Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996

Flags of 15 EU Member States

National secrecy interests versus public access

Ton A.L. Beers

Tilburg University, The Netherlands

Proceedings ]

1. Introduction

Until thirty years ago secrecy of administrative information was the dominant rule and practice in Western democracies, except for Sweden and Finland. The long-standing rule and practice of administrative secrecy resulted from a presumption of secrecy, which was often based on an unreasoned and disproportional denial of public access rather than on a well-founded, reasonable balancing of the conflicting interests in secrecy on the one hand and openness on the other. Under the law of those jurisdictions which grant the public at large the right of access to administrative information, this right is not absolute since it is subject to certain limitations and restrictions which protect secrecy interests. It is the dilemma between public access and secrecy interests that is faced in this paper. First of all the legal nature and weight of the public's right of access to administrative information must be determined. Subsequently the question will be addressed what legal nature and weight secrecy interests have and which requirements have to be met in order that a restriction of public access flowing from any kind of secrecy will be justified. Some final observations will be made afterwards.

2. Public access: legal nature and weight

Under Swedish law the public's right of access to official documents is a fundamental right by nature ever since its conception in 1766. The rules on public access have always formed a part of the Freedom of the Press Act, one of the four fundamental laws in Sweden. The public's right of access is not absolute because the Freedom of the Press Act allows certain restrictions. Its fundamental nature entails that the right of public access has a considerable weight. This becomes very clear where it is stipulated in the Freedom of the Press Act that the right to have access to official documents may be restricted only if such restriction is necessary in view of one of the interests enumerated in the Freedom of the Press Act.

Constitutional provisions relating to a general right of public access to official information are to be found also in Austria, Belgium, Estonia, Finland, Hungary, the Netherlands, Portugal, Romania and Spain. The Estonian Constitution of 28 June 1992 provides that at the request of an Estonian citizen, and to the extent and in accordance with procedures established by law, all state and local government authorities and their officials shall be obliged to provide information on their work, with the exception of information which is prohibited from disclosure by law, and information which is intended for internal use only. This provision is part of Chapter II of the Constitution, in which the fundamental rights, liberties and duties have been laid down. In 1995 the Finnish Constitution was amended by inserting into the Instrument of Government the provision that the documents and other registrations in the possession of the authorities are public, except if their publicity has been limited by law for necessary restrictions. Under the Hungarian Constitution everyone has the right to express his or her opinion freely, as well as to have access to and to disclose data of public interest. The Constitution requires a qualified majority vote, i.e. two thirds of the attending members of Parliament, to pass a law on these subjects. On 27 October 1992 a combined law covering data protection and public access was enacted by the Hungarian National Assembly.

From the viewpoint of the fundamental legal nature of public access, it is important to draw attention to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The European Commission of Human Rights holds that the freedom to receive information under Article 10 of the Convention safeguards public access to official information which is generally accessible under the domestic law of a member state. This means that if the public has access to official information under domestic law, access may be subject only to such formalities, conditions or restrictions as are prescribed by law and are necessary in a democratic society in view of one or more of the interests enumerated in Article 10, paragraph 2. The fundamental character of public access to official information also seems to underlie the Recommendation of the Committee of Ministers to the Council of Europe on the access to information held by public authorities. According to the Recommendation everyone within the jurisdiction of a member state shall have the right to obtain, on request, information held by the public authorities other than legislative bodies and judicial authorities. This right may be subject only to such limitations and restrictions as are necessary in a democratic society for the protection of legitimate public and private interests.

3. Secrecy interests: legal nature, weight and requirements

Under Swedish law the public's right of access to official documents is not absolute since the Freedom of the Press Act allows certain limitations. The right of access may be restricted only if limitations are necessary in view of:

Any restriction of the right of access shall be scrupulously specified in a special Act of Parliament, or, if this is deemed more appropriate in a particular case, in another Act of Parliament to which the special Act refers. With the authority of such a provision, however, the Government may issue by a decree more detailed regulations concerning the application of the provision. Notwithstanding these provisions, Parliament or the Government may be empowered, by means of a provision such as is referred to therein, to authorise, having regard to the circumstances, that a particular official document shall be made accessible. As far as the restrictions on the right of public access are concerned, the Swedish law distinguishes itself from the law of other states because it is highly detailed. The interests in view of which the right of access may be restricted have been worked out in the Secrecy Act. This Act contains 16 chapters and more than a hundred articles. In its provisions a specific requirement of damage to the interest concerned has been laid down, as well as a maximum period of time during which secrecy applies. For example, where the protection of personal circumstances of individuals is concerned, usually a term of 50 or 70 years is applicable. With regard to secret information on matters of national defence or foreign relations a maximum period of 40 years has been established. In principle the restrictions laid down in the Secrecy Act are mandatory in nature, i.e. if a restriction applies the authority involved must refuse access. However, the Secrecy Act allows for certain exceptions to that rule. Secrecy protecting an individual shall not apply in relation to the person himself and may in other respects be totally or partially conceded by him. The Government may in individual cases decide on an exemption from secrecy where particularly strong reasons so warrant. In case a public authority deems that such risk of loss, harm or other inconvenience, which pursuant to a provision on secrecy constitutes an obstacle to information being communicated to a private person can be removed by imposing a restriction which limits the private subject's right to pass on or use the information, the authority shall impose such a restriction when the information is communicated to such person.

