Oecd (2005) Effective Open Government Improving Public Access To Government

Unclassified GOV/PGC/RD(2005)1
Organisation de Coopération et de Développement Economiques

Organisation for Economic Co-operation and Development 29-Mar-2005
___________________________________________________________________________________________
_____________ English - Or. English
PUBLIC GOVERNANCE AND TERRITORIAL DEVELOPMENT DIRECTORATE
PUBLIC GOVERNANCE COMMITTEE
Unclassified
GOV/PGC/RD(2005)1
EFFECTIVE OPEN GOVERNMENT: IMPROVING PUBLIC ACCESS TO GOVERNMENT

INFORMATION
31st Session of the Public Governance Committee

31 March - 1 April 2005
International Energy Agency, Paris
This room document is presented to the Committee for information. It is an output of the 2004 Programme of
Work and Budget, where it appeared with the provisional title "Report on Legal and Institutional Mechanisms for
Public Scrutiny", and provides background information for work on "Open Government", "Public Sector
Integrity" and the network of "Senior Officials from Centres of Government".
For further information, please contact Joanne Caddy; e-mail: joanne.caddy@oecd.org; tel. +33-1 45
24 89 56
English - Or. English
JT00181243
Document complet disponible sur OLIS dans son format d'origine

Complete document available on OLIS in its original format
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GOV/PGC/RD(2005)1
EFFECTIVE OPEN GOVERNMENT

Improving Public Access to Government Information
by
David Banisar1
1
David Banisar is a Visiting Fellow at the Department of Law, University of Leeds and Director of the Freedom of
Information Project of Privacy International. (http://www.privacyinternational.org/). He was previously a fellow at
the Kennedy School of Government, Harvard University and a co-founder and Policy Director of the Electronic
Privacy Information Center.
Electronic
Electroniccopy
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availableat:
GOV/PGC/RD(2005)1
I. INTRODUCTION
1. Openness and transparency is now recognized as an essential part of any modern government. An open
government backed by a properly implemented and working freedom of information regime provides many
benefits to government bodies as well as to citizens.
2. Nearly sixty countries around the world have adopted comprehensive access to information laws,
including all but two OECD member countries. The laws are substantially similar but are significant
differences in the structures and effects of the laws, reflecting the countries’ unique legal heritages.
3. The legal right to information is not limited to these comprehensive laws. Every country has a web of
legislation including laws on archives, environmental protection, data protection and privacy, state secrets,
and media which can affect access both positively and negatively.
4. But the adopting of these laws is not the end of the story. Like all other laws, the laws and their
implementation need to be periodically reviewed to ensure that they are working in an effective manner
and take into account changes in government practices, legislation, technology and society.
Freedom of Information in OECD Member Countries
5. The right of public access to information held by government bodies is widely recognized in OECD
countries but there are significant differences between countries. Some countries have long established
laws and developed openness cultures. Others have new laws and are only now learning to develop new
practices. Some countries have poor laws that provide for little transparency. Two members of the OECD
have no comprehensive laws at all.
6. The OECD countries that have adopted Freedom of Information (FOI) legislation can be roughly
broken down into three categories: established, developing and limited. “Established” countries such as
Sweden, the US, and New Zealand have long standing FOI laws and have developed a culture of openness
that recognizes the importance of access. Controversies over the level of access still exist but it is generally
presumed that information will be open. However, not all countries that have long standing laws have fully
adopted this culture.
7. “Developing” countries are those such as the Czech Republic, Slovakia, Poland, Mexico, Turkey, and
the United Kingdom that have recently adopted laws and are in the process of changing from the culture of
secrecy that characterized their previous governments to the new ideas of openness. Some countries such
as Ireland and Mexico have made great initial strides. Others such as the UK are still early in
implementation.
8. “Limited” countries are those which have adopted freedom of information laws which do not fully
provide access without requiring a legal interest such as Italy or only provide access to some information
such as Austria.
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9. Finally, two countries - Germany and Luxembourg are the only OECD countries that have not adopted
national laws on FOI. There have been some legislation at the state level in Germany and there are efforts
pending in both countries at the national level.
10. This paper examines the best practices of OECD member countries on access to information and
proposes strategies for the review of their laws and practices to improve them.
Box 1. The History of Freedom of Information in OECD Countries
th
The public right of access to information has been in force in Sweden and Finland since the mid-18 century. The US
adopted its national law in 1966 followed by Denmark and Norway in 1970, France and the Netherlands in 1978 and
Canada, New Zealand and Australia in 1982. Most countries are more recent adopters from the 1990s. The UK
adopted its law in January 2000, while Switzerland did so in December 2004 (see Annex for a list of national
legislation).
The Need for Periodic Reviews
11. While the principles of FOI are likely to remain fairly constant, legal systems evolve over time and it
has been the experience in many countries that it is necessary to examine the laws periodically to ensure
that they are operating properly. It is often necessary to amend them to correct weaknesses in drafting
which are recognized once the laws are in force or to reflect new government structures and systems, and
advances in technology and societal needs for greater openness that emerge over time. New ideas and
better practices from other jurisdictions should also be considered. The US Freedom of Information Act
has been substantially amended several times in its 35 year history. In Finland, the 1951 Act on Publicity
of Official Information was replaced in 1999. Denmark and Norway are also considering replacing their
laws.
12. The practice of FOI also needs to be examined. Is the law working the way it was intended? Are there
fewer requests than expected because of unnecessary barriers? Do government bodies have adequate
resources to respond in a timely manner? Even in countries where openness is part of the culture, it may be
necessary to re-examine its implementation. In Norway, the Ombudsman conducted a systematic review of
FOI practices in 2001 and stated in his annual report that:
More than 30 years have passed since the Freedom of Information Act was passed. However,
disclosure complaints show that there is room for improvement in application of the law in practice.
Work to ensure that extended freedom of information is routinely considered is still important and
must continuously be done to achieve a more favourable attitude towards extended disclosure.
13. The types of review vary. Sometimes, the reviews are by official bodies sponsored by the government.
In Denmark, the review commission is chaired by the Ombudsman and includes media and human rights
groups. In Japan, the government has recently set up a commission made up of only outside legal experts,
mostly eminent law professors. In Canada, the government formed a review committee made of up of
government experts and commissioned a series of reports on the Act and international practices.2 The body
was strongly criticized by users who felt left out of the process and the final report focuses mainly on
administrative issues and does not address the many problems pointed out by users and the Information
Commissioner.
2
See Access to Information Review Task Force. http://www.atirtf-geai.gc.ca/
Electronic copy available at: https://ssrn.com/abstract=2069870

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14. In Australia and New Zealand, the Law Reform Commissions have conducted investigations and
issued reports in recent years calling for substantial changes to their laws. The US General Accounting
Office periodically reviews aspects of the Freedom of Information Act at the request of members of
Congress. Ombudsmen have issued reports in Australia and at the provincial and state levels in Canada and
Australia. Legislatures in many countries have held hearings. Journalists and NGOs in many countries
often test the laws and issue reports.3
Benefits of Freedom of Information
15. There is general agreement that a properly implemented and working freedom of information regime
provides as many benefits to government departments as it does to the citizens. A 2003 World Bank study
found that, “more transparent governments govern better for a wide variety of governance indicators such
as government effectiveness, regulatory burden, corruption, voice and accountability, the rule of law,
bureaucratic efficiency, contract repudiation, expropriation risk and [a combined transparency corruption
index].”4
- Democratic Participation and Understanding. The public is better able to participate in the
democratic process when they have information about the activities and policies of the
government. Public awareness of the reasons behind decisions can improve support and reduce
misunderstandings and dissatisfaction. Individual members of Parliament are also better able to
conduct oversight. The New Zealand Danks Committee found “greater freedom of information
could not be expected to end all differences of opinion within the community or to resolve major
political issues. If applied systematically, however, with due regard for the balance between
divergent issues [the changes] should help narrow differences of opinion, increase the
effectiveness of policies adopted and strengthen public confidence in the system.”5
- Improved decision making processes. Decisions that will eventually be made public are more
likely to be based on objective and justifiable reasons that are made public. Confidence in the
government is improved if it is known that the decisions will be predictable. The New Zealand
Law Commission found in 1997 that “the assumption that policy advice will eventually be
released under the Act has in our view improved the quality and transparency of that advice.”6
The Canadian Access to Information Review Commission found that “central agency records
improved in the quality of their content and narrative over time.” The Australian Law Reform
Commission and Administrative Review Council in 1997 found “the [FOI] Act has had a marked
impact on the way agencies make decisions and the way they record information…[it] has
focused decision-makers' minds on the need to base decisions on relevant factors and to record the
decision making process. The knowledge that decisions and processes are open to scrutiny,
including under the FOI Act, imposes a constant discipline on the public sector.”7
- Improved government records management. The adoption of FOI legislation has been found to
improve record keeping practices of public bodies. This is both due to revised record keeping
3
See e.g. National Security Archive, http://www2.gwu.edu/~nsarchiv/nsa/foia/audits.htm; Open Society Justice
Initiative, http://www.justiceinitiative.org/db/resource2?res_id=102207
4
Roumeen Islam, Do more transparent governments govern better? (World Bank 2003).
http://econ.worldbank.org/files/27369_wps3077.pdf
5
PA Consulting Group, “Towards Open Government” Committee on Official Information (Danks Committee),
General Report, December 1980.
6
Law Commission, Review of the Official Information Act 1982, Report 40. October 1997.
7
The Australian Law Reform Commission, Open government: a review of the federal Freedom of Information Act
1982, Report 77. 1995. http://www.austlii.edu.au/au/other/alrc/publications/reports/77/ALRC77.html

