Civil Society Calls for Urgent Action
-- Draft Convention Fails to Ensure Adequate Protection of Right to
Information
The world's first treaty to guarantee the right of access to information,
currently being drafted by the Council of Europe, risks falling below
prevailing European standards according to civil society groups from
across
Europe. The treaty, which will become the "European Convention on Access
to
Official Do***ents", is being drafted by a Group of Specialists, chosen by
15 of the 47 governments that are members of the Council of Europe. The
Group of Specialists is mandated to finish its work by the end of 2007,
but
has just one more drafting session scheduled for 9-12 October in
Strasbourg.
The future European Treaty on Access to Official Do***ents establishes a
right to request "official do***ents", which are broadly defined as all
information held by public authorities, in any form. On the positive side,
the future Convention will establish that the right to "official
do***ents"
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 do***ents.
However, the draft treaty has three major flaws:
1. Failure to include all official do***ents held by legislative bodies
and
judicial authorities within the mandatory scope of the treaty;
2. Failure to include official do***ents held by natural and legal persons
insofar as they perform public functions within the mandatory scope of the
treaty;
3. Failure to specify certain basic categories of official do***ents, such
as those containing financial or procurement information, that must be
published proactively.
Civil society groups from across Europe and internationally, including
Access Info Europe, Article 19 and the Open Society Justice Initiative,
are
calling for these omissions to be rectified before the Convention is
adopted
by the Committee of Ministers, the Council of Europe's top political body.
They note that, inevitably, the treaty will be viewed by many as codifying
prevailing norms in Europe, and thus as reflecting the minimum standards
to
which governments in other parts of the world should be held. But this
treaty does not reflect existing good practice in Europe or other parts of
the world, and in any event fails to ensure adequate protection of the
right
of access.
The right to access information held by the State has developed rapidly.
In
1990, only 12 countries had access to information laws. Now, more than 75
countries do. In the Council of Europe region, 24 of the 47 member states
have enshrined the right in their constitutions (for example Norway
amended
its Constitution in 2004 to specifically recognise the right); Spain is
the
only member with a population over 1 million that does not have a
dedicated
access to information law. At the international level, the right to
information has been confirmed as a basic human right in national
constitutions and jurisprudence, as well as by the specialised
representatives on freedom of expression of the United Nations, the
Organization for Security and Cooperation in Europe, and the Organization
of
American States (see text here:
http://www.cidh.org/Relatoria/showarticle.asp?artID=319&lID=1).
In
September
2006 the right to information was affirmed as a fundamental human right by
the Inter-American Court of Human Rights (judgement in English here:
http://aarhusclearinghouse.unece.org/news.cfm?id=1000176).
A substantial majority of the 47 member states of the Council of Europe
grant access to a wide range of information held by their legislatures and
judicial bodies, either under access to information laws or other
legislation (norms that often predate the access to information regimes).
The draft treaty, in its current form, only requires the legislative and
judicial branches to disclose do***ents related to their "administrative
functions". There is, however, no principled reason for treating
legislative
bodies or judicial authorities any differently than executive bodies under
an access to information regime. Legislative bodies and judicial
authorities
perform public functions and are financed with public money; the
rationales
that call for transparency of the executive apply with equal, if not
greater, force to the legislature and judiciary. It is ironic, for
example,
to exclude from the scope of the treaty do***ents related to the
law-making
activities of national parliaments - the most quintessential exercise of
representative democracy. Transparency of these institutions enables
citizens to form opinions about their functioning, foster efficiency,
reduce
corruption and ultimately increase public confidence in them. Furthermore,
the treaty's exemptions regime is perfectly capable of protecting any
legitimate legislative or judicial privileges.
Source: http://www.access-info.org/
--
Walter Keim
ECHR Appl. No. 31583/07:
http://aitel.hist.no/~walterk/wkeim/files/egmr-klage-en.htm
Keim v. Germany: ECHR Appl. No. 41126/05:
http://aitel.hist.no/~walterk/wkeim/files/echr-061101.htm
8 German states violate the human right og freedom of information:
http://aitel.hist.no/~walterk/wkeim/files/ifg-result.htm
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