54
CEPAD Centre of Studies for Peace and Development Sentru Estudus ba Dame no Dezenvolvimentu Centro de Estudos para a Paz e Desenvolvimento Fostering Freedom of Information for Inclusive Governance Project Quarter 1 Narrative Report 1 October 31 December 2015 Submitted to: USAID Timor-Leste Cooperative Agreement Number: AID-472-A-15-00002 Grantee: Centre of Studies for Peace and Development (CEPAD) Prepared by: CEPAD Contact Person: Dionisio M. Sarmento Contact e-mail: [email protected]

Fostering Freedom of Information for Inclusive Governance ...pdf.usaid.gov/pdf_docs/PA00N2Z9.pdf · UNODC UN Convention against Corruption . ... whistleblower protection and preparing

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CEPAD

Centre of Studies for Peace and Development Sentru Estudus ba Dame no Dezenvolvimentu

Centro de Estudos para a Paz e Desenvolvimento

Fostering Freedom of Information for Inclusive

Governance Project

Quarter 1 Narrative Report

1 October ndash 31 December 2015

Submitted to USAID Timor-Leste

Cooperative Agreement Number AID-472-A-15-00002 Grantee Centre of Studies for Peace and Development (CEPAD)

Prepared by CEPAD Contact Person Dionisio M Sarmento

Contact e-mail sarmentodinogmailcom

DISCLAIMER The authorsrsquo views expressed in this report do not necessarily reflect the views of the United States Agency for International Development or the United States Government

Table of Contents

List of Acronyms 3

Executive Summary 4 USAIDrsquos Pre-Award conditions and recommendations 4 Administrative Start-Up Tasks 4

Summary of Activities 5 Planed Activities as in Work Plan Timeline 5 Activity Updates 7

I-CRES Consultantrsquos Dili Visit from November to December 2015 7 1 Objectives of the activity and scope of work 8 2 Participants beneficiaries 8 3 Results 8

Problems Encountered and Lessons Learned 11

Way Forward 12 Addressing USAIDrsquos Awards conditions 12 Conclusions and recommendations 13

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015 14

I The Right to Information in Timor-Leste National legislation international commitments and best practices 14

1 National legislation 14 2 Environmental Framework Law 18 3 International commitments and standards 21 4 International Covenant on Civil and Political Rights 24

II Outline ndash Citizen guide to freedom of information 39 III Freedom of Information ndash An Introduction 41

List of Acronyms USAID United State Agency for Aid and Development

RDMA

CEPAD Center of Studies for Peace and Development

FOI Freedom of Information

OCA Organizational Capacity Assessment

RTI Right to Information

I-CRES Inovacioacuten para el Crecimento

OGP Open Government Partnership

TAF The Asia foundation

MampE Monitoring and Evaluation

INTERPEACE International Peace Building Alliance

PDHJ Provedoria de Direitos Humanos e Justiccedila

UNCAC The United Nations Convention Against Corruption

ECHR European Court of Human Rights

UNEP United Nations Environment Programme

UNDP United Nations Development Programme

EITI Extractive Industries Transparency Initiative

IFTI International Financial and Trade Institutions

ATI Access to Information

FOIA Freedom of Information Act

UNHCR United Nations Human Rights Committee

UNODC UN Convention against Corruption

UNESCO United Nations Educational Scientific and Cultural Organization

Executive Summary

USAIDrsquos Pre-Award conditions and recommendations Following the signing of the USAID Award agreement on September 29 2015 USAIDRDMA undertook a-three-day pre-award survey from August 24 to 26 2015 that resulted in several recommendations and conditions required of CEPAD prior to the implementation of the FOI project These recommendations include but not limited to absorptive capacity financial control and internal control system procurement system and human resource management as illustrated in the Status Report submitted to USAID on December 30 2015

Following on this USAID Timor-Lestersquos representatives met with CEPAD in October to introduce CEPAD to the Organizational Capacity Assessment (OCA) tool that is essential for the organization as a whole CEPAD will organize an internal workshop based on USAIDrsquos OCA tool to ensure that CEPAD team has a holistic understanding of the organizationrsquos strengths and challenges as it implements the FOI project as well as CEPADrsquos overall program in an effective way

At the time of the writing of this report CEPAD has undertaken necessary steps to address some of USAIDrsquos recommendations For example following on the USAID and other Auditors recommendations for ldquoAbsorptive Capacityrdquo a staffing plan has been discussed and job descriptions advertisements have been prepared for the MampE Officer Technical Coordinator and Part-time Accountant roles At the same time previous applicants (for these roles) that are considered qualified have been approached A number of recommendations ldquofinancial management and internal control systemrdquo have been addressed including discussions on devolving some of the functions of the Finance and Admin Officer to other staff CEPAD has also implemented the USAIDrsquos recommendations for ldquohuman resource managementrdquo such as introducing payment by timesheet publishing travel cost reimbursement template advising project staff of whistleblower protection and preparing an organizational chart to reflect a planned organizational structure

Administrative Start-Up Tasks To further address USAIDrsquos staffing recommendation during the first Quarter

CEPAD brought into place Dionisio M Sarmento as the Outreach

Communication Specialist In such capacity he will be responsible for leading the

outreach advocacy and communications aspects of the project

CEPAD is determined to bring on board a Technical Coordinator during the

second Quarter to coordinate the overall development of the project as well to

assist with the translation into Tetum and the implementation of all relevant

policies and have these fully put into practice CEPAD is also on the process of

hiring an accountant within second Quarter to prepare and submit periodical

finance reports as well as bank reconciliations accounts receivable and other

financial data

I-CRES in close coordination with CEPAD has contracted Mathias Huter an

expert on transparency and access to information issues as a short-term

consultant for some of the first activities of the program During Quarters 1 and 2

he will research existing national and international commitments concerning

freedom of information (FOI) in collaboration with CEPAD compile relevant

references on international best practices to develop a Citizen Manual on the

right to information (RTI) and training of trainers manual In quarter 1 he

organized a workshop designed to inform and familiarize CEPAD staff with the

right to information its history and development international best practices and

common challenges

In addition to that another short-term consultant Hans Gutbrod has been

brought on the board by I-CRES He will oversee the development and

implementation of a baseline survey starting in the second quarter I-CRES and

CEPAD have taken first steps to initiate the planning for this survey At the

moment of the writing of the report CEPAD in partnership with I-CRES is in the

process of preparing for the project initial activities

The development of a bilingual website (Tetum and English) for CEPAD has

recently been completed the website will be launched within quarter 2 and will

contribute to increased visibility of the project and easy public access for its

outputs

Summary of Activities

Planed Activities as in Work Plan Timeline No

Datestimeline

Quarter 1 planed Activities

Current status

Commentsresponsibilities

1 Nov-Dec 2015 Research and compilation of

Completed I-CRES consultant Assisted

local legislation and international commitments of Timor-Leste concerning access to public information

by CEPAD

2 Nov-Dec 2015 Identifying and analyzing international best practice examples for the right to information

Completed I-CRES consultant assisted by CEPAD

3 Nov-Dec 2015 Research on international examples of freedom of information guidance materials

Completed I-CRES consultant

4 Dec 2015 Drafting of a citizen guide on the right to access information in Timor-Leste

Completed I-CRES consultant

5 Nov 2015 Workshop for CEPAD team on the principles of freedom of information

Completed I-CRES consultant

6 Dec 2015 Development of training materials for lsquotraining of trainersrsquo-sessions

Completed-ongoing

I-CRES consultant

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

DISCLAIMER The authorsrsquo views expressed in this report do not necessarily reflect the views of the United States Agency for International Development or the United States Government

Table of Contents

List of Acronyms 3

Executive Summary 4 USAIDrsquos Pre-Award conditions and recommendations 4 Administrative Start-Up Tasks 4

Summary of Activities 5 Planed Activities as in Work Plan Timeline 5 Activity Updates 7

I-CRES Consultantrsquos Dili Visit from November to December 2015 7 1 Objectives of the activity and scope of work 8 2 Participants beneficiaries 8 3 Results 8

Problems Encountered and Lessons Learned 11

Way Forward 12 Addressing USAIDrsquos Awards conditions 12 Conclusions and recommendations 13

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015 14

I The Right to Information in Timor-Leste National legislation international commitments and best practices 14

1 National legislation 14 2 Environmental Framework Law 18 3 International commitments and standards 21 4 International Covenant on Civil and Political Rights 24

II Outline ndash Citizen guide to freedom of information 39 III Freedom of Information ndash An Introduction 41

List of Acronyms USAID United State Agency for Aid and Development

RDMA

CEPAD Center of Studies for Peace and Development

FOI Freedom of Information

OCA Organizational Capacity Assessment

RTI Right to Information

I-CRES Inovacioacuten para el Crecimento

OGP Open Government Partnership

TAF The Asia foundation

MampE Monitoring and Evaluation

INTERPEACE International Peace Building Alliance

PDHJ Provedoria de Direitos Humanos e Justiccedila

UNCAC The United Nations Convention Against Corruption

ECHR European Court of Human Rights

UNEP United Nations Environment Programme

UNDP United Nations Development Programme

EITI Extractive Industries Transparency Initiative

IFTI International Financial and Trade Institutions

ATI Access to Information

FOIA Freedom of Information Act

UNHCR United Nations Human Rights Committee

UNODC UN Convention against Corruption

UNESCO United Nations Educational Scientific and Cultural Organization

Executive Summary

USAIDrsquos Pre-Award conditions and recommendations Following the signing of the USAID Award agreement on September 29 2015 USAIDRDMA undertook a-three-day pre-award survey from August 24 to 26 2015 that resulted in several recommendations and conditions required of CEPAD prior to the implementation of the FOI project These recommendations include but not limited to absorptive capacity financial control and internal control system procurement system and human resource management as illustrated in the Status Report submitted to USAID on December 30 2015

Following on this USAID Timor-Lestersquos representatives met with CEPAD in October to introduce CEPAD to the Organizational Capacity Assessment (OCA) tool that is essential for the organization as a whole CEPAD will organize an internal workshop based on USAIDrsquos OCA tool to ensure that CEPAD team has a holistic understanding of the organizationrsquos strengths and challenges as it implements the FOI project as well as CEPADrsquos overall program in an effective way

At the time of the writing of this report CEPAD has undertaken necessary steps to address some of USAIDrsquos recommendations For example following on the USAID and other Auditors recommendations for ldquoAbsorptive Capacityrdquo a staffing plan has been discussed and job descriptions advertisements have been prepared for the MampE Officer Technical Coordinator and Part-time Accountant roles At the same time previous applicants (for these roles) that are considered qualified have been approached A number of recommendations ldquofinancial management and internal control systemrdquo have been addressed including discussions on devolving some of the functions of the Finance and Admin Officer to other staff CEPAD has also implemented the USAIDrsquos recommendations for ldquohuman resource managementrdquo such as introducing payment by timesheet publishing travel cost reimbursement template advising project staff of whistleblower protection and preparing an organizational chart to reflect a planned organizational structure

Administrative Start-Up Tasks To further address USAIDrsquos staffing recommendation during the first Quarter