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system to meet the new legal requirements of access but also as noted above to ensure that
decisions would appear to be based on rational processes. Some governments have used it as an
opportunity to rewrite manuals and other documents. The Canadian Treasury Board announced a
new policy on Management of Government Information Holdings in May 2003 to substantially
improve record keeping, especially of electronic records in part to improve the transparency of
government.8 Others keep more information on the decisions. The Danish Access to Public
Administration Files Act requires that public authorities receiving information of importance
orally to a decision by an agency have an obligation to take note of the information. A right of
access and correction to personal files ensures that records on individuals are accurate and
decisions are not based on out-of-date or irrelevant information.
- Anti-corruption. FOI is considered a key tool in anti-corruption measures as reasons for awarding
contracts and other financial transactions must be documented and justified.9 The new UN
Convention on Corruption calls for governments to adopt laws to make available information
available to the public.
- Redressing Past Harms. In countries that have recently made the transition to democracy, FOI
laws allow governments to break with the past and allow society to better understand what
happened and the victims and their families of abuses to learn what happened. In Central Europe,
most countries adopted laws allowing for access to the files of the former secret police. In
Mexico, President Fox in 2002 ordered the declassification of all the files of previous human
rights abuses so that the families could find out what happened to their loved ones who
disappeared. This also helps prevent the use of these files for political purposes, as happened in
Hungary in 2002 when the file of the newly elected Prime Minister Peter Medgyessy was leaked.
- Improved Internal Efficiency. FOI can also improve the flow of information inside governments.
Excessive secrecy reduces the ability of government departments to share information and
reduces their efficiency.10 Many jurisdictions have reported that enacting FOI laws improved
coordination and policy development.
- Alternative to regulations. Governments collect large amounts of information on the activities of
the private sector. Information disclosure by government bodies can also be used as an alternative
method of regulation.11 Public release of information can move private actors to improve their
behaviours to avoid criticism and losses in the marketplace. Many nations including the US,
Mexico, and the Slovak Republic publish information about pollutants released by industry as a
means of informing the communities about the potential dangers. In the US, the Toxic Release
Inventory is considered to have successfully reduced the amount of toxic materials released in the
8
Policy on the Management of Government Information, May 1, 2003. http://www.tbs-
sct.gc.ca/pubs_pol/ciopubs/TB_GIH/mgih-grdg_e.asp
9
See Transparency International, Global Corruption Report 2003. http://www. globalcorruptionreport.org.
10
See Final Report of the National Commission on Terrorist Attacks Upon the United States.
http://www.gpoaccess.gov/911/
11
See Mary Graham, Regulation by Shaming, The Atlantic Monthly, April 2000.
http://www.theatlantic.com/issues/2000/04/graham.htm; Mark A. Cohen and V. Santhakumar, Information
Disclosure as Environmental Regulation: A Theoretical Analysis.
http://www.vanderbilt.edu/vcems/papers/informationdisclosure.pdf

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US by nearly half.12 Over thirty countries have signed the 2003 UNECE Protocol on Pollutant
Release and Transfer Registers.13
Box 2. Evaluating the Benefits of Freedom of Information in Ireland
The Irish government has found benefits with the enactment of the Freedom of Information Act (1997), which was one
of the central recommendations of the “Delivering Better Government” Modernisation Programme. An evaluation report
conducted 5 years after adoption of the act found that:
“It has had far ranging and largely positive effects upon the civil service…Almost every senior manager with whom we
spoke acknowledged the role of the Act in generating a greater transparency around the conduct of government
business, and in promoting a sense of accountability to the public served. This was also confirmed by the survey
findings which indicated that 60% of respondents felt that their Department/Office had become more open in its
14
dealings with customers and stakeholders.”
Developing a Culture of Openness
16. In countries with long histories of access to information, the established mindset is on providing
information and withholding is considered unusual. In Sweden, access to government records is described
as a “self-evident civil right”.
17. The adoption of FOI laws also generally leads to more openness in government activities beyond that
required by the laws. Bodies realize that the release of most information does not harm their jobs and
increasingly make it available outside the parameters of the act to satisfy public demands. In New
Zealand, as noted by the Secretary of the Cabinet, “virtually all written work in the government these days
is prepared on the assumption that it will be made public in time…the focus in the current open style of
government is on managing the dissemination of official information.”15 A 2002 review of the Irish
Government Strategic Management Division found, “the degree of openness achieved under FOI is such
that in many cases information is now routinely available to the public without any recourse to the Act.”
This can also result in reducing the number of leaks to the media as more information is generally
available.
12
See Gary Bass and Sean Moulton, The Public’s Right to Know: A Case Study from the United States, in Calland
and Tilley, The Right to Know, the Right to Live (ODAC, South Africa, 2002); OECD PRTR pages:
http://www.oecd.org/env/prtr
13
See UN/ECE, Protocol on Pollutant Release and Transfer Register. http://www.unece.org/env/pp/prtr.htm
14
Evaluation of the Progress of the Strategic Management Initiative / Delivering Better Government Modernisation
Programme. 2002.
15
Marie Shroff, “Behind the Official Information Act: Politics, Power and Procedure” in The Official Information
Act: 1997.

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II. LAWS ON ACCESS TO INFORMATION
Basic Elements of Freedom of Information Laws
18. Most FOI laws are very similar in structure and function. The following represents the common
elements found in FOI laws in OECD countries.
- a right of an individual, organization or legal entity to be able to demand information from public
bodies without having to show a legal interest;
- a duty of the body to respond and provide the information. This includes mechanisms for handling
requests and set time limits for responding to requests;
- exemptions to allow withholding of certain categories of information. These typically require that
some harm to the interest defined by the category must be shown before it can be withheld;
- internal appeals mechanisms to allow the requestor to challenge refusals to disclose;
- external review of reviews. Typically, FOI laws either create an external body known as an
information commission or allow the complaints to be heard by an existing ombudsman or the
court system.
- requirement for government bodies to affirmatively publish some types of information about their
activities.
- sanctions for officials who unlawfully destroy, modify, or refuse to release information, and for
bodies that fail to comply with the orders of the external review system.
Defining Public Bodies
19. Most FOI laws focus on the administrative and executive bodies that make up the modern bureaucratic
state. This includes ministries or agencies that provide for health, the environment, law enforcement,
military, communications and transportation on the national level and their related local bodies.
20. The best practice is to provide in the law a broad definition of public bodies to include any body that is
exercising government functions. The Hungarian Act on the Protection of Personal Data and Disclosure of
Data of Public Interest applies to any “person or body performing state or local self-government functions
or other public duties.” The Portuguese Access to Administrative Documents Act applies to, “organs of
either the State or the autonomous regions that perform administrative functions, by organs of either public
institutes or public associations, organs of the local authorities, organs of associations or federations of
local authorities, as well as other entities that exercise public authority according to the law.” Typically,
more recently adopted FOI laws take this approach, which builds in the flexibility for the coverage of the
law to develop as particular institutions evolve.
21. However, many countries use a schedule in the act to create a positive list of bodies that are covered.
This does provide for a clear list of which bodies are covered and who are not. However, this approach
often requires that each time a body is created, changes its name, or modifies its purpose or structure, that
the schedule must be updated, either by Parliament or through regulation, which can be slow and time
consuming. This can also raise problems when the government refuses to include new bodies. In Ireland,
the Garda Síochána (police) are still not covered. In Canada, there has been substantial controversy over
the many privatized or newly created bodies that are not covered under the national or provincial acts.

