is that a law is not valid until it has been published. Citizens cannot be expected to comply with laws they cannot even know about. If we abandon these principles, even in the name of the fight against terrorism, then terrorists and others who do not believe in democracy really are gaining the upper hand,” said Helen Darbishire, Executive Director of Access Info.
Access Info reports that it is not only the European Union which has kept this list secret. A freedom of information request to the UK government to know what UK law says about what cannot be carried onto aircraft was refused on 29 September 2008 with the argument that to disclose the actual regulations, even partially, would make it “easier for the information to fall into the hands of a person with hostile intent.” Click here for the full text of the letter from the UK Department of Transport.
The problem with this line of argument is that it confuses the compulsory publication of laws, with no exceptions, with other information which may be subject to exceptions from disclosure. In this case it might be possible to withhold some aspects of information about airport security such as the technical specifications of X-ray machines in airports. But any rules with which the public must comply as a matter of law can never be subject to exception.
British Government’s Veto on Release of Iraq Cabinet Minutes Undermines the Rule of Law
The British government’s decision to veto release of the Iraq cabinet minutes undermines the role of the judiciary to ensure that public authorities uphold the law, according to international human rights organisation Access Info Europe.
The argument by Justice Minister Jack Straw that to release the cabinet minutes would threaten “the public interest in maintaining the integrity of our system of government” is misleading and dangerous according to Access Info. On the contrary, integrity of government depends on open and accountable decision-making.
“The existence and use of this veto power is unacceptable in a democratic rule of law system. In no circumstances should the executive be able to overrule judicial decisions on a whim to withhold documents that might cause political embarrassment or reveal wrongdoing,” stated Helen Darbishire, Executive Director of Madrid-based Access Info.
The existence and application of the veto violates the fundamental principles of the right of access to information, one function of which is to enable the public to hold the government accountable.
The UK is expected to ratify the world’s first binding treaty on access to information – the Council of Europe Convention on Access to Official Documents – which opens for signature in June 2009. In Access Info’s analysis the very existence of the veto power will be a serious obstacle for the UK’s ratification of the Convention: in a democratic system the courts have the final say on compliance with the laws adopted by parliament.
Going against rulings of the European Court of Justice (ECJ) in the Turco case “European citizens have the right to know how European Court of Justice decisions are interpreted and, potentially, being deprived of meaning by other European institutions,” commented Eva Moraga, Lawyer for Access Info who filed the requests for documents. “This right is particularly strong when the ECJ decisions impact upon legislative initiatives, and even more so legislative initiatives about transparency.”