New working paper on the Right to Information and Privacy

World Bank Institute News

On first inspection, it would appear that the right of access to information and the right to protection of personal privacy are irreconcilable. However the reality is more complex. For the most part, these two rights complement each other in holding governments accountable to individuals. But there is a potential conflict between these rights when there is a demand for access to personal information held by government bodies.

Targeted for practitioners working in governance and transparency issues and as part of its Governance Working Paper series, the World Bank Institute has recently published a sixth working paper on ATI addressing some of these issues.

“The Right to Information and Privacy: Balancing rights and managing conflicts” by David Banisar, Senior Legal Counsel for Article XIX. Available here.

Focusing on the cases of Ireland, Mexico, Slovenia and the UK, while also looking at other experiences, this paper examines legislative and structural means to better define and balance the rights to privacy and to information.

World Press Freedom Day 3 May 2010

UNESCO will celebrate World Press Freedom Day, observed yearly on May 3, with an international conference of media professionals entitled Freedom of Information: the Right to Know, in Brisbane on 2 and 3 May. In a message UN Secretary-General Ban Ki-Moon said:

Freedom of expression is a fundamental human right, enshrined in article 19 of the Universal Declaration of Human Rights. But around the world, there are Governments and those wielding power who find many ways to obstruct it.
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This year’s theme is freedom of information: the right to know. I welcome the global trend towards new laws which recognize the universal right to publicly held information.

Unfortunately, these new laws do not always translate into action. Requests for official information are often refused, or delayed, sometimes for years. At times, poor information management is to blame. But all too often, this happens because of a culture of secrecy and a lack of accountability.

We must work to change attitudes and to raise awareness. People have a right to information that affects their lives, and States have a duty to provide this information. Such transparency is essential to good government.

The United Nations stands with persecuted journalists and media professionals everywhere. Today, as every day, I call on Governments, civil society and people around the world to recognize the important work of the media, and to stand up for freedom of information.

The conference programme is available to download here. The conference will be streamed live on the internet - http://www.wpfd2010.org/

Obama says access to information a universal right

Remarks by President Obama at Town Hall Meeting in Shanghai, 16 November 2009:

None of this was easy. But we made progress because of our belief in those core principles, which have served as our compass through the darkest of storms. That is why Lincoln could stand up in the midst of civil war and declare it a struggle to see whether any nation, conceived in liberty, and "dedicated to the proposition that all men are created equal" could long endure. That is why Dr. Martin Luther King could stand on the steps of the Lincoln Memorial and ask that our nation live out the true meaning of its creed. That's why immigrants from China to Kenya could find a home on our shores; why opportunity is available to all who would work for it; and why someone like me, who less than 50 years ago would have had trouble voting in some parts of America, is now able to serve as its President.

And that is why America will always speak out for these core principles around the world. We do not seek to impose any system of government on any other nation, but we also don't believe that the principles that we stand for are unique to our nation. These freedoms of expression and worship -- of access to information and political participation -- we believe are universal rights. They should be available to all people, including ethnic and religious minorities -- whether they are in the United States, China, or any nation. Indeed, it is that respect for universal rights that guides America's openness to other countries; our respect for different cultures; our commitment to international law; and our faith in the future.

Full statement here.

White House visitor records online

As part of President Obama's commitment to transparency, the White House has begun providing records of visitors to the White House online.

In a statement announcing the policy on 4 September 09, the President said:

For the first time in history, records of White House visitors will be made available to the public on an ongoing basis. We will achieve our goal of making this administration the most open and transparent administration in history not only by opening the doors of the White House to more Americans, but by shining a light on the business conducted inside it. Americans have a right to know whose voices are being heard in the policymaking process.

The Voluntary Disclosure Policy is in full here.

US Clean Water Act violated 500,000 times, FOI request reveals

Clean water laws are neglected, at a cost in suffering
The New York Times, 13 Sept 2009

Almost four decades ago, Congress passed the Clean Water Act to force polluters to disclose the toxins they dump into waterways and to give regulators the power to fine or jail offenders. States have passed pollution statutes of their own. But in recent years, violations of the Clean Water Act have risen steadily across the nation, an extensive review of water pollution records by The New York Times found.

In the last five years alone, chemical factories, manufacturing plants and other workplaces have violated water pollution laws more than half a million times. The violations range from failing to report emissions to dumping toxins at concentrations regulators say might contribute to cancer, birth defects and other illnesses.
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The Times obtained hundreds of thousands of water pollution records through Freedom of Information Act requests to every state and the E.P.A., and compiled a national database of water pollution violations that is more comprehensive than those maintained by states or the E.P.A. (For an interactive version, which can show violations in any community, visit www.nytimes.com/toxicwaters.)

In addition, The Times interviewed more than 250 state and federal regulators, water-system managers, environmental advocates and scientists.

That research shows that an estimated one in 10 Americans have been exposed to drinking water that contains dangerous chemicals or fails to meet a federal health benchmark in other ways.
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The Times’s research also shows that last year, 40 percent of the nation’s community water systems violated the Safe Drinking Water Act at least once, according to an analysis of E.P.A. data. Those violations ranged from failing to maintain proper paperwork to allowing carcinogens into tap water. More than 23 million people received drinking water from municipal systems that violated a health-based standard.

