AUSTRIA

Article 20 of the Austrian Constitution establishes a general right of access to information, the institutions vested with the administrative powers being under the obligation to disclose information falling within their area of competence. The only limitation is the legal obligation of functionaries to maintain secrecy to protect specific interests. A difference is made however between a breach of confidentiality and the disclosure of an official secret (criminal offence under the Criminal Code). The Constitution delegates the specific regulation of these rights to the Bund and the Land, according to their competences. The Auskunftspflichtgesetz obliges federal authorities to answer questions regarding their areas of responsibility. However, it does not permit citizens to access documents, just to receive answers form the Government on the content of information. The nine Austrian Provinces have laws that place similar obligations on their authorities. An applicant that is denied access to information can appeal to the Administrative Court.

BELGIUM

Article 32 of the Belgian Constitution declares a general right of access to administrative documents, unless otherwise stated in a law, either federal or regional. A proposal has been made to modify this Article in order to reinforce the principle of openness in the decision-making process.

Loi No. 94-1724 (11.04.1994) relative à la Publicité de l’Administration regulates access to official documents at a federal level. It provides for a general right of access to public documents to all, citizen and not citizen alike, irrespective of a direct interest in the subject. There are three kinds of exceptions. Under the first kind of exception, the authority rejects a request for access if one of the protected interests prevails over the interest of openness (e.g. public security, international relations, etc.). Under the second kind, the authority rejects a request for access if the disclosure of information might harm specific interests (private life, secrecy established by law and secrecy of the government’s deliberations). Under the third kind, the authority may refuse to grant access if, for example, the request concerns incomplete documents or if the request itself is manifestly abusive of the system.

There is an Access Commission on Administrative Documents that assists applicants under the Act to report on its operation. Denial of access triggers the appeal procedures.

With regard to the regions and the communities, Decreet Betreffende de Openbaarheid van Bestuur of 18 May 1999 regulates access to public documents. According to this Decree, the public administration is obliged to allow access to public documents and to explain their meaning to citizens if necessary. The authorities may refuse to grant access to documents if the request conflicts with certain government interests: financial and commercial interests of the state; public order and security; international relations of the regional governments, the communities, or the federal government; industrial and commercial secrecy. The authorities may also deny access to documents relating to criminal proceedings, or if they contain information about the private life of third persons or have a confidential content. Access to preparatory documents can also be denied until the respective authority takes a decision. Access can also be denied if the documents are incomplete or if the request is manifestly abusive of the system.

Each jurisdiction has a Commission d’accèss aux documents administratifs that oversees the act.

DENMARK

Act No. 572 of 19.12.1985 on Access to Public Administration Files, modified by Amendments Nos. 347/91 and 504/93 provides for general access to public documents. This right of access is not applicable to the authority’s internal "case material" (e.g. documents prepared for its own use, correspondence between units within the same public body, etc.) unless they are available in a final form (e.g. when they contain the final resolution on its decision, or when they contain general guidelines for consideration, etc.). The right of access does not apply to other categories of documents (e.g. records of government meetings, interministerial correspondence relating to the making of laws, etc.). However, in both cases, the authority may disclose the documents where factual information is of material importance. The right of access shall not apply to information concerning private circumstances of individuals or to information of a technical and business nature which is of material importance to the economic interests of the person or enterprise. It does not apply to matters relating to criminal justice either. On the other hand, the right of access may be subject to limitations where protection is essential with regard to certain interests such as state security or financial public interest. In such cases, the authority may restrict access to the extent necessary to avoid the risk of substantial harm to the protected interest.

There is currently an effort to adapt the act with a new law based on EU Directive 95/46.

FINLAND

Section 12 of Chapter 2 of the Finnish Constitution deals with the right to information, declaring a general right of access to documents and records in the possession of the authorities, unless their public release has been specifically restricted by an Act.

The Act on Openness of Government Activities (which entered into force on 1 January 2000) declares a general right of access to official documents in the public domain. Official documents are those in the possession of an authority, including documents delivered to an authority and those prepared by an authority (although some documents of minor importance relating to internal activities of an authority are excluded from the scope of application of the Act). The general principle is one of openness, and official documents are therefore considered to be in the public domain unless specifically stated to the contrary. Official documents can only be kept secret if specifically stipulated in an Act, the main provisions on secrecy being contained in the Act of Openness of Government Activities itself. The secrecy is due to the protection of public or private interests, so the authority can, in most cases, permit access to the documents if the interest in question will not be harmed by the disclosure of the information in the document. The interests protected are: international relations; crime prevention and prosecution; security arrangements and preparations for emergencies; state security and defence; income, financial, monetary and currency policy; the credibility and functioning of financial and capital markets; protection of endangered species; efficiency of the authorities in carrying out inspection and supervisory tasks; protection of confidentiality of information; public economic interests; private economic interests; the interests of research and development and of education; the security of asylum seekers, protection of privacy. Furthermore, since the right of access to documents is a basic right, the authorities shall promote this right, being obliged to inform the public of their activities, providing them with information describing those activities, and making these documents easily accessible for citizens.

