RELE - Report on Access to Information in the Hemisphere 2003

CHAPTER IV

REPORT ON ACCESS TO INFORMATION IN THE HEMISPHERE1

A. Introduction

1. The Office of the Special Rapporteur for Freedom of Expression has engaged in continuous efforts to ensure and expand access to information in the Americas, in the understanding that its effective impl ementation constitutes a touchstone for the consolidation of the right to freedom of expression, and provides a framework for the establishment of policies of transparency necessary to strengthen democracies.

2. In this spirit, and in pursuance of the mandates issued by the Heads of State and Government at the Third Summit of the Americas, held in Quebec City, Canada, in April 2001, 2 the Special Rapporteur for Freedom of Expression of the IACHR has undertaken to conduct an annual exercise to monitor the adoption of new laws and regulatory systems pertaining to the guaranteeing of the right to freedom of information in the OAS member States.

3. To this end, the Office published in 2001 a “Report on Action with respect to Habeas Data and the Right of Access to Information in the Hemisphere.” 3 This report contains an account of existing legislation and practices wi thin the OAS member States with respect to the right of access to information and the action of habeas data. The report was based on the information provided by the member States in response to the official questionnaires issued by the Office of the Special Rapporteur, as well as on information gathered from national and international nongovernmental organizations (NGOs). In the 2001 Report, the Special Rapporteur concluded, in the light of the information obtained, that “practices contributing to a culture of secrecy with respect to state-held information continue to be followed in most countries, because of insufficient awareness of the specific provisions regulating this exercise, or because, given the vague, general language used in the provision, agents in possession of such information opt in favor of denying it, out of fear of punishment,” and further stressed that these practices “represent a threat to the constitutional democratic system, permitting a greater

countries, because of insufficient awareness of the specific provisions regulating this exercise, or because, given the vague, general language used in the provision, agents in possession of such information opt in favor of denying it, out of fear of punishment,” and further stressed that these practices “represent a threat to the constitutional democratic system, permitting a greater incidence of corruption.”4 In the 2001 report, the Special Rapporteur for Freedom of Expression also recommended that the following measures be taken to guarantee the rights to freedom of information and habeas data in accordance with international standards:

1 This chapter was made possible through the assistance of Kathleen Daffan, a second-year law student at Columbia University, who provided the research and the preliminary drafting of this report, and of Andrea de la Fuente, a recent law gra duate from Universidad Torcuato Di Tella, Argentina, who further assisted in the drafting of this report. Both were interns at the O ffice of the Special Rapporteur for Freedom of Expression during 2003. The Office thanks them for their contributions. 2 See Third Summit of the Americas, Declarati on and Plan of Action. Québec, Canada, 20-22 April 2001. D u r i n g t h e Summit, the Heads of State and Government declared their commit ment to support “the work of the inter-American human rights system in the area of freedom of expression through the Special Rapporteur for Freedom of Expression of the IACHR, as well as proceed with the dissemination of comparative jurisprudence, and seek to ensure that national l egislation on freedom of express ion is consistent with international legal obligations." 3 See IACHR, Annual Report 2001, Volume II, Report of the Offi ce of the Special Rapporteur for Freedom of Expression [hereinafter Annual Repport of the IACHR 2001], Chapter III, Report on Action with Respect to Habeas Data and the Right to Access to Information in the Hemisphere, OEA/Ser.L/V/II.114 Doc. 5, rev. 1, April 16, 2002. 4

[hereinafter Annual Repport of the IACHR 2001], Chapter III, Report on Action with Respect to Habeas Data and the Right to Access to Information in the Hemisphere, OEA/Ser.L/V/II.114 Doc. 5, rev. 1, April 16, 2002. 4 Annual Report of the IACHR 2001, Chapter III, Report on Action with Respect to Habeas Data and the Right to Access to Information in the Hemisphere, para. 164.136

1. The promulgation of laws permitting access to state-held information and supplemental provisions regulating the exercise of such access, as well as the promulgation of laws providing for the right of individuals to obtain access to personal data through the action of habeas data, taking international standards into account in this regard.

2. The existence of avenues of recourse for independent review to determine whether restrictions established for reasons of nationa l defense are balanced, taking into account the protection of other fundamental rights consistent with international standards in the area of human rights and the right of a society to be informed, inter alia, about matters of public interest.

