RECOMMENDATION No. R (81) 19
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON THE ACCESS TO INFORMATION HELD BY PUBLIC AUTHORITIES1
(Adopted by the Committee of Ministers on 25 November 1981
at the 340th meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity between its members;
Having regard to Assembly Recommendation 854 on access by the public to government records and freedom of information;
Considering the importance for the public in a democratic society of adequate information on public issues;
Considering that access to information by the public is likely to strengthen confidence of the public in the administration;
Considering therefore that the utmost endeavour should be made
to ensure the fullest possible availability to the public of
information held by public authorities,
Recommends the governments of member states to be guided in
their law and practice by the principles appended to this
recommendation.
Appendix to Recommendation No. R (81) 19
The following principles apply to natural and legal persons. In
the implementation of these principles regard shall duly be had to the
requirements of good and efficient administration. Where such
requirements make it necessary to modify or exclude one or more of
these principles, either in particular cases or in specific areas of
public administration, every endeavour should nevertheless be made to
achieve the highest possible degree of access to information.
I
Everyone within the jurisdiction of a member state shall have
the right to obtain, on request, information held by the public
authorities other than legislative bodies and judicial authorities.
II
Effective and appropriate means shall be provided to ensure access to information.
III
Access to information shall not be refused on the ground that the requesting person has not a specific interest in the matter.
IV
Access to information shall be provided on the basis of equality.
V
The foregoing principles shall apply subject only to such
limitations and restrictions as are necessary in a democratic society
for the protection of legitimate public interests (such as national
security, public safety, public order, the economic well-being of the
country, the prevention of crime, or for preventing the disclosure of
information received in confidence), and for the protection of privacy
and other legitimate private interests, having, however, due regard to
the specific interest of an individual in information held by the
public authorities which concerns him personally.
VI
Any request for information shall be decided upon within a reasonable time.
VII
A public authority refusing access to information shall give the
reasons on which the refusal is based, according to law or practice.
VIII
Any refusal of information shall be subject to review on request.
EXPLANATORY REPORT
Introduction
1. It is generally recognised that a democratic system can best
function effectively when the public is fully informed. Moreover,
because of social and technological developments, modern life has
become so complex that public authorities often possess large
quantities of records and information of general interest and
importance. To ensure adequate participation of all in public life, it
is necessary that the public should, subject to unavoidable exceptions
and limitations, have access to information held by public authorities
at all levels.
2. The everyday life of the individual is profoundly affected
by the activities of public authorities. In order to protect the rights
of the individual it is most important that he should be aware of the
information held by public authorities - in particular information
concerning himself or his interests - and that access to information
should be on the basis of equality.
3. It should be mentioned that access to information by the
public is also in the interest of the public authorities themselves,
because it can help to establish a closer relationship between the
administration and the individual, and is thus likely to strengthen the
confidence of the public in the administration.
4. Having regard to the importance of these general
considerations, a colloquy was held on "freedom of information and the
duty for the public authorities to make available information". This
colloquy was organised by the Council of Europe in Graz, from 21-23
September 1976, in collaboration with the Faculty of Law of the
University of Graz. The conclusions of this colloquy were considered by
the Steering Committee for Human Rights at its 3rd meeting (8-12 May
1978) and it was decided to set up a committee of experts to study the
suggestions put forward at the colloquy. That committee proposed to
undertake the drafting of a recommendation to member states on the
matter. Before a decision was taken on that proposal, the Parliamentary
Assembly of the Council of Europe adopted, on 1 February 1979,
Recommendation 854 (1979) on access by the public to government records
and freedom of information, recommending that the Committee of
Ministers should:
"invite member states which have not yet done so to introduce a
system of freedom of information, ie access to government files,
comprising the right to seek and receive information from government
agencies and departments, the right to inspect and correct personal
files, the right to privacy, and the right to rapid action before the
courts in these matters;".
5. Recommendation 854 (1979) was forwarded by the Committee of
Ministers to the Steering Committee for Human Rights for consideration
in May 1979.
