Transparency

Trust

Accountability

Democracy

http://hrpplano.com/hrpplano/page.html?page_id=18

An informed citizenry is essential to a working democracy.

Public must know what information is available from which government body, how and where this can be located without having to seek formal permission for information to be accessed.

Accessible and understandable information;

The implementation of the right to information is a prerequisite for ensuring the voice and participation necessary for an open democratic society.

Many countries still do not have a dedicated right to information law. e.g. Spain

Access to information laws are weak, riddled with loopholes and poorly implemented.

1950 European Convention of Human Art.10 - Rights guaranteed a right to a fair trial (Sdruzeni Jihoceske Matky v Czech Republic )

Article 10 – 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 of frontiers.

1981, the CoE issued Recommendation 81(19) on access to information held by the authorities.(1st)

Recommendation (2002)2 on Access to Official Documents

1998 - Aarhus Convention ->Aarhus Regulation (2007)

2006 Inter American Court of Human Rights Reyes et al v. Chile

European Community Regulation 1049/2001

Request for Information went unanswered.

Members of excluded or vulnerable group - routinely subjected to discrimination as their requests were ignored at a rate twice that of other requesters.

All governments provide information erratically; many requests filed twice by different requestors received different answers

Refusals are not in writing. Delayed – due to lack of time limit Too many exemptions Costly Lack of Complaint mechanism

Revision of Regulation (EC) No 1049/2001

The Draft European Convention on Access to Official Documents

The Treaty deals only with access to Official Documents Definition of documents: documents defined as “all

information recorded in any form, drawn up or received and held by public authorities.” (Art.1)

Explanatory Report states that information physically held by a legal or natural person on behalf of a public authority by reason of agreements are considered official documents . If electronic documents are not retrievable by existing means or compilations in databases do not logically belong together- can be denied access.

??? If they are lying in the computer database and stored outside of the company premises or an independent depot, would this constitute official documents since they are not physically held by the legal person? ???Restrictive definition of documents & limits the effectiveness of digital documents

Definition of Public Authorities : Public authorities include government and administration, legislative and judicial authorities, natural and legal persons in so far as they perform administrative functions. (Art.2). It does not include natural and legal persons, who perform public functions or operate public funds.Right of Access for everyone, without discrimination including foreigners ( Osama bin Laden included)

a. national security, defence and international relations; It should not be misused in order to protect information that might reveal the breach of human rights, corruption within public authorities, administrative errors, or information which is simply embarrassing for public officials or public authorities.

b. public safety;

c. the prevention, investigation and prosecution of criminal activities;

d. disciplinary investigations;

e. inspection, control and supervision by public authorities;

f. privacy and other legitimate private interests; right of respect to private and family life. These interests may take precedence over the interest in making the information in the document in question available

g. commercial and other economic interests;

h. the economic, monetary and exchange rate policies of the state;

i. the equality of parties in court proceedings and the effective administration of Justice;

j. environment; or

k. the deliberations within or between public authorities concerning the examination of a matter.

Communication with the reigning Family and its Household or the Head of State

I speak to angels and

horses!

I talk to my

plants!

If public access to a document might cause harm to one of these interests, the document should still be released if the public interest in having access to the document overrides the protected interest.

The outcome of the “harm-test” is closely connected with the lapse of time.

Art. 4 : No need to state the reasons for request of documents.

Art. 5 : A request for access to an official document shall be dealt with promptly A public authority refusing access to an official

document wholly or in part shall give the reasons for the refusal. Art. 8 Review Procedure before an independent and impartial bodyArt.20 Allows Reservations in articles 1.2, 3.1 and 18.

Current Regulation 1049/2001

Beneficiaries : Only citizens and residents

Scope: all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity including documents drawn up or received in the course of a legislative procedure(art.2)

Proposed Amendments

Beneficiaries (Art.2) any natural and legal person

Scope: all documents held by an institution, i.e. documents drawn up or received by it and in its possession;

documents forming part of the administrative file of an investigation or of proceedings concerning an act of individual scope shall not be accessible to the public until the investigation has been closed or the act has become definitive.

