ACCESS TO INFORMATION - BEST LAW AND PRACTICE:

Country Chapters – Outline

Part I: Structure of Access to Information in your country

NB: Please note Article numbers where relevant for future reference – thanks!

1. Constitutional Provisions

• List relevant constitutional provisions, and cite any relevant jurisprudence.

Article 100 of the Constitution:

http://odin.dep.no/ud/norsk/dok/andre_dok/rapporter/032201-220007/hov021-bu.html (Article 19: Paragraph 179.)

http://www.regjeringen.no/nb/dep/ud/dok/rapporter_planer/rapporter/2004/Implementation-of-the-International-Covenant-on-Civil-and-Political-Rights/21.html?id=420352:

“Everyone has a right of access to the documents of the State and of the municipal administration and a right to be present at sittings of the courts and elected assemblies. (...).

It is a duty of the State authorities to facilitate an open and enlightened public dialogue.”

• Is access to information recognized as a right. If so, what is its status (statutory right, constitutional right, etc)

Constitutional right, Right by FOI law

2. Access to Information Legislation

• Give full title and date of access to information law, including original date of adoption and date of latest amendments.

Freedom of Information Act, Act of 19 June 1970 No. 69

http://wkeim.bplaced.net/lov-19700619-069-eng.html or http://wkeim.bplaced.net/files/lov-19700619-069-eng.pdf

• Name other particularly relevant legislation (administrative law, secrets law, commercial secrets law, etc).

** 3. Obliged bodies:

Does the right to request information, in the access law and other legislation, encompass:

(i) government and administration at national, regional or local level;

All 3 levels

(ii) legislative bodies and judicial authorities insofar as they perform administrative functions as provided for by national law;

(iii) legislative and judicial authorities – other information;

(iv) private bodies (natural or legal persons) insofar as they perform public functions or exercise administrative authority;

Yes, see § 1 FOI law

(v) any other bodies?

3a. Exempted bodies

Are some bodies specifically exempted from any access to information obligations, eg, the security services?

Storting (parliament), Ombudsman, se § 1 of the law

** 4. Definition of Information

• What is the definition of the information that may be requested?

The wording is “document”, but I believe that means information recorded in any form

• Does the law refer to “information” or to “official documents” or other definition?

• Does the law encompass preparatory memos? file notations? emails?

• Does your law exempt classes of information, such as “documents under preparation”? If so, what exactly is meant by such an exemption. If not, would documents under preparation normally be included under your law? Can you give concrete examples?

• How does the proposed Council of Europe language fit with your law?

“official documents” means all information recorded in any form, drawn up or received and held by public authorities and linked to any public or administrative function, with the exception of documents under preparation.”

I believe that is what is meant by the FOI law

Sorry, that's all for today, 1.11.06, Walter Keim

5. Requestors

• Who may request information? Is it just citizens/residents or does it include all persons?

• What identifying information needs to be provided in order to file requests?

• Are requestors required to justify requests for information? Is this for all types of information or only for limited categories of information?

• Does the law have a specific provision prohibiting discrimination in treatment or requestors and/or in provision of information?

• Does the law establish a duty to assist requestors?

6. Forms of request

• May both written and oral requests be filed? If both, are there different rules for filing oral requests?

• May requests be filed electronically (ie: by e-mail or via a web portal)?

6b. Responses, Forms of Provision of Information, Costs

• What does the law say about the different forms of provision of information?

• The Council of Europe is proposing the following, how does this fit with your law?

• When access to an official document is granted, the public authority should allow inspection of the original or provide a copy of it, taking into account, as far as possible, the preference expressed by the applicant.

• The public authority may give access to an official document by referring the applicant to easily accessible alternative sources.

7. Time Limits

• What are the time limits provided in your law for:

• answering requests

• refusing requests for information

• clarifications of requests

• transfers / referrals

• extensions

• What are the reasons that may be used for applying extensions?

• Please summarize any lack of clarity or conflicts in your law about time frames, eg: clashes between administrative law and access to information law, or between access to information law and environmental access laws, etc.

