The Freedom of Information Act

The Freedom of Information Act
Michael Žantovský, Senator, and Oldřich Kužílek, authors of the bill
The Current Situation

The passing of the Freedom of Information Act is approaching. The struggle for it, which is now not far from being won, has gone on for more than two years The subject of the Act has the uncanny ability to call up a series of illusions and fearful expressions. It can provoke literally anyone.

At this time the Act is being discussed in the Senate. At the time of writing this paper it is not clear how it will turn out: whether the Senate will simply correct the mistakes which the House of Parliament made in it and Parliament will then pass the Act with the corrections without any problem; or whether the Senate will add to the necessary corrections too many of its own changes, in which case the Parliament will feel pressured to either reject all the changes and ratify the original version, mistakes and all (and then, for example, fix the mistakes by means of a quick, short amendment), or to so completely depart from the stance of the political will to pass the Act and not support it at all.
Basic Characteristics of what the Act Involves

The Act itself doesn’t bring anything new with it, it is only a set of directions for its implementation. The new item was actually already brought into play in 1991, with the passing of the Document on Basic Rights and Freedoms (Article 17). We are committed to it internationally at the same time. However, no one took it very seriously and authorities have up to now collectively infringed on the rights of citizens, while the courts have not been able to correct the conduct of the executive branch. This is a sad fact.

The above-mentioned document and basic principles of freedom of information are the so-called ”making public the public administration”, which is coming into effect after centuries of the established principle of secretive public administration. While up to the year 1991 the following was in effect: only information from the public administration to which the law explicitly grants the inquirer the concrete legal right to obtain (for example, as a participant in the legal process) will be disclosed. After 1991 the following has been in effect: all information will be provided, with the one and only exception of information of which the law explicitly calls for protection (for example, the protection of personal information).

Basic Principles of the Act

The basic principles are:

Everyone has the right to information, regardless of the purpose of his/her inquiry.

The authorities provide information which they have at their disposition (that is, not only information which testifies about their activities).

Inquiries must be attended to as soon as possible.

Denials of disclosures must be explained with concrete reasons.

The denial of parts of the information requested is not sufficient reason for the denial of the rest of the information.

There must be a possibility of appealing a denial; the final decision must be made by an investigative hearing.

The fee for an inquiry must not be set at an unreasonable, excessive, sum.

The Act is basically comprised of six ”modules” which are common in analogous forms abroad:

What comes under this principle (definition of obligatory bodies),

Information which is covered under the automatic informative obligations (the authorities must make this information public, regardless of whether a specific inquiry into it is made or not),

Which information, and under what conditions, is possible to limit or deny the disclosure of,

The process of making an inquiry,

Legal procedures in the case of an inquiry not being carried out in a suitable manner, and finally

Periodic news about information which has been disclosed.

A relatively new element in the legislation of ”freedom of information” is the ”Internet Amendment”, which legislates which information it is necessary to make public electronically.
The Legal Context

Within the laws of the Czech Republic there lacks a general legislative regulation which would implement Article 17, Paragraphs 1, 2, 4 and 5 of the Document on Basic Rights and Freedoms, according to which the right of obtaining information is guaranteed; every person has the right to freely search for and spread information, except in cases stipulated explicitly by the law, and state authorities and the authorities of self-governing regions are obliged to provide, in a reasonable fashion, information about their activities.

In a time which is often called the ”information age”, the fulfilment of the constitutional right to information which is at the disposition of state authorities and the authorities of self-governing regions is a key element in relations between the state and its citizens. Secrecy of the authorities leads to an hidden style of governing as well as to poor decisions. Excessive concealment adversely affects the public’s trust in the political system. Freedom of information is a necessary tool of public inspection and openness of the government.

Laws regulating the fulfilment of the public’s right to information and the state’s obligation to disclose that information, often called Laws Regarding Freedom of Information, have gradually become parts of the legislation in all developed countries. In Sweden this right was established already in the 18th century. The American Freedom of Information Act dates from 1966, the French Act from 1978, Canadian, Australian and New Zealand Acts from 1982, and the Dutch Act from 1991.

The current legal state in the Czech Republic does not contain complex regulations regarding the right to information and the obligation of state authorities and the authorities of self-governing regions to disclose information. A series of regulations deal with only some aspects of gaining access to information for individual, more or less narrowly-defined, areas. Apart from these regulations, there exists a series of legislative regulations which, on the contrary, limits or completely rules out the access of citizens to information.
Supposed Methods of Applying the Act

Simplicity

The Act is drafted in such a way so that above all it would not prevent the smooth, willing and non-bureaucratic provision of information. In places where the provision of information without any problems already takes place, there should be no changes made. For the provision of simple information orally or in written form, no protocol is required. The only condition is to record disclosed information (for example, it is sufficient to simply register the number of disclosed pieces of information) which enables statements of the basic volume of disclosed information to be presented in annual reports. It remains up to the will of the authorities as to whether the volume is presented categorically along with other aspects or details.
Procedure

The procedure establishes itself only when an inquiry is submitted in written form. It is possible to assume that this will be for only a minority of cases. It will be for situations in which the inquirer significantly depends on the information requested, when he/she wants to definitively determine the information, or in the case in which the authority itself wants to protect against an unclear situation (perhaps in the case of an extensive inquiry or an inquiry made by a chronic complainer).