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22. To exclude or not to exclude? Some countries specifically exclude certain bodies that handle sensitive
information. In the UK, the security and intelligence services are excluded from the scope of the FOI Act.
The problem with excluding bodies is that while some of the information that the body might hold can be
quite sensitive, excluding all aspects of a bodies’ activities removes a necessary oversight mechanism to
prevent corruption or misuse of power or information such as environmental hazards that might have been
created by the body in their activities. In addition, much of the information that they maintain is quite
mundane, such as the purchase of coffee pots and use of credit cards and official cars. The better approach
is to include the body and to use exemptions from the right of access to ensure that sensitive information is
protected where necessary.
23. Local governments. In federal or divided government systems where there are states or provinces, it is
often necessary for the sub-national jurisdictions to enact separate laws for those areas where they hold
sole jurisdiction over the information. Often, these laws are adopted before the enactment of national laws
and incorporate progressive provisions that are tried out and later adopted by national laws. In Japan,
nearly 3,000 local jurisdictions have adopted laws since in 1982. It was these laws that led to the enactment
of the national law. In the United States, all 50 states have adopted their own open government laws, some
of which date back to the late 19th and early 20th century, long before the federal act was adopted. In
Germany, four länder have adopted FOI laws in the absence of a national law. Other jurisdictions such as
New Zealand and the UK have adopted national laws to provide access to information held by local
entities.16
24. Non-governmental bodies. Modern government is often provided by an amalgamation of national

bodies, quasi-governmental organizations and private organizations. As government bodies are privatized
or functions are contracted out to private bodies, many FOI laws have been extended to include non-
governmental bodies such as publicly owned companies, private companies and non-government
organizations that receive public money to conduct public projects or make decisions that affect the public.
25. Care should also be taken that information that is created for a public purpose is not withheld in the
name of commercial confidentiality. Public authorities can limit this problem by explicitly refusing to sign
contracts relating to public services that contain excessive secrecy clauses. In addition, many laws such as
the UK FOIA 2000 override such clauses if it is in the public interest to release the information.
26. There is also a limited right in most countries to access information held by private bodies that are not
conducting public business. In Denmark, the Access to Public Administration Files Act applies to natural
gas companies and electricity plants. Privacy and data protection laws in almost all OECD countries
mandate a right of access and correction by individuals to their own files held by any public or private
body.17 Environmental protection laws in most countries require companies to publish information about
potential threats to the environment and public health. The most far-reaching FOI law is to be found
outside the OECD. In South Africa, the Promotion of Access to Information Act allows individuals and
government bodies to demand information from private entities if it is necessary to enforce any other right.
27. International Organizations. International governmental organizations are increasingly playing an

important role in making decisions that were once made on a local or national level where the citizen had
access through national laws. Often these decisions are being made outside the country in a less open, often
16
Local Government Official Information and Meetings Act 1987. http://www.ombudsmen.govt.nz/local.htm; Local
Government (Access to Information) Act 1985.
http://www.nas.gov.uk/reckeep/PDFs/Local%20Government%20access%20info%201985.pdf.
17
See OECD, Guidelines Governing the Protection of Privacy and Transborder Data Flows of Personal Data, 1980.
http://www.oecd.org/document/18/0,2340,en_2649_34255_1815186_1_1_1_1,00.html. EPIC and Privacy
International, Privacy and Human Rights 2004. http://www.privacyinternational.org/survey/

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secretive diplomatic setting. In New Zealand, there was controversy over a new Australia New Zealand
Food Regulation Ministerial Council which sets standards but is not subject to New Zealand’s Official
Information Act. In Europe, information about the safety of certain airlines was kept secret by national
governments from their citizens because of concerns that the information from the European Civil Aviation
Conference (ECAC) was confidential.
28. International organizations such as the European Union and the World Bank are increasingly adopting
more comprehensive access regimes due to criticism over “democratic deficits.”
What is being asked for? Documents and Access
29. National FOI laws use different terminology to describe what individuals have a right to access. Older
laws typically refer to the right to access records, official documents, or files, while newer laws often refer
to a right to information. In practice, there is generally not much difference as most laws now broadly
define the right to include all information, no matter the medium it is stored on. However, in some
countries such as Sweden, the term “official documents” does not include documents in preparation or
drafts not used in the final decision, thereby removing large swaths of information from the scope of the
law.
30. Generally the right only applies to information that is recorded. This can leave gaps as certain
information that may have been orally transmitted (such as in a meeting) may have been used in making a
decision. A better practice is to require that all known information is available. In Denmark, authorities
receiving information orally of importance to a decision by an agency have an obligation to take note of
the information. In New Zealand, the right to information has been interpreted to mean that information
which is known to the agency but not yet recorded, must be recorded if it is relevant to the request. This
practice also is beneficial to future reviews of decision-making as it limits the ability of officials to omit
information to avoid disclosure and thus encourages better file creation and recordkeeping.
31. Nearly every law also allows a person to view the information directly as long as doing so does not
endanger it. Most laws also provide that the requestor can ask for copies of the information in any
reasonable form. This includes providing electronic records in their original form to facilitate searches or
as printouts if the user does not have the proper equipment, transcripts or copies of audio tapes or video
converted to medium to make them viewable on commonly available machines.
32. The best practice is to provide that the right to information is broadly defined, neutral with regard to
the media used to record it and is flexible enough to ensure that as new technologies are developed, that it
automatically applies without requiring an amendment as was necessary in many laws when electronic
records became commonplace.
To Form or Not to Form: Procedures for Requests
33. In most countries the law requires that a request should be in written form and describes the
information desired. A few countries further require that the request is on a form designed by the
government body. It is now common to also accept electronic and faxed requests. Not all countries set
strict procedures. The UK FOI Act 2000 makes no distinctions between formal FOI Act requests and the
normal everyday inquiries made by citizens. The Council of Europe recommends that the formalities
should be minimal as to not create a barrier to requests or excess effort, especially for those requests that
can be handled informally.18
18
See Box 4 for more information on the recommendations.
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34. Oral Requests. Many countries, especially those with a lower literacy rate, also accept oral requests.
This is also required for access to environmental information under the UNECE treaty.
35. Electronic requests. Many laws provide for requestors to be able to request information using
electronic mail or web-based forms. In Mexico, the Sistema de Solicitudes de Información (SISI) system
run by the Federal Institute for Access to Public Information (IFAI) provides for electronic filing of
requests for federal bodies.19 An agreement was recently signed to allow states to use the system for their
requests. Another one was signed with the Federal Electoral Institute (FEI) to allow individuals to file
requests from computers in FEI offices around Mexico. All requests are entered into the system even if
made orally or in writing which allows for easy automated monitoring of the processing of requests by the
Commission. In Turkey, the main ministries have been very active in using electronic networks to make
information available, including encouraging users to submit requests and obtain status updates about their
requests online.20
36. Identification. Electronic access raises questions about identification and fees. Most laws do not
require individuals to show a legal interest and therefore it is not necessary to know the name of the
requestor in most cases, as long as there is a correct email address to deliver the requested documents to.
UK Minister Baroness Ashton put it succinctly, “The issue is not who the inquirer is but whether the
information should be in the public domain. So if m-mouse@btinternet.com sends in a request for a piece
of information that could and should and can be in the public domain, then it should go into the public
domain through m-mouse@btinternet.com.”21 Some laws such as Finland’s and the Mexican SISI system
specifically encourage anonymity to ensure that all requestors are treated equally.
37. However, in some cases, identification may be necessary to ensure that access is granted to those
requestors that are authorized to see personal or commercially sensitive information. In such cases, it may
be necessary to set up systems for identification such as digital signatures. However, these systems are still
not well developed or implemented and would create a significant barrier to access in most OECD
countries. Similarly, systems need to be set up for those situations where a fee will be imposed. In Mexico,
the SISI system allows for easy payment for fees from any bank.
38. Assistance and Transfer. Most laws require that the requestor to be as specific as possible in describing
the information requested. At the same time, there is usually a duty on government officials to assist the
requestor. This is essential otherwise the FOI law is limited to only knowledgeable insiders who know
what to ask for. This also benefits the government body as it usually leads to more specific, easier to
complete requests. The duty includes contacting the requestor to clarify the information desired, if unclear,
and also to forward requests to other appropriate bodies if the information is held elsewhere.
Tick-Tock: Response Times
39. Typically, FOI laws require that government bodes must respond to a request as soon as possible,
setting a maximum time of between two and four weeks. In smaller countries and in those who have had a
law for a number of years, such as in Scandinavia, the general practice is that the body must immediately
respond (usually within 24 hours) to the application and provide the information as soon as possible. In
most jurisdictions that allow for oral requests, the requests must generate an immediate response if
19
http://www.informacionpublica.gob.mx/
20
See http://www.bilgiedinmehakki.org/index_eng.asp
21
House of Commons Constitutional Affairs Committee, First Report, Freedom of Information Act 2000 - progress
towards implementation, 7 December 2004.
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possible. There are usually provisions for additional time if the request is lengthy or complex or must be
transferred to another body that holds or has control over the information.
40. A number of countries require immediate responses if the information relates to threats to a person’s
health or safety. The US Freedom of Information Act was amended in 1996 to provide for a two track
system, in which information of public interest can be placed ahead of other requests in the processing
queue and must be responded to more rapidly. The requestor must make a case for why this should be
done.
41. The best practice is for the response to be made immediately or as soon as possible. Excessive delays
can frustrate the intent of FOI by preventing the information from being available when it is useful to the
requestor, for example, in responding to some other consultation or decision-making process. In addition,
recent research has found that government departments are less likely to delay when there is a shorter
deadline than a longer deadline because they prioritize the request.22 However, this is potentially difficult
for many bodies. Bodies must have dedicated enough resources to the processing of requests. Experience
of the operations of FOI laws over many years shows that this is frequently not done, which affects
citizen’s confidence in the efficacy of the law itself.
Money, Money, Money: Fees
42. Many FOI laws allow government bodies to demand fees from requestors. Common types of fees
include:
- Application fees. A few countries such as Japan, Canada and Ireland require that applicants
include a nominal amount (usually the equivalent of around USD$5-10) with the application
before it is processed.
- Search and processing fees. This can cover the staff time locating and reviewing documents.
Many jurisdictions only charge for the searching, not for the time spent on examining the
documents. Often, the fees for an initial period, such as the first hour are waived.
- Copying and postage. The most common fees are imposed for the cost of copying and postage of
the located records to be disclosed. Most acts provide that a certain number of pages are provided
for free and also allow for individuals to be able to view the records in person free of charge.
- Appeals. A few countries such as Ireland and Australia charge for requestors appealing against
decisions by bodies that withhold information or challenge the fees levied.
43. Fees are often controversial. They limit the ability of the less well off to demand information from
government bodies. In Ireland, following imposition of new fees on applications and appeals, the number
of requests declined by over 50 percent.23 In Japan, government bodies can divide a single request into
multiple ones, and thus raise fees beyond that of average requestors.
44. The fees can create unnecessary administrative barriers which reduce requests rather than acting as a
cost recovery mechanism. For example, electronic requests can be impeded unless there is an electronic
means of payment set up for each body.
22
Open Society Justice Initiative, Access to Information Monitoring Tool: report from a five-country pilot study.
September 2004. http://www.justiceinitiative.org/db/resource2/fs/?file_id=14972
23
Information Commissioner of Ireland, Review of the Operation of the Freedom of Information (Amendment) Act
2003, June 2004.
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45. Fees can also be used abusively. In Canada, provincial bodies often demand large fees when a request
is received before they provide the information as a challenge to the requestor. This makes it possible only
for those who have money to either pay the fees or legal assistance to challenge the often-inflated costs be
able to ensure their right of access.
46. Fees for making appeals undermine the effectiveness of the laws by placing barriers to external
oversight, thus allowing bad practices that would otherwise be corrected to continue.
47. Some government bodies have justified high fees by describing access to information as a service that
should be paid for by its users. However, this undervalues FOI as an inherent part of democracy and the
benefits listed above of an open government on government bodies and public trust.
Box 3. Fees for accessing information in Australia
A 1995 review conducted by the Australian Law Reform Commission noted that:
“The costs regime should not be inconsistent with the objects of the Act. It is counterproductive for the Act to
encourage involvement in government but effectively disqualify citizens from participating by imposing prohibitive
charges. The cost to agencies of administering the Act must be viewed in the context of the legislation's role in
furthering democratic accountability.
[A]ny examination of the issue [of cost] should go beyond short-term expediency and include consideration of the
crucial long-term issues concerning the nature of a true liberal democracy.
[T]oo much emphasis has been placed upon economic factors (such as cost recovery) at the expense of admittedly
unquantifiable social (and political) benefits derived from the right of access to documents conferred by the FOI Act.
When assessing the cost of providing information under the Act it is important to remember the benefits that flow from
the openness fostered by the Act, many of which are intangible and unquantifiable.
[$20 million is] a bargain for such an essential tool of public accountability. The law pays for itself in more professional,
ethical and careful behaviour on the part of public officials who must now conduct public business in the open.
A strict application of the user-pays principle would almost certainly guarantee that the Act would fail in its objectives.
Yet it can be argued that totally free access may place an unreasonable financial and administrative burden on
agencies. In the Review's view, applicants should make some contribution to the cost of providing government-held
information but that contribution should not be so high that it deters people from seeking information. The fees and
charges regime should reflect the fact that the FOI Act is primarily about improving government accountability and the
24
public's participation in decision making processes, not about generating revenue or ensuring cost recovery.”
48. Fee waivers. Many jurisdictions provide for the waiving of fees when it is in the public interest to
release the information. In the US, media and NGOs are generally exempt from fees. In many
jurisdictions, fees are also waived or reduced for those who show that they are on public assistance or
cannot otherwise afford it.
49. The best practice is to limit fees to actual costs for providing information, not for the time taken in
deciding on whether exemptions should apply, provide waivers for information of public interest, and not
charge for appeals. In practice, in most jurisdictions that do allow for fees, in the majority of requests, fees
are not imposed because the nominal costs in providing the information is less than the administrative cost
in collecting and processing the fee. A general principle adopted in all jurisdictions is that fees should not
be used as a profit-making device.
24
The Australian Law Reform Commission, Open government: a review of the federal Freedom of Information Act
1982 (ALRC 77), 1995. http://www.austlii.edu.au/au/other/alrc/publications/reports/77/ALRC77.html
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Just Say No: Exemptions from Access
50. All freedom of information laws recognize that there are circumstances in which information should
not be released because it would harm public or private interests. Generally, these exemptions are included
in the FOI law.
51. There are a number of common exemptions that are found in nearly all laws. These include the
protection of national security and international relations, personal privacy, commercial confidentiality,
law enforcement and public order, information received in confidence, and internal discussions.
Box 4. The Council of Europe’s Model Exemptions

