Freedom of expression and transparency: two sides of one coin
Freedom of information essentially entails the right to know. The legislation concerning freedom of information contains rules which guarantee access to documents, mainly in relation to documents from governmental institutions. A request can be made for government-held data, to be received freely or at a minimal cost, and this process is subject to restrictions that differ from country to country.
In a modern democracy, access to public information is essential for citizens to be properly informed. The majority of public information is in the hands of the state, formed, collected and processed using public resources, which makes it a public possession.
However, freedom of information does not mean the brute access to information alone, such as documents or records in whatever form. When making a claim for transparency, these claims have to be couched in the right to know, as a democratic right. Certain difficulties arise here, since it must be defined what democracy accepts as justifiable and unjustifiable claims.71 Access to documents will be denied when compelling public or private interests are at stake.
Many national authorities have also implemented a right of access to documents, which are held by the government. On an international level, little legislation or articles guarantee this freedom expressly. In general, most treaties have implemented this right of access in their articles which hold freedom of expression, or they have dealt with this right under their articles on privacy. Article 19 of the Universal Declaration, article 19 of the International Covenant75 and article 13 of the American Convention76 all deal with the right to „seek and impart information and ideas as an integral aspect of the right to freedom of expression. Article 9 of the African Charter77 is one of the few treaties that expressly protect the right of every individual to receive information.
Nowadays, there are still different approaches towards this issue. Often, the Courts balance both rights: the interest of the public right to know is being weighed against the interests of the individual in maintaining his privacy. The drawbacks are obvious: the test is vague and the results are unpredictable. In a different approach, both freedoms are being considered as being on one line. Privacy and freedom of information do not necessarily have to constitute opposites; they can also complement each other. Individuals have the right to know so they can form opinions and ideas, especially when the information held back contains data about their own personal life,
In our modern society, an important limitation on the right to know is the cost of implementing this freedom. Imposing a duty on the government or any other authority to provide information it did not want to disclose would increase the risk of leaks and unreasonable use of information. For instance, in Canada, Canadian security services reported a lack of morale because of the publicity given to its operations, reducing their efficiency enormously. On top of that, there is also a great financial cost.
Freedom of expression has an imminent role in the fight against corruption in several countries all over the world. Multiple journals and internet sites promote the freedom of expression, internationally as well as nationally, and several organizations campaign for their rights to freedom of expression.
The World Bank has set out its guidelines in 2006, the „World Bank Governance and Anti-corruption Strategy. Therein it explores the need to expand the supply and demand sides of governance by further strengthening transparency and accountability mechanisms. In this respect, they support the access to information laws and highlighted the media as its centerpiece.
The NGO Transparency International is also worth mentioning, fighting for more transparency on a global level. Just like the World Bank International, it too believes in the mechanism of freedom of information to reduce poverty. The NGO believes that implementing an open information environment is necessary for building skills among journalists and other stakeholders to foster effective coverage of transparency and governance issues. By thusly positioning these issues on the public agenda, poverty can be reduced.
Most countries have implemented a Freedom of Information Act and as already mentioned before, there are only few countries which do not possess a full access-to-government-held-information law. In this section, Sweden, Germany, the US and the UK will be discussed.
The expression „freedom of information is considered rather imprecise and uninstructive. The expression, in general, conveys that there is a right of access to information, notably government information and that this is freely available rather than closely restricted. This understanding derives not from the common law, but from the impact of the United States Freedom of Information Act 196694 and similar statutes in other jurisdictions. Freedom of information legislation imposes an enforceable right to access to information.
Outside the common law world, freedom of information took root much earlier than the mid 1960s.
By the end of the 20th Century, the society showed a new appreciation of the importance of freedom of information, especially in the context of our modern liberal democratic government.
The right of access to information is now well established in international, European and national law and practice. Although in the past, freedom of information was not as established a right as freedom of expression, it has developed significantly throughout the years.
Freedom of information, similar to freedom of expression, has been recognized as an intrinsic right to a genuine democracy. It provides openness, transparency and accountability. Access to information also ensures that every citizen is able to participate politically, in a properly-informed way. These are considered today as essential qualities of a good representative government.
It is now clear that both freedom of expression and freedom of information are necessary values of a democratic society. Both concepts have been implemented in national laws as well as in international laws. International and European lawyers, rather than common lawyers – who tend to see freedom of information as a separate freedom in the context of information – have been perceptive to the close connection between both concepts. As discussed above, most freedom of expression provisions also include aspects of freedom of information (the right to receive, seek and impart information).
Those provisions are also fundamental to the proper functioning of today’s democratic society. They are essential foundations and basic conditions for the progress of the democracy and each individual’s self-fulfilment.154 A good example is the freedom of the press in contemporary society. The press guarantees both freedom of expression and freedom of information at the same time, which serves the purpose of a democratic control of institutions. Readers of newspapers and magazines receive information, even if they did not search for any information in particular. People with information or ideas have the right to publish that information, so the information or ideas can be imparted. This should happen regardless of frontiers. It is not up to the authorities to intervene and prevent any information or ideas to be published and imparted.
The interconnection between both freedoms became more apparent when the rationale behind freedom of information was formulated. The rationale had to support the imposition on the government of a strong statutory obligation to make information available. Three reasons were advanced, which closely corresponded to the elements in the rationale for freedom of expression. „First, everyone has a right to know what information is held in government records about him personally.? Secondly, government must be open to public scrutiny so as to be accountable and exposed to the judgement and evaluation of the citizens. Thirdly, the provision of adequate information will lead to a higher level of public participation in the processes of policy-making and government. The relation with freedom of expression is apparent. Both freedoms are indispensable in the efficacious functioning of our modern representative government. Effective political participation and representation of the public depends heavily on the provision of adequate information about the government and its decision-making process. It also depends upon the ability to criticize or praise the working of the government, or the right to communicate.
Freedom of expression and freedom of information are complementary. The right to know fits readily into the whole system of freedom of expression. Not everyone agrees on the extent in which freedom of expression would cover freedom of information. Both freedoms can be seen as so closely intertwined that one (freedom of information) is part or counterpart of the other (freedom of expression).