3. The introduction of legislation on civil society participation and consensus-building.

4. Policies promoting and disseminating informat ion on these individual and collective rights as legal tools for achieving transparency in gov ernment, protecting personal privacy against the arbitrary or illegitimate handling of personal dat a, and promoting accountability to and participation by society.5

4. On December 11 and 12, 2002, the Office of the Special Rapporteur for Freedom of Expression of the IACHR cooperated with the Inter-American Dialogue 6 in a conference on access to information held in Buenos Aires, Argentina, with the aim of collaborating in the InterAmerican Dialogués efforts to further democracy in Latin America. Local co-organizers were the Association for Civil Rights ( Asociación por los Derechos Civiles ) and the Center for Legal and Social Studies (Centro de Estudios Legales y Sociales , CELS). In attendance were leading

American Dialogués efforts to further democracy in Latin America. Local co-organizers were the Association for Civil Rights ( Asociación por los Derechos Civiles ) and the Center for Legal and Social Studies (Centro de Estudios Legales y Sociales , CELS). In attendance were leading decision makers and members of institutions working on access to information issues throughout Latin America, the United States, and the United Kingdom. The conference brought together academics, civil society organizations, journalists, lawmakers, and members of public and private entities with expertise in the areas of enacting, enforcing, or interpreting access to information laws throughout the region.7

5. In June 2003, the General Assembly of the OAS recognized the importance of access to information with the adoption of Resolution AG/Res. 1932 (XXXIII-O/03). 8 In this Resolution, the General Assembly reaffirmed the statement of Article 13 of the American Convention in that everyone has the freedom to seek, receive, and impart information and held that access to public information is a requisite for the very exercise of democracy. 9 Further, the General Assembly reiterated that states are obliged to respect and promote respect for everyone’s access to public information and to promote the adoption of any necessary legislative or other types of provisions to ensure its recognition and effective application. 10

Paragraph 6 of the Resolution resolved to "instruct the Inter-American Commission on Human Rights, through the Special Rapporteur for Freedom of Expression, to continue including in its annual report a report on access to public information in the region." As a consequence, this

5 Annual Report of the IACHR 2001, Chapter III, Report on Action with Respect to Habeas Data and the Right to Access to Information in the Hemisphere, para. 166. 6 The Inter-American Dialogue is a center for policy anal ysis, exchange, and communication on issues in Western Hemisphere affairs. Information on the Inter American Dialogue is available at http://www.thedialogue.org. 7

to Information in the Hemisphere, para. 166. 6 The Inter-American Dialogue is a center for policy anal ysis, exchange, and communication on issues in Western Hemisphere affairs. Information on the Inter American Dialogue is available at http://www.thedialogue.org. 7 See Inter-American Dialogue, supra, note 6, Access to Information in the Americas: A Conference Report, 9. 8 This resolution is included in the Annex section of this report. 9 OAS, Resolution AG/RES. 1932 (XXXIII-O/03), para. 1. 10 Id., para 2.137

chapter will summarize the current situation of the member States in relation to the right to freedom of information, in an effort to record the development of the States in this area.

6. In August 2003, the President of the Permanent Council of the OAS requested the collaboration of the Office of the Special Rapporteur for Freedom of Expression in the presentation of a document containing proposals for the Council's compliance with paragraph 5 of Resolution AG/Res. 1932 (XXXIII-O/03), which instructed the Permanent Council to "promote seminars and forums designated to foster, disseminate, and exchange experiences and knowledge about access to public information so as to contribute, through efforts by the member states, to fully implementing such access." The Special Rapporteur for Freedom of Expression of the IACHR presented this document, included in the Annex Section of this report, during the session of the Permanent Council held on September 10, 2003. 11 Many of the proposals suggested here reiterate the considerations made before the Permanent Council.

7. Public discussion and debate about access to state-held information can only improve the strength of American democracies. And yet, the Office of the Special Rapporteur for Freedom of Expression would like to take this opportunity to emphasize to each member State that more focused attention is necessary to achieve compliance with the American Convention. In fact, a recent study found that 84% of the journalists interviewed, from 18 OAS

for Freedom of Expression would like to take this opportunity to emphasize to each member State that more focused attention is necessary to achieve compliance with the American Convention. In fact, a recent study found that 84% of the journalists interviewed, from 18 OAS member States, felt that it was difficult or very difficult to obtain information or documents from public officials in their countries. 12 In order to correct this situation and adequately guarantee citizens' right to state-held information, States must make concentrated, simultaneous advances on at least three different levels.