8. Information not Held / Transfer or Referral

• Do public bodies have a duty to confirm if they do or do not hold the information requested?

• What must a public body do if it does not hold the requested information?

• Is there an obligation to either (a) transfer requests to another public body or (b) refer requestor to where information might be obtained?

9. Refusals

• Does the law require specifically that refusals be in writing?

• What must be included in a refusal? Must the refusal cite exemptions of law and justify the application of this?

• Are there specific provisions prohibiting mute refusals and/or requiring answers?

• Are mute refusals on access to information request considered positive or negative (by either the access to information law or by administrative or other law)?

• Must the requestor must be informed of appeals procedures?

9b. Reasons for refusing a requests:

In addition to the exemptions at point 10 below, does your law permit refusing requests for any of the following reasons:

• if, despite the assistance from the public authority, the request remains too vague to enable the document to be identified?

• if the request is manifestly unreasonable?

• if the request requires the creation of a new document?

• if the information has already been published?

• if the information is going to be published at some time in the (near) future?

• If an exemption applied to some of the information in the document (partial access) renders it misleading or meaningless, access may be refused?

** 10. Exemptions

• What exemptions are provided by your law?

• Do these include harm and public interest tests?

• How do these fit with the exemptions in the Council of Europe draft treaty below? Do you have any exemptions which cannot be fitted into this list?

i. national security, defence and international relations;

ii. public safety;

iii. [the smooth course of] the prevention, investigation and prosecution of criminal activities;

iv. privacy and other legitimate private interests;

v. commercial and other economic interests, be they private or public;

vi. the equality of parties concerning court proceedings [and the smooth functioning of Justice];

vii. nature;

viii. inspection, control and supervision by public authorities;

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

x. the confidentiality of deliberations within or between public authorities concerning the internal examination of a matter;

xi. the holding of possible disciplinary procedures;

xii. communication of the government with the Royal Family and the Royal Household?

• If working papers and drafts are exempted by your law, is it in the definition of information or in the exemptions?

** 10a. Public Interest Test

• If your access to information law or equivalent does not include a public interest test, is this to be found in other legislation, such as administrative code or procedures law?

• Does the law contain specific provisions for information that covers certain topics of high public interest, such as:

1. Environmental Information;

2. Public Health Information;

3. Information relating to violation or potential violation of human rights’

4. information that reveals corruption or wrongdoing;

5. Information Necessary for an Informed Electorate, e.g., salaries of government officials; government budgets & expenditures (inc. procurement contracts, e.g. re government advertising)’

6. Other

11. Person responsible for information requests

• Does the law require that an official (or officials or an office) be appointed (or established) to receive and process information requests?

• Are there special provisions in the law as to who is ultimately responsible for decision-making on information requests (eg: the head of the body)?

12. Appeals

• What is the appeal process? Does it include administrative appeal? Information Commissioner? The courts?

• Is it established by the access to information law or by other laws?

• Must there be exhaustion of administrative remedies before appealing to an Ombudsperson and/or to the courts?

• Can the information commissioner/court order disclosure? Or merely return the case to the public body requiring that the refusal is revised?

• Is appeal to the courts an expedited process?

• What happens in practice? which route is normally used? in cases where decisions are not binding, are they nevertheless normally complied with?

13. Oversight Body

• Is there and Information Commission / Ombudsperson?

• What is the structure of this body? What are the main powers?

• What is the annual budget of this body and how many staff does it have?

14. Proactive Release of information (including E-FOIA Laws)

Does the access to information law contain provisions on proactive publication of information?

Which information must be made available?

Does the law specifically require posting of material on a website?

Does the access to information require any of the following to be made public:

1. An indexes or register of information held?

2. The name and contact information of the Information Officer

3. Mechanisms for requesting information?

4. Budget and structure of the institution

5. Public procurement / tenders / concessions announcements

6. Winning bids in public procurement/tenders/concessions.

Part II: Issues and cases of note

1. Please note any particularly contentious issues related to access to information in your country

2. Please report any cases of significance – either won or lost – that define the right in your country.