FRANCE

Loi No 2000-321 du 12 avril 2000 relative aux droits des citoyens dans leur relations avec les administrations This law modifies the Loi No. 78-753 du 17 juillet 1978 portant diverses mesures d’amélioration des relations entre l’administration et le public et diverses dispositions d’ordre administratif, social et fiscal (modified in 1979 by Loi No. 79-583 du 11 janvier 1979 relative à la motivation des actes administratifs et à l’a mélioration des relations entre l’administration et le public). and Loi No. 78-17 du 6 janvier 1978 relative à l’informatique, aux fichiers et aux libertés, and it articulates these laws in a more coherent way. Moreover, a law from 1979 regulates the consultation of archives (Loi No. 79-18 du 3 janvier 1979 sur les archives).

Loi No 2000-321 provides for the right of every person to information with regards legislation. It also provides for access to administrative documents. The French system distinguishes between nominative and non-nominative documents, the former being further developed in separate legislation. The law provides a list of exemptions, in the cases of which the authorities may refuse to allow access to the documents if disclosure might endanger protected interests. These are: secret deliberations of the government or bodies vested with executive power, national defence, external relations, monetary policy, state security and public order, legal proceedings, documents relating to tax or customs infractions, official secrets, personal dossiers or documents relating to individuals’ private lives, and commercial and industrial secrecy. The Law entrusts a Commission d’accès aux documents administratifs with the task of monitoring the respect of the right of access to administrative documents.

GERMANY

There is no general law on access to documents and information, although a Freedom of Information Act is currently under way in the Ministry of the Interior (Informationsfreiheitsgesetz). The Federal Ministry of the Interior recently announced a proposal and released the draft of the Federal Freedom of Information Act. Many documents are excluded from the bill including drafts and notes. An on-line discussion forum on the draft proposal has been set up by the Ministry of the Interior.

The Land of Brandenburg adopted a freedom of information law in 1998 to allow citizen access to government records (Akteneinsichts- und Informationszugangsgesetz). The act is enforced by the Information and Data Protection Commissioner. Recently Berlin (Informationsfreiheitsgesetz des Landes Berlin, 1999) and Schleswig Holstein (Gesetz über die Freiheit des Zugangs zu Informationen für das Land Schleswig-Holstein, 2000) also adopted Freedom of Information Laws.

GREECE

Art. 5 of Act No. 26990/1999 (which substitutes Act 1599/1986) regulates citizens’ access to documents. It establishes a general right of access to administrative documents, following a written request. Those who have a particular legal interest are also entitled to receive information on private documents held by an authority and are relevant to that person, or to records of proceedings that concern that person. The authority can refuse access to the later documents if they relate to the privacy or family life of third persons, if they are covered by secrecy provisions, if they relate to deliberations of the Cabinet or if disclosure would hinder judiciary, police or military proceedings. The right of access to documents shall not harm the intellectual and property rights. Access to the documents can be done at the premises of the authority, or asking for the provision of a copy, in which case the costs have to be covered by the applicant (except if the law provides otherwise). Information in medical issues will be provided by a doctor authorised by the authority. Rejection to disclose information has to be reasoned, and be provided in written form within one month from the request.

IRELAND

The Freedom of Information Act of 1997 establishes a general right of access to any record held by a public body (since its entry into force, the scope of the Act has been extended to other bodies such as local authorities or health boards; further extensions are expected in the future). The Act also lists the exemptions to the right of access, although most of them are not absolute. In most cases, the information may only be withheld if it can be demonstrated that specific harm or damage would arise from its disclosure (using the harm test). Besides, most of the exemptions are subject to an overall test of whether disclosure would be in the public interest (the balance of interest test). The records that can be subject to exemptions are chiefly: government meetings; deliberations of public bodies; investigative functions; negotiations; law enforcement and security; national defence; state security; international relations of the state; confidential and commercially sensitive information; personal information; economic interest of the state.

An Information Commissioner, whose decisions are binding, investigates the complaints of citizens on failure of the authorities to comply with the Freedom of Information Act.

ITALY

Act No. 241 of 07.08.1990 on Access to Administrative Documents affords a right of access to everyone who has a legitimate interest in obtaining access to administrative documents. Therefore, each request has to be motivated. There is no distinction between official and non-official documents, or between complete and incomplete documents. The right of access is not applicable to documents containing state secrets as defined by law, or in all other cases of secrecy required by law (e.g. military secrecy, industrial and commercial secrecy). Documents may not be exempted when it would be sufficient to defer access. The authority may defer access to documents as long as the disclosure would negatively influence the workings of the administration. In principle, access is not afforded to a certain category of documents such as preparatory documents of a legislative nature or documents concerning planning and programming. The exceptions are listed in a Regulation adopted by the government. Documents may only be exempted from access when disclosure would specifically endanger the protected interests. All exemptions are facultative and a harm test is carried out.

Act No. 142 of 08.06.1990 refers to autonomous local administrations.