In 2002, the Council of Europe (CoE) suggested the following exemptions:
- national security, defence and international relations;
- public safety;
- the prevention, investigation and prosecution of criminal activities;
- privacy and other legitimate private interests;
- commercial and other economic interests, be they private or public;
- the equality of parties concerning court proceedings;
- nature;
- inspection, control and supervision by public authorities;
- the economic, monetary and exchange rate policies of the state;
- the confidentiality of deliberations within or between public authorities during the internal preparation of
25
a matter.
Furthermore, the Council of Europe recommends the following principles should be applied to all exemptions
- Access should be the rule and confidentiality the exemption, in cases where other legitimate interests
take precedence
- Limitations should be set down precisely in law
- Exemptions should be necessary in a democratic society
- Exemptions should be proportionate to the aim of protecting other legitimate interests
52. Duration of exemptions. Exemptions should not be set for an indeterminate duration. Most laws
require that once the reason for exemption has passed, the information should be made available. Other
laws also impose fixed time limits. In Mexico, the Federal Transparency Act requires that the exemptions
can only be applied for twelve years.
53. Harm tests. Most FOI laws require that the government body must show that harm will occur before
the information can be withheld. The test for harm generally varies depending on the type of information
that is to be protected. National security, privacy, and international relations tend to get the highest level of
protection. In no laws is embarrassment to the government or an official an excuse to withhold
information.
25
Recommendation Rec(2002)2 of the Committee of Ministers to member states on access to official documents, 21
February 2002 and explanatory memorandum. http://www.coe.int/T/E/Human_rights/rec(2002)2_eng.pdf
14

