Can I get access to all information (or documents) held by public bodies?
No. The right of access to information is not an absolute right. There may be some small quantities of information that public bodies hold that would cause harm if they were released, at least if released at this point in time.
For example, to release all information about an ongoing police criminal inquiry might harm the possibility that the police will catch the criminal suspect. After the enquiry is finished and the criminal arrested, the information could be released.
This is an example of information being withheld to protect what is known as a “legitimate interest” To justify withholding information public bodies must demonstrate that there would be harm to a predefined interest specified by law.
These common grounds for exceptions found in access to information laws fall into the following three groups:
1) Exceptions to protect state interests:
• Protection of national security and defence of the state
• Protection of international relations;
• Protection of public safety or public order;
• Protection of the economic, monetary and exchange rate policies of the state;
2) Protections aimed at ensuring effective government:
• protection of internal deliberations within public authorities prior to decision-making – this is known as the “space to think” exception;
• Protection of criminal investigations;
3) Exceptions to protect private interests, human rights and other rights:
• Protection of privacy and other legitimate private interests;
• Protection of commercial and other economic interests, such as protecting trades secrets or the ability of a private company to compete effectively in the marketplace;
• protection of the environment (such as locations of endangered species);
• guaranteeing the equality of parties in court proceedings or the effective administration of Justice
Wow! All these reasons? This seems like a long list, and can be a bit off-putting, but if properly applied, only a small percentage of all the information held by public bodies should be exempted from disclosure. And even when a document contains some sensitive information, some or all of it may still be released because the public body has to consider two other key factors which are detailed below:
(i) Partial Access or “Give me the non-sensitive stuff!”
Even if an exception applies, that doesn’t mean you can’t get any information. In most countries, public bodies are obliged to black out or otherwise remove the sensitive information and give you the rest of the document. If the information is in electronic form, then the sensitive information can be removed, but in that case the public body should tell you that they have done some “editing” and mark where that was and they should justify in detail why it was necessary. Check with the public authority if partial access is possible in your country.
(ii) Exceptions to Exceptions: When Transparency Trumps Secrecy
Sometimes information may be a bit sensitive but it is really important to make it public so that we know how the government is working or how our taxes are being spent.
For example, information about a contract between a public body and a private contractor will contain information about the money paid for the services of that contractor. If the contractor offered the government a very low price for its services, they might not want to disclose that information as it would hurt their ability to negotiate a higher price with other clients in the future. But on the other hand, the public has a right to know how public funds are being spent, and there is a strong public interest in knowing that taxpayer’s money is being used properly, so the information should be disclosed.
In this kind of example, public officials have to apply what is called the “public interest test”. They have to consider the exceptions, and the possibility of not releasing the information, and then they have to consider the public’s interest in knowing the information. Many access to information laws have this kind of test built into them. In other case the Information Commissioner or Courts will consider the public interest when there is an appeal. In a well functioning access to information regime, there will be many cases when transparency overrides secrecy.