CEPAD brought into place Dionisio M Sarmento as the Outreach

Communication Specialist In such capacity he will be responsible for leading the

outreach advocacy and communications aspects of the project

CEPAD is determined to bring on board a Technical Coordinator during the

second Quarter to coordinate the overall development of the project as well to

assist with the translation into Tetum and the implementation of all relevant

policies and have these fully put into practice CEPAD is also on the process of

hiring an accountant within second Quarter to prepare and submit periodical

finance reports as well as bank reconciliations accounts receivable and other

financial data

I-CRES in close coordination with CEPAD has contracted Mathias Huter an

expert on transparency and access to information issues as a short-term

consultant for some of the first activities of the program During Quarters 1 and 2

he will research existing national and international commitments concerning

freedom of information (FOI) in collaboration with CEPAD compile relevant

references on international best practices to develop a Citizen Manual on the

right to information (RTI) and training of trainers manual In quarter 1 he

organized a workshop designed to inform and familiarize CEPAD staff with the

right to information its history and development international best practices and

common challenges

In addition to that another short-term consultant Hans Gutbrod has been

brought on the board by I-CRES He will oversee the development and

implementation of a baseline survey starting in the second quarter I-CRES and

CEPAD have taken first steps to initiate the planning for this survey At the

moment of the writing of the report CEPAD in partnership with I-CRES is in the

process of preparing for the project initial activities

The development of a bilingual website (Tetum and English) for CEPAD has

recently been completed the website will be launched within quarter 2 and will

contribute to increased visibility of the project and easy public access for its

outputs

Summary of Activities

Planed Activities as in Work Plan Timeline No

Datestimeline

Quarter 1 planed Activities

Current status

Commentsresponsibilities

1 Nov-Dec 2015 Research and compilation of

Completed I-CRES consultant Assisted

local legislation and international commitments of Timor-Leste concerning access to public information

by CEPAD

2 Nov-Dec 2015 Identifying and analyzing international best practice examples for the right to information

Completed I-CRES consultant assisted by CEPAD

3 Nov-Dec 2015 Research on international examples of freedom of information guidance materials

Completed I-CRES consultant

4 Dec 2015 Drafting of a citizen guide on the right to access information in Timor-Leste

Completed I-CRES consultant

5 Nov 2015 Workshop for CEPAD team on the principles of freedom of information

Completed I-CRES consultant

6 Dec 2015 Development of training materials for lsquotraining of trainersrsquo-sessions

Completed-ongoing

I-CRES consultant

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

List of Acronyms USAID United State Agency for Aid and Development

RDMA

CEPAD Center of Studies for Peace and Development

FOI Freedom of Information

OCA Organizational Capacity Assessment

RTI Right to Information

I-CRES Inovacioacuten para el Crecimento

OGP Open Government Partnership

TAF The Asia foundation

MampE Monitoring and Evaluation

INTERPEACE International Peace Building Alliance

PDHJ Provedoria de Direitos Humanos e Justiccedila

UNCAC The United Nations Convention Against Corruption

ECHR European Court of Human Rights

UNEP United Nations Environment Programme

UNDP United Nations Development Programme

EITI Extractive Industries Transparency Initiative

IFTI International Financial and Trade Institutions

ATI Access to Information

FOIA Freedom of Information Act

UNHCR United Nations Human Rights Committee

UNODC UN Convention against Corruption

UNESCO United Nations Educational Scientific and Cultural Organization

Executive Summary

USAIDrsquos Pre-Award conditions and recommendations Following the signing of the USAID Award agreement on September 29 2015 USAIDRDMA undertook a-three-day pre-award survey from August 24 to 26 2015 that resulted in several recommendations and conditions required of CEPAD prior to the implementation of the FOI project These recommendations include but not limited to absorptive capacity financial control and internal control system procurement system and human resource management as illustrated in the Status Report submitted to USAID on December 30 2015

Following on this USAID Timor-Lestersquos representatives met with CEPAD in October to introduce CEPAD to the Organizational Capacity Assessment (OCA) tool that is essential for the organization as a whole CEPAD will organize an internal workshop based on USAIDrsquos OCA tool to ensure that CEPAD team has a holistic understanding of the organizationrsquos strengths and challenges as it implements the FOI project as well as CEPADrsquos overall program in an effective way

At the time of the writing of this report CEPAD has undertaken necessary steps to address some of USAIDrsquos recommendations For example following on the USAID and other Auditors recommendations for ldquoAbsorptive Capacityrdquo a staffing plan has been discussed and job descriptions advertisements have been prepared for the MampE Officer Technical Coordinator and Part-time Accountant roles At the same time previous applicants (for these roles) that are considered qualified have been approached A number of recommendations ldquofinancial management and internal control systemrdquo have been addressed including discussions on devolving some of the functions of the Finance and Admin Officer to other staff CEPAD has also implemented the USAIDrsquos recommendations for ldquohuman resource managementrdquo such as introducing payment by timesheet publishing travel cost reimbursement template advising project staff of whistleblower protection and preparing an organizational chart to reflect a planned organizational structure

Administrative Start-Up Tasks To further address USAIDrsquos staffing recommendation during the first Quarter

CEPAD brought into place Dionisio M Sarmento as the Outreach

Communication Specialist In such capacity he will be responsible for leading the

outreach advocacy and communications aspects of the project

CEPAD is determined to bring on board a Technical Coordinator during the

second Quarter to coordinate the overall development of the project as well to

assist with the translation into Tetum and the implementation of all relevant

policies and have these fully put into practice CEPAD is also on the process of

hiring an accountant within second Quarter to prepare and submit periodical

finance reports as well as bank reconciliations accounts receivable and other

financial data

I-CRES in close coordination with CEPAD has contracted Mathias Huter an

expert on transparency and access to information issues as a short-term

consultant for some of the first activities of the program During Quarters 1 and 2

he will research existing national and international commitments concerning

freedom of information (FOI) in collaboration with CEPAD compile relevant

references on international best practices to develop a Citizen Manual on the

right to information (RTI) and training of trainers manual In quarter 1 he

organized a workshop designed to inform and familiarize CEPAD staff with the

right to information its history and development international best practices and

common challenges

In addition to that another short-term consultant Hans Gutbrod has been

brought on the board by I-CRES He will oversee the development and

implementation of a baseline survey starting in the second quarter I-CRES and

CEPAD have taken first steps to initiate the planning for this survey At the

moment of the writing of the report CEPAD in partnership with I-CRES is in the

process of preparing for the project initial activities

The development of a bilingual website (Tetum and English) for CEPAD has

recently been completed the website will be launched within quarter 2 and will

contribute to increased visibility of the project and easy public access for its

outputs

Summary of Activities

Planed Activities as in Work Plan Timeline No

Datestimeline

Quarter 1 planed Activities

Current status

Commentsresponsibilities

1 Nov-Dec 2015 Research and compilation of

Completed I-CRES consultant Assisted

local legislation and international commitments of Timor-Leste concerning access to public information

by CEPAD

2 Nov-Dec 2015 Identifying and analyzing international best practice examples for the right to information

Completed I-CRES consultant assisted by CEPAD

3 Nov-Dec 2015 Research on international examples of freedom of information guidance materials

Completed I-CRES consultant

4 Dec 2015 Drafting of a citizen guide on the right to access information in Timor-Leste

Completed I-CRES consultant

5 Nov 2015 Workshop for CEPAD team on the principles of freedom of information

Completed I-CRES consultant

6 Dec 2015 Development of training materials for lsquotraining of trainersrsquo-sessions

Completed-ongoing

I-CRES consultant

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

UNESCO United Nations Educational Scientific and Cultural Organization

Executive Summary

USAIDrsquos Pre-Award conditions and recommendations Following the signing of the USAID Award agreement on September 29 2015 USAIDRDMA undertook a-three-day pre-award survey from August 24 to 26 2015 that resulted in several recommendations and conditions required of CEPAD prior to the implementation of the FOI project These recommendations include but not limited to absorptive capacity financial control and internal control system procurement system and human resource management as illustrated in the Status Report submitted to USAID on December 30 2015

Following on this USAID Timor-Lestersquos representatives met with CEPAD in October to introduce CEPAD to the Organizational Capacity Assessment (OCA) tool that is essential for the organization as a whole CEPAD will organize an internal workshop based on USAIDrsquos OCA tool to ensure that CEPAD team has a holistic understanding of the organizationrsquos strengths and challenges as it implements the FOI project as well as CEPADrsquos overall program in an effective way

At the time of the writing of this report CEPAD has undertaken necessary steps to address some of USAIDrsquos recommendations For example following on the USAID and other Auditors recommendations for ldquoAbsorptive Capacityrdquo a staffing plan has been discussed and job descriptions advertisements have been prepared for the MampE Officer Technical Coordinator and Part-time Accountant roles At the same time previous applicants (for these roles) that are considered qualified have been approached A number of recommendations ldquofinancial management and internal control systemrdquo have been addressed including discussions on devolving some of the functions of the Finance and Admin Officer to other staff CEPAD has also implemented the USAIDrsquos recommendations for ldquohuman resource managementrdquo such as introducing payment by timesheet publishing travel cost reimbursement template advising project staff of whistleblower protection and preparing an organizational chart to reflect a planned organizational structure

Administrative Start-Up Tasks To further address USAIDrsquos staffing recommendation during the first Quarter

CEPAD brought into place Dionisio M Sarmento as the Outreach

Communication Specialist In such capacity he will be responsible for leading the

outreach advocacy and communications aspects of the project

CEPAD is determined to bring on board a Technical Coordinator during the

second Quarter to coordinate the overall development of the project as well to

assist with the translation into Tetum and the implementation of all relevant

policies and have these fully put into practice CEPAD is also on the process of

hiring an accountant within second Quarter to prepare and submit periodical

finance reports as well as bank reconciliations accounts receivable and other

financial data

I-CRES in close coordination with CEPAD has contracted Mathias Huter an

expert on transparency and access to information issues as a short-term

consultant for some of the first activities of the program During Quarters 1 and 2

he will research existing national and international commitments concerning

freedom of information (FOI) in collaboration with CEPAD compile relevant

references on international best practices to develop a Citizen Manual on the

right to information (RTI) and training of trainers manual In quarter 1 he

organized a workshop designed to inform and familiarize CEPAD staff with the

right to information its history and development international best practices and

common challenges

In addition to that another short-term consultant Hans Gutbrod has been

brought on the board by I-CRES He will oversee the development and

implementation of a baseline survey starting in the second quarter I-CRES and

CEPAD have taken first steps to initiate the planning for this survey At the

moment of the writing of the report CEPAD in partnership with I-CRES is in the

process of preparing for the project initial activities

The development of a bilingual website (Tetum and English) for CEPAD has

recently been completed the website will be launched within quarter 2 and will

contribute to increased visibility of the project and easy public access for its

outputs

Summary of Activities

Planed Activities as in Work Plan Timeline No

Datestimeline

Quarter 1 planed Activities

Current status

Commentsresponsibilities

1 Nov-Dec 2015 Research and compilation of

Completed I-CRES consultant Assisted

local legislation and international commitments of Timor-Leste concerning access to public information

by CEPAD

2 Nov-Dec 2015 Identifying and analyzing international best practice examples for the right to information

Completed I-CRES consultant assisted by CEPAD

3 Nov-Dec 2015 Research on international examples of freedom of information guidance materials

Completed I-CRES consultant

4 Dec 2015 Drafting of a citizen guide on the right to access information in Timor-Leste

Completed I-CRES consultant

5 Nov 2015 Workshop for CEPAD team on the principles of freedom of information

Completed I-CRES consultant

6 Dec 2015 Development of training materials for lsquotraining of trainersrsquo-sessions

Completed-ongoing

I-CRES consultant

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

CEPAD is determined to bring on board a Technical Coordinator during the

second Quarter to coordinate the overall development of the project as well to

assist with the translation into Tetum and the implementation of all relevant

policies and have these fully put into practice CEPAD is also on the process of

hiring an accountant within second Quarter to prepare and submit periodical

finance reports as well as bank reconciliations accounts receivable and other

financial data

I-CRES in close coordination with CEPAD has contracted Mathias Huter an

expert on transparency and access to information issues as a short-term

consultant for some of the first activities of the program During Quarters 1 and 2