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54. Public interest test. A number of countries including Japan, Ireland, the United Kingdom, and New
Zealand require that a public interest test is applied for at least some exemptions. This provides for
information to be released if the public benefit in disclosure of the information outweighs any harm that
may be caused by doing so. This is also a feature of the COE guidelines.
55. The test can be applied both at the administrative level when a body is reviewing information for
release. In Japan, the head of the administrative organ is given the power for a discretionary release “when
it is deemed that there is a particular public interest necessity.” It can also be applied at the appeals level
when an independent commission or court is reviewing the body’s decision. The Irish Information
Commissioner has developed extensive case law on the use of the public interest test in her decisions.
56. Partial disclosure. Often, documents contain both exempt and non-exempt information. Almost all FOI
laws provide for the excision of exempted information from documents or files and disclosure of the
remainder to the requestor. This prevents the unnecessary withholding of a document or entire file based
on the inclusion of a single bit of exempt information, which might not even be relevant to the request or
was placed there just to prevent access.
57. Factual information. Most FOI laws provide that while internal discussions of policies can be
exempted, the underlying factual information used in making the decisions cannot be. It is necessary to
consider how this can be put into practice in documents which include both exempted information such as
policy recommendations and factual information. The Irish government has recommended to bodies that
they should structure their internal documents to facilitate access, stating “Departments are advised that
…as a matter of course they should prepare their Memoranda and Aides Memoire for Government in a
structure which readily enables access to factual information underlying published decisions.”26
58. Other non-exempt information. Many FOI laws prohibit certain information from being withheld. This
includes evidence of a crime or information on human rights abuses. The Mexican Federal Transparency
and Access to Information Law provides that “Information may not be classified when the investigation of
grave violations of fundamental rights or crimes against humanity is at stake.” The UNECE treaty limits
the ability of bodies to claim commercial confidentiality as a reason for withholding environmental
information.
59. Interaction with other laws. As noted at the beginning of this paper, most countries have adopted
numerous laws that affect access to information. Some such as archive and environmental laws promote
access. Data protection and privacy laws both promote and limit access to personal information held by
public bodies. Others such as state secrets and commercial secrets act limit public access to certain
information. The best practice is for the FOI law to have precedence over these other laws and for bodies
to use the exemptions of the FOI law as the sole reason for the withholding of information. Otherwise, FOI
laws can be seriously undermined by hundreds of conflicting statutes, some long past their reason for
existence and clearly not relevant in the modern era of openness.
A Real Bother: Administrative Exemptions
60. In addition to exemptions based on substantive concerns, FOI laws commonly include provisions to
reject FOI requests based on administrative concerns. These include information that is available by other
means, will be published shortly, overbroad requests that would interfere with the operations of the body
and “vexatious” or repeated requests filed over and over again even though they have already been
processed and the information provided to the requestor.
26
FOI Central Policy Unit, Manual for FOI Decision Makers,
http://www.foi.gov.ie/foi.nsf/DecisionGuide?OpenFrameSet
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61. The best practice is to ensure a standard of reasonableness. There might be a good reason for the
“unreasonable” request. A broad request might be necessary for a scholar writing a book on a historical
figure where the information needed is only available in government records or a citizen wanting to know
about all of the environmental hazards of a local government installation. Repeated requests may be
necessary to keep an updated record of the body’s activities, such as for maintaining a database of their
current activities. Vexatious requests must be shown to have been submitted only to intend to disrupt the
normal working activities of the body, not just that it would annoy or embarrass the body to release the
information.27
62. The body should not use these administrative defences to unreasonably deny requests and should have
the burden of proof to show why they should be allowed to ignore them. If a request is too vague or broad,
most FOI laws require that the FOI official contact the requestor and discuss the request to see if it can be
clarified or narrowed down to something that satisfies both parties.
Big Brother is Watching: Appeals and Oversight
63. In all countries, the decisions of the public body are subject to some form of review. In most laws,
there is both an internal review and a final review by an independent external body. The courts are the final
remedy in nearly all systems.
64. Internal review. The first level of review in all but a few countries is an internal appeal. This typically
involves asking a more senior decision maker in the body or a higher level department to review the
withholding of information.
65. Internal review can be an inexpensive and quick way of reviewing decisions and releasing more
documents. However, the experience in some countries, such as Australia, is that the internal system tends
to uphold the denials and is used more by departments for delaying releases than enhancing access.28
66. External review. Nearly all countries have some form of external review which can be requested once
the internal appeals have been completed to ensure that the decision by the government body was not
flawed. Usually, under standard administrative procedure practice, internal appeals must be exhausted
before external review can be requested. Some laws, such as the US, also stipulate that a failure to respond
is to be considered a denial and allow the requestor to immediately bring their complaint to the external
review mechanism.
67. Ombudsmen. The most common form of external body to review decisions is an Ombudsman, typically
a constitutional officer or a representative of the Parliament. Ombudsmen generally do not have the power
to issue binding decisions on bodies but in most countries their decisions are considered to be quite
influential and typically are followed by the government body. Most Ombudsmen limit their activities to
handling specific cases and only infrequently take a more systematic view of the overall system.
68. Information Commissioners. Over a dozen countries have created an independent information
commission, which can be part of the Parliament, the Prime Ministers’ Office (such as in Italy) or an
independent body.29 In many jurisdictions, such as in Canada and France, the Commissioners are
27
See e.g. Irish Information Commissioner, Case Nos 020375, 020376, 020647, 020648, 020649, 020651, 020652 -
Mr X and RTÉ, 21 May 2003.
28
See Australian Law Reform Commission & the Administrative Review Council, Open Government, 24 January
1996.
29
These countries include Belgium, Canada, Estonia, France, Hungary, Ireland, Latvia, Mexico, Portugal, Slovenia,
Thailand, United Kingdom and on the regional level in Canada, Mexico, and Germany.
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essentially ombudsman and are only given the power to issue opinions. In Mexico, Ireland and the UK, the
Commissioner can issue binding decisions. In Hungary, the Commissioner can only make
recommendations on FOI cases but can order a change in the classification of state secrets.
69. A Commissioner can be tasked with many duties besides merely handling appeals. This includes
general oversight of the system, reviewing and proposing changes, training, and public awareness (see
Section 3 below for more details on activities).
70. The Commissioner can also have additional duties based on other laws. The national UK, Swiss,
Hungarian, and Canadian and German provincial models combine the FOI Commission with the national
data protection authority. In Ireland, the Information Commissioner is also the general Ombudsman.
71. Specialized tribunals. Some countries have adopted specialized bodies that hear appeals that are
intended to be quicker, less expensive and less formal than court. In Australia, the Administrative Appeals
Tribunal hears hundreds of appeals each year. In Japan, the external Information Disclosure Review Board
hears appeals of initial decisions by agencies. However, the agencies can delay referring cases to the
Review Board, which has led to extensive delays in many cases.
72. Courts. Almost all countries allow the requestor to appeal to the national courts. In some countries, the
court can only review a point of law once a tribunal or commission decides. In others, requestors can
appeal to the court instead of appealing to the ombudsman or information commission.
73. Courts have the advantage of being independent, are generally are given the power to obtain copies of
most records, and can make binding decisions. However, they also have significant negative aspects. The
cost of bringing court acts and delays in resolving the cases effectively prevents many users from enforcing
their rights. The courts are also often deferential to agencies, especially in matters of national security
related information, and may not develop the experience or expertise to know to challenge authorities more
energetically. They are also unable to carry out the systematic investigations into practices of one or more
agencies that Commissioners typically can undertake. Those systems which only allow for court appeals,
such as the US, where some requests languish for years or decades before completion, are considered less
effective.
74. In general, the jurisdictions that have created an outside monitor such as an ombudsman or information
commissioner appear to have more successful adoption of FOI laws. The best practice is to have an
internal review, followed by a review by the information commission and finally in some limited
circumstances, a review of that decision by a court.
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III. ACCESS TO INFORMATION IN PRACTICE – STRUCTURAL ISSUES
75. Implementation of the FOI law is at least as important as the primary legislation. Poor implementation
can hobble even the best designed act. Likewise, vigorous implementation can clarify and improve upon a
poorly written act. This section discusses the institutional and public management issues that can affect the
quality of the implementation of the act but may not be part of the primary FOI legislation.
Records Management - You Can’t Disclose What You Can’t Find
76. For freedom of information, and good government, to work, there must be a record keeping system in
place that allows for the easy collection, indexing, storage and disposal of information. There is an
important relationship between effective records management and effective freedom of information.
77. The Information Commission of Canada has been at the forefront of promoting good information
management practices for several years after recognizing the effect that poor information management by
government departments had on access to information. In his 1999-2000 annual report, the Commissioner
dedicated a section to “You Can’t Disclose What You Can’t Find” setting out the connection between
records management and FOI:
The whole scheme of the Access to Information Act depends on records being created, properly
indexed and filed, readily retrievable, appropriately archived and carefully assessed before destruction
to ensure that valuable information is not lost. If records about particular subjects are not created, or if
they cannot be readily located and produced, the right of access is meaningless. The right of access is
not all that is at risk. So, too, is our ability as a nation to preserve, celebrate and learn from our
history. So, too, is our governments’ ability to deliver good governance to the citizenry.30
78. A new problem that has emerged in the past ten years is how to handle electronic records.
Governments are still struggling with setting rules on the retention and organizing of electronic mail and
files. A further problem is how to ensure access to those records in the future. As software evolves and
changes, it will be necessary to develop common standards or keep old computer systems and software to
ensure that disks and files can be read in the future.
79. In Canada, following the efforts by the Information Commissioner, the Treasury Board announced a
new policy on Management of Government Information Holdings in May 2003, which is hoped will
substantially improve record keeping, especially of electronic records.31
Register of Documents
80. Many FOI laws provide for a register of all documents to be maintained by government bodies. This
register allows for easier identification and location of documents for many reasons. In Sweden, the public
registers are maintained by the Ministries and citizens are allowed to walk into any ministry, including the
30
Information Commission of Canada, Annual Report 1999-2000.
31
Policy on the Management of Government Information, May 1, 2003. http://www.tbs-
sct.gc.ca/pubs_pol/ciopubs/TB_GIH/mgih-grdg_e.asp
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Office of the Prime Minister, and scan through the register and request documents. There are currently
efforts to make the registers available online. In Norway, the Ministry of Defence automatically sends
reporters a list of new documents each day. In Australia, the FOIA requires that government bodies
produce a list of all new files created in the last six months.32
81. This register can also be combined with a system to make information automatically available. In
Mexico, starting in 2005, all documents created will be automatically numbered, indexed and archived. In
the EU, documents created by the Council are automatically archived and many are automatically put on
the online register for public access shortly after being created.
Box 5. The Finnish Register on Projects and Legal Preparatory Documents
33
As part of their openness efforts, the Finnish Government has created an electronic register of all public projects.
The register includes all public documents, including details of projects as soon as they are started, and their
relationship with the government programme and EU legislation. Once the project is complete, all documents are
transferred to the register. The register is used by government officials to monitor the activities of other departments
and by the public (see: http://www.hare.vn.fi).
The Spider in the Web: A Central Coordinating Body
82. A central body that coordinates FOI policy within government is an important resource for
implementing and maintenance of a high standard of operating FOI. A central body can ensure that the
efforts of agencies are coordinated, provide a central point of expertise, train staff, and facilitate sharing of
knowledge gained by bodies and developments in jurisprudence.
83. The body should have adequate resources and high level support but should also have some knowledge
of information management. In the United Kingdom, the Department of Constitutional Affairs (DCA)
currently runs a “Clearing House” to perform this function. In the Ireland, the Ministry of Finance operates
the FOI Central Policy Unit. In Canada, the Treasury Board Secretariat conducts this same function.
84. The central body should be able to fulfil a number of functions:
- Guidance. Public bodies will need advice ranging from the basic setting up of structures to advice
on how to apply exemptions. The body can create model regulations and codes of practices.34
- Training. All public bodies will need some training (see below for more details). Depending on
resources, it will be difficult for the central body to train all employees but it can at least train
decision-makers, key staff responsible for implementing the FOI law and those who will train the
rest.
- Oversight. The central body can review plans and monitor progress, gather statistical information
and issue reports on the operation of the Act. It can also be the focus point for answering
questions from Parliament, ministers or the public.
- Networks. The body can facilitate the creation of networks of experts across government bodies
that can then discuss and learn from each other’s experiences.
32
See e.g. Department of Prime Minister and Cabinet page http://www.pmc.gov.au/accountability/filelist/index.cfm
33
Katju Holkeri in OECD (2002) Public Sector Transparency and Accountability: Making it Happen, Paris: OECD.
34
See UK Department of Constitutional Affairs Guidance. http://www.dca.gov.uk/foi/guidance/index.htm
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85. A knowledgeable central body is still important after the initial implementation is completed. Central
guidance and oversight is necessary to ensure consistent and appropriate application of the law across
government. Networks need support or they will atrophy. If staff do not feel supported, they will lose
interest and the quality of service will decline. In Canada, the Treasury Board gives out “Access to
Information and Privacy (ATIP) Community Awards for Excellence” for “Excellence in Service and
Innovation” and “Dedication, Leadership and Community Spirit” to recognize and reward achievement in
FOI officers.35 In New Zealand and Australia, the central bodies conducting oversight and providing
assistance were eliminated or moved. Since then, there have been increased problems with access and
inadequate training.
The Lion Tamer: Role of Ombudsman/Information Commission
86. Typically, the Ombudsman or Information Commission plays an important support role to both
government bodies and to the public on the FOI act. The body typically has many roles: as a promoter of
good practice, an advocate for the citizen, and a mediator of disputes. Some typical functions include:
- Codes and Regulations. In some jurisdictions, the body is given the power either singly or jointly
to develop codes of practice and other regulations on the use of the act. In the UK, the
Information Commissioner must also approve the publication schemes used by public bodies to
affirmatively publish information and has developed model schemes for bodies to adopt.
- Recommended application of exemptions. The body can develop guidelines or codes on how it
believes each of the exemptions should be applied. This will give the agencies guidance on how
their decisions will be reviewed and encourage consistent application of the law across
government.
- Public Interface. The body usually plays an intermediary role between the public and the
government bodies. In Mexico, the Federal Institute for Access to Public Information (IFAI) has
set up an electronic system for requests on the Internet (SISI) for the Executive agencies.36 The
body can also conduct public seminars and trainings on the Act and produce brochures, guides
and other materials to educate the public on how to use the act.
- Reports on Implementation. The body can monitor either formally or informally the progress of
each government unit as it implements the act and provide advice on best practices. At an early
stage, informal advice is probably the most constructive. Once an act is in place, it can require the
production of status reports and statistics and conduct audits and investigations. In Canada, the
Information Commission began issuing “report cards” in 1999 on the performance of selected
federal departments that had substantial problems with delays. This has resulted in dramatic
improvements in the performance of some of the bodies.37
The Stick: Sanctions
87. Nearly all FOI laws include provisions for imposing sanctions on public authorities and employees in
cases where information is unlawfully withheld. Typically, the cases involve the body or the employee
unreasonably refusing to release information or altering or destroying documents. The sanctions can be
imposed against the body itself or administrative or criminal sanctions against specific employees.
35
See 2004 nomination criteria page: http://www.tbs-sct.gc.ca/gos-sog/atip-aiprp/in-ai/docs/Nomination-BD_e.htm
36
SISI. http://www.informacionpublica.gob.mx/
37
See http://www.infocom.gc.ca/publications/cards-e.asp
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88. Most laws provide for fines and even imprisonment for egregious violations. The Polish Law on
Access to Public Information states, “Whoever, in spite of his obligation does not provide access to public
information, shall be liable to a fine, restricted freedom or imprisonment for up to a year.”
89. Sanctions are a necessary part of every law to show the seriousness of failure to comply. However,
there is a general reluctance by government bodies to sanction their own employees for following their
general policies. Jail sentences are quite rare. In the past years, there have been only a few cases in the US
on the local level. However, the Attorney General’s Office in Texas, which has jurisdiction over the Public
Information Act, recently hired a full time prosecutor to bring sanctions against government officials and
bodies that fail to follow the requirements of the act.
90. Sanctions that compensate the requestor can also be imposed against bodies that refuse to release
information. In the US, the courts impose a form of sanction by awarding legal costs to requestors when it
is found that the documents should not have been withheld.
Training – Developing the Culture of Openness
“No one is born with a sense of openness. Openness is something that one learns and it must always
be recaptured, generation after generation.”
Hans Sundström, Swedish Agency for Public Management38
91. Proper training is essential to successful adoption of FOI. The countries that have most successfully
implemented their laws generally have adopted a comprehensive approach, ensuring that everyone in the
government has at least a basic understanding of the law and its necessity. Different levels of staff receive
training based on their needs, ranging from intensive and comprehensive to general awareness. As noted by
the Scottish Executive “FOI implementation should not come as a surprise to staff and managers in any
organization.”
Box 6. Scotland (UK): Three levels of FOI training
In Scotland, the Executive divided the training into three levels:

Strategic - Chief executives, Board members and elected representatives. The strategic level would be likely to require
basic knowledge about the FOI regime and more information about resource and presentational implications
(e.g. media issues). Senior level staff will more specifically need to consider the implications of, and for, organisation
policies and what a “FOI culture” will mean for them. They will need to consider their leadership role in implementing a
culture of openness.
FOI Practitioners - Decision makers, records managers, review officers, lawyers. The practitioner level will concentrate
on key skills and knowledge required for successful operation of the FOI regime and a particular public body’s FOI
policy.
General – All staff. The general level of training will cover awareness and some skills issues related to information
39
giving and customer service.
38
Sundström, H. (2003) ‘The Open Sweden Campaign’ in OECD (2003) Open Government: Fostering Dialogue with
Civil Society, Paris: OECD, p. 87.
39
FOI Implementation Group, Draft training strategy, SFOI(2002)1. Available at
https://www.scotland.gov.uk/about/FCSD/MCG-NW/00018022/GroupPapers.aspx
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92. An effective means adopted by many countries to train current and incoming employees is to include
FOI in civil service training systems. Some information can be included in standard civil service manuals.
It is also necessary to ensure that other interested parties such as judges receive training on the law and
how to best handle cases.
93. Training does not necessarily all have to be conducted by government officials. Professional
associations and private training bodies often offer specialized courses or seminars.40 Academic institutions
can include legal courses on the subject or as part of studies on administrative or constitutional law.
Finally, NGOs in many countries provide training as part of their advocacy work.
94. Once a law is in place, it is still important to continue training. New staff will need to be trained and
best practices and lessons learned from other departments should be shared.
Sharing the Experience: Knowledge Networks
95. Networks of FOI officials across government bodies are another effective tool to improve operation of
the Act. Networks can share best practices and lessons learned from other departments. Most importantly,
they can provide support so that individual FOI officials do not feel overwhelmed. The networks should
also bring in outside speakers to their meetings to give a requestor perspective, such as academics,
journalists and NGOs.
Box 7. Ireland: building networks for different target groups
A variety of networks can be created, as illustrated by the case of Ireland, where the government’s FOI Central Policy
Unit organized networks both for internal and external experts:
Civil Service Practitioners. Monthly meetings to promote best practice and compliance; share information on requests,
identify common approaches, and security and implement guidance.
Public Service Practitioners. Similar to above for those in public bodies outside the civil service.
Business Advisory Group. Develop awareness and understanding of FOI in business community; identify and address
issues; to produce short guide on FOI for business users. Participants included the Chamber of Commerce, and tourist
and exporters associations.
Citizens Advisory Group. Consider draft regulations; review findings of the Information Commissioner; review
strategies for targeting FOI at consumer level; consider government publication systems.
96. Unofficial networks are also useful. In the US, the American Society of Access Professionals is a
professional association of both government officials and users that provides training and forums to meet
and discuss issues.41
97. In smaller countries, networking is often more informal. However, developing common approaches to
problems may be more limited if there is no central body to mediate and liaise.
40
See e.g. Information Access and Protection of Privacy Certificate Program.
http://www.govsource.net/programs/iapp/index.nclk
41
Home page: http://www.accesspro.org/
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Watching the Watchers: Monitoring Usage and Annual Reports
98. Once the law has gone into effect, it is important to continue to monitor how it is used. Many laws
require that each government department monitor the use of FOI legislation including how many requests
are made, what exemptions are used and how many documents are released.42
99. The UK Department of Constitutional Affairs has noted a number of reasons for keeping detailed
records of requests and responses for internal management purposes:
First, since there has been monitoring of the operation of the Code of Practice on Access to
Government Information since it came into force in 1994, there is a legitimate public and political
expectation that Central Government at least will be able, in one form or another, to give an account
of how the FOI Act is operating. Second, authorities are going to need to record certain information
about how they have processed requests in order to deal with any subsequent appeals. Third,
authorities which deal with more than a few requests at a time are going to need some kind of system
to ensure this information is collected and recorded correctly in each case. Fourth, for internal
performance management purposes these systems should be capable of revealing where possible
problems exist within the authority when responding to requests. Fifth, where separate Government
departments receive similar requests and a co-ordinated response is needed (a ‘round robin’), a
method will be needed to easily identify these requests to ensure consistency of response.43
100. However, a centralized system should not also be seen as an opportunity to keep track of “sensitive
requests” such as is done in Canada to attempt to limit release of information that might show the body in
an unfavourable light.44 This approach is likely to be critically received by the public and external
oversight bodies. There are also privacy law considerations. In Japan, in June 2002, 29 employees of the
Defence Ministry were punished after they were found to be maintaining lists and collecting personal
information on those making information requests and providing that information to superior officers. In
Ireland, the Privacy Commissioner prohibited the publishing the personal information of individuals who
were making requests on a public web site by the Department of Communications.45
Public Education and Campaigns to Renew Interest
101. Freedom of information is useless if the public is unaware of their rights to demand information.
And without the demand, the government departments will expend less resources and knowledge will
atrophy. This requires that bodies affirmatively make the public aware of their right to ask for information
through outreach, publications, posters, announcements and prominent links on their websites. Civil
society groups and the media can also be important partners in promoting access.
102. This can be necessary even in countries with long histories of openness. In Sweden, the
government ran an “Open Sweden Campaign” in 2002 to increase public-sector transparency, raise the
42
See eg, Queensland Freedom of Information Act 1992, §108; US Department of Justice, Guidelines for Agency
Preparation and Submission of Annual FOIA Reports, Spring 1997,
http://www.usdoj.gov/oip/foia_updates/Vol_XVIII_3/page2.htm and Supplemental Guidance on Annual FOIA
Reports, 2001. http://www.usdoj.gov/oip/foiapost/2001foiapost13.htm
43
UK Department of Constitutional Affairs, Information Rights Division, Implementation of Freedom of
Information Act High Level Project Initiation Document, 6 January 2004. http://www.foi.gov.uk/foi-pid.pdf
44
See Roberts, Spin control and freedom of information: Lessons for the United Kingdom from Canada.
http://faculty.maxwell.syr.edu/asroberts/documents/journal/roberts_PA_Spin_2004.pdf
45
See Annual Report of the Irish Data Protection Commissioner, 2003
23

