Abstract
No right is fully guaranteed unless legal protection is provided. There must be a right of appeal to a court or an independent body that can issue binding final decisions, and a regulated appeal procedure. This is firmly acknowledged by many international organisations, such as the United Nations and the Council of Europe, or under regional charters. In this respect, legal remedies should be effective within the scope of the right in question, which in the case of the right(s) to information (RTI) presents some specifics.
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Notes
- 1.
In this text, we use several expressions, such as “legal protection”, “legal remedies”, and “appeals”, which, if not explicitly stated otherwise, are taken as synonyms. Specific forms of legal protection, such as (internal) objection, complaint, administrative appeal, judicial review or suit/action brought before the court, application to ombudsman, and similar, should therefore be understood restrictively, especially due to various national systems.
- 2.
Banisar (2006), pp. 11–13.
- 3.
For more details, particularly with regard to legal aspects, see the analysis by Galetta et al. (2015) and the Venice Commission (2011). As stated by Galetta et al. (2015), p. 21, the search for balance between transparency and privacy is the most often addressed issue in the EU, in relation to lawfulness, accountability, and so on. Compare also Bevir et al. (2011), emphasising legitimacy and simultaneously efficiency of public administration based on transparency. Access to or the right to information is a fundamental principle, as stipulated also in § 41 and § 42 of the EU Charter of Fundamental Rights. See also Banisar (2006); Savino (2010), pp. 21–30. Compare OECD (2014), stating that transparency is one of the key parts of overall accountability in democratic governance. Or, as given by the European Commission in the White Paper on European Governance (2001): “Governance means rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence.”
- 4.
- 5.
Only an a priori defined procedure gives a right substantive content; otherwise, it can be hollowed out or remains just a dead letter. Many authors in this respect even speak of “procedural transparency”. Procedural issues are in fact of paramount importance with a view to turning a theoretical entitlement to a measure into an actual right that may be effectively enforced. See Banisar (2006), p. 141; Kovač (2014), p. 34; and so on.
- 6.
Cf. de Graaf et al. in Dragos and Neamtu (2014), p. 606. This is especially the case when the ombudsman or similar bodies (as the French CADA) are handling appeals by non-binding decisions.
- 7.
- 8.
For instance, regarding law in action versus law by the book, see the corresponding chapter in this book from Croatia, stating: “In practice, public authorities often fail to issue a decision or a notice that contains the prescribed elements, most often an explanation and instructions on the legal remedy, especially when the request is submitted via e-mail. Similarly to the failure to respond within prescribed time limits, this omission strongly affects the protection of citizens’ rights, since beneficiaries are not often aware that they are entitled to lodge an appeal against silence of administration to the IC.”
- 9.
The APA was adopted by 21 out of 28 EU Member States (not so merely in the Anglo-Saxon oriented systems), as well as globally (in the United States, Japan, etc.). For more in general, see Auby et al. (2014); with regard to RTI in particular, see Statskontoret (2005), pp. 35–43; Mendel (2008); Savino (2010), pp. 7ff; Rose-Ackerman and Lindseth (2010), p. 342; OECD (2014), pp. 29, 60; and the European Parliament Resolution of 9 June 2016 for an Open, Efficient and Independent EU Administration. The latter stipulates inter alia: “The Union’s administration shall be open. It shall document the administrativeprocedures and keep adequate records of incoming and outgoing mail, documents received and the decisions and measures taken. All contributions from advisory bodies and interested parties should be made available in the public domain.” RTI implementation is defined as an administrative affair (in most countries except for those without division into public and private law) with the subsidiary use of the APA since the beneficiaries address (public) authorities and the latter unilaterally decide upon request in single cases (cf. Auby et al. (2014)).
- 10.
Following Martin Luther King’s famous saying. Similarly, justice delayed is justice denied.
- 11.
As shown within national profiles and further on in this chapter, such phenomena are characteristic of some countries, for example Croatia or the Czech Republic, yet not limited to the respective region (of Eastern Europe).
- 12.
Although the exact titles of the respective regulations might differ slightly. For instance, in Slovenia the FOIA is titled “Public Information Access Act” (Zakon o dostopu do informacij javnega značaja, from 2003) or in Liechtenstein Informationsgesetz (from 1996). The constitutional grounds are important for legal protection, especially in formally oriented environments such as Central Europe, even though some countries exercise a high level of transparency without such a basis (more in Statskontoret (2005), p. 41; Mendel (2008), p. 103; Savino (2010), p. 7; Salha (2014)).