The legal nature of the restrictions based on secrecy interests differs among the various jurisdictions. In the United States of America, Denmark and France for example the limitations are not mandatory as is the case in Sweden and the Netherlands but are discretionary in nature. This means that if a restriction is applicable the public authority concerned is under no obligation to give access to the information, but is nevertheless entitled to do so. Under the Canadian Access to Information Act the general rule is that exemptions are discretionary. There are, however, five mandatory exemptions in the Act that require the public authority involved to claim an exemption for certain types of records. The mandatory exemptions relate to information that was obtained in confidence from the government of a foreign state or from an international organisation of states, personal information as defined in section 3 of the Privacy Act, trade secrets of a third party, financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party, and information the disclosure of which is restricted by or pursuant to specific other statutes. The mandatory nature of these exemptions is set aside in certain circumstances, in which the public authority may disclose the information. This is the case in the first place if the organisation from which the information was obtained or the person to whom the information relates consents to the disclosure. Secondly, personal information under the control of a government institution may be disclosed even without the consent of the individual to whom it relates if the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. Thirdly, financial, commercial, scientific and technical information that is confidential, may be disclosed if such disclosure would be in the public interest as it relates to public health, public safety or the protection of the environment and, if such public interest in disclosure clearly outweighs in importance any financial loss or gain to, prejudice to the competitive position of or interference with contractual or other negotiations of a third party. The exemptions concerning international affairs, defence and national security, law enforcement and investigations, safety of individuals, economic interests of Canada, and deliberative documents are discretionary.

The legal rules on secrecy interests in the Netherlands differ in some respects from Canadian law. Under the Dutch Act, all exemptions but one are mandatory. However, in case of most of the exemptions the public authority concerned is required to weigh the public interest in openness against the secrecy interest involved (i.e. international relations, public economic and financial interests, the investigation and prosecution of crimes and criminal offences, the inspection, control and supervision by or on behalf of administrative organs, the right of privacy, the interest of the addressee to take notice of the information first, and the prevention of disproportionate advantage or disadvantage to persons concerned or to third parties). When this obligatory case by case balancing of the conflicting interests has as its outcome that the public interest in disclosure clearly outweighs the secrecy interest involved, the public authority shall be required to disclose the information under Dutch law, whereas a Canadian authority has the discretion to do so.

Restrictions of public access under the domestic law of the contracting parties to the European Convention of Human Rights must satisfy the requirements of Article 10, paragraph 2, of this Convention. First of all, the restrictions or conditions have to be prescribed by law. This means that the restrictions or conditions must have some basis in domestic law, which covers not only written but also unwritten law, that the law in question must be adequately accessible so that the citizen is able to have an indication, that is adequate in the circumstances, of the legal rules applicable to a given case, and that the law has to be formulated with sufficient precision to enable the citizen - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Secondly, the domestic restrictions or conditions must have a legitimate aim, that means one or more of the aims enumerated in Article 10, paragraph 2, namely the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the prevention of the disclosure of information received in confidence, and finally maintaining the authority and impartiality of the judiciary. In the third place, the restrictions or conditions must be necessary in a democratic society for one of the aforementioned aims. With regard to the expression "necessary in a democratic society" the Court noted that, whilst the adjective "necessary" is not synonymous with indispensable, neither has it the flexibility of such words as admissible, ordinary, useful, reasonable or desirable, but that it implies the existence of some pressing social need. Besides the requirement that restrictions have to correspond to a pressing social need, the aforesaid expression demands that a restriction shall be proportionate to the legitimate aim pursued.

The European Court of Human Rights has underlined that the initial responsibility for securing the rights and freedoms of the Convention lies with the individual contracting states. Accordingly, Article 10, paragraph 2, leaves to the contracting states a margin of appreciation. This margin is given both to the domestic legislator and to the bodies, judicial amongst others, which are called upon to interpret and apply the laws in force. Nevertheless, Article 10, paragraph 2, does not give the contracting states an unlimited power of appreciation. The Court is empowered to give the final ruling on whether a restriction is reconcilable with the freedom to receive information as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision which covers not only the basic legislation but also the decision applying it, even one given by an independent domestic court.

4. Final observations

Sweden has shown for two hundred and thirty years that access by the public to official information is a fundamental right in nature. The legal nature and the corresponding weight of this right entail that public access may be subject only to such limitations or conditions as are prescribed by adequately accessible and foreseeable legal norms, as are necessary in a democratic society for the protection of specific compelling public or private interests, and are narrowly construed. These standards leave to the individual states a margin of appreciation in balancing conflicting interests in secrecy and openness. It appears from a comparison of the public access laws of various states that there are differences in the way secrecy interests are appreciated and weighed.

Although it falls outside the actual scope of this contribution, it is important to draw attention to the fact that the public's right of access can be infringed upon not only by content-based restrictions relating to secrecy interests but also by conditions dealing with the format in which one can have access to information (i.e. only inspection of paper documents or delivery of paper copies, no electronic examination or electronic copies), the quantity of the information (i.e. no right of access to an entire database, only to a smaller constellation of data), the costs of getting access to information (i.e. in case of a public sector electronic information service the costs for technical equipment and use of the information system), and the possibility of using government-funded software to retrieve, link or analyse public data. Conditions like these, which are so essential in the computer age, can also limit the right of access to official information and therefore have to meet the requirements for restricting this fundamental right. It is of the highest importance that any restriction or condition limiting the public's right of access, however labeled, shall be scrutinised with utmost care and precision. The preservation of a meaningful fundamental right of public access to official information depends on it. 

Proceedings ]

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