This chapter examines in detail the general missions of IGAIs, and all aspects concerning individual or collective requests made to IGAIs seeking their ruling on a partial or total refusal to communicate information.
Institutions Guaranteeing Access to Information
OECD and MENA Region
Chapter 3. An IGAI’s mission
Abstract
As set forth in the introduction to this report, some IGAIs only monitor the dissemination of information, while others also guarantee the protection of personal data. Lastly, some IGAIs fulfil these two missions together with other, various missions concerning the general protection of the citizenry. For example, the French, Italian, and Portuguese Commissions for Access to Government Documents are only responsible for access to government documents. The United Kingdom’s Information Commissioner and the German Federal Commissioner for Data Protection and the Right to Information ensure both the review of appeals involving refusals to communicate a document and the protection of personal information. This model has been replicated in Estonia and Slovenia. The duties of the Scandinavian Ombudsman Institutions extend well past access to information; they handle a great variety of administrative disputes, for example regarding the government’s invasion of people’s privacy or social questions.
However, in some countries with a high degree of specialisation of IGAIs, we can see a rapprochement between authorities responsible for the right to access information and those responsible for protecting personal data. Thus, the Italian law prescribes that if a request to access information is refused for reasons concerning the protection of personal data, the Commission for Access to Government Documents must, before ruling on the appellant’s request, request opinions and observations from the Guarantor Authority for the Protection of Personal Data. In France, the Law for a Digital Republic adopted on 7 October 2016 provided for the rapprochement of the National Commission on Informatics and Freedoms (CNIL) and the Commission for Access to Government Documents (CADA). Henceforth, the presidents of the two institutions are members of both bodies. Moreover, the CNIL and CADA may meet as a single body at the joint initiative of their presidents, whenever a subject of common interest justifies this.
By focusing on the right to access information, we can distinguish between an IGAI’s general missions and the one related to the processing of individual or collective requests for access to information.
3.1. The general missions of IGAIs
The general missions of IGAIs can be categorised as the instigation and coordination of government action to promote access to information, the general monitoring of the law’s performance, the formulation of opinions, recommendations, and advice, and informing the public. These missions are fulfilled when the IGAI is called upon a matter, or at its own initiative.
3.1.1. The instigation and coordination of government action to promote access to information
Many IGAIs instigate and coordinate government action to promote access to information. In particular, these institutions provide support to those entities subject to the proactive dissemination of information. The Italian Commission on Access to Information ensures the observance of the principles of “publicising” and communication in relation to the government’s work1. The Australian Information Commissioner promotes the knowledge and understanding of the 1982 law on freedom of information and its purpose, and he/she helps the bodies named in Article 8E of this law to disseminate the information2. The Office of the Canadian Information Commissioner encourages federal institutions to communicate requested information systematically and to observe citizens’ rights to request and receive information in the name of transparency and accountability. It advocates continuously for increased access to information through targeted initiatives, such as the Right to Know Week, and a constant dialogue between citizens, the Parliament, and federal and provincial institutions3.
3.1.2. The general oversight of the law’s application
Some IGAIs have a mandate to oversee the application of legislation on access to information, like the Quebec Commission for Access to Information, which conducts inquiries at its own initiative or upon receiving a complaint. The inquiries specifically seek to determine whether a practice or conduct by an enterprise or body subject to the law is complying with this law. The Commission also enjoys powers of inspection and reviews requests filed by individuals or bodies that wish to receive the personal information of individuals without their consent for study, research, or statistical purposes. When the Commission approves a request, it issues an authorisation accompanied by conditions to guarantee the protection of the personal information and which regard the communication, conservation, utilisation, or destruction of this personal information.
3.1.3. Opinions, recommendations, and advice
To facilitate the application of legislation on the right to access information, the law authorises IGAIs to formulate opinions, recommendations, and advice to public authorities and all individuals concerned by the law’s application.
To this end, the Scandinavian Ombudsman Institutions have a general power to propose legislative reforms. The Italian Commission on Access to Government Documents is responsible for proposing potential modifications and amendments to laws and regulations related to the full implementation and enactment of the right to access government records and documents. France’s Commission on Access to Government Documents proposes all modifications of texts that it considers useful4. It also advises “the authorities… on all matters concerning… this law and pursuant to Title I of Book II of the French Assets Code”. At the subnational level, the Quebec Commission on Access to Information provides opinions on the protection of personal information or on access to information in relation to draft laws or regulations, planned communications of personal information, information system plans, or various administrative projects5.