6. By Decision No. CDDH/9/161179 of 16 November 1979, the
Steering Committee for Human Rights instructed the Committee of Experts
on public authorities and access to information "to continue its study
of the question of access to government files, including the rights to
seek and receive information from government agencies and departments
and taking into account the right to privacy and the right to rapid
action before the courts in these matters, with a view to drafting an
appropriate recommendation to governments of member states".
The Committee of Experts on public authorities and access to
information was instructed not to deal with the question of "the right
to inspect and correct personal files" as mentioned in paragraph. 13
(a) of Recommendation 854 (1979) of the Parliamentary Assembly of the
Council of Europe. It was the opinion of the Steering Committee that
this right raised important problems concerning the protection of the
individual against the acts of the administration and should be dealt
with separately.
7. A draft recommendation on access to information held by
public authorities was prepared by the Committee of Experts on public
authorities and access to information in the course of two meetings
held in 1980 and examined by the Steering Committee for Human Rights at
its 9th meeting (4-8 May 1981). The text was submitted to the Committee
of Ministers and adopted on 25 November 1981 [at the 340th meeting of
the Ministers' Deputies].
General considerations
8. The committee of experts has drawn up a recommendation
containing, in an Appendix, eight general principles on access to
information held by public authorities by which the governments of
member states are recommended to be guided in their law and practice.
The term "principles" has been used in order to leave member states as
much freedom as possible in choosing the means for ensuring that
administrations will conform in substance with the principles set out
in the Appendix to the recommendation.
These principles should be understood as indicating a general
standard and not as preventing a member state from recognising
additional or more extensive rights and safeguards for the provision of
access to information or from extending the scope of their application.
Likewise, nothing in the recommendation should be interpreted as
implying the limitations of any rights or safeguards in relation to
provisions on access to information which may already be recognised by
a member state.
9. An introductory note to the principles makes it clear that
they are applicable to both natural and legal persons, since both
categories have a similar interest in having access to information.
10. Furthermore, the introductory note contains a general
provision which applies to all of the principles. It aims to ensure
that the principles are implemented in a way which is compatible with
the requirements of good and efficient administration. In order to
render the application of the principles more flexible, a clause has
been inserted allowing for the possibility of modification or
non-application of certain principles in particular cases or in
specific areas of public administration whilst emphasising the
desirability nevertheless of achieving the highest possible degree of
access to information.
Comments on the Appendix
Principle I
11. Principle I sets out the main object of the recommendation
ie the right to obtain information, even where the interested person is
not a party in an administrative procedure. The protection of the
citizen in such a procedure is the object of Resolution (77) 31 on the
protection of the individual in relation to the acts of the
administration, adopted by the Committee of Ministers of the Council of
Europe on 28 September 1977. This general principle applies to persons.
having a direct relationship with the public authorities, as indicated
by the concept of jurisdiction.
12. The term "public authority" is understood to cover all
administrative authorities at whatever level. The scope of application
of the recommendation will not extend however to legislative bodies and
judicial authorities.
Principle II
13. There can be different systems for ensuring access to
information. These systems depend on the structure and practice of each
administration. Principle II, therefore, does not intend to recommend
any particular system for providing access to information. The
important point is that appropriate and effective means shall be
provided for obtaining the information required.
14. Accordingly, the choice between existing possibilities for
making information available is left to each member state. It is a
matter of decision whether the means adopted should be a law, a formal
code of practice, special rules, or some other means.
15. The means of obtaining information may include the
inspection of records, the provision of written or oral answers or the
supply of copies. No preference need be given to any particular means
but it should be appropriate and effective, having regard to the given
circumstances and the nature of the information.
Principle III
16. The right of access to information is aimed at helping the
public to be fully informed about the issues of public life. For this
purpose the supply of information should not depend on the
establishment of a specific interest in the information.
Principle IV
17. This principle is essentially a non-discrimination clause.
It is intended to ensure that, subject to the provisions of Principle
V, information will be given on the same basis and to the same extent
to everyone who seeks it.