8. First, the theoretical background of the right of access to information should be widely understood as both deep and broad. Guaranteeing public access to state-held information is not only a pragmatic tool that strengthens democratic and human rights norms and promotes socioeconomic justice; it is also a human right protected under international law.

9. Secondly, this conceptual foundation must be accompanied by an access to information regime that is well-conceived and based on a balanced confluence of procedural coordination, civic activism, and political will. Only a legislative and regulatory structure that relies on such principles can achieve the degree of openness fostered by Article 13 of the

American Convention.

10. Finally, the adequate provision of the right of access to state-held information requires a specific, clear and transparent system of exceptions. It is inevitable that states will occasionally encounter a tension between the guarantee of the right of access to information and other valid state interests, such as the protection of individual privacy and the maintenance of national security. Defining and weighing these various interests presents a challenge of enormous delicacy and importance.

11. Given the practical complexity of providing the right of access to state-held information as guaranteed by Article 13 of the American Convention on Human Rights, the

11 OEA/Ser.G CP/doc. 3780/03, August 29, 2003 Original: Spanish. 12 Study by the International Center for Journalists, July 7, 2003. For more information, see http://www.libertadprensa.org/foetemplate.html.138

OEA/Ser.G CP/doc. 3780/03, August 29, 2003 Original: Spanish. 12 Study by the International Center for Journalists, July 7, 2003. For more information, see http://www.libertadprensa.org/foetemplate.html.138

Office of the Special Rapporteur would like to take this opportunity to elaborate requirements and strategies for adequate compliance with the Convention. This discussion will be followed by a summary of the laws and practices on the right of access to information in each of the OAS member States.

B. Adequately Guaranteeing Access to Information

1. Theoretical framework

12. The value of access to information extends to the promotion of the most important goals in the Americas, including transparent and effective democracies, respect for human rights, stable economic markets, and socioec onomic justice. Under the Inter-American System, access to state-held information is protected by Article 13.1 of the American Convention, which guarantees “the freedom to seek, receive, and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.” A state must acknowledge all of these factors in order to guarantee sufficiently the right to access information.

13. It is widely acknowledged that without public access to state-held information, the political benefits that flow from a climate of free expression cannot be fully realized. At the Third Summit of the Americas, the Heads of State and Government recognized that the sound administration of public affairs requires effective, transparent, and publicly accountable government institutions. They also assigned the highest importance to citizen participation through effective control systems.13 In accordance with this view, the Inter-American Court of Human Rights has stated that the "concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole."14 Access to information promotes accountability

Human Rights has stated that the "concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole."14 Access to information promotes accountability and transparency within the State and enables a robust and informed public debate. In this way, access to information empowers citizens to assume an active role in government, which is a condition for sustaining a healthy democracy.

14. A transparent mechanism that provides access to state-held information is also essential to foster a climate that is respectful of all human rights. The right of access to information is also a component of the right to know the truth. In this respect, the InterAmerican Commission has said that "(T)he right to know the truth is a collective right that ensures society access to information that is essential for the workings of democratic systems, and it is also a private right for relatives of the victims, which affords a form of compensation, in particular, in cases where amnesty laws are adopted. Article 13 of the American Convention protects the right of access to information." 15 Access to state-held information is similarly necessary to prevent future abuses by government officials and also to ensure that effective remedies against such abuses are guaranteed.

13 See Third Summit of the Americas, Declaration and Plan of Action. Québec, Canada, 20-22 April 2001. 14 I/A Court H.R., Advisory Opinion OC-5/85, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Articles 13 and 29 of the American Co nvention on Human Rights), November 13, 1985, Ser. A, No 5 [hereinafter Advisory Opinion OC-5/85], para. 69. 15 Case 10.488, Report N° 136/99, Ignacio Ellacuría, S.J. y Otros (El Salvador), December 22, 1999, Annual Report of the

[hereinafter Advisory Opinion OC-5/85], para. 69. 15 Case 10.488, Report N° 136/99, Ignacio Ellacuría, S.J. y Otros (El Salvador), December 22, 1999, Annual Report of the IACHR 1999, OEA, Ser.L/V/II.106, Doc. 6 rev. April 13, 1999, Original: Spanish.139

15. Access to information laws can also constitute a stabilizing force in financial

markets:

To understand and anticipate market movements, investors require timely and accurate information on company financial indicators and macroeconomic data (…) Information on price and product standards helps consumers select products. Record s of health inspections, school performance, and environmental data help citizens make informed social choices.16

