ARTICLE 19

This book on the “Right to Information in Latin America” is written to help clarify some of the tensions and challenges of drafting or promoting legislation guaranteeing the right to information. It uses a Latin American regional, comparative perspective. More specifically, it illustrates the approaches taken to enacting right to information legislation in eleven Latin American countries. It provides a study of the law and practice regarding the right to information in Latin America, and offers an analysis of what is working and why. This publication builds on a companion book, Freedom of Information: A Comparative Legal Survey, previously published by the United Nations Educational, Scientific, and Cultural Organization (UNESCO).

Since 2003, as stated here, new and more emphatic statements to the effect that access to information held by public bodies is a fundamental human right have been issued. Especially significant in the Latin American region, the Inter-American Court of Human Rights has held that the general right to freedom of expression, as guaranteed under international law, encompasses the right to information. International bodies with responsibility for promoting and protecting human rights, including the United Nations, regional human rights bodies and mechanisms at the Organization of American States, the Council of Europe, the Commonwealth, and the African Union, have authoritatively recognised the fundamental human right to access information held by public bodies, as well as the need for effective legislation to secure respect for that right in practice. The author cites the specific documents for each organisation that contain language pertaining to the right to information.

From the declarations, for example Article 19 of the Universal Declaration of Human Rights (UDHR), treaties, such as International Covenant on Civil and Political Rights (ICCPR), and other documents of record, these are a selection of statements that have influence on the formation of principles on the right to information and their regulation. (For the sources of these, please see the International Standards and Trends section of the document.):

• "They [those responsible for drafting international human rights treaties] recognised the important social role of not just freedom to express oneself - freedom to speak - but also of the more profound notion of a free flow of information and ideas in society. They recognised the importance of protecting not only the speaker, but also the recipient of information. This recognition is now being understood as including the right to information in the sense of the right to request and be given access to information held by public bodies."
• "The right to access information held by public authorities is a fundamental human right... based on the principle of maximum disclosure..."
• "Every person has the right to seek and receive information, express opinions and disseminate them freely. No one may restrict or deny these rights.... The authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector..."
• "Freedom of information should be guaranteed as a legal and enforceable right permitting every individual to obtain records and information held by the executive, the legislative and the judicial arms of the state, as well as any government owned corporation and any other body carrying out public functions."
• "Public bodies hold information not for themselves but as custodians of the public good and everyone has a right to access this information, subject only to clearly defined rules established by law..."

The principles of a right to information regime include: maximum disclosure; obligation to publish; promotion of open government; limited scope of exceptions; processes to facilitate access; costs; open meetings; disclosure takes precedent; and protection of whistleblowers. The document discusses progress in the 11 countries and compares approaches on the right to access, procedural guarantees, duty to publish, exceptions, appeals, sanctions and protections, and promotional measures.

The document concludes that specific principles derived from international standards on the right to information are a strong presumption in favour of access; good procedural means by which the right may be exercised, including through proactive publication obligations; a clear and narrow regime of exceptions; and the right to appeal breaches of the rules to independent oversight bodies. "Beyond these (still quite general) principles, the now considerable practice of different States in giving effect to the right to information in law serves as an important body of knowledge both for those promoting the adoption of a law for the first time and for those reviewing their existing law and practice with a view to reforming it."

IFEX Communiqué, Vol. 18 No. 29, on July 22 2009.