3.1.4. Informing the public
IGAIs are authorised to produce studies and reports, and to formulate general observations and proposals for action. For example, the Italian Commission on Access to Information issues an annual report on the transparency of the government’s work that it sends to the Parliament and the Prime Minister. This document contains an analysis of the main opinions and advice issues and a summary of the Commission’s work. It also contains a selection of the main issues it confronted in its interpretation of legal provisions governing access to government documents. France’s Commission on Access to Government Documents issues a public report on a particular issue covering several years. IGAIs make every effort to ensure the optimal dissemination of their reports, which can be accessed on their websites.
Lastly, IGAIs organise or participate in colloquia and trainings on the right to access information, domestically and abroad, in collaboration with international organisations on these matters. These activities are often open to public officials, sector professionals, and journalists interested in this topic. In particular, Ombudsman institutions that also act as IGAIs use multiple communication channels to publicise their decisions and recommendations.
Figure 3.1. Communication channels used by Ombudsman institutions
Source: OECD (2017), Responses to the OECD questionnaire on the Role of Ombudsman Institutions in Open Government.
3.1.5. Referrals to IGAIs and the Right of Initiative
Depending on the law, an IGAI’s missions are carried out either at its own initiative or at the request of the interested party. In the general domains of their jurisdictions, IGAIs often have a right of initiative to formulate their observations.
Thus, Belgium’s Commission on Access to Government Documents is authorised to issue opinions on the general application of the law on government publicity. It may also submit proposals to the legislature for the law’s application and revision6.
Thus, Ombudsman institutions have the power to propose legislative reforms (Bousta, 2007). This power is often coupled with the power to present legislative proposals directly, without going through the government.
Box 3.1. An example of an IGAI’s presentation on its website: Chile’s Council for Transparency (excerpts)
The Council for Transparency is an independent, public law entity with its own legal personality and assets, created by the law on the transparency of public service and access to government information of 20 August 2008. It seeks to promote transparency in public service, ensure the observance of the rules on transparency, and to guarantee the right to access information.
The Council for Transparency’s board of directors
The board of directors has four members appointed by the President of the Republic upon approval by two thirds of the members of the Senate. The board of directors is responsible for directing and managing the Council for Transparency.
Who are the directors, and how are they elected?
Directors are elected for a term of six years, which can be renewed only once. They may be revoked by the Supreme Court at the request of the President of the Republic or the Chamber of Deputies.
What happens if I do not receive a response to my request to access information by the deadline?
You may file a complaint with the Council for Transparency.
And if I am refused information in an irregular manner, what can I do?
You must file a complaint with the Council for Transparency. If there is no Council representative in your region, you may do so via the governorship. You must file your complaint within 15 days of the refusal of access to information, indicate the breach committed, and attach all pieces of supporting evidence.
If am refused information due to exceptions to access to information provided for by law, may I file a complaint with the Council anyway?
Yes, you may consult the Council if you think that there is an error in qualification by the public service.
How does the Council for Transparency process complaints?
The Council notifies the complaint to the state entity in question. The responsible authority or its management may present its defence or observations within ten business days. Five days later, the Council will publish its resolution.
What happens if the Council for Transparency decides that the information must be transmitted to the requesting person?
The Council sets a reasonable timeframe for the transmission, and it may open an administrative inquiry within the state body to determine whether there has been an infraction.
What are the penalties in case of an unjustified refusal to communicate information?
A department head who unjustifiably refuses access to information will be subject to a fine between 20% and 50% of his/her remuneration. If the authority persists in its attitude, the fine will be doubled and the agent may be suspended for five days.
What can I do if the Council decides that it is not appropriate for the information to be communicated?
The concerned party may file a complaint of illegality with the appeals court holding jurisdiction. This party has 15 calendar days to file following the notification of the Council’s resolution.
Source: Chilean Council for Transparency, www.consejotransparencia.cl/que-es-el-cplt/consejo/2012-12-18/190048.html (website).