16. This line of argumentation proposes that given the role of access to information in improving the flow of information in these various sectors, increasingly open regimes can benefit the world economy: "because better information flows can improve resource allocation, they may be able to mitigate global financial volatility and crises."17

17. As the Office of the Special Rapporteur elaborated in last year's Report on Freedom of Expression and Poverty, access to information is also a critical tool in the alleviation of socioeconomic injustice. The poor often suffer from a lack of access to information about the very services that the government offers to help them survive. Disenfranchised groups need access to information about these services as well as the many other decisions made by government and private agencies that profoundly affect their lives.18

18. The effective exercise of access to information also helps combat corruption, which has been identified by the Organization of American States as a problem requiring special attention in the Americas, given its capability to seriously undermine the stability of democracies. During the Third Summit of the Americas, the Heads of State and Government recognized the need to step up efforts to combat corruption, and highlighted the need to support initiatives to allow for greater transparency to ensure that the public interest is

special attention in the Americas, given its capability to seriously undermine the stability of democracies. During the Third Summit of the Americas, the Heads of State and Government recognized the need to step up efforts to combat corruption, and highlighted the need to support initiatives to allow for greater transparency to ensure that the public interest is protected and that governments are encouraged to use their resources effectively for the collective good.19 Corruption can be controlled adequately only through joint efforts aimed at raising the level of transparency of government action. 20 Transparency of government action can be enhanced by creating a legal system that allows society to have access to information and that eliminates or restricts the resistance by governments to releasing information, delays in the processes for granting requested information, and the imposition of unreasonable fees on access. A recent report on global corruption has noted that "only by insisting on both access to information and greater transparency in every sphere of society, from the local to the intergovernmental, can civil society, business and government hope to forestall and expose corruption, and ensure that the corrupt will run out of places to hide."21

16 World Bank, World Development Report 2002, "Building Institutions for Markets", 189. 17 Id. 18 See IACHR, Annual Report 2002, Volume III, Report of the Special Rapporteur for Freedom of Expression, Chapter IV, Freedom of Expression and Poverty, OEA/Ser.L/V/II.117, Doc. 5, rev.1, 7 March 2003. 19 See Third Summit of the Americas, Declaration and Plan of Action, Quebec City, Canada, April 20-22, 2001. 20 See Inter-American Convention against Corruption, Inter-American System of Legal Information, OAS. 21 Transparency International, Global Corruption Report 2003, 6.140

19. Access to information is protecte d by the American Convention on Human Rights. Article 13.1 of the Inter-American Convention states that the right to freedom of thought and expression "includes the freedom to seek, receive, and impart information and ideas of all

19. Access to information is protecte d by the American Convention on Human Rights. Article 13.1 of the Inter-American Convention states that the right to freedom of thought and expression "includes the freedom to seek, receive, and impart information and ideas of all kinds regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”

20. In order to understand the implications of access to information as guaranteed by the Convention, we must look to the guidance offered by the Inter-American Commission on Human Rights and by the Inter-American Court of Human Rights, given their interpretative authority with respect to the rights protected in the American Convention. As its Statute declares, the Commission was created to "p romote the observance and defense of human rights and to serve as consultative organ of the Organization in this matter." 22 For this reason, the Inter-American Court has written that "(…) if a State signs and ratifies an international treaty, especially one concerning human rights, such as the American Convention, it has the obligation to make every effort to apply with the recommendations of a protection organ such as the InterAmerican Commission[.]"23 In addition, the General Assembly of the OAS has urged its members to follow all recommendations of the Inter-American Commission.24

21. Based on the text of Article 13.1 of the Convention, the Inter-American Commission on Human Rights has affirmed that “the right to freedom of expression includes both the right to disseminate and the right to seek and receive ideas and information.”25

22. The approval by the Inter-American Commission of the Declaration of Principles on Freedom of Expression developed by the Office of the Special Rapporteur for Freedom of Expression affirmed the notion that in order to adequately comply with the obligations set out by the Convention, States must take effective measures to ensure access to state-held information.

Principle 4 states that:

Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of the right (…).

the Convention, States must take effective measures to ensure access to state-held information. Principle 4 states that:

Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of the right (…).