In some cases, people got sick right away. In other situations, pollutants like chemicals, inorganic toxins and heavy metals can accumulate in the body for years or decades before they cause problems. Some of the most frequently detected contaminants have been linked to cancer, birth defects and neurological disorders.

Records analyzed by The Times indicate that the Clean Water Act has been violated more than 506,000 times since 2004, by more than 23,000 companies and other facilities, according to reports submitted by polluters themselves. Companies sometimes test what they are dumping only once a quarter, so the actual number of days when they broke the law is often far higher. And some companies illegally avoid reporting their emissions, say officials, so infractions go unrecorded.
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Some violations are relatively minor. But about 60 percent of the polluters were deemed in “significant noncompliance” — meaning their violations were the most serious kind, like dumping cancer-causing chemicals or failing to measure or report when they pollute.

Finally, the Times’s research shows that fewer than 3 percent of Clean Water Act violations resulted in fines or other significant punishments by state officials. And the E.P.A. has often declined to prosecute polluters or force states to strengthen their enforcement by threatening to withhold federal money or take away powers the agency has delegated to state officials.

Full NY Times story here.

UK Government will not sign World's First Treaty on Access to Information

Press release from Access Info Europe and the Campaign for Freedom of Information
29 June 2009

Freedom of Information campaign groups today criticised the UK Government’s decision not to sign the world’s first binding treaty on access to official information. Despite the Prime Minister’s recent statement promising greater freedom of information , the Government has confirmed it will not currently sign the Council of Europe Convention on Access to Official Documents.

The Campaign for Freedom of Information and Access Info Europe said there would be real benefits if the UK signed the Convention. First, it would encourage European countries with no or weak access to information laws to introduce effective legislation. Second, it would make it more difficult for any government in the UK to weaken the UK FOI Act.

“We’re concerned that one possible reason behind the Government’s decision is that it intends to introduce new exemptions to our FOI Act, which may not be compatible with the Convention. The Prime Minister recently announced that the Government would introduce two new exemptions to the Act for cabinet documents and communications with members of the Royal Family. In both cases the information would be excluded from the scope of the FOI Act altogether for 20 years, an extremely retrograde step” said Katherine Gundersen of the Campaign for Freedom of Information.

On 24 June the UK Government stated that it “does not intend to sign the Convention at this stage” adding that it “does not rule out signing in the future”. An official statement from the Ministry of Justice observed that “The UK's Freedom of Information legislation has been a success story, providing a regime for freedom of information that is among the most open and rigorous in the world. It already goes further than the standards of the Convention in a number of areas.”

“This is clearly a spurious argument, because nothing stops any country having a higher standard than the Convention. The reluctance to sign the treaty sets a bad example for the new democracies of central and eastern Europe”, said Helen Darbishire of Access Info Europe.

Read the full press release here.
Convention on Access to Official Documents
Explanatory Report to the Convention

Obama orders review of government secrecy

Associated Press
28 May 2009

Expanding his drive to open government, President Obama is ordering two studies of whether the government is classifying too much information and using too many different ways to keep it from public view.

He wants the answers in just 90 days, and it's no secret which way he's leaning.

In a memo Wednesday, Mr. Obama ordered national security adviser James L. Jones to consult relevant agencies and recommend revisions in the existing presidential order on national security classification that lays out the rules under which agencies can stamp documents "confidential," "secret" or "top secret."

That same memo also ordered Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano to set up a governmentwide task force on standardizing so-called controlled but unclassified information. This is data with stamps like "for official use only" or "limited official distribution" that are not authorized by the executive order but have grown up over the years to keep sensitive data from the public even if it doesn't meet standards for national security classification.

Mr. Obama noted that there are now 107 different stamps for such data, also known as "sensitive but unclassified" information, and 130 different procedures for applying those stamps. He said a 2008 order by former President George W. Bush had "a salutary effect" in establishing a framework to begin standardizing these designations for sensitive terrorism-related data, but he asked the task force to recommend whether that work should be expanded to cover all sensitive but unclassified information governmentwide.

The tone of the memo suggested Obama thought a governmentwide effort would be a good idea. Mr. Obama also directed this group to study the procedures for handling sensitive but unclassified data to be sure that "information is not restricted unless there is a compelling need."

While Mr. Obama didn't order any changes in government secrecy Wednesday, his memo contained language and set agendas for the two studies that hinted strongly at moves he might take. It was greeted with cheers from open government advocates who have long argued that government classifies too much information.

Echoing language he used earlier to open more government information to the public under the Freedom of Information Act, Mr. Obama said "a democratic government must be as transparent as possible and must not withhold information for self-serving reasons or simply to avoid embarrassment."

http://hosted.ap.org/dynamic/stories/U/US_OBAMA_SECRETS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2009-05-27-18-41-26

Irish Information Commissioner publishes Annual Report 2008

The Irish Information Commissioner, Emily O'Reilly, has published her Annual Report for 2008. The report reveals that the overall number of FOI requests increased in Ireland in 2008 for the first time since 2005. The Commissioner also believes that FOI had a more obvious impact on public life than in recent years.

