Access to Information as a Human Right C Bishop

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Access to Information as a Human Right:Analysis of the United Nations Human Rights Committee Documents

Paper accepted to the Communication Law and Policy Division, InternationalCommunication Association, Dresden, Germany, 2006.

Cheryl Ann BishopRoy H. Park Fellow, Ph.D. Student

University of North Carolina at Chapel HillCampus Box 3365

Chapel Hill, NC 27599-3365Office: 919/843-5857Home: 919/523-1127

[email protected]
mailto:[email protected]:[email protected]


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Access to Information as a Human Right

Access to government-held information as a means of holding governments accountable

and facilitating democratic processes has attracted much international attention in the past

decade. More than 50 countries have freedom of information legislation guaranteeing their

citizens the right to government-held information, and more than half of those laws were passed

within the last decade.1 Intergovernmental organizations such as the World Trade Organization

and the World Bank also have responded to recent international pressure to become more

transparent to the public.2

A current trend among several international nongovernmental organizations is to envision

access to information as a human right.3 Most positing this idea base their arguments on the

specific wording of two United Nations human rights instruments: The Universal Declaration of

Human Rights (UDHR) and the International Covenant on Civil and Political Rights (Covenant).

Both proclaim the right to freedom of expression, which explicitly includes freedom to seek,

receive and impart information.4 According to some legal scholars, the words seek and

1

David Banisar, The Freedominfo.org Global Survey: Freedom of Information and Access to Government RecordLaws Around the World, May 2004, athttp://www.freedominfo.org/survey/global_survey2004.pdf.2See Hetty Kovach, Carloline Neligan & Simon Burall,Power without Accountability. Global Accountability

Report 2003. One World Trust (2003) athttp://www.oneworldtrust.org/documents/GAP20031.pdf. Shalmali Guttal,Disclosure, or Deception? Multilateral Institutions and Access to Information, paper presented at Conference onAccess to Information, Hua Hin, Thailand (March 4-6 2002). Ngaire Woods & Amrita Narlikar, Governance andthe Limits of Accountability: The WTO, the IMF, and the World Bank. 53 INT SCI. J. 53, 569 (2001).3E.g. The Commonwealth Human Right Initiative, an independent, non-partisan, international non-governmental

organization that is mandated to ensure the practical realization of human rights in the countries of theCommonwealth stated: Many people believe that access to information is a fundamental human right. This belief isreflected in international human rights instruments, the most significant being the Universal Declaration of Human

Rights Freedom of expression presupposes something to express. Therefore, access to information is inextricablytied to freedom of expression. The words to seek, receive, and impart are set out in the Universal Declaration as ifthey were the constituent parts of one indivisible right, athttp://www.humanrightsinitiative.org/programs/ai/rti/rti/what.htm#1. See Robert Martin & Estelle Feldman,Working Paper: Access to Information in Developing Countries, Transparency International (1998) athttp://www.transparency.org/working_papers/martin-feldman/1-what.html.4 Article 19 states, Everyone has the right to freedom of opinion and expression; this right includes the freedom tohold opinions without interference and to seek, receive and impart information and ideas through any media andregardless of frontiers. The Universal Declaration of Human Rights, Dec. 10, 1948, UN Doc. A/RES/217 A (III).Article 19(2), which states, Everyone shall have the right to freedom of expression; this right shall include freedomto seek, receive 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 choice. International Covenant on Civil and Political Rights,GA Res. 2200 (XXI), UN GAOR, 21st Sess. UN Doc. A/6316(1966) [hereinafter ICCPR].

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http://www.humanrightsinitiative.org/programs/ai/rti/rti/what.htm#1http://www.humanrightsinitiative.org/programs/ai/rti/rti/what.htm#1


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receive imply a right of access to information.5 This argument is significant because if access

to information were determined to be a human right, it would be an individual right located in

international law; therefore, it potentially could extend to nations without freedom of information

legislation.6

What occurs in international law can also have an effect on national courts. In the recent

United States Supreme Court case,Roper v. Simmons,7 involving the constitutionality of the use

of the death penalty for those under 18, the Courts opinion was influenced by international laws

and norms. Writing for the majority, Justice Anthony Kennedy stated that it is proper that we

acknowledge the overwhelming weight of international opinion against the juvenile death

penalty [T]he opinion of the world community, while not controlling our outcome, does

provide respected and significant confirmation for our own conclusions.8 In making his

assessment, Kennedy referred to provisions against the death penalty in the United Nations