- 13.
GRIR stands for “Global Right to Information Rating”, a programme founded by two NGOs, Access Info Europe and the Centre for Law and Democracy (see http://www.rti-rating.org/). The vast majority of (altogether 111) countries (90%) have a score over 60 out of 150 points. Europe overall accounts for 11 of the bottom 20, primarily the older European laws that are more limited in scope and have weaker appeals mechanisms. All of the top 20 laws in the world, except for the Finnish one, were passed after 2000.
- 14.
However, there are several more indicators that indirectly address also legal remedies, such as locus standi (with no legal interest required) or clear and simple procedures. If the latter are sufficiently regulated and implemented, less legal protection is required.
- 15.
See Mendel (2008), p. 38. The same, that is improvement of RTI implementation if guaranteed by the IC outside governmental (daily political) influence and given a certain level of autonomy, is evident from national reports, for instance for Croatia.
- 16.
The same is emphasised by Savino (2010), p. 40. And so explicitly ruled by the Constitutional Court in Slovenia regarding the FOIA and APA RTIs (Decision U-I-16/10, Up-103/10, 20 October 2011). The Slovene court explicitly ruled that both rights could be exercised simultaneously since their aim and scope differ even though they are sometimes overlapping.
- 17.
- 18.
See Kovač (2014), pp. 34ff, putting forward the important differentiation between access to information under the APA as (only) a procedural one, while the FOIA-related RTI(s) are of substantive nature and therefore usually more strongly protected before the courts.
- 19.
See Veny in Dragos and Neamtu (2014), p. 188, more in the corresponding chapter of this book.
- 20.
A slightly similar relativisation of the access to information is emerging in Denmark. See the corresponding chapter of this book regarding some exclusions to the RTI, “ministerial advice”, and information shared between the parliament and administrative bodies as stipulated by Articles 24 and 27 of the new FOIA.
- 21.
- 22.
- 23.
As established also by Banisar (2006), pp. 23–24, who analyses countries worldwide, but the same is true even in Europe.
- 24.
- 25.
For more on the general system of appeals in European administrative law, see Dragos and Neamtu (2014), pp. 542ff; explicitly differing administrative and judicial remedies and the first as an option or obligatory step before access to the court. Cf. Auby et al. (2014); Koprić et al. (2016), pp. 11ff.
- 26.
Compare the roles and scope of oversight of national ombudsmen in Remac in Dragos and Neamtu (2014), pp. 572 and related.
- 27.
For more details, see the corresponding chapters of this book (France and Belgium).
- 28.
In this respect, implementation gaps are characteristic of many administrative fields (see Kovač and Bileišis (2017), Koprić et al. (2016)), albeit some countries, such as Slovenia or Croatia, report a less pronounced gap in the RTI than in comparable fields, which seems to be a result of consistent central authorities’ measures and case law over time.
- 29.
In some countries, judicial proceedings suffer from excessive delays measured in years, despite the fact that some legal systems provide for the constitutional protection of reasonable timeliness and, specifically, for the RTI to be proceeded urgently and as a priority. See Case Magyar Helsinki Bizottsag v. Hungary, No. 18030, 3 November 2016, which states, inter alia, that the RTI procedures should be simple, rapid, and free or low cost.
- 30.
- 31.
Cf. Savino (2010), p. 40.
- 32.
Mendel (2008), p. 38. Explicitly also stated in several national reports in this book, for example as in Hungary.
- 33.
If compared to data in other administrative fields, more requests are granted at the first instance and consequently there is a lower share of appeals, including court actions (for more on comparison among countries and sectors alike, see Dragos and Neamtu (2014)).
- 34.
For instance, the German legislator and the courts have developed good administration principles(s) specifically in relation to the FOIA (Dragos and Neamtu (2014), p. 49).
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Kovač, P. (2019). Legal Remedies in Exercising the Right to Information: A Comparative Overview. In: Dragos, D.C., Kovač, P., Marseille, A.T. (eds) The Laws of Transparency in Action. Governance and Public Management. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76460-3_17
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