Documents containing information gathered or obtained from natural or legal persons by an institution in the framework of such investigations shall not be accessible to the public.

Current

any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility;(art.3)

Proposed any content whatever its

medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution;

data contained in electronic storage, processing and retrieval systems are documents if they can be extracted in the form of a printout or electronic-format copy (art.3) Art.2(6)Amendments: documents forming part of

administrative file of an investigations is not accessible until investigation has been closed or act has been definitive.

Current (a) public security (b) defence and

military matters; (c) international

relations; (d) the financial,

monetary or economic policy of the Community or a Member State;

(e) the environment, such as breeding sites of rare species.

Proposed public security

including the safety of natural or legal persons

defence and military matters

international relations financial, monetary or

economic policy of the Community or a Member State

environment

Not one single” public interest” argument made by applicant for documents have ever been accepted by EU institutions.

Regulation 1049/2001 Proposed Amendments

(Subservient to data protection law)

Proposed Convention

Privacy and the integrity of the individual, in accordance with data protection

Not subject to overriding public interest

Other personal data shall be disclosed in accordance with EC Legislation in data protection

(exempt- names, titles, functions)

Privacy and other legitimate private interest

Subject to overriding public interest

Good governance and Protection of Fundamental RightsWe want the political process to be

public and transparent, but we also want to protect the privacy and integrity of the individual.

Privacy is sensu lato Data protection includes right against

discrimination Not all personal data undermine private life.

Privacy is a qualified interest of the data subject (honour, sensitive records, put the person in false light, disclose embarrassing facts, would disclose info received in confidence etc.).

Art.4(1)(b) deals only with data liable to infringe the right of privacy

Right of Access = Right to Data Protection New Art. 4(5) Right of Access overruled by data

protection Reg.45/2001

Complaint: Quantitative Restriction

Request for copy of Reasoned Opinion, minutes, participants

Commission’s Response. Undermine protection of public interest ( investigation)

no

no

Regulations Nos. 1049/2001 is designed to ensure the greatest possible transparency of the decision-making process of the public authorities and the information on which they base their decisions.

Reg. 45/2001 is designed to ensure the protection of the freedoms and fundamental rights of individuals, particularly their private life, in the handling of personal data.

The mere fact that a document contains personal data does not necessarily mean that the privacy or integrity of the persons concerned.

Data protection or “privacy” is not an absolute right in the EU, but rather, must be balanced against the societal interest in a transparent decision-making process.

(a) Article 4(1)(b) is an exception to a general rule. It must therefore be interpreted strictly and so as not to frustrate the general rule i.e. the right of access to documents.

(b) Not all personal data are able to affect private life; The exception states that privacy and integrity of the individual must be undermined before it can apply.

(d) If there is no such impact on privacy, the exception does not apply and (assuming no other exceptions apply) the document must be disclosed.

Approach

Is the privacy of the person whose data are mentioned at stake? (

Would he/she substantially be affected by disclosure? there must be a degree of factual harm Is public access allowed by data protection legislation?

- Is the disclosure compatible with the purpose of collection? - Is the disclosure proportional? Another way? - What kind oh harm would the disclosure lead? - Will information be published? - Is it partial access?

A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps, both," James Madison ,1822.

Public office is a public trust and that as public officers they owe utmost allegiance to the people.

The losers are the citizens who will not have access to critical information that would empower and allow them to look openly into the actions of their government rather than permitting them to be cloaked in secrecy.

The direct consequence of constantly lowering the bar of government transparency and democracy is that they disappear in the end, to be replaced by lack of conscience or compunction.

People are in great need of honesty and integrity in government. It is the only way one can overcome the cynicism that is developing among the people.

The more they can see how government operates, the more they feel that government is operating in the open, the more confidence a government can develop.

Probably the best advice you can give any government today is to be more transparent.”

Conclusion

Quite a bit more is needed to put a truly democratic one in its place.