Convention on the Rights of the Child and parallel prohibitions contained in other significant

international covenants, citing the Covenant, among others.9

5See Tony Mendel,Freedom of Information as an Internationally Protected Human Rightathttp://www.article19.org/docimages/627.htm; Geoffrey A. Hoffman,In Search of an International Human Right to

Information, 25 L.A. INTL & COMP. L. Rev. 165. In a 1991 decision, the South Korean Constitutional Court, citingArticle 19 of the UDHR, ruled that the right to know is naturally included in the freedom of expression. May 13,1991, 90 HonMa 133, 3 KCCR 247.6

There exist two key sources of international human rights law treaty-based law and customary law. Treaties, the

most common source of international law, impose binding obligations on countries that become parties throughratification. The main international human rights treaties are the two United Nations Human Rights covenants: theInternational Covenant on Economic, Social and Cultural Rights (CESCR) and the International Covenant on Civiland Political Rights (ICCPR). Regional human rights treaties also exist. The other key source of international humanrights law is customary law, which occurs when provisions of international treaties, declarations, or resolutions

become widespread and pervasive on an international scale. Some have argued that many of the provisions of the

Universal Declaration of Human Rights have become customary law. The International Court of Justice has rankedcustomary law secondary to treaty-based law.7 125 S. Ct. 1183 (2005).8Id. at 1201.9Id. at 1200. It should be noted that the reference to international law in the Court opinion was controversial. Justice

Antonin Scalia in his dissent stated that the basic premise of the Court's argument--that American law shouldconform to the laws of the rest of the world -- ought to be rejected out of hand.Id. at 1227 (Scalia, A., dissenting).Republican Senator Tom DeLay called the decision outrageous in part because it referred to international law.Jesse J. Holland,DeLay Criticizes Supreme Court Justice Kennedy, Activist Republican Judges, ASSOC. PRESS, April20, 2005.

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The purpose of this paper is to assess the current status of the right of access to

government-held information in international human rights law by analyzing the documents of

the United Nations Human Rights Committee, which monitors implementation of the

International Covenant on Civil and Political Rights (ICCPR). The committee was chosen

because the ICCPR is the only international human rights treaty dealing exclusively with civil

and political rights. Regional human rights courts exist, but their jurisdictions are limited.10

The International Covenant on Civil and Political Rights is a United Nations treaty based

partly on the Universal Declaration of Human Rights. It consists of 51 articles, which guarantee

the right to own property, the right to nationality, and the right to freedom of expression, among

others. It is monitored by the Human Rights Committee, a group of 18 experts who are elected

by member states but do not represent any nation. They meet three times a year to consider

reports submitted by signatory nations on how those nations are enforcing the covenant. The

committee then publishes concluding observations. During those meetings, it also hears

individual complaints.11 Its rulings on these complaints have created the most complex

jurisprudence in the UN international human rights system of law. Together the committees

decisions and concluding observations constitute the most dynamic and prolific source of HRC

guidance.12

The committee also periodically publishes general comments on its interpretations of the

covenant. These comments are statements made by the committee to clarify to nations their

obligations under the covenant. They also are used by the committee to communicate

10See, e.g, The European Convention on Human Rights, adopted 4 Nov. 1950, entered into force 3 Sept. 1953[hereinafter ECHR] and The American Convention on Human Rights, adopted 22 Nov. 1969, entered into force,entered into force 18 July 1978 [hereinafter ACHR].11 The ability to hear individual complaints is created by the First Optional Protocol to the International Covenant onCivil and Political Rights. Only citizens of signatory nations to the ICCPR that also sign and ratify the First OptionalProtocol can bring complaints. The United States is not a signatory nation. Although these decisions are binding,there is no enforcement mechanism except diplomatic pressure. Optional Protocol to the International Covenant onCivil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. Doc. GAOR Supp. (no. 16), U.N. Doc. A/6316 (1966)999 U.N.T.S. 302, entered into force, Mar. 23, 197612 SCOTT N. CARLSON & GREGORY GISVOLD, PRACTICAL GUIDETOTHE INTERNATIONAL COVENANTON CIVILAND POLITICALRIGHTS (2003).

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interpretations of the covenants articles.13 This paper will analyze the committees concluding

observations, general comments, and rulings to assess whether the committee interprets the

covenant to provide a right of access to government-held information and, if it does, what those

rights confer.

Literature Review

The literature on access to government-held information as a human right mostly assesses

regional human rights instruments and national constitutions and legislation. When the covenant

is discussed, the literature suggests that Article 19 implies a right to information. Some studies

have shown that a right to reproductive health information does exist in human rights law.