Level of requests to public bodies
Some 12,672 requests were made to public bodies under the FOI Act in 2008 . This is an increase of 18% over the 2007 figure (10,704) and 7% over 2006 (11,804) . It marks a most welcome reversal of the downward trend in request numbers, with the exception of 2005, since the introduction of fees for requests in the FOI Amendment Act of 2003 . While I am not aware of any specific reason driving this development, the number of high profile media stories emanating from records released under FOI during the second half of the year in particular may be a factor.

Impact of FOI in the Public Domain in 2008
I believe that 2008 was a year in which FOI had a more obvious impact on public life than has been the case in recent years . Particularly in the latter half of the year, scarcely a day went by without media stories referencing the results of FOI requests. While some might pay lip service to the ideals of openness and transparency, there were times during 2008 when we saw FOI make a significant impact . Unfortunately much of what was revealed did not show public bodies in a positive light . That, in itself, is evidence that FOI is working . The fact that release of, for example, the travel costs incurred by executives in FÁS, the State Training and Employment Authority would embarrass the individuals involved is not a reason that justifies withholding the information under the FOI Act . The debate around the release of the records and the repercussions for some of the people involved proves yet again that FOI is, indeed, a necessary part of the democratic process.

As economic difficulties became more apparent, I noticed what I believe is a more targeted approach by the media and various interest groups in regard to FOI usage.

Annual Report of Information Commissioner 2008 - 2.9mb Pdf format
Accompanying news release

NZ Ombudsmen annual report published

Press Release
2 December 2008
Office of the Ombudsmen

Some public servants playing games with OIA requests

The Office of the Ombudsmen is concerned some parts of the public service have been deliberately delaying responses to Official Information requests.

In the office’s Annual Report to Parliament, Chief Ombudsmen Beverley Wakem says the practice is unacceptable and subverts the purpose of the legislation.

Beverley Wakem says the Office has observed an increasing tendency by a few government departments and Ministerial offices to ignore the provisions of the Official Information Act over the timing of responses to requesters.

“While in some cases this was clearly a misunderstanding of their obligations, there is also a regrettable tendency to game the system and delay responses until the complainants’ interest in the matter had passed,” she says.
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She also says the Ombudsmen find it troubling that 25 years after the OIA came into force, many government agencies have still not recognised – and responded appropriately – to the fact that dealing efficiently and effectively with requests made under the legislation requires an ongoing programme of training for staff.

She notes that there has been a considerable turnover in agency staff and a loss of institutional knowledge of agency obligations in responding to Ombudsmen’s enquiries.

Full press release.

The Annual Report of the Office of the Ombudsmen can be downloaded from www.ombudsmen.parliament.nz.

See also the press release issued by Green Party's in response to the Ombudsmen's report 'Open government needs open information'

Qld to reveal cabinet documents sooner

The Age
December 4 2008

Queensland has become the first state to break the age-old tradition of keeping cabinet documents secret for 30 years.

Queensland Premier Anna Bligh said a website, which went live on Thursday, would provide a range of cabinet documents a month after they were considered by her ministerial team.

The website, as well as online processing of freedom of information (FOI) requests, is the first step in a major overhaul of the way the public can access Queensland government information on themselves and other matters.

Under the Westminster tradition of government, cabinet documents are released 30 years after they are considered.

Draft Right to Information laws, tabled in the Queensland parliament on Thursday, overturn the 30-year rule, with all cabinet papers to be released after 10 years and some to be provided on the website within a month of them being considered.

The laws also take information from a model where it has to be "pulled" out of the government, to a "push" model where the government proactively releases information.

FOI will also apply to government-owned corporations for the first time.

"Today Queensland is one step closer to becoming the most transparent, open and accountable government in Australia," Ms Bligh told parliament.

The government is still considering the issue of the cost of FOI searches, which journalists and other users believe is a block to greater access to government information.

But Ms Bligh said under the new laws an agency or minister would be forced to minimise the cost of applications.

A draft Information Privacy Bill, aimed at improving access to personal information held by the government, was also released on Thursday.

Comment on the draft laws has been invited until March 31.

Ministerial veto scrapped in Australia

The Australian Government has introduced legislation to remove the power to issue conclusive certificates under the Australian FOI Act, the equivalent of the ministerial veto in the UK Act. This means that all exemption decisions in Australia will now be subject to full external merits review by the Administrative Appeals Tribunal. Special Minister of State, Senator John Faulkner, said "I believe public confidence in government decision making is increased if those decisions are open to being fully tested by an independent review process. This Bill marks the first step in the Government's plan to undertake the most significant overhaul of the FOI Act since its inception in 1982."

However, Matthew Moore, the Sydney Morning Herald's freedom of information editor, writes that the timetable for further reform has been slipping.

All talk, little action from Rudd so far, Matthew Moore November 29 2008