Box 3.2. The legislation implemented by the United Kingdom’s Information Commissioner (excerpts)
The Data Protection Act 1998 (DPA) gives citizens important rights including the right to know what information is held about them and the right to correct information that is wrong. The DPA helps to protect the interests of individuals by obliging organisations to manage the personal information they hold in an appropriate way.
The Freedom of Information Act 2000 (FOIA) gives people a general right of access to information held by most public authorities. Aimed at promoting a culture of openness and accountability across the public sector, it enables a better understanding of how public authorities carry out their duties, why they make the decisions they do and how they spend public money.
The Privacy and Electronic Communications Regulations 2003 (PECR) support the DPA by regulating the use of electronic communications for unsolicited marketing to individuals and organisations, including the use of cookies.
The Environmental Information Regulations 2004 (EIR) provide an additional means of access to environmental information. The Regulations cover more organisations than the FOIA, including some private sector bodies, and have fewer exceptions.
The Infrastructure for Spatial Information in the European Community Regulations 2009 (INSPIRE) give the Information Commissioner enforcement powers in relation to the pro-active provision by public authorities of geographical or location based information.
The Data Retention Regulations 2014 (DRR) provided the Information Commissioner with a limited supervisory role under the Data Retention and Investigatory Powers Act 2014 (DRIPA). This Act was repealed on 31 December 2016 but the ICO’s duties have been carried forward to the Investigatory Powers Act 2016 (IPA). The Acts impose duties on communications service providers in respect of the retention of communications data for third party investigatory purposes where they have been issued with a notice from the Secretary of State. The Information Commissioner has a duty to audit the security, integrity and destruction of that retained data.
The Re-use of Public Sector Information Regulations 2015 (RPSI) gives the public the right to request the re-use of public sector information and details how public sector bodies can charge for re-use and licence the information. The ICO deals with complaints about how public sector bodies have dealt with requests to re-use information.
The Electronic Identification and Trust Services for Electronic Regulations 2016 (eIDAS) facilitate secure streamlined electronic transactions between businesses, individuals and public authorities in the EU and set out requirements that trust service providers must comply on. The ICO, as the UK’s designated Supervisory Authority for eIDAS, can grant qualified status to those providers who comply with extra requirements set out in the Regulations. The ICO also has powers of enforcement.
Source: Information Commissioner’s Office (2017), Information Commissioner’s Annual Report and Financial Statements 2016, Wilmslow, pg. 34, https://ico.org.uk/media/about-the-ico/documents/2014449/ico053-annual-report-201617-s12-aw-web-version.pdf.
Box 3.3. Duties and powers of the persons responsible for information under Australian law (excerpts from the Australian Information Commissioner Act 2010 as in force on 1 July 2014)
Definition of information commissioner functions
The information commissioner functions are as follows:
1. to report to the Minister on any matter that relates to the Commonwealth Government’s policy and practice with respect to:
2. (i) the collection, use, disclosure, management, administration or storage of, or accessibility to, information held by the Government; and
3. (ii) the systems used, or proposed to be used, for the activities covered by subparagraph (i);
4. any other function conferred by this Act or another Act (or an instrument under this Act or another Act) on the Information Commissioner other than a freedom of information function or a privacy function.
Definition of the freedom of information functions
The freedom of information functions are as follows:
5. promoting awareness and understanding of the Freedom of Information Act 1982 and the objects of that Act (including all the matters set out in sections 3 and 3A of that Act);
6. assisting agencies under section 8E of the Freedom of Information Act 1982 to publish information in accordance with the information publication scheme under Part II of that Act;
7. the functions conferred by section 8F of the Freedom of Information Act 1982;
8. providing information, advice, assistance and training to any person or agency on matters relevant to the operation of the Freedom of Information Act 1982;
9. issuing guidelines under section 93A of the Freedom of Information Act 1982;
10. making reports and recommendations to the Minister about:
11. (i) proposals for legislative change to the Freedom of Information Act 1982; or
12. (ii) administrative action necessary or desirable in relation to the operation of that Act;
13. monitoring, investigating and reporting on compliance by agencies with the Freedom of Information Act 1982;
14. reviewing decisions under Part VII of the Freedom of Information Act 1982;
15. undertaking investigations under Part VIIB of the Freedom of Information Act 1982;
16. collecting information and statistics from agencies and Ministers about the freedom of information matters (see section 31) to be included in the annual reports mentioned in section 30;
17. any other function conferred on the Information Commissioner by the Freedom of Information Act 1982;
18. any other function conferred on the Information Commissioner by another Act (or an instrument under another Act) and expressed to be a freedom of information function;
Source: Australian government (2014), Australian Information Commissioner Act 2010 as in force on 1 July 2014, Federal Register of Legislation http://www.legislation.gov.au/Details/C2014C00382.
