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International Mechanisms for Promoting Freedom of
Expression
JOINT DECLARATION
by
the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE
Representative on Freedom of the Media and the OAS Special
Rapporteur on Freedom of Expression
Having discussed
these issues in London and virtually with the assistance of ARTICLE
19, Global Campaign for Free Expression;
Recalling and
reaffirming their Joint Declarations of 26 November 1999, 30
November 2000, 20 November 2001, 10 December 2002 and 18 December
2003;
Noting the growing
recognition of the key right to access information held by public
authorities (sometimes referred to as freedom of information),
including in authoritative international statements and declarations;
Applauding the fact
that a large number of countries, in all regions of the world, have
adopted laws recognising a right to access information and that the
number of such countries is growing steadily;
Recognising the
fundamental importance of access to information to democratic
participation, to holding governments accountable and to controlling
corruption, as well as to personal dignity and business efficiency;
Condemning attempts
by some governments to limit access to information either by
refusing to adopt access to information laws or by adopting laws,
which fail to conform to international standards in this area;
Stressing the need
for informational ‘safety valves’ such as protection of
whistleblowers and protection for the media and other actors who
disclose information in the public interest;
Welcoming the
commitment of the African Commission on Human and Peoples’ Rights to
adopt a regional mechanism to promote the right to freedom of
expression and noting the need for specialised mechanisms to promote
freedom of expression in every region of the world;
Adopt, on 6
December 2004, the following Declaration:
On Access
to Information
· The right
to access information held by public authorities is a fundamental
human right which should be given effect at the national level
through comprehensive legislation (for example Freedom of
Information Acts) based on the principle of maximum disclosure,
establishing a presumption that all information is accessible
subject only to a narrow system of exceptions.
· Public
authorities should be required to publish pro-actively, even in the
absence of a request, a range of information of public interest.
Systems should be put in place to increase, over time, the amount of
information subject to such routine disclosure.
· Access to
information is a citizens’ right. As a result, the procedures for
accessing information should be simple, rapid and free or low-cost.
· The right
of access should be subject to a narrow, carefully tailored system
of exceptions to protect overriding public and private interests,
including privacy. Exceptions should apply only where there is a
risk of substantial harm to the protected interest and where that
harm is greater than the overall public interest in having access to
the information. The burden should be on the public authority
seeking to deny access to show that the information falls within the
scope of the system of exceptions.
· Public
authorities should be required to meet minimum record management
standards. Systems should be put in place to promote higher
standards over time.
· The
access to information law should, to the extent of any inconsistency,
prevail over other legislation.
· Those
requesting information should have the possibility to appeal any
refusals to disclose to an independent body with full powers to
investigate and resolve such complaints.
· National
authorities should take active steps to address the culture of
secrecy that still prevails in many countries within the public
sector. This should include provision for sanctions for those who
wilfully obstruct access to information. Steps should also be taken
to promote broad public awareness of the access to information law.
· Steps
should be taken, including through the allocation of necessary
resources and attention, to ensure effective implementation of
access to information legislation.
On Secrecy
Legislation
· Urgent
steps should be taken to review and, as necessary, repeal or amend,
legislation restricting access to information to bring it into line
with international standards in this area, including as reflected in
this Joint Declaration.
· Public
authorities and their staff bear sole responsibility for protecting
the confidentiality of legitimately secret information under their
control. Other individuals, including journalists and civil society
representatives, should never be subject to liability for publishing
or further disseminating this information, regardless of whether or
not it has been leaked to them, unless they committed fraud or
another crime to obtain the information. Criminal law provisions
that don’t restrict liability for the dissemination of State secrets
to those who are officially entitled to handle those secrets should
be repealed or amended.
· Certain
information may legitimately be secret on grounds of national
security or protection of other overriding interests. However,
secrecy laws should define national security precisely and indicate
clearly the criteria which should be used in determining whether or
not information can be declared secret, so as to prevent abuse of
the label “secret” for purposes of preventing disclosure of
information which is in the public interest. Secrecy laws should set
out clearly which officials are entitled to classify documents as
secret and should also set overall limits on the length of time
documents may remain secret. Such laws should be subject to public
debate.
·
“Whistleblowers” are individuals releasing confidential or secret
information although they are under an official or other obligation
to maintain confidentiality or secrecy. “Whistleblowers” releasing
information on violations of the law, on wrongdoing by public bodies,
on a serious threat to health, safety or the environment, or on a
breach of human rights or humanitarian law should be protected
against legal, administrative or employment-related sanctions if
they act in “good faith”.
iAmbeyi
Ligabo
UN Special
Rapporteur on Freedom of Opinion and Expression
Miklos Haraszti
OSCE Representative
on Freedom of the Media
Eduardo Bertoni
OAS Special
Rapporteur on Freedom of Expression
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