he will research existing national and international commitments concerning

freedom of information (FOI) in collaboration with CEPAD compile relevant

references on international best practices to develop a Citizen Manual on the

right to information (RTI) and training of trainers manual In quarter 1 he

organized a workshop designed to inform and familiarize CEPAD staff with the

right to information its history and development international best practices and

common challenges

In addition to that another short-term consultant Hans Gutbrod has been

brought on the board by I-CRES He will oversee the development and

implementation of a baseline survey starting in the second quarter I-CRES and

CEPAD have taken first steps to initiate the planning for this survey At the

moment of the writing of the report CEPAD in partnership with I-CRES is in the

process of preparing for the project initial activities

The development of a bilingual website (Tetum and English) for CEPAD has

recently been completed the website will be launched within quarter 2 and will

contribute to increased visibility of the project and easy public access for its

outputs

Summary of Activities

Planed Activities as in Work Plan Timeline No

Datestimeline

Quarter 1 planed Activities

Current status

Commentsresponsibilities

1 Nov-Dec 2015 Research and compilation of

Completed I-CRES consultant Assisted

local legislation and international commitments of Timor-Leste concerning access to public information

by CEPAD

2 Nov-Dec 2015 Identifying and analyzing international best practice examples for the right to information

Completed I-CRES consultant assisted by CEPAD

3 Nov-Dec 2015 Research on international examples of freedom of information guidance materials

Completed I-CRES consultant

4 Dec 2015 Drafting of a citizen guide on the right to access information in Timor-Leste

Completed I-CRES consultant

5 Nov 2015 Workshop for CEPAD team on the principles of freedom of information

Completed I-CRES consultant

6 Dec 2015 Development of training materials for lsquotraining of trainersrsquo-sessions

Completed-ongoing

I-CRES consultant

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

local legislation and international commitments of Timor-Leste concerning access to public information

by CEPAD

2 Nov-Dec 2015 Identifying and analyzing international best practice examples for the right to information

Completed I-CRES consultant assisted by CEPAD

3 Nov-Dec 2015 Research on international examples of freedom of information guidance materials

Completed I-CRES consultant

4 Dec 2015 Drafting of a citizen guide on the right to access information in Timor-Leste

Completed I-CRES consultant

5 Nov 2015 Workshop for CEPAD team on the principles of freedom of information

Completed I-CRES consultant

6 Dec 2015 Development of training materials for lsquotraining of trainersrsquo-sessions

Completed-ongoing

I-CRES consultant

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

7 Dec 2015 Survey design development of sampling methodology

Ongoing I-CRES Consultant

8 Nov-Dec 2015 Initial meetings with civil society organizations and government stakeholders

Ongoing I-CRES in Partnership with CEPAD

9 Dec 2015 Ensure support of stakeholders for FOI through formalinformal agreements

Ongoing I-CRES in Partnership with CEPAD

Activity Updates

I-CRES Consultantrsquos Dili Visit from November to December 2015

In November to December 2015 in collaboration with CEPAD one of a short term I-CRES consultant was scheduled to Timor to undertake some of the early project activities as outlined in the planed activities on the table above The following is the summary of the quarter 1 activity

Program Component

1 Public outreach and education

Objective Wake up a collective ldquosocial consciencerdquo within communities through public education on their constitutional rights to access public information (Freedom of Information) so that they are able to resist manipulations and are encouraged to be more involved in improving governance by holding their leaders accountable

Expected Result Civil society is well-informed about the right to information

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

and is empowered to exercise it by requesting information

and documents on issues of interest from the authorities

Related performance Indicator (s)

1 Objectives of the activity and scope of work The scope of work for the trip was to provide an introductory presentation on the right to information to CEPAD staff to identify relevant provisions concerning the right to information in national legislation Another objective was to also identify relevant international commitments of Timor-Leste and applicable international standards concerning citizensrsquo right to information In addition the scope of work included an outline for a manual informing citizens about their right to information Additional objectives of the assignment were to provide support to CEPAD staff in drafting the work plan and a monitoring and evaluation plan of the project

2 Participants beneficiaries A 15 hour-long introduction on freedom of information for CEPAD staff on December 1 2015 was attended by ten staff members (five male five female) The consultant and CEPADrsquos communication officer Dionisio M Sarmento met with the directors of four local NGOs working on issues related to good governance transparency and accountability ndash Luta Hamutuk the Media Development Center Fundasaun Mahein and Larsquoo Hamutuk ndash to present the goals and planned activities of the project and to discuss the respective experiences of accessing public information Another meeting was held with Horacio de Almeida Deputy Provedor for Human Rights to present the project and to discuss the institutionrsquos role in the context of access to information and also a possible future cooperation throughout the implementation of the project (All these interlocutors were male)

3 Results Together with CEPAD staff the consultant developed a work plan and an MampE plan which was submitted to USAID for review Both documents were returned to CEPAD two weeks later with USAIDrsquoS feedback and recommendations

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Following USAIDrsquos comments and suggestions the WorkPlan was amended and a narrative Project Monitoring and Evaluation Plan was developed and submitted to USAID in January 25 2016 On December 4 the consultant and Dionisio M Sarmento met with Ana L da C Gusmao Guterres Project Management Specialist at USAID Timor-Leste and were joined by Ray Johansen Director of the Office of General Development Mathias Huter presented the focus of the work plan and discussed some of the activities that had been conducted during the two-week visit USAID representatives provided initial feedback on some aspects of the activities planned for the first year of the program In particular they encouraged CEPAD to engage with relevant government stakeholders from an early phase of the project and suggested to also engage the business community in an effort to promote the use of freedom of information requests by the private sector Several civil society interlocutors stated that they often were able to receive information and get access to documents from government bodies through informal channels including through government members who serve on the respective organizationsrsquo boards or via personal contacts in different agencies Two representatives emphasized that they saw a lack of demand for information and that many stakeholders may lack the capacity to request process analyze and use information and data obtained from government bodies Two interlocutors highlighted the misuse of alleged national security reasons by government bodies in an effort to keep information secret as well as other practices of opaque decision making by key state bodies Several interlocutors also underlined that journalists or civil society representatives mostly enjoy access to information as long as they are on good personal terms with the respective institutions and that access would likely be restricted when there is open criticism of the institution or its high-level officials All four stakeholder organizations stated their willingness to cooperate with CEPAD on the implementation of the project and also expressed their support for the long-term goal of developing a Freedom of Information Act One line of thought expressed by civil society leaders was that a law was necessary to ensure transparency also after a possible change of government or after a change in attitude by government agencies who currently may allow for informal access to information Building on the discussions with civil society representatives the consultant drafted an outline for a citizen manual on the access to information With the assistance of CEPAD staff the consultant also drafted a compilation of current legislation with relevance for the right to information as well as relevant international commitments that Timor-Leste has entered into Furthermore the consultant identified relevant international soft standards that could serve as

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

guidance for efforts to develop an access to information policy for Timor-Leste based on good international practice The consultant provided an introduction to the history law practice and use of the right to information to CEPAD staff who then engaged in a substantive discussion of various aspects concerning the access to information Although the Deputy Provedor for Human Rights spoke largely in a personal capacity it appears that the Ombudsmanrsquos office is well-positioned to promote the access to information and to work with CEPAD as a key government stakeholder throughout the project Not only could the Ombudsmanrsquos office help with the distribution of citizen manuals it also has to serve as a body that citizens can appeal to when being denied access to information by a government entity The consultant also met with Susan Mark country director at the Asia Foundation (TAF) Hugo Fernandes (Director of Public Policy TAF) and Gobie Rajalingam (good governance program officer TAF) to discuss the focus of the FOI project and planned TAF-activities in the area of good governance and transparency TAF representatives stated that the organization is interested in advocating for Timor-Leste to join the Open Government Partnership (OGP) which could serve as an important engine to promote transparency and good governance In order to qualify for OGP membership a country has to adopt legislation to ensure basic levels of transparency ndash Timor-Leste currently is not qualified due to the lack of asset disclosure regulation and a freedom of information act At the time of the writing of this report CEPAD is in close coordination with I-CRES to plan for the implementation of the early project activities I-CRES hired short-term consultants namely Mathias Huter and Hans Gutbrod are scheduled to travel to Dili from late January to Late February 2016 to implement the project activities illustrated in the work plan Mathias an expert in transparency and good governance will cover such activities as the development of citizen manual on freedom of information drafting of citizen guide on the right to access information in Timor-Leste working with layout artist for creative in the design of the citizen manual training session for trainers on FOI develop a manual for the training of trainers developing of training materials for lsquotraining of trainersrsquo sessions and training of trainers Mathias will also develop the survey questionnaire for the baseline survey While Hans a baseline survey specialist will be responsible for the tasks relevant to the baseline survey on FOI which include Survey design development of sampling methodology (population representative simple indicators and interviewer profile) development of the survey questionnaire (Design and prepared the instrument with the guide) pilot survey with a small sample to fine-tune questionnaire (Validation of the survey) selection and training of survey interviewers interviews for survey are carried out data is collected and controlled for quality analysis of collected data and drafting of an analytical paper on the insights provided by the survey

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Problems Encountered and Lessons Learned This section describes key challenges that CEPAD encountered at the start of the Freedom of Information (FOI) project and provide insights and recommendation for the future These challenges include but not limited to staffing plan bureaucracy reimbursement-based agreement A staffing plan for the project management will be established so that the specific skill sets required for completing the project deliverables are reasonably determined However due to the specific socio-political context in which the FOI project is implemented coupled with a variety of unforeseen events existing staff on CEPADrsquos payroll has been considered during the project initiation stage of implementation while new hires have been postponed to January 2016 once a proper skills inventory has been carried out based on knowledge and abilities of the human resources required so that project deliverables are met timely In addition to that the amount budgeted for the MampE officer does not appear to reflect the required salary for a suitably qualified person This will need to be resolved before an appointment can be made Another issue is bureaucracy while bureaucracy is essential for good governance too much bureaucracy can be a serious issue hampering development in every sector of society The experience of slack development process in Timor-Leste underpins the bureaucratic culture heavily embedded in the life of organizationalinstitutions in the country In its long years of working for peace building in Timor-Leste through grassroots community engagement CEPAD puts greater emphasis on the direct impact of the project delivery and outcome rather than merely ensuring good paper work Form the inception of the project CEPAD reflects that the bureaucratic demands of USAID is relatively high undermining the actual project activities to be undertaken As in CEPADrsquos experience so far aside from the lack of fund (as will be described below) bureaucratic demands do affect timely implementation of the project activity It delays the project implementation as outlined in the work plan This does not reflect CEPADrsquos value that is to provide genuine service with tangible outcome the beneficiaries Timorese citizens as a whole In this respect a more flexible bureaucratic system from the part of USAID will be much appreciated and valued as it will provide more space for CEPAD to make this FOI project a fundamental effort to promote good governance and consolidate democracy in a young fledge state Timor-Leste CEPAD also realized that the reimbursement-based agreement is an issue deterring FOI project implementation and will continue to do so in the future if not addressed It is vital to acknowledge the USAID that CEPAD is facing a financial problem with the withdrawal of financial support from International Peace Building (Interpeace) that CEPAD has been benefiting from throughout these years Aside from programme support Interpeace has been supporting CEPAD financially since its inception in 2007 Due to the financial problem encountered by this

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

international partner organization Interpeace will not be able to finance some of the CEPADrsquos work starting from this year To this fact CEPAD has to admit that a recent development in CEPADrsquos financial aid posted significant change in its approach towards its project implementation including the FOI program This development disables CEPAD to comply with the USAIDrsquos reimbursement-based policy simply because CEPAD does not have enough fund to execute some the early FOI project activities For example a team of consultants for the early project activities who were scheduled to arrive this month has been postponed due to the lack of fund to finance their travel accommodation and other expenses That said CEPAD will seek for advice from USAID on how to deal with the above mentioned challenges