Freedom of expression and freedom of information are closely linked. Anthony Mason

stated, [G]uarantees of freedom in constitutions and international instruments expressly or

impliedly include certain aspects of freedom of information in freedom of expression, that is the

right to seek and impart, even the right to receive, information.14 He argued that this relationship

is fostered by current international legal instruments such as the covenant, the European

Convention on Human Rights and Fundamental Freedoms (ECHR), and the American

Convention on Human Rights (ACHR), which all treat freedom of expression as including

freedom of information.15 In regards to Article 19 of the covenant, which includes the freedom

to seek, receive and impart information, Mason argued that this language implies a protection

to receive otherwise accessible information but not an obligation on governments to impart

information, unless that information pertains to the individual seeking information. That being

said, Mason also maintained that the essentiality of freedom of expression and information to

modern liberal democratic government and the emergence of freedom of information legislation

13 ALEX CONTE , ETAL., DEFINING CIVILAND POLITICAL RIGHTS. THE JURISPRUDENCEOFTHE UNITED NATIONS HUMAN RIGHTSCOMMITTEE (2004).14 Anthony Mason, The Relationship Between Freedom of Expression and Freedom of Information in FREEDOMOFEXPRESSIONAND FREEDOMOF INFORMATION.\ (Jack Beatson & Yvonne Cripps eds. 2000) at 225.15Id.

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and disclosure requirements of international institutions may lead to the implication in Article

19 of such an obligation.16

Tony Mendel, head of the law program of the nongovernmental organization Article 19,

the Global Campaign for Freedom of Expression,17 surveyed several international human rights

instruments18 and national court decision and concluded that states are under increasing

obligation to give effect to the right to freedom of information.19 But the jurisprudence at the

national and international levels is equivocal in that it grounds that obligation in three different

areas: the right to family life, the right to freedom of thought, and the right to freedom of

expression.20 According to Mendel, the European Court of Human Rights, which hears cases on

alleged violations of the European Convention on Human Rights,21 has ruled in several cases that

governments cannot restrict a person from receiving information that others are willing to impart.

What is significant in these rulings, according to Mendel, is that they are based not on Article 10

of the European Convention,22 which guarantees freedom of expression, but on Article 8,

guaranteeing a right to family life.23 Each of these cases involved information pertinent to a

specific individual.24 All of Mendels examples of a right to freedom of information grounded in

16Id. at 227.17 Article 19, the Global Campaign for Freedom of Expression, is an international nongovernmental organizationthat promotes freedom of expression and the free flow of information as fundamental human rights that underpinall others, Article 19 athttp://www.article19.org/.18 The European Court of Human Rights; the ICCPR; the UN Commission on Human Rights, and the UN SpecialRapporteur on Freedom of Opinion and Expression.19 Mendel atsupra note 5.20Id.21 The European Court of Human Rights hears cases of signatory nations of the ECHR.22 Article 10(1) states: Everyone has the right to freedom of expression. This right shall include freedom to hold

opinions and to receive and impart information and ideas without interference by public authority and regardless offrontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinemaenterprises.23

Article 8 states: 1. Everyone has the right to respect for his private and family life, his home and his

correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such asis in accordance with the law and is necessary in a democratic society in the interests of national security, publicsafety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of healthor morals, or for the protection of the rights and freedoms of others.24 For example, in Gaskin v. United Kingdom, 7 July 1989, 12 EHRR 36, the court ruled that an individual who wasin foster care had the right to obtain the government agency records that pertained to him.

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the right to freedom of thought come from national supreme courts, not international human

rights instruments.

As an example of the right to freedom of information grounded in the right to freedom of

expression, Mendel referred to Article 19 of the covenant. He argued that Article 19 implies a

right to freedom of information because freedom to receive information prevents public

authorities from interrupting the flow of information to individuals and that freedom to impart

information applies to communications by individuals. It would then make sense to interpret the

inclusion of freedom toseekinformation, particularly in conjunction with the right to receive it,

as placing an obligation on government to provide access to information it holds.25 But his

discussion of the covenant does not address decisions of the Human Rights Committee.

Two authors analyzed the right to freedom of information in terms of womens rights to

receive information about reproductive health. Geoffrey Hoffman assessed several international

treaties and bodies and found that this right does exist in international law. Many of his findings

are based on provisions guaranteeing a womans right to education, not specifically the right to

information. The authors analysis of Article 19 of the covenant is brief and does not include

decisions, concluding observations, or general comments of the Human Rights Committee. The

author concluded that Article 19 is weak in reference to guaranteeing women access to health

information.26

Sandra Coliver also examined international human rights law in reference to womens

right to reproductive information.27 Her study assessed international law regarding

nondiscrimination, rights to health and life, rights to family life, and freedom of expression and

25 Mendel atsupra note 5.26 Geoffrey Hoffman,In Search of an International Human Right to Receive Information, 25 LOY. L.A. INTL &COMP. L. REV. 165.27 Sandra Coliver, The Right to Information Necessary for Reproductive Health and Choice Under International

Lawin THE RIGHTTO KNOW: HUMAN RIGHTSAND ACCESSTO REPRODUCTIVE HEALTH INFORMATION (1995).