23. The Commission has supported the States obligation to ensure the effective guarantee of the right to know the truth about serious past violations of human rights. In this respect, the Commission has said that States' obligations under the Convention include "the establishment of investigating committees whose membership and authority must be determined in accordance with the internal legislation of each country, or the provision of the necessary resources so that the judiciary itself may undertake whatever investigation may be necessary."26

22 Article 1.1, Statute of the Inter-American Commission on Human Rights. Approved by Resolution No. 447 taken by the General Assembly of the OAS at its ninth regular session, held in La Paz, Bolivia, October, 1979, in BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM, OEA/SER.L/V/I.4 rev. 8 (May 22, 2001), at 131, [hereinafter BASIC DOCUMENTS]. 23 I/A Court H. R. "Loayza Tamayo" Case, September 7, 1997, Series C No. 33, para. 80. 24 See, e.g., Resolution AG/RES. 1917 (XXXIII-0/03). 25 See IACHR, Report on Terrorism and Human Rights, OAS/Ser.L./V/II.116, Doc. 5 rev. 1 corr. 22 October 2002, 180. 26 Annual Report of the Inter-American Commission on Human Rights 1985-1986, 193.141

24. The obligation of the States to guarantee access to state-held information is also supported by the Inter-American Court’s interpretation of Article 1.1 of the American Convention on Human Rights. In the Velazquez Rodriguez case, after considering that “The first obligation

24. The obligation of the States to guarantee access to state-held information is also supported by the Inter-American Court’s interpretation of Article 1.1 of the American Convention on Human Rights. In the Velazquez Rodriguez case, after considering that “The first obligation assumed by the States Parties under Article 1 (1) is 'to respect the rights and freedoms' recognized by the Convention,”27 the Court went on to say that:

The second obligation of the States Parties is to "ensure" the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that th ey are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obli gation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention (...).28

25. In its Advisory Opinion of November 13, 1985, the Inter-American Court further interpreted the provision of Article 13 of the Convention as containing both an individual and a

collective right:

Those subject to the Convention have not only the right and freedom to express their own thoughts, but also the right and freedom to seek, receive, and impart information and ideas of all kinds… the freedom of expression and information requires, on the one hand, that no one be arbitrarily hindered or prevented from expressing his own thoughts, and therefore repres ents a right of every individual. But it also entails a collective righ t to receive any information and to have access to the thoughts of others.29

26. The importance of an effective right of access to information has a solid basis in international and comparative human rights law. Although not all countries and international organizations ground the right of access to state-held information in the right to freedom of expression, there is a growing consensus th at governments do have positive obligations to provide state-held information to their citizens, since this right is interdependent with other fundamental rights.30

organizations ground the right of access to state-held information in the right to freedom of expression, there is a growing consensus th at governments do have positive obligations to provide state-held information to their citizens, since this right is interdependent with other fundamental rights.30

27. The Special Rapporteur on Freedom of Opinion and Expression of the United Nations has stated clearly that the right to ac cess information held by public authorities is protected by Article 19 of the International Covenant on Civil and Political Rights (ICCPR). 31

The protection of this right was found to be der ived from the right to freedom of expression provided by the Covenant, which states that this right “shall include freedom to seek, receive

27 I/A Court H.R. Velásquez Rodríguez Case, Judgment of 28 July 1988, Series C No. 4, at para. 165. 28 Id., para. 166. 29 Advisory Opinion OC-5/85, supra, note 14, para. 30. 30 See, e.g., Shabalala v. Attorney-General of the Transvaal & Ano. (South Africa), 1996 (1) S A 725 (CC); Eur. Ct. H.R., Case of Guerra and Others v. Italy , Judgement of 19 February 1998, Application No. 0014967/89; Jane Doe v. Board of Commissioners of Police for the Municipality of Toronto (Canada), 74 O.R. (2d) 225 (Div. Crt.); Saras Jagwanth, "The Right to Information as a Leverage Right" in Calland & Tilley, eds., The Right to Know, The Right to Live, Open Democracy Advice Center, 2002; In the United Nations System, the interdependence of free access to information with all other rights was made clear in 1 946, when the General Assembly adopted Resolution 59(I) stating: "freedom of information is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated, Toby Mendel, Freedom of Information as an

when the General Assembly adopted Resolution 59(I) stating: "freedom of information is a fundamental human right and…the touchstone of all the freedoms to which the United Nations is consecrated, Toby Mendel, Freedom of Information as an Internationally Protected Right, Article XIX, 2000. 31 See Report of the Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, Mr. Abid Hussein, UN doc. E/CN.4/1999/64, 29 January, 1999.142

and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice (…).” 32

28. Also, it is interesting to note that the right of access to state-held information is recognized more explicitly in the Inter-American System than in the European Human Rights System. Article 10 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter "the European Convention"), says: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions