Access to information (documents) and its structural aspects
In this section, we focus on the issues of access to information for journalists. Sharing information is an important issue that requires additional coverage.
The presence of a favorable environment in the state can be determined quite clearly, based on whether this journalist has the opportunity to collect information and successfully perform his functions. Information collection is an important factor of freedom of information. Without access to information, journalists mostly express their thoughts. And although transparency in expressing opinions is an important component of a democratic society, it is not enough to develop and support it. The ability to inform citizens depends on the availability of access to information for journalists. Without this aspect of journalistic activity, society, of course, can have a free, independent press, but at the same time its usefulness for the formation of democratic institutions will be significantly limited.
The presence of a favorable environment in the State regarding access to information has a number of signs. In some countries, authorities restrict the accreditation of journalists and thus give only a small part of them access, for example, to government press conferences or to the work of the legislature. In many countries, important government institutions are closed to journalists: prisons, military institutions. Even in the most democratic societies, access to some trials is closed to the public and the press. These restrictions may be explained by the interests of national security, privacy, or the protection of the political decision-making process. But whatever the valid reasons, these restrictions should be the subject of close attention.
A legal environment conducive to freedom of speech also provides access to global databases. The State may restrict this form of access by imposing certain tariff rates, imposing restrictions on the Internet service provider, or increasing fears that there is state control over which databases a journalist is trying to access. The collection of information also depends on the degree of access to the collections of public libraries.
Of course, the Government's policy regarding journalists' access to information is key to the functioning of the press. This applies not only to legislation, but also to informal access and informal policies. At the same time, one of the most important points is the attitude of the state towards its archives, documents, protocols and institutions. The rules governing access to documents and institutions are examples of positive application in order to ensure the independence and effectiveness of the media.
A necessary condition for effective professional journalism is the ability of journalists to apply for information to archives under the jurisdiction or control of State authorities.
A favorable environment presupposes the existence of legal guarantees for this type of activity.
What components are necessary for the effectiveness of a free information regime? The main feature of freedom of information legislation is the clear presumption of publicity. The presumption of publicity is based on the following principle: any object under the jurisdiction of state bodies is open to the public, unless it is subject to an exception specified in a particular legislative act. According to this principle, the custodian of state documentation should explain the refusal to disclose certain information.
In most legal systems, certain criteria are applied to persons who apply for access to documents: for example, the requirement that they prove that the information they request affects their rights and legitimate interests, or that the information is of particular importance to them. Freedom of information legislation loses much of its effectiveness if, instead of the presumption of publicity, the requirement is applied that those who request information are subject to a complex burden of proof. The problem lies in the fact that such requirements create a favorable ground for arbitrary refusal to disclose or provide information, giving the custodian of state documentation the right to judge for himself the rights and interests of the person who requests, or the importance of the document. As for the latter, the custodian will naturally have less desire to provide documents that may be considered important and therefore harm government or corporate interests, and this, in turn, will harm freedom of information.
Let's look at examples of access to government information in some democratic countries. For example, there is no freedom of information act in the UK. Government decision-making is hidden under a veil of secrecy. In the United States, the federal Freedom of Information Act provides for the obligation to provide government information upon request with certain restrictions (classified information, information about private citizens, law enforcement information). In France, the law grants everyone the right to access government documents. The same law defines eight conditions that prohibit access to such information. The decision of the State body to refuse to provide information may be appealed in court. The press rarely uses it. In Germany, land laws contain provisions on the right of access to government information.
Federal and state governments may refuse to provide information to the media only if its disclosure may interfere with legal proceedings, if secrecy norms are violated, if any public or personal interest is aroused, if the volume of necessary information is excessively large. In other European countries, journalists' access to government information is regulated by laws much like those of France and Germany.
Any exception to the presumption of publicity must meet several requirements. Firstly, the exception must be prescribed by law. In other words, the legislature has the exclusive power or competence not only to determine how secrets should be protected, but also to determine the specific parameters of this exception.
In some countries, it is generally prohibited to classify certain categories of information as a state secret. For example, information concerning public issues is usually not considered a state secret: information about catastrophes or natural disasters that threaten the health and safety of citizens, information about the state of the environment, information about the state of health institutions, public education, culture and agriculture, information about illegal actions committed by state institutions and civil servants, information about the violation of human rights.
The European Convention on Human Rights, in article 101, requires the signatory States to guarantee the right to freedom of speech, which also means freedom to receive information "without interference from State authorities." The practice of the European Court of Human Rights does not provide a clear explanation of the definition of the limits of application of article 101 on freedom of information. However, article 102 of the Convention requires restrictions on the rights provided for in article 101 to be necessary in a democratic society to achieve the listed legitimate goals (namely: national security, protection of citizens, prevention of crimes, protection of health and morals, protection of honor and dignity or the rights of other citizens, prevention of disclosure of information obtained in confidence, to preserve the authority and impartiality of the judiciary).
There are two categories of exceptions regarding freedom of speech:
exceptions aimed at satisfying general or State interests regarding secrecy;
exceptions that protect the interests of specific legal entities or individuals.
In the end, we will consider the main provisions of the Recommendations of the Committee of Ministers of the Council of Europe "On Access to official documents", which emphasize the importance of transparency in the activities of public authorities and the availability of information on issues of public interest for the development of a pluralistic and democratic society. This is due to the fact that ensuring wide access to official documents on the principles of equality and in accordance with clear rules:
It gives people the opportunity to gain an adequate understanding and form critical judgments about the state of the society in which they live and the authorities that govern them, thereby contributing to the involvement of a conscious public in matters of common interest;
strengthens the efficiency and effectiveness of the functioning of government bodies and helps to maintain their unity by countering corruption;
It helps to establish the legitimacy of the administrative authorities as public bodies and strengthen public confidence in it.
It should be noted that this recommendation primarily deals with providing individuals with access to official documents. To this end, government agencies should pursue an active public relations policy aimed at providing the public with any information that may be useful in an open democratic society.
This recommendation applies only to official documents held by public authorities. It does not concern the right of access or access restrictions provided for by the Convention on the Protection of the Individual in connection with the automatic processing of personal data. The participating States must guarantee the right of everyone to have access, upon request, to official documents that are in the possession of public authorities. This principle should be applied without discrimination on any grounds, including on grounds of nationality.
The Participating States have the right to restrict the right of access to official documents. Restrictions must be clearly established by law, be necessary in a democratic society and proportionate to the objectives of protection:
national security, defense and international relations;
public safety;
prevention, investigation and prosecution of criminal activity;
privacy and other legitimate private interests;
commercial and other economic interests, both private and public;
equality of the parties during the trial;
nature;
inspection, control and supervisory functions of public authorities;
economic, monetary and monetary policy of the state;
confidentiality of discussions during the preparation of any issue within a public authority or between such authorities.
Access to a document may be denied if the disclosure of information contained in an official document may harm at least one of the interests listed above, unless the disclosure of such information constitutes the predominance of public interest.
The person requesting an official document does not necessarily have to indicate the reasons why they wish to access this document. The formalities associated with the request should be kept to a minimum. A request for access to an official document must be considered by the public authority in possession of this document.
A public authority that has completely or partially denied access to an official document must indicate the grounds for refusal.
In principle, familiarization with the originals of official documents at the premises of a public authority should be free of charge. For providing a copy of an official document, a fee may be charged from the person who made the request, which should be moderate and not exceed the actual costs of the public authority for making a copy.
The participating States should take the necessary measures to:
inform the population about their rights to access official documents and about the procedure for the implementation of these rights;
to provide training for civil servants to perform their official duties related to the exercise of these rights;
to ensure the exercise of their rights by persons who apply for access to official documents.
To do this, public authorities should, in particular:
effectively process their documents so that they can be easily found;
apply clear, officially approved rules for the storage and destruction of documents;
If possible, make public information about their activities or the issues for which they are responsible, for example, by compiling lists or registers of documents in their possession.
In addition, public authorities should, on their own initiative and in cases where it is justified, take the necessary measures to publish information that they have, if such publications are in the interests of increasing the openness and effectiveness of government bodies and contribute to the involvement of the population in matters of common interest.