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information. The authors brief analysis of the latter consisted of decisions from regional human

rights courts28 and only briefly discussed the covenant.

Although the literature suggests that some scholars have surveyed international legal

instruments in regards to access to information, no studies have assessed all the decisions of the

Human Rights Committee in terms of a right of access to government-held information. All of

the studies give only a cursory look at the rulings of covenant. Analysis of those decisions,

concluding observations, and general comments can help to assess the current status of access to

information in international human rights law.

Research Questions & Methodology

This paper will address the following research question:How do the Human Rights

Committees decisions, concluding observations, and general comments interpret the Articles of

the covenant, particularly Article 19, in regards to guaranteeing a right of access to government-

held information? This paper analyzes the following types of documents from the Human Rights

Committee that pertain to access to government-held information.

Concluding Observations: Reports from the committee to countries regarding their

compliance with the covenant.

General Comments: General statements from the committee on its interpretations of

specific articles in the covenant.

Decisions: Rulings from the committee regarding individual complaints of human rights

violations.

The Human Rights Committees Views on Access to Information

28 The African Charter on Human and Peoples Rights, adopted 26 June 1981, entered into force 21 Oct. 1986; theAmerican Convention on Human Rights, adopted 22 Nov. 1969, entered into force, entered into force 18 July 1978;and the European Convention on Human Rights, adopted 4 Nov. 1950, entered into force 3 Sept. 1953.

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The committees jurisprudence regarding the right to government-held information is

very limited. Of the approximately 850 complaints heard by the committee since 1977, only six

decisions considered access to government-held information. In two of the complaints, the

committee held that the complainants rights were violated by denial of access to government-

held information. One of the complaints dealt with Article 19, which guarantees the right to

freedom of expression including the freedom to seek, receive and impart information and ideas

of all kinds.29 The other decision involved Article 10,30 which concerns the rights of those held

in government detention. The committee ruled against complainants in three other cases, all of

which concerned Article 14,31 the article pertaining to fair trials. The sixth complaint, which also

involved Article 19, was ruled inadmissible under the committees procedural rules.32 All of

these complaints except one dealt specifically with access to personal information held by public

authorities.

Of the 183 concluding observations (committee reports on the status of countries

compliance with the covenant), only nine addressed access to information, and many of the

statements were exceedingly vague. In all except one, the discussion involved Article 19. Only

one of the committees 34 general comments (committee comments clarifying interpretations of

29 ICCPR, Article 19.30

ICCPR, Article 10(1): All persons deprived of their liberty shall be treated with humanity and with respect forthe inherent dignity of the human person.31 ICCPR, Article 14(1): All persons shall be equal before the courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair andpublic hearing by a competent, independent and impartial tribunal established by law. The press and the public maybe excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in ademocratic society, or when the interest of the private lives of the parties so requires, or to the extent strictlynecessary in the opinion of the court in special circumstances where publicity would prejudice the interests of

justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where theinterests of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianshipof children; Article 14, paragraph 3: In the determination of any criminal charge against him, everyone shall beentitled to the following: (b) To have adequate time and facilities for the preparations of his defense and tocommunicate with counsel of his own choosing.32 Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N.Doc. GAOR Supp. (no. 16), U.N. Doc. A/6316 (1966) 999 U.N.T.S. 302, entered into force, Mar. 23, 1976.

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the covenants articles) addressed the issue of access to government-held information and that

was in reference to Article 17, the right to privacy.33

The following sections will assess the committees jurisprudence, observations, and

comments based on the particular articles addressed. Because each of the covenant articles

address different rights, it is important to discuss the findings in terms of specific rights

enumerated in the articles.

Article 17

1. No one shall be subject to arbitrary or unlawful interference with hisprivacy, family, home, or correspondence, nor to unlawful attacks on his

honour and reputation.2. Everyone has the right to the protection of the law against suchinterference or attacks.

The committee voiced one if its strongest statements affirming a right of access to

government-held information in a general comment regarding Article 17. The Comment

states that the gathering and holding of personal information whether by public

authorities or private individuals or bodies, must be regulated by law. It also went on to

state:

[E]very individual should have the right to ascertain in an intelligible form,whether, and if so, what personal data is stored in automatic data files, and forwhat purposes. Every individual should also be able to ascertain which publicauthorities or private individuals or bodies control or may control their files. Ifsuch files contain incorrect personal data or have been collected or processedcontrary to the provisions of the law, every individual should have the right torequest rectification or elimination.34

Then in the 1999 concluding observations on Norway,35 the committee praised Norway

for passing a law giving citizens the right to access records about themselves held by the Police

33ICCPR, Article 17 states: 1. No one shall be subject to arbitrary or unlawful interference with his privacy,

family, home, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right tothe protection of the law against such interference or attacks.34 CCPR General Comment No. 16, 8 April 1988.35 CCPR/C/79/Add.112, 1 November 1999.

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Security Service. The committee specifically indicated that this development fell under Article

17 of the covenant.

These two statements indicate that the committee views access to personal records held

by public authorities as a human right. Surprisingly, though, the committee has not heard any

complaints under Article 17 about denial of access to personal government-held information;

therefore, there is no jurisprudence in this regard. Although five of the six complaints identified

in this study concerned access to personal information, none of them implicated Article 17.

Article 10, paragraph 1

Article 10, paragraph 1: All persons deprived of their liberty shall be treated withhumanity and with respect for the inherent dignity of the human person.

The committees decision inZheludkova v. Ukraine (2002)36is one of the two rulings in

which the committee affirmed the right of access to government-held information. The complaint

involved Article 10, which guarantees the right to be treated with humanity and dignity while in

prison. A Ukrainian man, Igor Zheludkov, was denied access to his medical records while in

prison. The government provided a summary of Zheludkovs records but not the actual records.

His mother submitted his complaint arguing that denial of access violated Zheludkovs rights

under Article 10, paragraph 1. Zheludkovs mother argued that access to the records was

necessary to help assess his current medical issues, for which he was treated while in detention.

She also claimed that her son was beaten while in detention and access to the records could help

confirm this. In a split ruling of 14 in the majority and three dissenting,37 the committee

concluded his rights were violated under Article 10, paragraph 1. The committee acknowledged

that it was not in a position to determine the relevance of the medical records to his physical

36 CCPR/C/76/D/726/1996, 6 December 2002.37 Traditionally the committee has made decisions based on consensus, but more recently members have begun toissue individual opinions of dissent or concurrence. Scott Carlson and Gregory Gisvold. PRACTICAL GUIDETOTHEINTERNATIONAL COVENANTON CIVILAND POLITICAL RIGHTS, Transnational Publishers, Ardsley, NY, 2003.

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treatment while in detention or the medical treatment he received there, but because the

government did not explain why the records were denied, the committee gave due weigh to the

complainants allegations.38 The committee concluded that consistent and unexplained denial

of access to medical records39 did violate Zheludkovs rights under Article 10, paragraph 1.

Three committee members40 dissented and one member41 concurred but with reservations.

The three dissenting members argued that Zheludkovs rights were not violated under

Article 10, paragraph 1, because the government had given access to a summary. They also

argued that denial of access to medical records does not in and of itself constitute a violation of

Article 10. In the most vehement dissent, a member wrote, To conclude that the denial of access

to medical records to a person deprived of his liberty, assuming such a denial is proved,

constitutes inhumane treatment and is contrary to respect for the inherent dignity of the human

person goes beyond the scope of the said paragraph and runs the risk of undermining a

fundamental principle which must be above whimsical interpretations.42

In the concurring opinion, the author argued the opposite. She argued that the opinion:

excessively restricts the interpretation of article 10, paragraph 1, by linking theviolation of that provision to the possible relevance which the victims access tothe medical records might have had for the medical treatment that he received inprison [A] persons right to have access to his or her medical records form partof the right of all individuals to have access to personal information concerningthem regardless of whether or not this refusal may have had consequences forthe medical treatment.43

Although this concurring committee member did not mention Article 17, her comments

regarding a persons right to government-held personal information are similar to those

expressed by the committee in its general comment on Article 17 and its concluding observation

38Supra note 39 at Para. 8.4.39Id.40 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Mr. Nisuke Ando,Individual Opinion by Committee Member Mr. P.N. Bhagwati, Individual Opinion by Committee Member Mr.Rafael Posada.41 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Cecilia Medina.42 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Mr. Rafael Posada.43 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Ms. Cecilia Medina.

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of Norway. When making decisions, the committee has the option to bring in covenant articles

that are not addressed in the complaint. It is unclear why the committee chose to rule based on

Article 10 rather than Article 17, which possibly is more appropriate, especially in light of the

three dissents. It also is not clear if the committee would have decided that a violation under

Article 10 occurred if the government would have shown that the medical records were not

relevant to the complainants medical treatment. The committees decision to some extent, as the

concurring decision suggests, hinged on this potential relationship. The decision that the

complainants rights were violated under Article 10 is not a strong statement regarding the right

of access to government-held information. It is based not on a right to government-held

information, but on the right to fair treatment while in prison.

Article 14

Article 14, paragraph 1: All persons shall be equal before the courts andtribunals. In the determination of any criminal charge against him, or of hisrights and obligations in a suit at law, everyone shall be entitled to a fair andpublic hearing by a competent, independent and impartial tribunal established bylaw.Article 14, paragraph 3(b): In the determination of any criminal charge againsthim, everyone shall be entitled to the following: To have adequate time andfacilities for the preparations of his defense and to communicate with counsel ofhis own choosing.

Three of the decisions that deny a right to government-held information involve two

separate sections of Article 14 that guarantee the right to a fair trial. In van Marcke v. Belgium

(2004),44 the complainant was convicted of forgery and fraud. During the prosecutions

investigation, van Marckes tax records were obtained but not added to the criminal file;

therefore, van Marcke could not access them. He argued that his right to equal access to

information was violated under Article 14, paragraph 1, due to the courts refusal to add the

fiscal records to the criminal records. The committee ruled that his rights to a fair trial were not

44 CCPR/C/81/D/904/2000, 9 August 2004.

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violated because the fiscal file was not the basis of the prosecutions case. It also stated that

Article 14, paragraph 1, does not require that the prosecution bring before the court all

information it reviewed in preparation of a criminal case unless it was withholding exonerating

evidence.

Anthony Fraser, et al. v. Jamaica (1999)45 also involved Article 14, paragraph 1. This

complaint concerned two men who were convicted of murder and sentenced to death. The

prosecution relied on eyewitness accounts by three persons. The complainants argued that their

rights were violated under Article 14, paragraph 1, because their defense was denied access to

one of the witnesss police statement. Again, the committee ruled that the complainants rights to

a fair trail were not violated because the statement was not used by the prosecution.

The third Article 14 decision is based on paragraph 3(b), which guarantees adequate time

and facilities to prepare a defense and to receive choice of counsel. InErrol Smith, et al. v.

Jamaica (1999),46 the complainants also where convicted of murder and sentenced to death. They

argued that their rights were violated under Article 14 because they were denied access to a

statement given by the prosecutions main witness. The committee ruled that there was no

violation of Article 14, paragraph 3(b), because the state had shown that the statement had not

named the complainants and was not part of the prosecutions case.

In all three Article 14 decisions, the committee ruled that the denial of government-held

personal information did not violate the complainants rights to a fair trial. These decisions were

based on the fact that the prosecution did not use the information during trial. In van Marcke v.

Belgium, the committee bluntly stated Article 14 did not require the prosecution to hand over all

of its information concerning the trial. The decisions do seem to imply, though, that if the

45 CCPR/C/65/D/722/1996, 31 May 1999.46 CCPR/C/65/D/668/1995, 12 May 1999.

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prosecution did use the information during trial, a violation of Article 14 may have been found,

although this is speculative.

Article 19

2(b) Everyone shall have the right to freedom of expression; this right shallinclude freedom to seek, receive and impart information and ideas of all kinds,regardless of frontiers, either orally, in writing or in print, in the form of art, orthrough any other media of choice.

The committee has released several concluding observations pertaining to freedom of

information legislation. In concluding observations the committee traditionally begins the

discussion by pointing out the positive aspects of a nations progress in adhering to the covenant.

It then goes on to list its concerns and suggestions to better comply with the covenant. Although

the committee has never chastised a country for not having freedom of information legislation or

for withholding government-held information in general, it has on four occasions expressed

approval of a governments intention to pass freedom of information legislation47 and approval of

countries that recently passed legislation. In a 1995 observation,48 the committee praised the

Ukraine for passage of a freedom of information law in 1992. Irelands passage of the 1997

Freedom of Information Act also received approval,49 as did Lithuanias passage of legislation in

1996.50

On several occasions, the committees observations implied concern about nations lack

of access to information, but these statements are very broad and vague. In an observation to

Uruguay, the committee wrote, With respect to freedom of expression, there should be greater

freedom to seek information, as provided for under article 19(3) of the Covenant.51 It is unclear

what the committees intention was in making this observation, and the suggestions do not

47 CCPR/C/70/Ass.81, 4 August 1997.48 CCPR/C/79/Add.52, 26 July 1995.49 A/55/40, paras. 442-451, 24 July, 2000.50 CCPR/C/79/Add.87, 19 November 1997.51 CCPR/C/79/Add.90, 8 April, 1998.

