Freedom of Information Law

Guernsey does not have a Freedom of Information Law (FoI).

We have a Code of Practice for Public Information, which is voluntary. There is a supposed “presumption in favour of disclosure” rule. Experience suggests, however, that this is not observed if the information requested would cause discomfort. The ranks close. A full Freedom of Information Law would prevent this from happening by providing a defined right to information, subject to independent interpretation by a judge or Data Protection Commissioner (rather than by a non-independent official), and thereby capable of enforcement.

There is now, after much pressure, an appeals mechanism¹ which has emerged so things are moving in the right direction, albeit slowly. Established on 1st January 2022, the Independent Panel reviews appeals against decisions made by Principal Committees or other Guernsey States Bodies regarding FoI requests. The document I have cited details the submission process for appeals, the composition and functioning of the Panel, and the outcomes of appeals. Whilst the Panel does provide a mechanism for appeal, it does not encompass the broader enforcement and compliance aspects of a full FOI law; if an appeal is upheld, the relevant Committee or Body is directed to release the information. If they refuse, they effectively exercise a veto, which the Panel cannot legally challenge.

Jersey² and the UK ³ have a proper Freedom of Information Law. A full Freedom of Information Law should be brought into force in Guernsey.

Excuses for not previously doing so have focussed on costs. Whilst ‘small government’ and the minimisation of the costs of government, both those directly charged to citizens and those indirectly caused to them, is of course an important objective, it should not be used as an excuse for not doing what is undoubtedly right for the modern day, but which happens to be inconvenient to the establishment.

The ultimate cost of a Freedom of Information Law would likely be lower than the direct costs of its implementation and existence because that existence would encourage better practice. It is clear that previous deterrent scaremongering estimates of the costs of providing information transparency have been greatly overestimated for a small community such as Guernsey, but in any event, if the organisation is operating cleanly, the costs will be reduced; it is merely a question of efficiency. It is also clear that FoI will pay for itself in practice because the likelihood of public disclosures would result in more careful decision-making with consequent savings to the public purse, as well as discouraging the questionable use (whether through profligacy or doubtful propriety) of taxpayers’ monies. The real question is: in a modern climate, can Guernsey afford not to have such a Law?

Importantly, though, the system for providing FoI must be reasonably affordable for the applicant. The “free” availability of information is an illusion if the costs of obtaining that information are initially high, or prohibitive in the face of any resistance, and any system for implementing FoI must take account of this. There are methods of dealing with this, such as a sliding scale of fees & we might be well advised to examine Jersey law in this regard and see how they do it.

An easy, effective and affordable route for accessing information must be developed and provided, particularly for the aggrieved. It is a vital tool for both the efficiency of a modern system of government and for promoting the trust of citizens. The case for introducing such a Law going forward is therefore compelling.

..if an appeal is upheld, the relevant Committee or Body is directed to release the information. If they refuse, they effectively exercise a veto, which the Panel cannot legally challenge..

A more difficult question is how far any such Law should have retrospective effect. It might reasonably be feared that unlimited retrospectivity could encourage an avalanche of requests, and expense out of all proportion to any practical benefit. It would be reasonable, therefore, for there to be some form of time limit. However, such limits must be sufficiently liberal or flexible so as to permit applications with regard to matters of continuing effect on the applicant, or which relate to issues of proper conduct in public office. But the correct scope of these qualifying requirements could, and should, in case of dispute, be decided on by the independent judgment of a court or Data Protection Commissioner, and not by an official, and in all cases there would be a presumption in favour of disclosure. It is worth noting that Jersey has implemented retrospective FoI, and that matters are administered by the Data Protection Commissioner.

Only that way will a Freedom of Information Law be able to fulfil its proper function; encouraging transparency and promoting confidence in government. What politician or official could conscientiously object to this?

The enforceability and features of Freedom of Information (FoI) laws elsewhere:

United Kingdom The Freedom of Information Act 2000³ in the UK establishes a public “right of access” to information held by public authorities. It applies to a wide range of bodies, including government departments, the Houses of Parliament, local government bodies, National Health Service bodies, and schools. The Act creates a general right of access to information upon request, with public authorities obligated to confirm whether they hold the requested information and communicate it if they do. However, the Act also contains various exemptions, either absolute or subject to public interest tests. Appeals against decisions can be made to the Information Commissioner, who has the power to order disclosure

European Union Examples

Wikipedia has a list of freedom of information laws by country which provides a comprehensive overview of how these laws are implemented worldwide. However, to maintain brevity and relevance, I’ll focus on key examples from European countries:

France: France has laws ensuring public access to administrative documents. The CADA (Commission d’Accès aux Documents Administratifs), established in 1978⁴, oversees these rights. Also, the accountability of public servants is a constitutional right, according to the 1789 Declaration of the Rights of Man and of the Citizen. Article XV – ‘The society has the right of requesting an account from any public agent of its administration’.
Germany: The Federal Freedom of Information Act of 2005⁵ allows access to official information from federal authorities.
Czech Republic: Act No. 106/1999⁶, enables public access to information held by government bodies and certain other entities in the Czech Republic. It mandates these bodies to disclose information upon request, barring exceptions like national security or personal privacy concerns.
Italy: Italy’s Law No. 241 of 1990⁷ grants citizens the right to access administrative documents, promoting transparency and participation.
Norway: Norway’s Freedom of Information Act of 1970⁸ ensures public access to documents held by public authorities.
Spain: Spain’s Law 19/2013 on Transparency, Access to Public Information and Good Governance⁹ regulates access to public information and promotes transparency.
Sweden: Known for having the oldest Freedom of Information legislation, Sweden’s Freedom of the Press Act of 1766¹⁰ mandates government transparency and sets a high standard for public access to information

For a detailed and complete list of countries and their respective freedom of information laws, please visit the Wikipedia page: Freedom of information laws by country.

The European Union itself considers transparency and access to documents to be fundamental principles. The EU’s Regulation (EC) No 1049/2001¹¹ regarding public access to European Parliament, Council, and Commission documents establishes the right of public access to documents of these institutions. This regulation aims to promote transparency and facilitate a better understanding of the policy-making process within the EU. It allows EU citizens and residents to access documents held by these major EU institutions, with certain exceptions for privacy, commercial interests, and public security. (Notably, the European Investment Bank sets their own standards, and it is often difficult to extract meaningful information from them.)

There is a useful portal https://www.asktheeu.org/ from which EU citizens can send access to documents requests directly to EU institutions. Such portals promote transparency because the requests themselves and the responses are made in the public domain.

Australia: The Freedom of Information Act 1982¹², amended in 2010, applies to ministers, departments, and public authorities of the Commonwealth, with the Information Commissioner’s office promoting freedom of information.

USA: the Freedom of Information Act (FOIA) of 1966¹³ provides public access to records from any federal agency. FOIA outlines procedures for requesting information and mandates federal agencies to disclose records upon request, with nine exemptions that protect interests such as personal privacy and national security.

Canada: the Access to Information Act (ATIA), enacted in 1983¹⁴, gives Canadian citizens, permanent residents, and corporations present in Canada the right to access records under the control of federal government institutions. The ATIA promotes government transparency and accountability, balancing this with necessary exceptions for privacy and security concerns.

Russia: Even Russia, with the “Law on Providing Access to Information on the Activities of State Bodies and Bodies of Local Self-Government,” enacted in 2010, provides a pretence of FoI. Its enforceability and effective scope are debatable.

South Korea: their Right to Information Act, enacted in 1996¹⁵, ensures public access to information held by government bodies and public institutions. The Act requires these entities to provide information, including electronically processed data, within a standard response time of 10 days.

North Korea: No FoI law.

These examples from the UK and various other countries illustrate a range of approaches to FoI legislation. They share a common theme of providing public access to government-held information, though the specifics of the legislation, such as the scope of applicable bodies and the process of handling information requests, can vary.

These laws are a stark contrast to Guernsey’s voluntary Code of Practice, highlighting the benefits and expectations of a more binding legal framework for FoI.

ByJames Collings

Guernsey does not have a Freedom of Information Law (FoI).