GOV/PGC/RD(2005)1
level of public knowledge and awareness of information disclosure policies, and encourage active citizen
involvement and debate. The government said that even with the longstanding existence of freedom of
information in the countries, that there were problems with both the application of the act and public
knowledge of their rights.46
46
See Hans Sundstrom, The Open Sweden Campaign, in OECD, Open Government: Fostering Dialog with Civil
Society (2003).
24

GOV/PGC/RD(2005)1
IV. PROMOTING ACCESS TO INFORMATION
Affirmative Publication
103. A common feature in most FOI laws is the duty of government agencies to actively release certain
categories of information. This includes details of government structures and key officials, texts of laws
and regulations, current proposals and policies, forms and decisions.
104. The active provision of information is also beneficial to the public bodies. It can reduce the
administrative burden of answering routine requests. This affirmative publication can directly improve the
efficiency of the bodies. The Council of the EU noted in its most recent annual report that as, “the number
of documents directly accessible to the public increases, the number of documents requested decreases.”47
The US Justice Department reported in their 2002 review of agencies that many had substantially reduced
the number of requests by putting documents of public interest on their web sites.48
105. Newer FOI laws tend to proscribe a listing of certain categories of information. Under the Polish
Law on Access to Public Information, public bodies are required to publish detailed information about
their policies, legal organization, principles of operation, contents of administrative acts and decisions, and
public assets in a Public Information Bulletin on their web sites.
106. Other countries, such as the UK, require that bodies adopt a publication scheme. The Information
Commissioner has developed model schemes for different types of bodies, usually in conjunction with the
representative association and has the power to approve and reject schemes.49 This allows for greater
consistency of schemes and also saves resources by giving bodies, especially smaller ones, the ability to
adopt adequate schemes without having to develop the schemes themselves.
Electronic Access
107. Electronic networks can be an efficient method of providing information. It can allow for quick
and inexpensive access at all hours to records without the need for officials to actively respond to requests.
Large documents can be provided without expensive copying fees.
108. Many FOI laws require that government bodies create web sites and publish the information on the
sites along with the physical copies. In Poland, the Public Information Bulletin is the primary method of
accessing government information. The Council of the European Union automatically makes available
47
See Annual report of the Council on the implementation of Regulation (EC) No 1049/2001 of the European
Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and
Commission documents, 7 March 2003.
48
US Department of Justice, Summary of Annual FOIA Reports for Fiscal Year 2002.
http://www.usdoj.gov/oip/foiapost/2003foiapost31.htm
49
See http://www.informationcommissioner.gov.uk/eventual.aspx?id=3788
25

GOV/PGC/RD(2005)1
most of the documents it creates, including any document released under its access regulations, in its
electronic register.50
Box 8. Recommended categories of information for proactive provision
Structural information. Information on the structure of the organization, its primary functions, a listing of its employees,
51
annual reports, audits, services offered, and other related information.
Budget Documents. Detailed information on projected expenditures and expenses. The IMF notes that “fiscal
52
transparency is of considerable importance to achieving macroeconomic stability and high-quality growth.
Tenders and contracts. Many countries, as part of their electronic government efforts, are moving to make more
information about their financial decisions available. This can be an effective anti-corruption measure. In Mexico, the
Federal Transparency and Access to Public Government Information Law requires that each public body must make
available for each contract “the public works, goods acquired or rented, and the contracted service; in the case of
studies or research the specific subject must be indicated; the amount; the name of the provider, contractor or the
physical or moral person to whom the contract has been granted; the periods within which the contracts must be
completed.”
FOI procedural information. Most laws require that information detailing the procedures for making requests, lodging
appeals and contract information for the FOI officer must be made widely available to facilitate peoples’ rights. Some
jurisdictions now make available request and disclosure logs so that potential requestors can see what has already
been requested and released.
Record systems. This includes information describing the types of records systems and their contents and uses. In
countries such as Sweden which have document registers, this includes providing facilities for the public to search and
review documents. This can also include statistical information on the use of the FOI or documents already released.
Internal law. A common requirement is that bodies make available the internal rules, regulations, manuals and other
information on how they make decisions. In Australia, a number of states reported that a positive benefit of the process
of making these public was that it forced the departments to update, revise and clarify them which made them more
useful to the departments. This also promotes consistent decision-making.
Reports. Many laws require that all reports are made public unless there are particular reasons for exemption. In some
jurisdictions, this process of publishing allowed the bodies to better review its activities and reduce redundant efforts.
Commonly requested documents. Across jurisdictions, there are many types of documents that are frequently the
subject of FOI requests. These include travel expenses, salaries and other expenses for public officials. In Wales, the
53
Assembly provides the minutes and agendas of meetings. Making these affirmatively available reduces the need to
process requests later.
109. Many other laws also require that government departments affirmatively publish information.
These include acts on public administration, consumer protection, environment, court practices and
statistics. Pollution registers in many countries allow citizens to easily locate online the potential threats to
50
http://register.consilium.eu.int/
51
See e.g. Canadian InfoSource. http://www.infosource.gc.ca/fed/fedtb_e.asp. New Zealand Directory of Official
Information. http://www.justice.govt.nz/pubs/reports/2003/DOI-03-05/
52
See IMF, Manual on Fiscal Transparency. http://www.imf.org/external/np/fad/trans/index.htm
53
See National Assembly for Wales. http://www.wales.gov.uk/keypub/index.htm
26