3.2. Requests for access to information
There are three aspects to requests for access to information: first, the possibility granted by law to an identified person or group of persons to request access to information; second, the obligation of the entity required to provide this information to respond to this request, explicitly or tacitly; and lastly, if the information’s communication is refused, the possibility of an appeal before the IGAI authorised to review the legality of the decision made by the entity subject to the obligation to communicate the information. This mechanism determines the IGAI’s material jurisdiction over individual requests and the limits of the right to access information that this institution has the responsibility to interpret, as well as the procedures for the presentation of requests filed with the IGAI. In practice, the processing of individual requests for access to information represent a significant portion of the IGAI’s activities and entails the provision of responses to the legal issues set forth below.
3.2.1. The material jurisdiction of IGAIs
IGAIs receive their jurisdiction from the legislation on access to information. They are authorised to rule on all aspects of this legislation regarding the individual or collective situations to which they are exposed. In particular, they rule on the merit of refusals to communicate information, and often, especially in Europe, on the possibility of reusing information7.
The identification of the documents
A request to access information raises the issue of identifying the requested documents. If the request is too general, it cannot lead to the communication of the documents. The person requesting must specify and properly target any request. “A request for access is not a request for information”8. If a request lacks precision, to quote the terms of the Quebec Portal on Public Environmental Information, “the public authority approached asks and helps the requesting person to specify it”.
The cost of access
Access to a government document should not be hindered by its cost, and free access is becoming the rule. In most countries, a document’s communication does not give rise to the payment of a fee, unless the government’s expenses exceed a certain threshold. The Quebec Portal for the Commission on Access to Information states that: “In principle, access to a document is free. However, fees not to exceed the cost of its transcription, reproduction, or transmission may be exacted by the body, which must indicate the approximate amount to the requesting person in advance”. These expenses may include the reproduction of a document in application of the right of use and reuse. In France, the government may charge the cost of reproduction and transmission. In Germany, the government has the right to charge for the information’s communication according to fees set in a regulation. The IGAIs are responsible for reminding the relevant persons of these rules on the cost of accessing information, if necessary.
3.2.2. The limits of the right to access information
The principle
Exceptions to the right to access information and penalties for the undue communication of information vary depending on a country’s laws and practices9. IGAIs are often asked to rule on exceptions to the right to access information. The IGAI’s decision is generally based on three principles: the protection of privacy and national security; the concept of on-going matters, and; the correctness of the request. In fact, all information involving privacy and a country’s national security cannot be communicated or distributed freely. Any document related to a pending court case is not freely accessible, as it could violate the impartiality and equality of Justice. Lastly, any request that fails to comply in form or in substance cannot lead to the communication of the requested document. Thus, Slovenian law provides that confidential information pertaining to public and national security, international relations, and to the state’s intelligence and security activities be excluded from the right to access information. The communication of information pertaining to business secrets, which violates the protection of personal data, or which concerns the management of archives or tax procedures is also prohibited10.
Confidential information will not be communicated; it will be concealed or withdrawn from any document transmitted. Thus, personal information concerning any person other than the person requesting cannot be communicated. However, there are limits to the exceptions to the communication of personal information. Thus, in Quebec, the access to information law considers that some personal data are public in nature and should thus be communicable, such as the name, title, position, rank, status, work address and phone number of a member of a public body, board of directors, or personnel office, and, in the case of a ministry, a deputy minister, his/her adjuncts and staff. One may also communicate information about a person who is a party to a service agreement entered into with a public body, as well as the terms and conditions of this agreement.
Exceptions to the prohibition of communicating information and the protection of whistle-blowers
In some cases, the communication of information helps protect the legitimate interest of individuals and society as a whole. Thus, whistle-blowers must benefit from special protections. According to the results of an OECD survey, 27 of 32 responding members have specific laws or provisions to protect whistle-blowers in clearly defined circumstances, and 13 of them have a law that protects whistle-blowers in the public sector in particular (OECD, 2015).