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address this concern. In an observation to Nepal, the committee stated, The Committee notes

with concern the excessive restrictions on the right to freedom of expression and information.52

Again, the committee did not elaborate on its concern or make suggestions to Nepal on how to

remedy the non-compliance issue. In an observation to Azerbaijan, the committee stated, The

Committee notes with concern the lack of laws guaranteeing the right of information and the fact

that the laws inherited from the former regime have not been amended to guarantee the rights

provided for in article 19 of the Covenant.53 In the only suggestion related to the committees

concern, it recommended that the state party revise the former legislation as soon as possible in

order to introduce a democratic system more in keeping with the requirements of the Covenant.

In a 1993 observation, the committee was more specific. It rebuked Ireland, stating that

with respect to freedom of expression and the right of access to information, the committee

notes with concern that the exercise of those rights is unduly restricted under present laws

concerning censorship, blasphemy and information on abortion.54 In the recommendation

section of the report, though, the committee recommended only that Ireland take necessary

measures to ensure the enjoyment of freedom of expression as set out in article 19 of the

covenant. In this regard, the Committee suggests that steps should be taken to repeal strict laws

on censorship and ensure judicial review of decisions taken by the Censorship on Publications

Board.55 It is not clear from the committees comments whether the right of access to

information also refers to government-held information such as government-held information on

abortion.

In concluding observations on Great Britain and Northern Ireland, the committee

reprimanded the governments use of the Official Secrets Act. The State party should ensure

52 CCPR/C/79/Add.42, 10 November 1994.53 CCPR/C/79/Add.38, 3 August 1994.54 CCPR/C/79/Add.21, 3 August 1993.55 CCPR/C/79/Add.21, 3 August 1993.

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that its powers to protect information genuinely related to matters of national security are

narrowly utilized and limited to instances where it has been shown to be necessary to suppress

the release of information.56

In the only general comment pertaining to Article 19,57 the committee did not indicate

any right to information nor encourage counties to pass freedom of information legislation. This

could be due to the fact that the general comment was released in 1983, more than 10 years

before the above concluding observations regarding freedom of information legislation and

access to information were released. As stated previously there has been a dramatic increase in

freedom of information legislation in the past 10 years. This recent development may have

contributed to the committees statements on this type of legislation. It also is important to note

that the committee has not chosen to write another general comment on Article 19. Without

further clarification from the committee, it is difficult to assess if the committees statements in

the concluding observations about freedom of information legislation are broad comments about

good governmental practices or if they indicate that the committee views access to information

as a human right protected under Article 19.

The jurisprudence regarding Article 19 and access to government-held information only

includes two complaints, one of which was determined to be inadmissible. X v. New Zealand

(1999)58 concerned a man who was involuntarily admitted to a mental hospital. He brought a

complaint to the committee because he felt that he was improperly committed and also because

he was denied access to his police and medical records. He argued that his rights under Article

19, paragraph 2(b), were violated because he was refused access to information held by the

police and Department of Health under the New Zealand Privacy Act of 1993. The complaint

56 CCPR/CO/73/UK, 6 December 2001.57 CCPR General Comment No. 10, 29 June 1983.58 CCPR/C/66/D/754/1997, 2 August 1999.

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was ruled inadmissible because he had not exhausted all of the state remedies. 59 This included his

failure to appeal the government decision to the New Zealand Complaints Review Tribunal,

which is authorized to hear complaints under the New Zealand Privacy Act.

What is interesting is that the complaint was brought under Article 19, and not Article 17,

which protects privacy. The complaint clearly could fall under Article 17 because the

complainant was denied personal information under New Zealands Privacy Act. As stated

above, the committee has never heard a complaint regarding access to government-held

information under Article 17, yet it did make it clear in its general comment on Article 17 that

governments are obligated under the covenant to provide access to government-held personal

information.

The second Article 19 complaint was Gauthier v. Canada (1999).60 Robert Gauthier,

publisher of a newspaper, was refused the same access as other reporters to the Canadian Press

Gallery.61 The Press Gallery is a private organization that administers the accreditation for

journalists to attend parliamentary proceedings. Gauthier was given a non-journalist temporary

pass that gave him limited access, which resulted in his not being allowed to ask questions at

press conferences or have a mail slot for receiving all the information available to active

members.62 He also filed numerous requests for access to the speaker of the house to no avail. A

federal court refused to hear his case because the Press Gallery is not a department of the

government. A provincial court also refused to hear the case stating that the speaker of the house

was exercising parliamentary privilege.

