Professor Helge Rønning. University of Oslo.
Access to Information in a Transparent Society.
Presentation at the Debate on Direito à Informação e o Papel dos Mídia em Moçambique
27 May, 2015.
The sixth paragraph of the freedom of expression article of the Norwegian Constitution has the following wording: “The State authorities shall create conditions that facilitate an open and enlightened public discourse.” The principle outlined in this paragraph is called “the infrastructural requirement”. It means that the State has the responsibility to ensure that individuals and groups are given real opportunities to express their opinions and to obtain access to relevant information. Maintenance and development of the public sphere is invoked as a major public responsibility.
Originally freedom of expression was viewed primarily as a freedom in relation to the power of the state. It was a guarantee against the abuse of power. However, the responsibilities of the public authorities have altered during the course of history. Citizens have acquired rights of civil, political, economic, social, and cultural kinds that go beyond pure rights of freedom. This implies that public authorities have developed into a many-headed creature with responsibilities that often are mutually conflicting. Thus ideally the obligations of public authorities have been extended from not standing in the way of free speech but to actively providing for a free public discourse and access to a free flow of information. It is in this perspective that freedom of information is an essential part of freedom of expression. The two principles cannot be separated.
Freedom of information has two elements. First, there is the right to seek and receive all available information, including access to independent media and the Internet. Second, there is the right of access to documents and data, which the authorities do not make available on their own initiative. The main purpose of having access to information laws is to strengthen the basis for democratic control of the exercise of power and secure the participation of citizens in the democratic process.
Free speech and access to information are basically individual citizens’ rights. However, they are at the same time collective rights. It is in this duality that we find the basis for analysing and defending freedom of expression and free access to information as essential for the role of the press in a democracy. The media exercise their freedoms by ideally representing the individual rights of citizens through collective means. It is therefore essential to insist that the right to access to information is for citizens to be informed about all developments and decisions that have a bearing on their existence. Consequently when the press asks for access to government decisions they act on behalf of citizens.
There are three concepts that are essential when we discuss freedom of information. They are openness, transparency and access. A society and a state is open when its public institutions, politicians, civil servants provide information and must enter into dialogue with social representatives including the press. Openness is a prerequisite for free and democratic processes. Decisions shall be taken openly and as close as possible to the citizen. Public bodies, offices and agencies must maintain an open, transparent and regular dialogue with civil society. This adds an active dimension to the principle of openness.
Transparency is a concept that is used in many contexts and with different meanings. Sometimes they are broad and more or less synonymous with ‘openness’, or they may be more specific as a guideline for how authorities are to act. Accountability and transparency are often used together and involve the principle of how and why information is being conveyed through various means of communication. Transparency guarantees that citizens are able to monitor the exercise of powers vested in the state. Lack of transparency might give rise to doubts in the minds of citizens as regards the legitimacy of decision-making processes.
The term ‘access’ refers to the right to being able to obtain authentic information about the activities of the state and public institutions, reasons for their decisions and their deliberations. Therefore, the systematic nature of the triangle of openness, transparency, and access is the basis for the democratic right to information.
The rules on public access in the Nordic countries cover state, regional and municipal authorities. They apply equally to the political leadership and the administration. However, public-private forms of organisation and the outsourcing of public tasks present a challenge to legislators in preventing the weakening of public access. This grey area has grown in recent decades. Companies that are wholly or partly owned by a public authority and often have a monopolistic position undertake tasks that are becoming increasingly critical. A public authority may fully or partly pay for many of the undertakings in this grey area. Thus this is an area where the principle of public access should be strengthened. This regards information about public procurements and contracts as this contributes to preventing corruption. It is essential, particularly in a country like Mozambique, that public-private companies that have strong participation from state interests and political forces are open to full insight. In this case references to privileged information is a way of preventing the public from obtaining insights into decisions that may have grave social impacts, and should not be accepted.
Information on environmental issues is becoming increasingly critical. This applies to different types of information such as the status of environmental factors and health. The institutions covered by the regulations include public authorities as well as organisations that act on behalf of public authorities. It is imperative that also private enterprises in this area are forced to provide proper access to information. This is essential, as in Mozambique, when it comes to all prior investigations into environmental consequences of big industrial projects among others in the petrochemical industry.
The debates over the principles of access to information as well as for the right to free expression always end up with the issue of where to draw the limits. How do you provide access at the same time as you protect privacy? What about confidential information? What about information that apply to national security and interests?
In relation to personal information the boundaries vary between countries, nevertheless there are three forms of information that are regulated – sensitive, social, and general. The first category regards information on health, sexual orientation, religious convictions, and political beliefs, social problems, which in general are not open, unless the person in question actively seeks the public eye. Those who hold leading positions in public organisations may have to be open about such social information. General personal information is an in-between category and deals with employment, income, tax etc. In Norway for instance your income and how much tax you pay is public. To me it is clear that it is of public interest that society has information about citizens’ taxable income as a way of controlling possible corrupt practices. Thus declarations of private business interests by politicians and senior civil servants should be publicly available and open to full scrutiny.
Confidentiality applies to personal, commercial and state information. As for commercial information it is mostly the case that the competitive significance of the information for the undertaking will provide for closeness. But to be able to refer to competition is not enough to prevent public insight when it comes to investments that have wide social consequences for instance in oil and gas. Here contracts should be open for public scrutiny. This is particularly important in Mozambique right now.
Information may be kept confidential when this is specifically necessary for state security. But in general keeping information secret should require an evaluation of the specific risks. Interpretations should provide for concrete assessment if this is necessary to protect national interests. There are signs that changes are being made to international norms here. It is no longer a general rule that a State has a right to veto the release of information from the State. The reason for this is obviously that some of the most controversial and important political debates have to do with national security interests and secrecy. Thus to restrict access would be contrary to the principles of democracy and transparency.
For access to information laws to function they presuppose that information in principle is accessible, and should be so in practice. This implies among others that the following procedures must be in place: The authorities have an obligation to make information public. Documents must not be tampered with. Information must not be made unrecognisable through the interventions of spin-doctors. There must exist efficient search tools for citizens and the media. Data compilations must be accessible as part of a new digital information society. Access must be direct and quick. There must be independent review systems in place that can try the rulings when access has been denied.
In recent decades the right of access to information has been an important part of freedom of information and expression, but it cannot be taken for granted that this development will continue. In all societies the boundary between secrecy and openness is open to interpretations. There are many actors and interests pulling in different directions. One of the problems internationally is that laws that in name have the title “access to information” in reality are the exact opposite. One example is Zimbabwe’s Access to Information and Privacy Act that has been used more to suppress information in the name of privacy than to make information available.
A strong system of openness and transparency and access to information is a guarantee against abuse of power and essential for securing the rights of citizens in a democracy.
 The following reflections build among others on the report of the Norwegian Freedom of Expression Commission, 1999. ”There shall be Freedom of Expression”. English excerpted version found at: http://www.uio.no/studier/emner/hf/imk/JOUR4330/v13/unesco-report.pdf
Oluf Jørgensen: ”Access to Information in the Nordic Countries”. http://www.nordicom.gu.se/sites/default/files/publikationer-hela-pdf/access_to_information_in_the_nordic_countries_2014_0.pdf
 Henri Labayle : Openness, transparency and access to documents and information in the EU. http://free-group.eu/2014/02/11/henri-labayle-openness-transparency-and-access-to-documents-and-information-in-the-eu/
 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), signed in Aarhus, Denmark on 25 June 1998 was sponsored by the United Nations Economic Commission for Europe (UNECE) has been ratified by nearly all European States, including the Nordic countries and the EU.