3.2.3. The procedures for submitting a request to an IGAI
Recourse to an IGAI
There is a great diversity within OECD member countries as to the modes of recourse against a partial or total refusal of access to information, as well as to the legal provisions that grant the right to appeal to an IGAI. Generally, when a body from which access to information was requested refuses to communicate the requested information, explicitly or tacitly, some laws, as in Italy and Japan11, authorise the person who was refused access to file a complaint with a court or to appeal to an IGAI. Other legal systems require the person to seek recourse from an IGAI before bringing any form of legal proceeding. For example, in France, requesting persons must consult the Commission on Access to Government Documents before filing a complaint before an administrative court.
In reality though, the mechanisms for seeking recourse from an IGAI are not without their subtleties, especially given the existence of exceptional procedures. In Belgium, when a person requesting encounters difficulties in obtaining a consultation or correction of a government document as per law, he/she may send a request for reconsideration to the federal authority in question. At the same time, he/she can ask the Belgian Commission for Access and Reuse of Government Documents to issue an opinion. A federal authority may also consult the Commission.
In Finland and Sweden, a refusal of access to information may be referred to administrative courts. In Norway, a refusal may be referred to the ordinary administrative appeal body, and in Denmark, an appeal may be brought directly before the highest ordinary appeal body within the region. Iceland has a special appeals board for freedom of information, and all refusals may be referred to it directly.
In Sweden, decisions by government offices on requests for access to information are not submitted to the courts or to the parliamentary ombudsman. In Denmark, the parliamentary ombudsman and the ordinary courts may review refusal decisions. The situation in Norway is similar to the one in Denmark, except for the fact that the ombudsman cannot act if the Council of State has come to a decision. In Finland, decisions made at the highest administrative level within the state can be referred directly to the Supreme Administrative Court, and in Iceland, to the special appeals board for freedom of information. In Finland and in Iceland, the ombudsman is also authorised to review decisions made by the highest administrative levels of the state (Jørgensen, 2014).
In some countries, seeking recourse from an IGAI represents a “trigger” that automatically results in the government’s communication of the information, and it appears to the government that this recourse testifies to the persistence of a person requesting who is also willing to go before the court holding jurisdiction, if necessary. Hence, the large number of requests that give rise to a “no objection” ruling by the IGAI. The French Commission for Access to Government Documents finds that many documents are communicated to people requesting after they seek recourse, but before the Commission rules on the request (Leclerc, 2011).
The investigation of the request and the decision-making procedure
An IGAI’s investigation procedures vary greatly, and there is a strong distinction between Ombudsman’s institutions and other IGAIs. Nordic Ombudsman’s institutions in fact have great freedom in their modes of action. They conduct their inquiries according to their own opinions and following their own methods, in an informal manner. This flexibility of action emblematises the diversity of the regulations of reference for government control. The essential originality of the Ombudsman’s institution resides in the concordance between its outsider position in relation to the government and its right to obtain large quantities of information from this same government administration.
In other OECD member countries and in the case of collegial IGAIs, the procedure is much more rigid. For example, the Commission for Access to Government Documents in France meets most often in plenary form, with six members (a judge from the Court of Cassation, a judge from the Supreme Audit Court, a parliamentarian, a senator, a local, elected political official, a professor of higher education, and a qualified member of the National Commission on Informatics and Freedom) and three qualified persons working in various fields (archives, prices and competition, and the public dissemination of information). The government commissioner may make oral observations12. The reduced formation responsible for inflicting penalties involving the reuse of public information has three members who must not have any conflicts of interest in relation to the matter at hand. The operating rules have been set to take into account the punitive nature of the procedure13.
The judicial section of Quebec’s Commission for Access to Information acts mainly in relation to requests for review and recourse provided in the law on access to public documents, requests for reviews of disagreements, or appeals provided for in the law on protection in the private sector. These requests are based on citizen dissatisfaction with a decision on requests for access to information or correction made to public bodies and enterprises. Administrative courts generally hold hearings during which the parties have the opportunity to present their arguments. The judicial section also acts before the hearings to ensure that the parties are able to present their arguments or to resolve specific issues in the processing of cases. Lastly, it provides the parties with a voluntary, confidential mediation procedure, which seeks the amicable settlement of cases. Whenever circumstances allow, this procedure leads parties to reach an understanding and close the case by withdrawing the request or any other opinion indicating that there is no longer an appeal14.