59Supra note at 35. Under the rules of the Optional Protocol, one cannot bring a complaint to the Committee unlessthat individual has exhausted all of the States remedies.60 CCPR/C/65/D/633/1995, 5 May 1999.61 Gauthier fought for more than 10 years to receive membership in the Parliamentary Press Gallery. Canada, in itssubmission to the committee, said Gauthier did not receive a press pass because he had been uncooperative in

providing enough information to determine if he was eligible. Gauthier contended that he had cooperated and therules were whimsical.62 CCPR/C/65/D/633/1995, 5 May 1999.

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Canada argued to the committee that all citizens have access to parliament through a

three-tiered pass system. The press pass specifically gives access to the media facilities of

parliament and is only given to accredited members of the Press Gallery. Canada also argued that

there is no relationship between the Speaker of the House and the independently run Press

Gallery and that most of the Press Gallery facilities are not located on government grounds and

thus are outside of parliaments jurisdiction. Canada also claimed that Gauthier was not

significantly disadvantaged because Parliamentary proceedings were broadcast to the public.

Gauthierargued that his rights were violated under Article 19(b) because the government of

Canada prevents him to seek and receive information and observe proceedings on behalf of his

readers, and prohibits his access to facilities and services provided for the media,63 including

access to press releases, itineraries of public officials, and to the Library of Parliament.

The committee did not accept the Canadas argument and stated, [I]n view of the

importance of access to information about the democratic process the Committee does not

accept the State partys argument and is of the opinion that the authors exclusion constitutes a

restriction of his right guaranteed under paragraph 2 of article 19 to have access to

information.64 Next the committee had to decide whether these restrictions were justified under

Article 19, paragraph 3, which lists two exceptions to Article 19: Respect of the rights or

reputations of others and for the protection of national security or of public order or public

health or morals. The state argued that the restrictions were justified because they helped create

a balance between freedom of expression and the effective operation of parliament. The

committee agreed that the state had legitimate interest in maintaining public order through the

63Id.64

Id.

.

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accreditation system but that the current system was not specific, fair and reasonable nor

transparent.

Although this decision does seem to imply a right of access to government-held

information, it is not definitive. It is promising that the committee did specifically refer to a right

of access to information under Article 19, paragraph 2, yet in some ways, the decision is more

about equal access to press privileges than access to government-held information. It is unlikely

that the committee would have decided a violation under Article 19 had occurred if Gauthier

were not a journalist.

Discussion and Conclusion

The strongest statement regarding citizens right of access to government-held

information rests in the general comment on Article 17 stating that citizens have the right to view

and access government files pertaining to them. However, there is no jurisprudence in this area;

therefore it is difficult to predict how the committee would rule on such a complaint. The

committees strong statements in this regard, which also include the Observation to Norway,

conflict with its decisions under Article 14 concerning access to personal information. The

committee stated emphatically that Article 14 did not require the prosecution to hand over all of

its information concerning the trial. The committees general comment on Article 17 also raises

the question of why Article 17 was not used in the decision inZheludkova v. Ukraine. That

complaint would have been a perfect opportunity to use Article 17 to guarantee access to

government-held personal records. Instead, the committees decision suggested that the right of

access to information was related to the usefulness of those records to the complainant, and not a

general right to access personal information.

In terms of Article 19, which is the most appropriate article to provide a broad right of

access to information, the committees statements are vague at best. The general comment on

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Article 19 adds no clarification. It is unfortunate that the committee could not rule onX v. New

Zealand. Although the complaint dealt with access to personal information, it would have been

illuminating to see how the committee interpreted Article 19. The committee did rule in

Gauthier v. Canada that the journalist had a right to access government-held information, but, as

pointed out earlier, it is unlikely that this right would pertain to non-journalists.

The committees decisions and statements thus far do not indicate a broad right of access

to government-held information. Its general comment on Article 17 is promising but when it had

the opportunity to guarantee that right under Article 17 inZheludkova v. Ukraine, it chose not to

do so. Even if it had, basing a right to information on the right to privacy would not go far

enough. Such a right would consist only of a right to personal information and not a broad right

to government-held information. A right to government-held information would most logically

be found in Article 19 because freedom of expression and freedom of information are explicitly

linked. The committees decision in Gauthier v. Canada is a positive step but it is much too

narrow to gauge how the committee might rule on an access to government-held information

complaint. With the proliferation of freedom of information legislation and concerns about

transparency, it is just a matter of time before such a complaint will come before the committee.

It is hopeful that the committee will take that opportunity to explicitly state that Article 19

guarantees the right of access to government-held information.