For the decision as to which information must be provided on request, authorities are given much more precise guidelines and barriers than have existed until now, when they had to proceed only according to Article 17 of the Document on Basic Rights and Freedoms. It is evident that these specifications seemingly call forth a sense of more complications and a higher number of office workers—now they must evaluate many more aspects than before. This, however, is in fact an illusion, given the fact that the already-existing conditions which were scattered throughout the law are now condensed into several paragraphs in one section. Up to now this criteria has proven itself, although often not quite consciously, but rather intuitively.

The Act leaves the authorities with a certain about of freedom to deny information in a limited sphere: in cases where the information has not yet fully appeared, that is, purely internal information. In these cases, however, it will be sensible once again to limit only that which is truly the most necessary, because openness usually pays in all spheres.

The principle by which every limitation on the right to information is carried out is very important: it is necessary to exclude from requested information only those details and parts whose exclusion is possible to justify on the basis of the law, and it is always necessary to provide the rest of the requested information. In other words, it is not possible to deny, for example, a ten-page document simply because in one paragraph some personal information or business secrets appears there. It is necessary to exclude this protected information (black it out or delete it), and to provide the rest of the information. At the same time, for every kind of limitation of disclosed information it is necessary to attach a guide to the information, that is, to inform what part was excluded and for what reason.

The process of presenting an inquiry, its execution and its withdrawal does not conform to some administrative order, but is specially outlined. The use of the judicial system in this case is neither possible nor proper, because the disclosure of information is in principal a different process and a different relationship between the citizen and the authorities than ordinary judicial processes which decide on issues and perform evaluations. The provision of information should, however, always consist in the disclosure of information which is already ready and is at the authority’s disposition without effort (of course this does not mean the effort included in the looking up of the information itself and the giving over of the information). Whereas in the judicial system the authority is a partner who transforms reality, as far as the provision of information is concerned, what is at stake is the openness of the public administration and the relationship of each citizen to the state and to the authorities.

In the event that the inquiry is very extensive or requires more time, it is possible to extend the term of the agreement on the provision of the information requested.
Covering expenses

Up to now the point at issue has been covering expenses. In all cases it is necessary to make clear that the Act always takes into account the natural possibility flowing out of practical life and previous experience that usual uncomplicated information will be provided free of charge. If in the end a variant is passed which enables the assessment of expenses incurred, not only for copies made, but also for the preparation of the information provided (that is, for the work of the public servant), this possibility should be used reservedly as an exceptional tool for regulation and for the protection of the authorities from excessive burdens.
Expected expenses

Previous experience with scattered legal regulations during recent years (especially with the law on evaluating the effects of activities on the environment, the law on the protection of nature and the landscape, and the law on the provision of information concerning the environment) has been such that they are attended to with hardly any increase in the number of workers or in the budgetary means. At the same time, interest in obtaining specific information from the area of the environment can be considered to be above average. It didn’t progress to an excessive load of individual provisions of requested information, even though the provision of information concerning the environment according to the above-mentioned law is hardly at all protected against abuse, for example, by excessively obstructive applications.

The Act’s proposal gives obliged bodies the possibility to defend against overburdening by making public on the Internet, or by other means, the most-often requested information. For the publication of this information, for example on the Internet, it is possible to use suitable commercial means, and thus the expenses will be covered.
Annual reports

A new duty for all obliged bodies is the presentation of annual reports. The Act, however, quite purposefully does not formulate them in detail. Above all it specifically calls for data which give evidence for disputes arising during the provision of information, in order that after a time it would be possible to draw some conclusions concerning the area of freedom of information. It is worth noting that the Act, as one of few when compared internationally, does not call for any bureaucratic obligation as to how the annual report should be dealt with. The only condition is that it be made public. This notion takes into account the interest of the media and the initiative of citizens who also, without any expense to the state, evaluate the most tender areas and draw attention to them.
The Internet

In the Act the phenomenon of the Internet appears for the first time in legislation. This also permanently calls forth conjectures and worries especially of towns and other smaller units. Therefore it is necessary to always make it clear that the Act does not consider the Internet an obligation for anyone to access. No one is forced to equip his/herself with a computer, modem, or even a telephone. Internet technology does not at all differentiate who is an owner or provider of technical equipment, by the help of which certain information is placed on the Internet. Moreover, most of the information which the Act requires to be made public is information which is the same for more than one body. This is why as for towns it is assumed that ninety percent of the requested information will be filed together for all towns and villages on the Internet. According to the Act, the remaining information, for example the address, telephone number, office hours and the structure of the administrative authorities, or referrals to local public notices, can be fixed by the individual town basically by submitting them in any written form to the server provider. Thanks to the initiative of the Union of Cities and Towns the complete volume of information made public through the Internet is already ensured, tested and functions at no cost. Only when the individual town wants something more, beyond the requirements which the Act specifies, must it secure it by its own financial or technical means. In addition, the Act requires the government to submit regulations, according to which the district authorities should help individual towns in the implementation of these duties. Several times a year the mayor of the town during his/her visit to the district authorities should make clear which parts of the above-mentioned information for the relevant departments has changed for the town. He/she would then not have to be concerned with the rest.
Operation

The Freedom of Information Act should enter into force on 1 January 2000. Several duties, concerning which it can be expected that there will be confusion or problems, will be postponed until a later date. It is important that for the first two years the Act counts on a significant increase in the time allotted for the processing of inquiries. The authorities will thereby have comfortable space to work in, so that they can handle this new process.