The procedure before the Italian Commission on Access to Government Documents is quite rapid, and it ensures the following of a procedure in the presence of all parties by informing them all of the matter. The Commission’s meetings are not public. Parties may appeal directly to the Commission, without any legal representation. If the appeal is accepted, the Commission asks the government administration that it ruled against to review the refusal decision and to grant access to the requested documents. The filing of an appeal before the Commission suspends the timeframes for appealing to a regional administrative court. An administrative appeal is not an alternative to judicial review. In addition to issuing decisions on appeals, the Commission also ensures the implementation of the principle of the full knowledge of government activities in observance of the limits established by Law No. 241/1990, as subsequently amended15. It should be noted that IGAIs tend to interpret laws benevolently. Thus, the Italian Commission on Access to Government Documents agrees to some extent to review dismissed complaints to lighten the heavy load weighting on the administrative courts16.
The nature of an IGAI’s decisions
When called to rule on a request concerning access to information, IGAIs issue administrative (or public) decisions based on the communicability of information. In some situations, they are authorised to accept the partial communicability of the information17. In most cases, the IGAI formulates a recommendation or an opinion that is not binding on the persons subject to the obligation of communication. For example, decisions by the Japanese Commission for the Oversight of Communication and the Protection of Personal Information are not binding. Similarly, in Denmark and Norway, reports by the Ombudsman are not obligatory. France’s Commission for Access to Government Documents (CADA) issues a favourable or unfavourable opinion on the document’s communication. Even in the event of a favourable opinion on communication by France’s CADA, the government administration may uphold its initial refusal. In 2011, 7.3% of opinions formulated by the CADA were not followed up on (Lademann, 2010). It should nevertheless be noted that, even though IGAI opinions are not obligatory, the government, given the moral authority of these institutions and the publicity they can give to their opinions, generally respects them.
Box 3.4. Penalties for disclosing information: the example of France’s National Commission on Informatics and Freedoms (CNIL)
IGAIs responsible for the protection of personal data, like France’s National Commission on Informatics and Freedoms (CNIL), often dispose of powers of sanction. Penalties for the undue communication of information most often take the form of fines, the amount of which varies considerably. Any information communicated illegally, for example without the consent of its holder or the main person concerned by the information, is subject to penalties. The internet has made protecting against the undue communication of information much more difficult.
Penalties for the disclosure of information are either administrative or judicial. In France, administrative penalties inflicted on responsible persons who do not observe the law consist of a warming and a fine (except for the processing of information made by the state) up to a maximum amount of 150,000 EUR, which, in case of a repeat offense, go up to 300,000 EUR. The CNIL may also request that the procedure to process information be stopped and order the withdrawal of a previously granted authorisation. In addition to administrative penalties, a criminal court may inflict criminal penalties.
Sources: CNIL, “The CNIL’s penalty procedure”, www.cnil.fr/fr/la-procedure-de-sanction-de-la-cnil; CNIL, “criminal penalties”, www.cnil.fr/fr/les-sanctions-penales.
IGAIs sometimes have the power to issue instructions to the government. Thus, the Italian Commission on Access to Government Documents holds a true decision-making power and is authorised to order a government administration to communicate a document, however without any power of sanction or binding force18. The Commission on Access to Government Documents for the Brussels-Capital Region issues an opinion when a person wishes to obtain access to a document held by an authority, and this authority refuses access to this information to this person. It also holds decision-making powers on environmental matters19. France’s Commission for Access to Government Documents has held a power of sanction since 2005 that allows it to inflict fines only in case of a fraudulent reuse of public information. These fines can be as high as 300,000 EUR.
As an administrative court, the Commission on Access to Information in Quebec reviews decisions by public bodies following requests made by persons who were refused access to a government document or access or rectification of their personal file. In the private sector, a refusal following an access to information request or the rectification of a personal file can also be subject to a request to examine the disagreement made to the commission on access to information. Generally, the commission renders its judgement on these issues after having held hearings. The decisions handed down are public20.