GOV/PGC/RD(2005)1
their health from local industries. The New York City Department of Heath makes summaries of all its
restaurant inspections online.54 The Consumer Product Safety Commission has a list of toy recalls.55
110. Electronic access can also be used to enhance citizen participation. In Finland, the
www.otakantaa.fi project initiated by the Ministry of the Finance has civil servants conducting
conversations about issues in early states of preparation in the central government. Once a discussion is
completed, a summary of it is kept with the proposal as it is acted upon. The US government site
http://www.regulation.gov/ makes it easy for citizens and interested parties to identify federal regulations
to submit public comments.
111. However, it should be recognized that there are continued barriers which prevent the entire
population of many countries from being able to use these resources. The digital divide is a significant
problem in many countries. Furthermore, a high proportion of those who are connected live in the large
cities and people in small towns and rural areas are less likely to have access. Another large hurdle is the
level of education or willingness of individuals to use electronic services, especially those from older
generations. Polling results from many countries around the world have found significant numbers of
people who are unwilling to go online to use the services, even if offered training. Some of this is due to
privacy and security concerns.56
112. Thus, it is also necessary to ensure that the information is provided in such a way that it is easy to
find and use. Care should be taken to ensure that files are not too large to preclude users using telephone-
based systems for Internet access from viewing them, and that formats are commonly understandable.57
113. It should still also be possible for individuals to have access to the same information in physical
form. Most laws provide for the ability to view the documents in the offices of the body. In the US,
government departments have “reading rooms” where individuals can arrange to view standard
information and already released documents.
54
See http://www.nyc.gov/html/doh/html/rii/index.html. A partial list of other cities is available at Restaurant
News.com <http://www.restaurantnews.com/inspections.html>
55
http://www.cpsc.gov/cpscpub/prerel/category/toy.html. See also the Consumer Federation of America’s SafeChild
site for a more advanced search. http://www.safechild.net/toyrecalldatabase/index.cfm
56
See Hart/Teeter, Study #6943c CEG e-Government Survey—International, March 2003.
http://www.excelgov.org/usermedia/images/uploads/PDFs/03_egov_topline_-_inter.pdf
57
See US Department of Health and Human Services, Research-based Wed Design and Usability Guidelines.
http://usability.gov/pdfs/guidelines.html
27

GOV/PGC/RD(2005)1
V. CONCLUSION
114. Transparent government is beneficial to both the public and to government bodies. It improves
decision-making and recordkeeping and reduces corruption. It is an essential part of democracy and
electronic government and improves public trust in decisions. These reasons have led to an overwhelming
acceptance of its necessity by OECD member countries and many others around the world.
115. Most OECD countries have only relatively recently adopted legislation and are still in the process
of developing a culture of openness. FOI is an ongoing process that requires continual effort to make it
work effectively. Adequate resources and commitment must be expended.
116. It is also a long term process. Governments with old and new legislation must regularly examine
their laws and practices to ensure that access is effective and conducted in the most efficient manner based
on societal demands, and new government practices and technological developments.
28

GOV/PGC/RD(2005)1
APPENDIX 1 - OECD COUNTRIES WITH FOI LEGISLATION
Country Name of Law Year First Adopted

(current)
Australia Freedom of Information Act 1982
Austria Federal Law on the Duty to Furnish Information 1987
Belgium Law on the Publicity of Administration 1994
Canada Access to Information Act 1983
Czech Republic Law on Free Access to Information 1999
Denmark Access to Public Administration Files Act 1970 (1985)
Finland Act on the Openness of Government Activities 1951 (1999)
France Law on Access to Administrative Documents 1978
Greece Code of Administrative Procedure 1986 (1999)
Hungary Act No. LXIII on the Protection of Personal Data and Disclosure 1992
of Data of Public Interest
Iceland Information Act 1996
Ireland Freedom of Information Act 1997
Italy Chapter V of Law No. 241 1990
Japan Law Concerning Access to Information Held by Administrative 1999
Organs
South Korea Act on Disclosure of Information by Public Agencies 1996
Mexico Federal Transparency and Access to Public Government 2002
Information Law
Netherlands Government Information (Public Access) Act 1978 (1991)
New Zealand Official Informational Act 1982
Norway Freedom of Information Act 1970
Poland Law on Access to Public Information 2001
Portugal Law of Access to Administrative Documents 1993
Slovakia Act on Free Access to Information 2001
Spain Law on Rules for Public Administration 1992
Sweden Freedom of the Press Act 1766 (1976)
Switzerland Federal Law on the Principle of Administrative Transparency 2004
Turkey Right to Information Law 2003
United Kingdom Freedom of Information Act 2000
United States Freedom of Information Act 1966
For a detailed overview of each country, see Freedom of Information Around the World.
http://www.freedominfo.org/survey.htm
29

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Organisation de Coopération et de Développement Economiques

EFFECTIVE OPEN GOVERNMENT: IMPROVING PUBLIC ACCESS TO GOVERNMENT

31st Session of the Public Governance Committee

Document complet disponible sur OLIS dans son format d'origine

EFFECTIVE OPEN GOVERNMENT

Freedom of Information in OECD Member Countries

Box 1. The History of Freedom of Information in OECD Countries

The Need for Periodic Reviews

Electronic copy available at: https://ssrn.com/abstract=2069870

Benefits of Freedom of Information

Electronic copy available at: https://ssrn.com/abstract=2069870

Electronic copy available at: https://ssrn.com/abstract=2069870

Box 2. Evaluating the Benefits of Freedom of Information in Ireland

Developing a Culture of Openness

Electronic copy available at: https://ssrn.com/abstract=2069870

II. LAWS ON ACCESS TO INFORMATION

Basic Elements of Freedom of Information Laws

Defining Public Bodies

Electronic copy available at: https://ssrn.com/abstract=2069870

24. Non-governmental bodies. Modern government is often provided by an amalgamation of national

27. International Organizations. International governmental organizations are increasingly playing an

Electronic copy available at: https://ssrn.com/abstract=2069870

What is being asked for? Documents and Access

To Form or Not to Form: Procedures for Requests

Electronic copy available at: https://ssrn.com/abstract=2069870

Tick-Tock: Response Times

Electronic copy available at: https://ssrn.com/abstract=2069870

Money, Money, Money: Fees

Electronic copy available at: https://ssrn.com/abstract=2069870

Box 3. Fees for accessing information in Australia

Electronic copy available at: https://ssrn.com/abstract=2069870

Just Say No: Exemptions from Access

Box 4. The Council of Europe’s Model Exemptions

Electronic copy available at: https://ssrn.com/abstract=2069870

A Real Bother: Administrative Exemptions

Electronic copy available at: https://ssrn.com/abstract=2069870

Big Brother is Watching: Appeals and Oversight

Electronic copy available at: https://ssrn.com/abstract=2069870

Electronic copy available at: https://ssrn.com/abstract=2069870

III. ACCESS TO INFORMATION IN PRACTICE – STRUCTURAL ISSUES

Records Management - You Can’t Disclose What You Can’t Find

Electronic copy available at: https://ssrn.com/abstract=2069870

Box 5. The Finnish Register on Projects and Legal Preparatory Documents

The Spider in the Web: A Central Coordinating Body

84. The central body should be able to fulfil a number of functions:

Electronic copy available at: https://ssrn.com/abstract=2069870

The Lion Tamer: Role of Ombudsman/Information Commission

The Stick: Sanctions

Electronic copy available at: https://ssrn.com/abstract=2069870

Training – Developing the Culture of Openness

Hans Sundström, Swedish Agency for Public Management38

Box 6. Scotland (UK): Three levels of FOI training

In Scotland, the Executive divided the training into three levels:

Electronic copy available at: https://ssrn.com/abstract=2069870

Sharing the Experience: Knowledge Networks

Box 7. Ireland: building networks for different target groups

Electronic copy available at: https://ssrn.com/abstract=2069870

Watching the Watchers: Monitoring Usage and Annual Reports

Public Education and Campaigns to Renew Interest

Electronic copy available at: https://ssrn.com/abstract=2069870

Electronic copy available at: https://ssrn.com/abstract=2069870