The right to access information is a key component of democracy and is closely related to other fundamental rights such as freedom of speech. Governments are supposed to act in the best interest of the people. When citizens can access information about public activities, we can judge for ourselves whether politicians fulfil their promises and make informed opinions about the issues that matter to us. Therefore, understanding the importance of the right to access information and the way each country chooses to uphold it is crucial, as its expansion is at the centre of current challenges facing democracy.
What does access to information mean?
The right to access information was first written in the Swedish constitution in 1766. The Freedom of Press Act was then introduced to fight against political censorship of public documents; it explicitly listed the right to access public documents. Since then many countries followed suit, and by now it is protected by most national constitutions, the Universal Declaration of Human Rights, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Access to information is therefore considered a fundamental right.
The right to access information, or freedom of information, is defined as the right of any individual to ask any public body for information regarding public services, public money etc. to consult or obtain this information, which can be of any form (document, audio, video…). Freedom of information entails two main elements: the obligation to inform, and the right to be informed. Therefore, people have a right to request and receive information, and governments have an obligation to publish information proactively. It can concern companies if public money is spent, or in some countries, if a certain percentage of the company is owned by the state. This right is not an absolute one: there are certain situations where public interest requires that information cannot be released publicly. For instance, some documents are classified and cannot be consulted by third-parties because of the risk they pose to national security.
Why is the right to access information important?
The right to access information is guided by the idea that information should be easily accessible in order to support democracy. Enabling people to inform themselves makes social dialogue possible, and allows citizens to exercise their right to freedom of expression more purposefully. Individuals need to have access to reliable sources in order to form an accurate opinion. When the public is well-informed, the discussion between civil society and policy-makers is more meaningful. Based on their own research, citizen associations can propose comprehensive and practical recommendations the state can take to address their needs. Not only is this useful for the government (because it saves them having to do this research themselves), it also increases the likelihood that their suggestions will be taken into account, thereby giving the public a greater say over how they are governed.
Access to information also strengthens the role of civil society as a watchdog. By accessing data on how funds are used, if taxes are correctly paid etc., they can monitor whether the state or private sector act in the best interest of society at large. Having an accurate and non-biased assessment of how well government office holders have upheld their public duty makes it easier to hold them accountable on election day.
Besides, the more information and documentation is available, the easier it is for scientific research to develop.
The media plays a vital role following the activities of the state and relaying information to the public. By critically appraising the decisions and actions of government based on well-researched information, investigative journalism has had a major impact in generating changes in law or policy to benefit society, in particular for minority groups which may be overlooked by the mainstream majority.
Freedom of information and personal data protection are also interconnected. Protection of personal data is fundamental in order to prevent government surveillance and ensure citizens’ rights are upheld. But without access to information, we have very little means of finding out what our governments do with our data. Access to information makes it possible to ask what personal data the government has on file and what they’re doing with it.
Who is responsible for the enforcement of the right to access information?
On a national level, the law usually designates an Ombudsperson to enforce the right of access to information. If your rights are disregarded, you can file a complaint with your national Ombudsperson.
In addition, on the European level, citizens and legal persons residing in the EU have a right to access documents held by almost any EU institution.
What happens if your request to access information is denied by an EU institution?
If access to documents is denied, you can request a confirmatory application to ask the institution to review its decision. If the deadlines are exceeded or access is still denied, but you believe the exceptions given do not apply or there is an overriding public interest, it is then possible to file a complaint to the European Ombudsman which investigates maladministration. The Ombudsman must then carry independent and impartial investigations into complaints against public authorities. The Ombudsman does not have a binding legal power, but it can resort to a variety of solutions. The Ombudsman can simply inform the institution of their obligations, or make recommendations; the goal is to reach an amicable solution. If these do not work, the Ombudsman can make a special report to the European Parliament.
Why is access to information an essential tool? How can it be used against corruption?
Access to information is a crucial tool for developing and upholding democracy. To take an active part in democracy and influence the decision-making of their elected leaders, people need to know what is happening.
The role of media outlets informing the public is essential in this regard. To do their job effectively, journalists need as much access to as much information as possible.
Investigative journalists in particular play a critical role exposing abuses of power by the state. For example, in July 2021 an investigative group called Forbidden Stories was able to uncover large-scale spying by governments on politicians, journalists and activists through a spyware program called Pegasus. As a result, the European Parliament has set up a committee of inquiry to investigate this matter and the potential infringements of the law and fundamental rights. Meanwhile, the European Union has been urged by civil society to step up its legal framework. This shows how journalists are able to make a change in national or supranational law by uncovering new information and making it public.
As previously mentioned, the right to access information allows for better transparency and accountability of public services. It makes it easier for journalists, but also other investigators and individuals such as NGOs or citizens, to cross-check sources and identify and uncover corrupt behaviour.
What are the obstacles to accessing information?
Access to information can be limited by various elements.
Firstly, as mentioned previously, the right to access information is not absolute: it can be limited by certain considerations linked to national security, personal data protection, commercial secrecy, etc. These limitations exist in order to not infringe on other rights, create conflict of interest or compromise national security.
Some national regulations allow charging people who file freedom of information requests. This can discourage them from asking it, and reinforces inequality. In the EU, information is free to access, except in some situations where the request is manifestly unfounded or excessive.
The format to share data is also an important element to consider, as it can play a role in obstructing access to information. Firstly, in order to facilitate its access, information should be published in multiple formats to ensure that it is accessible to as many people as possible and to take into account the possibility that a single format may become obsolete. At least one of the formats should also be an open format in order to make it accessible to everyone. If the data is available for download, attention should be paid to the size of the file to ensure it is easy to download relatively quickly.
Access to information: How can this right be expanded? What will the future bring?
Nordic countries offer potential avenues for future improvement of the right to information. The Swedish government and all state organisations follow a principle called “offentlighetsprincipen”, or openness principle, that ensures all public records are documented and accessible to anyone. Norway also possesses a well-developed internet access for documents. They launched the highly successful Electronic Public Records in order to provide easy access to public records; requests for Ministerial documents have increased from 56,000 to 203,000 over 3 years.
In the European Union, there are great disparities among the member states on how open and transparent they are. Governments across the world have agreed to ensure universal access to information by 2030 as part of the UN Agenda. Nonetheless, access to information has been declining in the European Union. EU member states have actively hampered the work of journalists and obstructed access to public information, as evidenced by Liberties’ media freedom report and rule of law report. To improve the right to information, governments should facilitate its access by publishing public records on government websites by default, making it the norm and easily accessible.
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