In Sweden, the refusal by a government administration or a citizen to collaborate with the Ombudsman constitutes a crime prosecutable by a criminal court in some instances. In many OECD member countries, recourse to an IGAI generally proves very effective and avoids the clogging of courts with requests involving the right to access information. For that matter, decisions in case law serve as a reference for persons subject to the obligation of communication and help avoid some amount of litigation21.
Box 3.5. The procedure for appealing to France’s Commission on Access to Government Documents (CADA)
A person requesting access to a government document has two months from a refusal decision to appeal to the CADA. This timeframe can be disputed only if the government administration notifies the person requesting of the means of recourse against its decision. The CADA rules on whether the requested documents can be communicated or not. A request asking the CADA to rule on the refusal issued by a government administration may be sent in writing or via email. It is accompanied by a copy of the letter or email sent to the government administration, or, in absence thereof, compelling testimony in case of an oral request, to establish that there was indeed a refusal to communicate the government documents.
The CADA acknowledges receipt of the request and immediately contacts the government administration identified by the person requesting as the author of the communication refusal, to receive the documents in dispute and the reasons for the refusal. The summoned authority must, by the deadline set by the Commission’s Chairperson, communicate to the CADA all documents and useful information and provide it with all necessary assistance. A secretary general records each matter in an electronic database, assigned to a rapporteur in function of his/her specialisation, and introduced in the agenda for the Commission’s next meeting. As part of the investigation, the rapporteur has the ability to get in touch with the government administration, especially by phone. Commission members and rapporteurs appointed by the Chairperson may conduct any field investigations necessary to fulfil their mission. The opening of the Commission’s meeting concludes the investigation. Correspondence received after this date is not taken into account.
The CADA meets twice a month, in plenary session at the authority of its Chairperson. At the Chairperson’s request, summoned government administrations may participate in the Commission’s work on a consulting basis for the most sensitive cases. CADA meetings are not public. Once resolved during the meeting, the person requesting and the government administration are notified of the opinion in the form of a simple letter stating the opinion and its grounds. The opinion may take several forms: favourable to the communication of the documents, favourable under certain conditions, or unfavourable.
The CADA may declare the request not applicable if the documents do not exist or if they have already been sent to the person requesting, or unacceptable if the request seeks to obtain simple information, or if it is not precise enough. The CADA may also rule that it lacks jurisdiction, for example, when access to the documents is subject to special rules. The CADA has one month from the day of the request’s registration by its secretary to notify its opinion to the responsible authority and to the person requesting. However, if the Commission does not issue its opinion within the one-month deadline, this does not vitiate the correctness of the decision to refuse the communication.
Source: French Commission on Access to Government Documents, “Procedure”, www.cada.fr/procedure,6150.html.
Table 3.1. Information Commission/ners and other oversight bodies and mechanisms
Source: The Right to Information, “Information Commission/ners and Other Oversight Bodies and Mechanisms”, www.right2info.org/information-commission-ers-and-other-oversight-bodies-and-mechanisms. Updated by the OECD based on information received from member countries.
References
Bousta, R. (2007), Contribution à une définition de l'Ombudsman [“Contribution to the definition of Ombudsman”], Revue française d'administration publique, 2007/3 (no. 123), pgs. 387-97, www.cairn.info/revue-francaise-d-administration-publique-2007-3-page-387.htm.
Information Commissioner’s Office (2017), Information Commissioner’s Annual Report and Financial Statements 2016, Wilmslow, pg. 34, https://ico.org.uk/media/about-the-ico/documents/2014449/ico053-annual-report-201617-s12-aw-web-version.pdf.
Jørgensen, O. (2014), Access to Information in the Nordic Countries, Nordicom, Göteborg, pgs. 32-33, http://www.nordicom.gu.se/sites/default/files/publikationer-hela-pdf/access_to_information_in_the_nordic_countries_2014_0.pdf
Lademann, C. (2010), Étude de droit comparé sur l’accès aux documents administratifs [“Comparative legal study of access to government documents”], French Commission for Access to Government Documents, www.cada.fr/IMG/pdf/droit_compare-2.pdf.