Way Forward

Addressing USAIDrsquos Awards conditions To further address the USAIDrsquos recommendations highlighted in the Cooperative Agreement Award No AID-472-A-15-00002 CEPAD has identified various approaches to proceed in quarter two For example with regard to the absorptive capacity CEPAD will advertise jobs more widely in January with view to making the appointments as soon as possible Recruitment process for key positions required for FOI project is taking place and will be finalized the sooner the better In addition CEPADrsquos overall organizational chart will be revised to incorporate the FOI project team showing and allowing existing different project team members to share information more readily across task boundaries

Regarding financial management and internal control system CEPAD has been (since Q1) in the process of recruiting an Accountant to enable the implementation of the plan to establish adequate separation of duties So far CEPAD has interviewed three candidates however none of them has proven qualified The recruitment process for this position is still ongoing and CEPAD is hopeful to fine one as soon as possible At the same time CEPAD is determined to complete a global budget by January month end separated in to monthly periods to allow monthly variance reporting Likewise CEPAD will review filing and document retention systems in all areas as well translating all policies developed into Tetum for the greater access of all staff members

In terms of procurement system CEPAD will review current policies and procedures to ensure they include sub-award procurement That said all of the relevant policies will be translated into Tetum and training will be provided to al the staff to ensure compliance with polices Likewise CEPAD will review every procurement documentation and records management that the organization has in place Lastly concerning Human Resources Management CEPAD will review all files and forms of management to incorporate the USAIDrsquos conditions and recommendations

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Conclusions and recommendations

Initial discussions with stakeholder organizations showed that there is a strong interest in advancing the debate over government transparency and access to information for journalists civil society actors and citizens CEPAD staff has engaged in first discussions of the principles of freedom of information and has recognized access to information as an important tool to facilitate inclusive decision making processes to strengthen anti-corruption efforts and to promote reconciliation and democratic accountability As a next step it will be important for CEPAD staff and the consultant to work closely together in developing scenarios that show citizens of Timor-Leste how access to information can be relevant for their everyday life These examples will be illustrated and included in the citizen manual in an effort to encourage readers to exercise their right to information and to request answers from government bodies It may also be useful to consult with a local lawyer with extensive administrative experience when drafting the citizen manual It appears that building more demand for information will be crucial in order to move efforts to promote government transparency and accountability in Timor-Leste forward There appears to be strong support from civil society and possibly also from some actors within government to build joint momentum which could result in improved access to information for the public and eventually may result in the adoption of formal access to information policies or even a freedom of information act The baseline survey which will be developed and conducted in the coming months will also provide important insights on how citizens perceive their relationship with the government The survey will also help inform future advocacy efforts as well as cooperation with government bodies aimed at increasing openness and transparency of the administration

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

ANNEXES Relevant Documents on FOI Developed by I-CRES Consultant Mathias Huter-December 2015

I The Right to Information in Timor-Leste National legislation international commitments and best practices

1 National legislation Constitution Sections 40 and 41 of the Constitution of the Democratic Republic of Timor-Leste provide for the right of freedom of speech and information for ldquoevery personrdquo and the press1

ldquoSection 40 (Freedom of speech and information) 1 Every person has the right to freedom of speech and the right to inform

and be informed impartially 2 The exercise of freedom of speech and information shall not be limited

by any sort of censorshiprdquo The reference to the impartiality of information in Section 40 is not in line with international standards and is thus problematic2

ldquoSection 41 (Freedom of the press and mass media) 1 Freedom of the press and other mass media is guaranteed 2 Freedom of the press shall comprise namely the freedom of speech

and creativity for journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcasting ()ldquo

While not directly related to the right to information Section 46 (1) addresses the right of every citizen to participate in political life Access to information arguably may be a relevant precondition to such participation

1 Constitution of the Democratic Republic of East Timor (March 2002) httptimor-lestegovtlwp-

contentuploads201003Constitution_RDTL_ENGpdf last accessed 4 December 2015 2 See UNESCOToby Mendel (2011) Assessment of Media Development in Timor-Leste p10

httpunesdocunescoorgimages0021002115211597Epdf

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

ldquoEvery citizen has the right to participate in the political life and in the public affairs of the country either directly or through democratically elected representativesrdquo

Section 23 states that all fundamental rights including the freedom of speech and to information have to be interpreted in line with the universal declaration of human rights

ldquoFundamental rights enshrined in the Constitution shall not exclude any other rights provided for by the law and shall be interpreted in accordance with the Universal Declaration of Human Rightsrdquo

Peoplesrsquo right to access information also has to respect legitimate rights of those who are affected by the release The Constitution includes several articles on the protection of privacy and personal data Section 38 (1) also explicitly provides for a citizenrsquos right to access all data on themselves that is held by the government or third parties

ldquoSection 36 (Right to honor and privacy) Every individual has the right to honor good name and reputation protection of his or her public image and privacy of his or her personal and family liferdquo ldquoSection 37 (Inviolability of home and correspondence) 1 Any persons home and the privacy of his or her correspondence and other means of private communication are inviolable except in cases provided for by law as a result of criminal proceedings 2 A persons home shall not be entered against his or her will except under the written order of a competent judicial authority and in the cases and manner prescribed by law 3 Entry into any persons home at night against his or her will is clearly prohibited except in case of serious threat to life or physical integrity of somebody inside the home Section 38 (Protection of personal data) 1 Every citizen has the right to access personal data stored in a computer system or entered into mechanical or manual records regarding him or her and he or she shall have the right to demand the purpose of such data 2 The law shall determine the concept of personal data as well as the conditions applicable to the processing thereof 3 The processing of personal data on private life political and philosophical convictions religious faith party or trade union membership and ethnical origin without the consent of the interested person is prohibitedrdquo

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Intellectual property and the protection of copyright is recognized by Section 60 of the Constitution ndash a provision that might be relevant in cases where copyrighted materials are subject to an access to information request Section 24 allows for a restriction of rights freedoms and guarantees to be only when imposed ldquoby law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitutionrdquo

ldquo2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectrdquo

Section 28 provides for the right of every citizen (note this right does not apply no non-citizens) to resist illegal orders that affect their fundamental rights freedoms and guarantees providing for a right to appeal against a refusal to access information

ldquoSection 28 (Right to resistance and self-defense) 1 Every citizen has the right to disobey and to resist illegal orders or orders that affect their fundamental rights freedoms and guarantees 2 The right to self-defense is guaranteed to all in accordance with the lawrdquo

One institution citizens can turn to when being denied requested information is the Ombudsman (ldquoProvedoria for Human Rights and Justice ndash PDHJrdquo) The Constitution defines the institution as an

ldquo(hellip) independent organ in charge of examining and seeking to settle citizensrsquo complaints against public bodies certifying the conformity of the acts with the law preventing and initiating the whole process to remedy injusticerdquo (Section 27)3

The Ombudsman shall review any complaints that are presented by citizens (or by other public bodies) and may forward recommendations to the competent agency as deemed necessary While the Constitution requires administrative organs and public servants to collaborate with the Ombudsman the institution can only give recommendations and is not empowered to issue orders to other public bodies Any appeal to the Ombudsman is independent from any legal remedies that a citizen might chose to use (Section 27 Para 4)4

3 For more details see the PDHJ lsquos website httppdhjtllang=en

4 In its strategy 2011 to 2020 the PDHJ included one broad reference in regards to the right to information

namely ldquothe increase [of] rural peoplersquos access to services including access to roads health clinics education and informationrdquo httppdhjtlwp-contentuploads201311SP-PDHJ-2011-2020-epdf

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Section 151 also provides the Ombudsman alongside the President of the Republic and the Prosecutor-General with the right to

ldquo(hellip) request the Supreme Court of Justice to review the unconstitutionality by omission of any legislative measures deemed necessary to enable the implementation of the constitutional provisionsrdquo

In line with Section 48

ldquoevery citizen has the right to submit individually or jointly with others petitions complaints and claims to organs of sovereignty or any authority for the purpose of defending his or her rights the Constitution the law or general interestsrdquo

Media Act The highly controversial Media Act (adopted in November 2014) 5 The introduction to the law state that its purpose includes the defense of the right of citizens and their full exercise of freedom of through and expression Article 1 of the Media Act states ldquoThe laws purpose is to ensure protect and regulate the freedom of information of the press and the media (of social communication)rdquo Article 5 Paragraph 1b defines the responsibilities of the State in the field of ldquosocial communicationrdquo and includes the responsibility to ldquoensure the free flow of information and free access to informational productsrdquo6 ldquoMedia (social communication)rdquo is defined in Article 2 e) as

ldquothe dissemination of information through text sound and images available to the public whatever their form of reproduction and disclosurerdquo

The law in general is aimed at regulating the activities of journalists and the for-profit media outlets they work for ndash in violation of international human rights standards the profession of journalism is highly regulated and requires a license from a government-regulated Press Council Also due to somewhat vague definitions it may also be applicable to other actors that disseminate and seek information such as non-profit media outlets advocacy organizations and citizen bloggers

5 Official Gazette of Timor-Leste httpwwwjornalgovtlpublicdocs2014serie_1SERIE_I_NO_39pdf The

Media Act was criticized by local organizations including Larsquoo Hamutik as well as by Human Rights Watch and several foreign media outlets including the Guardian and the Economist For background on the adoption of the Media Law (Lei Imprensa) see the backgrounder by Larsquoo Hamutik httpwwwlaohamutukorgmiscMediaLaw14MediaLawhtm The organization has also produced an unofficial translation of the first version of the law that was adopted by Parliament (some provisions were later found to be unconstitutional)

httpwwwlaohamutukorgmiscMediaLawLeiImprensa25June2014enpdf

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Article 19 (2) states that a ldquojournalist has the right of access to official information sources under the lawrdquo However the law provides no definition of what ldquoofficial information sourcesrdquo are

2 Environmental Framework Law The Environmental Framework Law contains provisions providing for Timorese citizensrsquo and legal persons to access to all environmental information

ldquoArticle 6 1 All citizens are entitled to participate in the conservation and protection of the environment either in an individual capacity or through an association 2 By law all citizens are entitled to access environmental information without prejudice to the rights of legally protected third parties 3 Everyone is guaranteed the right of access to participation in procedures for environmental decision making that have significant environmental effects 4 All citizens are entitled to environmental education with a view to ensuring their effective participation in conserving and protecting the environment 5 Any citizen who deems that the terms of the present law or any environmental legislation or regulation has been infringed or is at risk of being infringed is entitled to petition the courts under the general terms of the law to stop the causes of the said infringement and to secure the respective compensation irrespective of having suffered or eventually suffering any damages or having a personal interest in the matter 6 The rights provided for in this article shall also apply to legal persons after due adaptation 7 The State must ensure the implementation of rights under the law especially for vulnerable groupsrdquo7

The law also defines the governmentrsquos responsibility to collect and manage environmental information and to make it accessible to the public

ldquoArticle 48 (Environmental information system) 1 The State shall create an environmental information system on the state of the environmental components natural resource exploitation and identification of the programs plans and projects which may have a significant impact on public health and human well-being the environmental components and ecological sustainability 2 The environmental information system provided for in the preceding paragraph aims to facilitate the ordering access distribution and sharing

7 Unofficial translation of the law

httpwwwlaohamutukorgAgriEnvLaw2012DL26EnvBasicLaw4Jul2012enpdf

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

of environmental information and to promote environmental education and citizen participation in decision-making processes and the conservation and protection of the environment and natural resources 3 The environmental information system shall be administered by a public body with competences for compiling handling ordering and divulging relevant environmental information in a way which is clear and accessible to the general public 4 Other public or private bodies which in performing their functions provide services or develop environment-related programs plans and projects are obliged to collaborate with and provide relevant information to the body referred to in the preceding paragraph subject to the legally safeguarded rights of third partiesrdquo

Citizens have a right to access environmental information However this access may be limited by ldquoconfidentiality rulesrdquo

ldquoArticle 49 (Access to environmental information) 1 Systematic environmental information pursuant to the preceding Article or any other relevant information shall be freely accessible to the general public in the official languages subject to any confidentiality rules under the legal provisions in force 2 For the purposes of the preceding paragraph the law sets out the mechanisms ensuring public availability and consultation of sufficient information on the programs plans or projects subject to environmental licensing and strategic environmental assessment to enable environmentally substantiated decisions to be takenrdquo

The law also mandates the administration to actively promote the implementation of the law and thus also citizensrsquo right to access environmental information and participation in processes related to the environmental protection

ldquoArticle 55 (Public participation in environmental inspections) 1 For the purposes of paragraph 3 of the preceding Article the State shall promote the participation of public bodies citizens and legal persons in implementing this law and in conducting environmental inspections by creating mechanisms for the reporting of suspected infringements of environmental legislation 2 For the purposes of the preceding paragraph the law shall establish a decentralized and transparent system for reporting environmental violations which ensures that they are registered and that the competent services are able to respond rapidlyrdquo

Article 59 defines sanctions for violations of the law It is not clear however if they also apply to a failure of public bodies to provide information to citizens

ldquoArticle 59 (Administrative liability)

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

1 Violations of the present law are deemed punishable by an administrative fine the maximum and minimum limits of which are defined by law in accordance with the seriousness of the infringement 2 Administrative liability is independent of any civil or criminal liability that may arise in accordance with the law 3 If conduct is punishable both as a crime and an administrative offence the offender shall always be punished according to the former subject to any additional penalties provided for the offence 4 Negligence and attempted damage are always punishable 5 The State shall develop general guidelines and directives to assess environmental damage for the purposes of establishing an offenders liabilityrdquo

Article 63 puts the public prosecutorrsquos office in charge of enforcing the law This provision appears to provide citizens with the option to turn to the prosecutorrsquos office and the court when seeking to ensure the implementation of their right to access environmental information

ldquoArticle 63 Judicial Oversight 1 The public prosecutors office is responsible before the relevant courts for protecting the environment and ensuring that the present law and other environmental legislation are implemented and complied with 2 Any natural or legal person who feels that their rights are threatened or have been harmed is legitimately entitled to bring the case before the courts to request that the said threatening or harmful conduct be stopped and the relevant compensation be paid under the general terms of the law 3 The legitimacy of any person or association foundation and local community to propose and intervene in principal and protective proceedings to safeguard the environment is also recognized irrespective of personal interest in the matter 4 All members of the interested public are legitimately entitled to question the procedural or substantive legality of the decisions actions or omissions of public bodies 5 The right to bring a matter before the courts provided for in the present Article may be exercised directly and without the need for prior administrative reviewrdquo

Statute of the Civil Service As one of its goals the Statute states

ldquoPublic administration should be structured in order to avoid bureaucracy to bring services closer to communities and to ensure the participation of the citizen in the management of public assetsrdquo8

8 Law No 82004 16 June 2004 that approves the Statute of the Civil Service

httpwwwjornalgovtllawsTLRDTL-LawRDTL-LawsLaw-2004-8pdf

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Importantly the Statute defines responsibilities of a civil servant in regards to the confidentiality of information held by public bodies

ldquoArticle 5 (Discretion and Confidentiality) 1 A civil servant shall be under an obligation to maintain professional secrecy regarding documents facts or information that he or she may become acquainted with in the course of his or her functions particularly in the following cases a) National security protection of public order and financial interests of the State b) Investigation into acts punishable under law c) Medical secrecy d) Rights and liberties guaranteed by the Constitution e) Preparation of decisions by public authorities f) Commercial industrial or intellectual information of a confidential nature g) Personal files 2 The provisions of item 1 above shall also apply to civil servants who for whatever reason are no longer employed by the public administrationrdquo

3 International commitments and standards The United Nations Convention Against Corruption (UNCAC) Timor-Leste signed the United Nations Convention Against Corruption in 2003 it entered into force in 2009 9 Several articles of the Convention address the publicrsquos right to access information and the governmentrsquos responsibility to ensure transparency and provide citizens with access to information especially in several areas that are subject to high risks of corruption such as public procurement the management of public finances and of relevant decision-making processes The UNCAC-review of implementation of relevant articles in Timor-Leste has yet to take place10

bdquoArticle 9 Public procurement and management of public finances 1 Each State Party shall in accordance with the fundamental principles of its legal system take the necessary steps to establish appropriate systems of procurement based on transparency competition and objective criteria in decision-making that are effective inter alia in preventing corruption

9 httpswwwunodcorgunodcentreatiesCACsignatorieshtml

10 httpswwwunodcorgunodctreatiesCACcountry-profileprofilesTLShtml

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

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based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Such systems which may take into account appropriate threshold values in their application shall address inter alia

(a) The public distribution of information relating to procurement procedures and contracts including information on invitations to tender and relevant or pertinent information on the award of contracts allowing potential tenderers sufficient time to prepare and submit their tenders (b) The establishment in advance of conditions for participation including selection and award criteria and tendering rules and their publication (c) The use of objective and predetermined criteria for public procurement decisions in order to facilitate the subsequent verification of the correct application of the rules or procedures (d) An effective system of domestic review including an effective system of appeal to ensure legal recourse and remedies in the event that the rules or procedures established pursuant to this paragraph are not followed (e) Where appropriate measures to regulate matters regarding personnel responsible for procurement such as declaration of interest in particular public procurements screening procedures and training requirements

2 Each State Party shall in accordance with the fundamental principles of its legal system take appropriate measures to promote transparency and accountability in the management of public finances Such measures shall encompass inter alia

(a) Procedures for the adoption of the national budget (b) Timely reporting on revenue and expenditure (c) A system of accounting and auditing standards and related oversight (d) Effective and efficient systems of risk management and internal control and (e) Where appropriate corrective action in the case of failure to comply with the requirements established in this paragraph

3 Each State Party shall take such civil and administrative measures as may be necessary in accordance with the fundamental principles of its domestic law to preserve the integrity of accounting books records financial statements or other documents related to public expenditure and revenue and to prevent the falsification of such documents Article 10 Public reporting Taking into account the need to combat corruption each State Party shall in accordance with the fundamental principles of its domestic law take such measures as may be necessary to enhance transparency in its public administration including with regard to its organization functioning and decisionmaking processes where appropriate Such measures may include inter alia

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

(a) Adopting procedures or regulations allowing members of the general public to obtain where appropriate information on the organization functioning and decision-making processes of its public administration and with due regard for the protection of privacy and personal data on decisions and legal acts that concern members of the public (b) Simplifying administrative procedures where appropriate in order to facilitate public access to the competent decision-making authorities and (c) Publishing information which may include periodic reports on the risks of corruption in its public administration

Article 13 Participation of society 1 Each State Party shall take appropriate measures within its means and in accordance with fundamental principles of its domestic law to promote the active participation of individuals and groups outside the public sector such as civil society non-governmental organizations and community-based organizations in the prevention of and the fight against corruption and to raise public awareness regarding the existence causes and gravity of and the threat posed by corruption This participation should be strengthened by such measures as

(a) Enhancing the transparency of and promoting the contribution of the public to decision-making processes (b) Ensuring that the public has effective access to information (c) Undertaking public information activities that contribute to nontolerance of corruption as well as public education programmes including school and university curricula (d) Respecting promoting and protecting the freedom to seek receive publish and disseminate information concerning corruption That freedom may be subject to certain restrictions but these shall only be such as are provided for by law and are necessary

(i) For respect of the rights or reputations of others (ii) For the protection of national security or ordre public or of public health or morals

2 Each State Party shall take appropriate measures to ensure that the relevant anti-corruption bodies referred to in this Convention are known to the public and shall provide access to such bodies where appropriate for the reporting including anonymously of any incidents that may be considered to constitute an offence established in accordance with this Conventionldquo11

11

httpswwwunodcorgdocumentstreatiesUNCACPublicationsConvention08-50026_Epdf

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

4 International Covenant on Civil and Political Rights Timor-Leste signed and ratified the Covenant in 200312 Article 19 provides for freedom of speech and the right to information

bdquoArticle 19 1 Everyone shall have the right to hold opinions without interference 2 Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art or through any other media of his choice 3 The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) For the protection of national security or of public order (ordre public) or of public health or moralsrdquo

The implementation oft eh Covenant is monitored by the Human Rights Committee All state parties tot he Covenant have to provide the Committee with regular implementation reports (usually every four years) which are then examined by the Committee and result in recommendations for the country through so-called concluding observations13 However it appears that Timor-Leste never provided such an implementation report The respective website of the UN does not list any relevant submissions (a listed due date for a first report is December 2004)14

The Human Rights Committee also publishes its interpretation of the Covenant

and its human rights provisions in ldquogeneral commentsrdquo In 2011 its General

Comment No 34 addressed the freedoms of opinion and expression including

the ldquoright of access to informationrdquo thus providing for some binding standards

that Timor-Leste should comply with

ldquo18 Article 19 paragraph 2 embraces a right of access to information held by public bodies Such information includes records held by a public body regardless of the form in which the information is stored its source and the date of production Public bodies are as indicated in paragraph 7 of this general comment The designation of such bodies may also include other entities when such entities are carrying out public functions As has already been noted taken together with article 25 of the Covenant the right of access to information includes a right whereby the media has access to information on public affairs and the right of the general public to

12

httpstreatiesunorgPagesViewDetailsaspxsrc=INDampmtdsg_no=IV-4ampchapter=4amplang=en 13

httpwwwohchrorgENHRBodiesCCPRPagesCCPRIndexaspx 14

httptbinternetohchrorg_layoutsTreatyBodyExternalCountriesaspxCountryCode=TLSampLang=EN

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

receive media output Elements of the right of access to information are also addressed elsewhere in the Covenant As the Committee observed in its general comment No 16 regarding article 17 of the Covenant every individual should have the right to ascertain in an intelligible form whether and if so what personal data is stored in automatic data files and for what purposes Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control his or her files If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law every individual should have the right to have his or her records rectified Pursuant to article 10 of the Covenant a prisoner does not lose the entitlement to access to his medical records The Committee in general comment No 32 on article 14 set out the various entitlements to information that are held by those accused of a criminal offence Pursuant to the provisions of article 2 persons should be in receipt of information regarding their Covenant rights in general Under article 27 a State partyrsquos decision-making that may substantively compromise the way of life and culture of a minority group should be undertaken in a process of information-sharing and consultation with affected communities 19 To give effect to the right of access to information States parties should proactively put in the public domain Government information of public interest States parties should make every effort to ensure easy prompt effective and practical access to such information States parties should also enact the necessary procedures whereby one may gain access to information such as by means of freedom of information legislation The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information Authorities should provide reasons for any refusal to provide access to information Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requestsrdquo15

Soft standards and international good practice

Seeking for international good practice Timor-Leste could derive guidance from

a number of regional human rights conventions and courts (one of which cover

South-East Asia) from model laws developed by regional bodies and civil society

groups and from provisions and implemented by other countries

European Convention on Human Rights

15

United Nations Human Rights Committee July 2011 General Comment No 34 httpwww2ohchrorgenglishbodieshrcdocsgc34pdf

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

One important source could be the European Convention of Human Rights as

well as rulings by the European Court of Human Rights (ECHR) which interprets

the application of the Convention in its member countries

Importantly Article 10 Para 2 of the Convention contains a list of exemptions

that may allow for restrictions of freedom of speech

bdquoARTICLE 10 Freedom of expression 1 Everyone has the right to freedom of expression This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises 2 The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo16

The convention also highlights that the right of access to information and has established that the abovementioned criteria may only be used to restrict freedom of information if this limitation is also prescribed by law and necessary in a democratic society Further guidance on the interpretation and application of Article 10 can be found in rulings by the European Court of Human Rights17 European Convention on Access to Official Documents The Council of Europersquos Convention on Access to Official Documents has yet to enter into force as it has not been signed and ratified by a sufficient number of European countries18 Nonetheless the Convention may provide some useful soft standards especially concerning the access to official documents and acceptable exceptions from this right to access19

16

httpwwwechrcoeintDocumentsConvention_ENGpdf 17

ECHR rulings related to the freedom to receive information httphudocechrcoeintengkpthesaurus[161]documentcollectionid2[GRANDCHAMBERCHAMBER] See also Council of Europe (2007) Freedom of expression in Europe Case-law concerning Article 10 of the European Convention on Human Rights httpwwwechrcoeintLibraryDocsDG2HRFILESDG2-EN-HRFILES-18(2007)pdf 18

httpswwwcoeintfrwebconventionsfull-list-conventionstreaty205signaturesp_auth=QyRasUOY 19

httpswwwcoeintfrwebconventionsfull-list-conventionsrms0900001680084826

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

American Convention on Human Rights The American Convention on Human Rights especially Article 13 on Freedom of Thought and Expression and its interpretation by the Inter-American Commission on Human Rights could serve as a soft standard for Timor-Leste to help identify and adopt internationally recognized good practice20 The Organization of American States has developed a model law on access to information which could serve as a role model in many regards for Timor-Leste21 OAS has also released a book with commentary on the model law22

African Commission on Human and Peoplesrsquo Rights

Another regional standard that could be a source of guidance for Timor-Leste is the African Commission on Human and Peoplesrsquo Rightsrsquo Model Law for African States to Information for Africa23

Standards and guidelines developed by non-governmental organizations

Article 19 has developed a model law with principles for freedom of information

legislation The principles were endorsed by the UN Special Rapporteur on

Freedom of Opinion and Expression and by the Organization of American

States24

Access Info Europe and the Center for Law and Democracy have developed and

maintained a global Right-To-Information-Rating which benchmarks national

freedom of information legislation from around the globe At present the rating

contains an assessment of the legal framework of 104 countries 25 (The

assessment does not seek to assess the practice and thus the implementation of

those laws)

The methodology and the 61 indicators used in the RTI rating can be used as an

overall guide to good practice and could help to benchmark any draft against

20

American Convention on Human Rights httpwwwcidhorgBasicosEnglishBasic3American20Conventionhtm Inter-American Court of Human Rights httpwwwcorteidhorcrcorte 21

httpswwwoasorgensladilaccess_to_information_model_lawasp for the text of the model law see httpswwwoasorgensladildocsaccess_to_information_Text_edited_DDIpdf 22

httpswwwoasorgensladildocsAccess_Model_Law_Book_Englishpdf 23

httpwwwachprorginstrumentsaccess-information httpwwwachprorgfilesinstrumentsaccess-informationachpr_instr_model_law_access_to_information_2012_engpdf 24

Article 19 The Publics Right to Know Principles on Freedom of Information Legislation httpswwwarticle19orgdatafilespdfsstandardsrighttoknowpdf 25

httpnewrti-ratingorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

international legislation 26 The ratingrsquos website also provides links to links of

relevant national legislation

Appendix 1 Relevant statements by the UN Special Rapporteurs The 2010 report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue reiterated that

ldquo30 As provided for in article 19 of the International Covenant on Civil and Political Rights everyone has the right to seek information (which goes beyond simply being passive recipients of information) the exercise of this right may be subject to restrictions as specified in article 19 paragraph 3 31 The Human Rights Committee has emphasized the importance of the right of citizens to be informed of the activities of public officials and to have access to information that will enable them to participate in political affairs In a democracy the right of access to public information is fundamental in ensuring transparency In order for democratic procedures to be effective people must have access to public information defined as information related to all State activity This allows them to take decisions exercise their political right to elect and be elected challenge or influence public policies monitor the quality of public spending and promote accountability All of this in turn makes it possible to establish controls to prevent the abuse of power 32 Governments should take the necessary legislative and administrative measures to improve access to public information for everyone There are specific legislative and procedural characteristics that any access-to-information policy must have including observance of the principle of maximum disclosure the presumption of the public nature of meetings and key documents broad definitions of the type of information that is accessible reasonable fees and time limits independent review of refusals to disclose information and sanctions for noncompliance 33 If mechanisms to promote the right of access to public information are lacking then the members of society will not be informed or able to participate and decision-making will not be democratic Consequently the Special Rapporteur urges Governments to adopt legislation to ensure access to public information and to establish specific mechanisms for that purpose He therefore welcomes the initiative of the United Mexican States to set up the Federal Institute of Access to Public Information (IFAI) as an independent national body

26

httpnewrti-ratingorgwp-contentuploadsIndicatorspdf httpwwwrti-ratingorgmethodology

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

34 An important aspect of access to public information is access to historical information and archives and to information on current procedures that may shed light on human rights violations Such access allows victims to exercise their right to truth bearing in mind that the truth is the first step towards the right to justice and then the right to compensation which are fundamental rights of victims Victims not only have the right to establish the truth why how and who violated their human rights they also have the right to make it public if they so wish and this is particularly the case when they wish to honour the memory of those whose right to life has been violatedldquo27

United Nations Human Rights Council report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008

ldquo27 The exclusion of marginalized and vulnerable groups from the media is a key issue that needs to be addressed by the international community Minorities indigenous peoples migrant workers refugees and many other vulnerable communities have faced higher barriers some of them insurmountable to be able to fully exercise their right to impart information For these groups the media plays the central role of fostering social mobilization participation in public life and access to information that is relevant for the community Without a means to disseminate their views and problems these communities are in effect shut down from public debates which ultimately hinders their ability to fully enjoy their human rightsrdquo28

United Nations Economic and Social Council The right to freedom of opinion and expression ndash report of the Special Rapporteur Ambeyi Ligabo 17 December 2004

bdquo37 An increasing number of countries have recently been adopting information laws New legislation often includes access to information provisions that should reinforce transparency efforts of public institutions The effective implementation of the laws however remains a major challenge as some common obstacles have emerged lack of political will at senior levels inadequate information management insufficient training of public officials and an excess of bureaucratic obstacles to timely information release Moreover in some countries it has proven to be nearly impossible to submit requests for information orally or without filling

27

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Frank La Rue April 20 2010 httpdaccess-dds-nyunorgdocUNDOCGENG1013049PDFG1013049pdfOpenElement 28

United Nations Human Rights Council Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Ambeyi Ligabo 28 February 2008 httpdaccess-dds-nyunorgdocUNDOCGENG0811210PDFG0811210pdfOpenElement

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

out an official form Persons belonging to vulnerable or excluded groups such as disabled individuals or ethnic minorities are less likely to receive positive reactions than journalists or NGOs submitting the same requests (hellip) 39 Although international standards establish only a general right to freedom of information the right of access to information especially information held by public bodies is easily deduced from the expression ldquoto seek [and] receive hellip informationrdquo as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights At the regional level legal provisions and recommendations on the right to access official documents a right that can be subject to only a few restrictions are on the increase Restrictions should be provided for by law and concern issues such as the protection of the rights of others national security and the prevention of advocacy of national racial or religious hatred or any form of discrimination Consequently all information held by public bodies shall be publicly available unless it is subject to a legitimate exemption and all bodies performing public functions including governmental legislative and judicial bodies should be obliged to respond to requests for information The expression ldquobodies performing public functionsrdquo also pertains to enterprises societies and associations performing a unique role andor receiving public funds 40 Under laws on the right to access information these bodies should designate an office or officer to handle requests for information In smaller institutions an officer can be sufficient who might have other duties while in larger bodies a department might be dedicated to promoting transparency and providing information In addition all bodies performing public functions should publish an annual report and a financial account of their activities and make them easily available to the public even in the absence of any information requests 41 Anyone should be able to file information requests and should not have to provide grounds or reasons for their request the right of access to information is a fundamental human right which can be exercised by all Information requests should be treated equally without discrimination with regard to the requestor regardless of hisher social racial and political affiliation 42 There are other important factors contributing to the correct implementation of the right of access to information and to the availability of information For instance replies should be provided in a timely fashion Formalities for requests should be kept to a minimum and it should be possible especially in countries with a low literacy rate to make requests orally For similar reasons access should be to information rather than to

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

documents and its cost to the requestor should be limited to the supply costs and should not be so high as to prove an obstacle to access 43 Refusals to provide information should always be grounded in law and be made within the time frames specified by law The refusal should be made in writing and detail the grounds for not disclosing the information as established by law Legislation should guarantee the right to appeal refusals to provide information 44 On 6 December 2004 the Special Rapporteur together with the Representative on freedom of the media of the OSCE Mr Miklos Haraszti and the Special Rapporteur for freedom of expression of the OAS Mr Eduardo Bertoni issued a joint statement within the framework of the programme Global Campaign for Free Expression of the non-governmental organization Article 19 The statement highlighted the fundamental importance of access to information and commended the decision taken by an increasing number of countries to adopt laws recognizing a right to access information It underlined that access to information is a citizenrsquos right and that the procedures for accessing information should be simple rapid and free or low cost It condemned the attempts by some Governments to limit access to information either by refusing to adopt access to information laws or by adopting laws that fail to conform to international standards It affirmed that public authorities and their staff bear sole responsibility for protecting the confidentiality of legitimately secret information under their control Other individuals including journalists and civil society representatives should never be subject to liability for publishing or further disseminating this information regardless of whether or not it has been leaked to them unless they committed fraud or another crime to obtain the informationrdquo29

United Nations Economic and Social Council report of the Special Rapporteur Ambeyi Ligabo December 2003

bdquo38 In his report ECN4199543 the Special Rapporteur stated the basis for and rationale of the right to information as ldquoThe freedom to seek information is guaranteed in ICCPR Article 19 (2) It entails the right to seek information inasmuch as this information is generally accessiblerdquo (para 34) and as ldquothe right to seek or have access to information is one of the most essential elements of freedom of speech and expression Freedom will be bereft of all effectiveness if the people have no access to information Access to information is basic to the democratic way of life

29

United Nations Economic and Social Council The right to freedom of opinion and expression Report of the Special Rapporteur Ambeyi Ligabo 17 December 2004 httpdaccess-dds-nyunorgdocUNDOCGENG0510690PDFG0510690pdfOpenElement

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

The tendency to withhold information from the people at large is therefore to be strongly checkedrdquo (para 35) 39 However in a more extensive commentary in 1998 (ECN4199840) the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy towards the understanding that ldquothe right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its ownrdquo (para 11) the right ldquoimposes a positive obligation on States to ensure access to informationrdquo in particular by ldquofreedom of information legislation which establishes a legally enforceable right to official documents for inspection and copyingrdquo (para 14) the right to ldquoaccess to information held by the Government must be the rule rather than the exceptionrdquo (para 12) 40 The Special Rapporteur clearly affirmed that insofar as it relates to Government ldquolsquoState activityrsquo for example meetings and decision-making forums should be open to the public wherever possiblerdquo and classification systems (breaches of which often lead to officials being prosecuted) should only be employed to capture information ldquonecessaryrdquo to prevent harm to the State (ibid para 12) () 43 Another expression of relevant principles informing the concept of the right to information The Lima Principles (adopted by the Seminar on Information for Democracy Lima 16 November 2000) were endorsed and set out in annex II of the 2001 report (ECN4200164) 44 One of the main recommendations contained in the report ECN4199840 stated that ldquoAs regards information particularly information held by Governments the Special Rapporteur strongly encourages States to take all necessary steps to assure the full realization of the right to access to informationrdquo In particular the Special Rapporteur was of the view that the right to seek receive and impart information imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems including film microfiche electronic capacities and photographs In this regard the Special Rapporteur observed that in countries where the right to information was mostly realized access to governmental information is often guaranteed by freedom of information legislation which establishes a legally enforceable right to official documents for inspection and copying (para 14) 45 The Special Rapporteur went on to note the importance of such legislation establishing adequately-resourced ldquoindependent administrative bodiesrdquo having the power to compel the Government to produce information so that a decision may be made on whether any denial is