LUXEMBOURG

THE NETHERLANDS

The Act of 31.10.1991 on the Public Access to Government Information (Wet Openbaarheid van Bestuur) obliges administrative authorities to actively disseminate government information, and to provide information upon request. It creates the presumption that documents created by a public authority should be available for everyone. There are, however, exemptions from and restrictions to this obligation. The exemption clause is formulated as follows: "Information shall not be disclosed if..." In most cases, documents are disclosed only if their importance does not outweigh that of the protected interest. In three types of case, this balance test is not applied. One of these types is characterised by the type of information (data on companies or manufacturing processes submitted in confidence by natural or legal persons); the other two are characterised by the harm to a particular interest (endangering the unity of the Crown and damaging state security). Documents drawn up for internal consultation (those containing personal opinions or policy) may be disclosed only in the interest of effective, democratic administration and in a form that cannot be traced back to any individual. Except in cases of particular necessity, documents older than 30 years are generally accessible.

Requestors can appeal denials to an administrative court which has the final decision.

The Dutch Government decided, following consultations on the evaluation of the Act, that it was not necessary to change the content of the Act, but that some technical aspects related to its implementation could be improved. Thus, in a letter of 20 April 2000, Minister van Boxtel calls for a change in the policy regarding access to documents, and declares that basic legal information should be provided free of charge and that access to documents implies that the citizen is able to use and understand the information provided by the administration.

PORTUGAL

The Portuguese Constitution declares a right of access to information in general (Article 37), and of access to administrative records and files, subject to the legal provisions with respect to internal and external security, criminal investigations and personal privacy. Article 35 of the Constitution refers to the use of computerised data, and the right of access to such data.

Act No. 65/93 of 26 August 1993 (partially modified by Act No. 8/95 of 29 March 1995) regulates access to administrative documents (documents drawn up or held by the administration). It distinguishes between nominative documents (accessible only for the person involved or third persons who can invoke a personal and legitimate interest) and non-nominative documents (accessible for everybody). The Act establishes certain cases in which access is forbidden or limited: documents covered by judicial secrecy; documents with content which may endanger national security and integrity; preparatory documents (although they can be accessed once a decision is made); documents with content which may prejudice commercial or industrial secrecy, or affect the internal affairs of companies.

The law is overseen by the Commission for Access to Administrative Documents, (CADA) an independent parliamentary agency.

SPAIN

Section 105 b) of the Spanish Constitution states that the right to access administrative registers and documents is to be regulated by law.

Act No. 30/1992 on Rules for Public Administration and Administrative Procedures includes, in Articles 35 and 37, the right of citizens to access the registers and documents held by the administration. According to these Articles, citizens have a right of access to the registers and documents that form part of a dossier and are situated in the administrative archives. The dossiers must correspond to matters that have been completed at the time the request is submitted. The right of access does not apply in specific cases: non-administrative matters; information about national defence and state security; documents relating to criminal proceedings or investigations being carried out; commercial or industrial secrecy; and monetary policy. There is special protection for documents relating to the private life of individuals and certain documents relating to legal proceedings that can be invoked under the exercise of the civil rights. The authority may refuse access in three cases: public interest, the special interest of third parties or when forbidden by law. This law does not apply to computerised records.

SWEDEN

Chapter 2, Article 1 of the Swedish Constitution declares the freedom of information, and sets some limits to it. The same article refers to the Freedom of Press Act of 1766 (as modified in 1994) regarding some provisions on the right of access to public documents. This Act establishes the right of all Swedish subjects to access official documents. This access is limited to official documents, i.e. documents held by a public authority, if they are regarded as having been received, prepared or drawn up by the authority. Normally a document is classed as official when it reaches a certain degree of finalisation or if it has been despatched outside the public authority. Internal documents or preliminary outlines or draft decisions are considered official documents only once they have been accepted for filing and registration. The Act also lists certain documents that shall not be deemed to be official documents. Exemptions to the right of access are listed in Article 2 of the Act, according to which the authority may refuse access to official documents only if it is necessary with regard to the protection of particular interests (state security; state relations with foreign states or international organisations; monetary policy; supervisory activities of a public authority; the interest of crime prevention or prosecution; the public economic interest; the protection of private life; the preservation of animal or plant species). The documents classed as secret are stated in a special act of law (e.g. the Secrecy Act), although in most cases there is no automatic refusal if the information belongs to the category of secret information. There is also a Fundamental Law on Freedom of Expression.

Decisions by public authorities denying access to official documents can be appealed to general administrative courts and ultimately to the Supreme Administrative Court. The Ombudsman has some oversight functions for freedom of information.

UNITED KINGDOM

At present, a non-statutory Code of Practice on Access to Government Information from 1994 applies. It gives access to information only, not to specific documents or records. It contains very broad exemptions.

Following a 1997 Government White Paper, a Freedom of Information Bill was drafted, regulating access to information and documents. The Bill was submitted for a second reading in the House of Lords on 20 April 2000, and received the Royal Assent on December 2000. It is not enforced yet, although the latest news suggest that it will be enforceable by 2002.

The Bill provides for a general right of access to documents and information held by public authorities. The bill has been widely criticised as being insufficient and weaker than the existing code of practice.