Leclerc, J.P. (2011), Le rôle de la commission d’accès aux documents administratifs, témoignage [“The Role of the Commission to Access Government Documents, a testimony”], Revue française d’administration publique 2011/1, no. 137-138, pgs. 171-79
OECD (2015), “Protection of whistleblowers” in Government at a Glance 2015, OECD Publishing, Paris, https://www.oecd-ilibrary.org/fr/governance/government-at-a-glance-2015/whistleblower-protection_gov_glance-2015-36-en.
Notes
← 1. Article 27 of Law No. 241 of 1990.
← 2. Australian Information Commissioner Act 2010 No. 52, 2010 as amended, Federal Register of Legislation, https://www.legislation.gov.au/Details/C2014C00382.
← 3. Office of the Information Commissioner of Canada, www.oic-ci.gc.ca/fra/abu-ans_what-we-do_ce-que-nous-faisons.aspx
← 4. Article 28 of the Decree dated 30 December 1995.
← 5. Quebec Commission on Access to Information, Mission, fonctions, valeurs [“Mission, duties, values”], www.cai.gouv.qc.ca/a-propos/mission-fonctions-valeurs/.
← 6. Schram, F. (undated) La Commission d’accès aux et de réutilisation des documents administratifs [“The Commission for Access and the reuse of Government Documents”], Instituut voor de overheid, www.juritic.be/pages/CARDA.pdf.
← 7. For example, in France, Article 15 of Law No. 2015-1779 of 28 December 2015 on the free nature and procedures for the reuse of public sector information provides that: “the reuse of public information is free. However, the government administrations mentioned in Article 1 may establish a reuse fee if they are obligated to cover, using their own resources, a substantial part of the costs tied to the fulfilment of their public service missions”. This law was followed by the Law for a Digital Republic of 7 October 2016. These laws were adopted as a result of the European directive of 26 June 2013 on the reuse of public sector information.
← 8. Quebec Commission on Access to Information, www.cai.gouv.qc.ca
← 9. For examples of limitations to the right to access to information in a specific sector, see Cardona, F., “Balancing openness and confidentiality in the defence sector: lessons from international practice, Guides for Good Governance” No. 6/2018, Centre for integrity in the defence sector, Norwegian Ministry of Defence, http://cids.no/wp-content/uploads/2018/06/9062-DSS-GGG-6-eng-4k. October 2017.
← 10. Data provides by the Ministry of Public Service and the Modernisation of Government in Morocco.
← 11. Decisions refusing access to information may be submitted to the Japanese Commission for the Oversight of Communication and Protection of Personal Information or to District Courts (“courts with specific jurisdiction”); see: https://www.article19.org/resources.php/resource/38132/en/country-report:-the-right-to-information-in-japan.
← 12. Article R 341-3 of the Code of Relations between the Public and the Government.
← 13. Articles R 341-5 and R 341-6 of the Code of Relations between the Public and the Government.
← 14. Quebec Commission for Access to Information, www.cai.gouv.qc.ca/
← 15. Commissione per l’accesso ai documenti amministrativi [“Italian Commission for Access to Government Documents”], www.commissioneaccesso.it/la-commissione/funzioni.aspx (website).
← 16. Italian Commission for Access to Government Documents, “Report for the year 2015 on government transparency”, Prime Minister’s Office, www.commissioneaccesso.it/media/54980/relazione%202015.pdf.
← 17. French Commission for Access to Government Documents, “Modes of concealment”, www.cada.fr/les-modalites-d-occultation,6233.html.
← 18. The Italian Commission for Access to Government Documents expressed its regret over this lack of administrative and judicial power. See: Italian Commission for Access to Government Documents (no date), “Report for the year 2015 on government transparency”, Prime Minister’s Office, www.commissioneaccesso.it/media/54980/relazione%202015.pdf.
← 19. Belgian Commission for Access to Government Documents, http://be.brussels/a-propos-de-la-region/commission-dacces-aux-documents-administratifs
← 20. Quebec Commission for Access to Information, “Recourse to the Commission”, www.cai.gouv.qc.ca/citoyens/recours-devant-la-commission/.
← 21. For example, the database of France’s Commission for Access to Government Documents contains 70,000 opinions and recommendations issues. This is very helpful to government administrations and the public, who have access to 6,000 of the most representative decisions.