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

legitimate and to then issue binding decisions on public authorities (ibid para 14) 46 In 1998 the Special Rapporteur suggested that it would be useful to ldquoundertake a comparative study of the different approaches taken on this issue in different countries with regard to the legislative framework review mechanisms as well as the implementation in practicerdquo (para 15) 47 This call was repeated in the 1999 report (ECN4199964) The different countries would be appraised against the framework that ldquoeveryone has the right to seek receive and impart information and that this imposes a positive obligation on States to ensure access to information particularly with regard to information held by Government in all types of storage and retrieval systems - including film microfiche electronic capacities video and photographs - subject only to such restrictions as referred to in article 19 paragraph 3 of the International Covenant on Civil and Political Rightsrdquo (para 12) ECN4200462 page 13 2 48 The Special Rapporteur notes the global trend which is resulting in the adoption of increasing numbers of laws on the right to information The latest tally is more than 50 in all regions of the world 2 The Special Rapporteur also notes the official and non-official efforts globally and regionally to foster entrench and support the principle law and practice regarding the right to information In this regard the Special Rapporteur would like to mention in particular (a) A seminar ldquoWhat Access to Official Documentsrdquo held under the auspices of the Council of Europe concluded inter alia with a call to the Council of Europersquos Steering Committee on Human Rights and Group of Experts on Access to Official Information to ldquopromote a binding instrument on access to official documents which could be signed and ratified by member Governments 3 (b) At its 33rd General Assembly in Santiago the Organization of American States adopted a resolution on ldquoaccess to public information strengthening democracyrdquo 4 The Special Rapporteur wishes to endorse the principles contained in this resolution (c) At the 22nd Governing Council meeting of the United Nations Environment Programme (UNEP) a decision was adopted regarding enhancing the application of principle 10 of the Rio Declaration on Environment and Development addressing inter alia the issue of access to information That decision (UNEPGC22L3Add1) requests UNEP to ldquohellip assess the possibility of promoting at the national and international levels the application of principle 10 to determine if there is value in initiating an intergovernmental process to prepare global guidelines on applying principle 10rdquo Further the decision ldquorequests UNEPrsquos Executive Director to produce a report on progress made in preparing the guidelines for review at the Governing Councilrsquos twenty-third sessionrdquo

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

5 (d) The special focus of Transparency Internationalrsquos Global Corruption Report 2003 on access to information 6 The chapter on ldquoFreedom of Information legislation progress concerns and standardsrdquo makes the proposal that ldquomuch more needs to be donerdquo to create clear authoritative global standards such as for instance the ldquoadoption of a declaration on freedom of opinion by the United Nations would go some way to addressing this problem and would help to provide an impetus for the adoption of national legislationrdquo7 49 However the Special Rapporteur was acutely aware that the movement towards enhancing the right to information is proceeding against a backdrop of increasing governmental concern over anti-terrorism policies and initiatives These can have an adverse effect on the right to information The matter has been well addressed in the Commonwealth Human Rights Initiativersquos publication Open Sesame Looking for the Right to Information in the Commonwealth This has been published to highlight the right to information as the major topic issue for the 2003 Commonwealth Heads of Government Meeting 50 The Special Rapporteur also notes in this connection the work and proposals for new thinking being done within the book National Security and Open Government Striking the right balance a joint project of the Campbell Public Affairs Institute and the Open Society Justice Initiative The project is inter alia redefining the notion of national security showing how ECN4200462 page 14 openness can be an ldquoallyrdquo in the war against terror harnessing the anti-corruption movement in promoting transparency and how to set the highest standards for the proper application of national security restrictions9 3 The right to sustainable development and financial transparency 51 The Special Rapporteur noted favourably the United Nations Development Programmersquos 1997 transparency policy in the context of the relationship between the right to information and the right to development The Special Rapporteur also commended the work done by UNDPrsquos Oslo Governance Centre on the right to information based on addressing the information and communication needs of the poor as an essential feature of the right to information because the poor often lack information that is vital to their lives - information on basic rights and entitlements information on public services health education and employment10 52 UNDPrsquos activities in access to information focus on Establishing a legislative framework on access to official information public awareness-raising on official information legislation capacity-building of the civil service to meet and monitor official information requests using the right to information (strengthening of civil society and the media to make use of official information legislation enforcing the Official Information Legislation

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

(accountability mechanisms that hold national Governments to account for failing to provide official information) 53 The Special Rapporteur noted that the development of a ldquopractice note and practice materials to assist UNDPrsquos country offices in their access to information programmingrdquo11 This Practice Note is based on a ldquobackground paper that captures and codifies UNDPrsquos current practice in access to information while at the same time situating this work within the external context and UNDPrsquos existing policy frameworkrdquo 54 Also in connection with the right to sustainable development the Special Rapporteur noted with great interest developments concerning the transparency of revenues and payments in particular regarding the extractive industries - The Extractive Industries Transparency Initiative (EITI) Following a meeting in London June 2003 a Statement of Principles and Agreed Actions on this matter was supported by 140 delegates representing 70 Governments companies industry groups international organizations investors and non-governmental organizations 55 While impressed in general with the philosophy of transparency lying behind EITI the Special Rapporteur was concerned at the voluntary aspect of the initiative having regard to the non-optional nature of the right to information In the view of the Special Rapporteur the real viability of financial transparency lies in Governments cooperating to reveal financial flows and this result might be achieved on a country-by-country basis using various incentives and levers In addition the Special Rapporteur is concerned that efforts be made to expand the scope of disclosures to encompass government budgets and procurement processes 56 Finally the Special Rapporteur noted with great interest related non-governmental initiatives in the area of International Financial and Trade Institutions (IFTI) transparency ldquoIFTI Watchrdquo which aims to monitor and promote information disclosure by International Financial ECN4200462 page 15 and Trade Institutions12 and the Global Transparency Initiative an ldquoinformal network of civil society organizations hellip working together to overcome the secrecy surrounding the operations of the International Financial Institutionsrdquo which has recently formulated a 225-item ldquomatrixrdquo to enable comparative research on the transparency policies 57 The Special Rapporteur was aware that in the context of IFTIs the disclosure policies of most multilateral development institutions are guided by a presumption in favour of disclosure in absence of a compelling reason not to disclose These disclosure policies list a series of constraints to disclosure under which information can be kept confidential In addition to these provisions the policies also list a series of documents that are

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

highly recommended for disclosure normally with the consent of the borrowing Government 58 The Special Rapporteur was concerned at the lack of any independent oversight mechanism to evaluate how multilateral development institutions staff and management decides whether or not to disclose a certain document and how consistent these decisions are The key issue is whether or not institutions officials are properly weighing the public interest 59 The Special Rapporteur was concerned that the disclosure policies of the multilateral development institutions lack accountability and that in line with national right to know laws multilateral development institutions need to be made accountable to an independent oversight and review mechanism The role of the independent mechanism would be to receive appeals from the public when citizens feel that they have been wrongly denied information to provide opinions to the board and management of the institution on what should be disclosed and to conduct annual reviews of disclosure policy implementation 4 Implementing and monitoring the right to information 60 The Special Rapporteur appreciated that to be effective States should implement the right to information by establishing specific legislation conforming to best international principles and practice The annual review of the right to information laws in the world carried out by Privacy Internationalrsquos Freedom of Information Project14 indicates that more than 50 States have adopted such laws However ensuring an effective right to information regime entails that the law must comprise certain fundamental structural elements (eg regular reporting mechanisms to independent oversight bodies) and systematic official and unofficial monitoring of the implementation of the law 61 Increasingly there are projects designed to facilitate monitoring of the implementation of the right to information both globalregional and national in scope Some focus on the right to information in general others concentrate on environmental informationsustainable development fields 62 The Special Rapporteur notes with particular interest the Open Society Justice Initiativersquos Access to Information Monitoring Tool 15 Importantly the tool can be used to measure and track access to information held both by national authorities and by internationalsupranational organizations ECN4200462 page 16 63 The Special Rapporteur awaited with interest the outcome of the pilot project currently being undertaken by the Open Society Justice Initiative

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

and due to report in late 2003 monitoring the situation with regard to the implementation of the right to information in five countries 64 The Special Rapporteur also noted with interest The Access Initiative (in conjunction with the World Resources Institute)16 which focuses on the provision of environmental information The Access Initiative is a global coalition of civil society groups working together to promote national-level implementation of commitments to access to information participation and justice in decisions affecting the environment The Initiative has its roots in the 1992 Rio Declaration Principle 1017 which stated that ldquoAt the national level each individual shall have appropriate access to information concerning the environment that is held by public authorities including information on hazardous materials and activities in their communities hellip States shall facilitate and encourage public awareness and participation by making information widely availablerdquo30

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Mr Abid Hussain January 2000

bdquo42 In resolution 199936 the Commission on Human Rights invited the Special Rapporteur ldquoto develop further his commentary on the freedom to seek receive and impart information and ideas of all kinds regardless of frontiers and to expand on his observations and recommendations arising from communicationsrdquo With this in mind the Special Rapporteur wishes to state again that the right to seek receive and impart information is not merely a corollary of freedom of opinion and expression it is a right in and of itself As such it is one of the rights upon which free and democratic societies depend It is also a right that gives meaning to the right to participate which has been acknowledged as fundamental to for example the realization of the right to development 43 Clearly there are a number of aspects of the right to information that require specific consideration The Special Rapporteur wishes to emphasize in this report therefore his continuing concern about the tendency of Governments and the institutions of Government to withhold from the people information that is rightly theirs in that the decisions of Governments and the implementation of policies by public institutions have a direct and often immediate impact on their lives and may not be undertaken without their informed consent The Special Rapporteur therefore endorses the set of principles that have been developed by the non-governmental organization Article 19 - the International Centre against Censorship (see annex II) These principles entitled ldquoThe Publicrsquos Right to Know Principles on Freedom of Information Legislationrdquo are

30

United Nations Economic and Social Council Report of the Special Rapporteur Ambeyi Ligabo submitted in accordance with Commission resolution 200342 12 December 2013 httpdaccess-dds-nyunorgdocUNDOCGENG0317169PDFG0317169pdfOpenElement

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

based on international and regional law and standards evolving State practice and the general principles of law recognized by the community of nations 44 On that basis the Special Rapporteur directs the attention of Governments to a number of areas and urges them either to review existing legislation or adopt new legislation on access to information and ensure its conformity with these general principles Among the considerations of importance are

- Public bodies have an obligation to disclose information and every member of the public has a corresponding right to receive information ldquoinformationrdquo includes all records held by a public body regardless of the form in which it is stored - Freedom of information implies that public bodies publish and disseminate widely documents of significant public interest for example operational information about how the public body functions and the content of any decision or policy affecting the public - As a minimum the law on freedom of information should make provision for public education and the dissemination of information regarding the right to have access to information the law should also provide for a number of mechanisms to address the problem of a culture of secrecy within Government - A refusal to disclose information may not be based on the aim to protect Governments from embarrassment or the exposure of wrongdoing a complete list of the legitimate aims which may justify non-disclosure should be provided in the law and exceptions should be narrowly drawn so as to avoid including material which does not harm the legitimate interest ECN4200063 page 16 - All public bodies should be required to establish open accessible internal systems for ensuring the publicrsquos right to receive information the law should provide for strict time limits for the processing of requests for information and require that any refusals be accompanied by substantive written reasons for the refusal(s) - The cost of gaining access to information held by public bodies should not be so high as to deter potential applicants and negate the intent of the law itself - The law should establish a presumption that all meetings of governing bodies are open to the public - The law should require that other legislation be interpreted as far as possible in a manner consistent with its provisions the regime for exceptions provided for in the freedom of information law should be comprehensive and other laws

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

should not be permitted to extend it - Individuals should be protected from any legal administrative or employment-related sanctions for releasing information on wrongdoing viz the commission of a criminal offence or dishonesty failure to comply with a legal obligation a miscarriage of justice corruption or dishonesty or serious failures in the administration of a public bodyldquo31

II Outline ndash Citizen guide to freedom of information

The Citizen Manual should raise and address the following questions and aspects

What are my rights when seeking to access information Constitution environmental framework law

Why is this right useful

Several scenarios and examples relevant for a broad range of the

population

Scenarios could be illustrated in the form of short comics

Possible scenarios Why decisions affecting local services have been made such as a

decision to cut back some services at your local hospital or to combine

local primary schools

How public authorities decide which roads to repair

Information about what companies provide public services on behalf of the

government

Information on salaries hiring procedures for government jobs

Healthcare information number of cases of a certain illness in a district

planned projects to improve healthcare services inquiries about costs of

specific healthcare services

Agriculture information available support from government subsides

programs or projects that help farmers and where the money went

31

httpdaccess-dds-nyunorgdocUNDOCGENG0010259PDFG0010259pdfOpenElement

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Environmental information quality of water studies that have been carried

out

Social welfare information government stipends or transfer payments to

old people or former soldiers

What if I want to see information that concerns myself Constitution right to access information stored about myself

Is there information I may not be able to receive Explain recognized reasons why information can be denied (based on

Constitution international standards confidentiality requirements for civil

servants in national law)

What can I do when a government body is not providing me the information I have requested

Information about how to contact CPEAD staff and what CEPAD staff can

do to provide assistance to the citizen

Provide information about the Ombudsmanrsquos office as a body to appeal to

How do I ask for information

Requesting information from a public authority is simple all you have to do

is ask

Detailed guidance if possible based on standard administrative practice

(deadlines etc)

Advice when asking for information You can ask for any recorded information the authority holds at the time of

your request Think about the types of information that the authority might

hold that are of interest to you for example internal correspondence staff

procedures reports minutes of meetings or information in a database

Try to make your request as clear as possible to ensure that the

government body does not misunderstand you

Make your request as specific as possible focus only on the information

you really want to receive If your questions in too broad the government

body might refuse to answer or might not be able to find the information you

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

are really interested in For example you can narrow the information by

dates or by referring to a specific decision or event

It may be helpful to provide the government body with additional ways to

contact you (phone mail) in case a clarification from you is needed

Keep a copy of your request and all your correspondence until you have

received the information you were looking for This copy of your

correspondence will help you to appeal in case you do not receive a

satisfactory answer

Is there another way I can find certain information

Provide some guidance on what government bodies have to proactively

publish (if there is such regulation)

Mention several key websites and some options of how somebody could

access these websites (through community centres peace houses)

A list of contact information for the Ombudsmanrsquos office (phone Email 4 offices and mailboxes in each municipality) Last page Template of an official letter that can be cut out filled out copied and submitted (keep quality of paper in mind to ensure that the paper would be good enough for this purpose)

III Freedom of Information ndash An Introduction

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

How the right to information evolved First access to information law Swedish Freedom of the Printing Press

Act (1766)

France Declaration of the Rights of Man and of the Citizen (1789) gave citizens the right to determine and follow the spending of taxes and to demand accountability from all government bodies

bdquoArticle 14 Each citizen has the right to ascertain by himself or through his representatives the need for a public tax to consent to it freely to know the uses to which it is put and of determining the proportion basis collection and duration Article 15 The society has the right of requesting account from any public agent of its administrationldquo

In 1948 the Universal Declaration of Human Rights did not explicitly

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

include the right to information

ldquoEveryone has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiersrdquo (Article 19)

International Covenant on Civil and Political Rights 1976 o bdquo() 3 The exercise of the rights provided for in paragraph 2 of this

article carries with it special duties and responsibilities It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary (a) For respect of the rights or reputations of others (b) (b) For the protection of national security or of public order

(ordre public) or of public health or moralsldquo (Article 19)

In 1951 Finland introduced the Act on the Publicity of Official Documents as a first modern freedom of information law

The United States the Freedom of Information Act came into force in 1967 it was strengthened after the Watergate affair (1974)

In the 1980s several Anglo-Saxon and Scandinavian countries introduced FOI-legislation

Other examples Australia 1982 Portugal 2007 Indonesia 2010

The Inter-American Court of Human Rights (Claude Reyes et al v Chile 2006) and the European Court of Human Rights (Hungarian Civil Liberties Union TASZ vs Hungary 2009) have recognized access to information as a right in recent years

The UN Human Rights Committee in its General Comment 34 (July 2011) confirmed that a fundamental human right to access information held by public bodies and entities performing public functions exists linked to the right to freedom of expression (Article 19 of the International Covenant on Civil and Political Rights)

By November 2015104 countries have adopted freedom of information laws on the national level (wwwfreedominfoorg)

of them 50+ countries have constitutional provisions confirming this right as a fundamental right

September 28th is global right-to-information-day

as of 2016 ndash the 250th anniversary of first FOI law ndash it is recognized by UNESCO

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Global Right to Information

A Rating of National Laws

Source AccessInfo EuropeCenter for Law and Democracy

rti-ratingorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Who uses FOI

Journalists

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Who uses FOI

Advocacy organizations

Who uses FOI

Citizens

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

Who uses FOI

Citizens

Who uses FOI

FOI requests are not only be seen as a tool for holding government to account They can and should also be used for bdquoselfishldquo reasons o What is the estimated numbers of hires or jobs that a planned project

will bring to a region o What is the salary of a teacher o Has the water in our village been tested o What relevant examples can we come up with

Constitution of Timor-Leste

bdquo1 Every person has the right to freedom of speech and the right to inform and be informed impartially 2 The exercise of freedom of speech and information shall not be limited by any sort of censorshipldquo (Article 40)

bdquoFreedom of the press and other mass media is guaranteed Freedom of the press shall comprise namely the freedom of speech and creativity for

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

journalists the access to information sources editorial freedom protection of independence and professional confidentiality and the right to create newspapers publications and other means of broadcastingldquo (Article 41)

Ombudsman (Article 27)

Intellectual property rights (Article 60)

Right to honor and privacy (Article 36)

Personal data protection (Article 38)

bdquo1 Restriction of rights freedoms and guarantees can only be imposed by law in order to safeguard other constitutionally protected rights or interests and in cases clearly provided for by the Constitution 2 Laws restricting rights freedoms and guarantees have necessarily a general and abstract nature and may not reduce the extent and scope of the essential contents of constitutional provisions and shall not have a retroactive effectldquo (Article 24)

Who has the right to information

In the vast majority of countries that have adopted a freedom of information law access to information is recognized as a fundamental right

it does not depend on a personrsquos citizenship or place of residence

about 23 of all laws also extend it to legal persons (businesses associations parties etc)

people in Timor-Leste could not only ask their own government o Australia allows ldquoevery personrdquo to file a request (Freedom of

Information Act 1982) o Indonesia allows ldquoevery individualrdquo (Public Information Disclosure Act

2008) o However requests usually have to be made in an official language of

the respective country

Exceptions

Access to information is not an absolute right like freedom of speech it can be subject to certain limitations if rights of others are affected o bdquoThe exercise of these freedoms since it carries with it duties and

responsibilities may be subject to such formalities conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciaryldquo(European Convention on Human Rights Article 10 (2))

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

So what will be public It depends

In line with best practice each request for information should be evaluated by the respective government body

bdquoHarm testldquo officials analyze and document whose and which interests would be harmed by the release of requested information o possible harm may include privacydata protection of citizens

protection of business secrets protection of copyright legitimate protection of confidentiality of processes (eg preparation of a court ruling or of compliance checks by government regulators) aspects of national security etc

bdquoPublic interest testldquo weighs the publicrsquos interest in access to information against bdquo

Partial accessldquo if only parts of a document would harm other interests the legitimate interests to keep the information confidential remaining parts of a document should be released o Information should be released once an exception no longer applies

Information Commissioner

Because this weighing of interests often leads to disputes about what should bemade public Information Commissioners have become international best practice o An independent() office that advises government bodies facilitates

implementation of FOI laws and promotes a culture of transparency o Assists citizens in receiving timely unbureaucratic and free access to

the requested information o Serves as first appellate instance

mediates between citizen and government

may be able to order the release of information

This office is often also responsible for monitoring and ensuring compliance with privacy and personal data protection legislation

Important aspects government data collection

There is no obligation for a government agency to collect information in order to be able to respond to a request Answers can only be based on information available at the government body o It is thus also important to reflect and talk about what information

should be collected and archived by government bodies as part of their functions and responsibilities

o For example how detailed and granular should data on crime be How often

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

do we need certain statistics to be updated How timely should information be released Do we need a government body to measure and collect of water sources in each city Is there a need for more information on the environment and on health issues

Important aspects How much does information cost

Fees can effectively deter the use of the right to information ndash or discriminate against those who cannot afford it o International best practice is that requests are free and ideally no

cost should arise from the answer ndash possibly other than for the cost of reproduction and delivery of documents In many countries electronic and paper copies are provided for free

o The UN Human Rights Committee has not addressed the aspect of fees in detail it has stated ldquoFees for requests for information should not be such as to constitute an unreasonable impediment to access to informationrdquo

Important aspects How do I ask

Submitting a request should be possible in any format the citizen wants to use in person by phone by mail (letter) or by email possibly also through other electronic means o It may be reasonable that it in more complex cases a government

agency can ask for a written submission

The response should if reasonable be provided through the same mechanism

Current best practice is to provide the government body a period of 10 to 15 working days to respond In complex matters the government body may be able to provide arguments for an extension of another 10 to 15 days (in consultation with the citizen)

Important aspects What can I do with the information I got

Copyright can be a problem if government bodies do not ensure that they have the right for re-use and share information

Personal data protectionprivacy aspects may also be a reasons why information received through a freedom of information request can not be fully published or used further without restraint

In some countries problems or conflicts can occur when government

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg

agencies have sold certain datasets to companies (eg statistical information) and are then asked to share it with citizens for free Such conflicts have been resolved on a countrycase by case basis there is no international standard on how to address this

o This may not be relevant for Timor-Leste

bdquo2nd generationldquo FOI laws

Require the proactive publication of certain types of documents and data o where applicable in an open machine-readable format and under a

legal license that permits the use of the information for commercial and non-commercial purposes

Relevant ressources and organizations

Multinational bodies United Nations Human Rights Committee (OHCHR) UNESCO UNODC (UN Convention against Corruption) Council of Europe European Court of Human Rights Inter-American Court of Human Rights Organization of American States (model FOI law) Open Government Partnership

Civil society organizations and resources AccessInfo Europe Article 19 FOIAnet (email listserv) rti-ratingorg httpwwwfreedominfoorg