Freedom of Expression and Freedom of Information: Part 2 International Instruments and other Jurisdictions – Hugh Tomlinson QC

The cautious approach of the European Court of Human Rights to freedom of information can be contrasted with the approach of other international bodies.  In its very first session in 1946, the UN General Assembly adopted Resolution 59(I), stating,

“Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”

This view has been repeated by United Nations bodies on a number of occasions over subsequent decades.

The United Kingdom is a party to the International Covenant on Civil and Political Rights (“the ICCPR”) and is bound by its terms as a matter of international law.  By Article 19(2) the ICCPR provides that everyone shall have a right to freedom of expression which shall include “freedom to seek, receive and impart information and ideas of all kinds”.  In 1998, the Special Rapporteur on Freedom of Opinion and Expression declared that Article 19 of the ICCPR 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”. (UN Commission Human Rights (1998) Right to Freedom of Opinion and Expression Commission on Human Rights Resolution Res. E/CN/1998/42, Para. 2)

In 2004 report, a different Special Rapporteur dealt expressly with the source of the positive constituent of the right:

“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 ‘to seek [and] receive … information’ as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights” (Report of the Special Rapporteur, Ambeyi Ligabo, UN ECOSOC, 61st sess, UN Doc E/CN.4/2005/64 (2004) [39]).

The Human Rights Committee has recognised that Article 19 implies that citizens “should have wide access to information”.  In Gauthier v Canada 633/95 the Committee referred to

the right to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment No. 25 (57) which reads in part: “In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion.” General comment No. 25, paragraph 25, adopted by the Committee on 12 July 1996. Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant” [13.4]

The fullest consideration of the issues concerning freedom of information as an aspect of the right to freedom of expression is to be found in the decision of the Inter American Court of Human Rights in the case of Claude Reyes v Chile ((C/151) 19 September 2006),  In that case it was concluded that the “freedom of expression” provision of the Inter American Convention, Article 13, included an implied right of general access to government held information.  The Court held that

“by expressly stipulating the right to “seek” and “receive” “information,” Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention”.

This decision is of persuasive authority and is widely regarded as giving a definitive analysis of the “right to receive information”. See, for example, the recent report of the Commonwealth Human Rights Initiative, CHRI Report, Our Rights, Our Information (2008) which deals comprehensively with the position.

Domestic Cases from Other Jurisdictions

In the case of The Criminal Lawyers’ Association v The Ministry of Public Safety and Security ((2007) 86 OR (3d) 259) the Court of Appeal of Ontario considered the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms in the context of the public interest override provision in section 23 of the Freedom of Information and Protection of Privacy Act 1990 (Ont).  A judge had stayed a murder trial on grounds of material non-disclosure by the prosecution, making very critical remarks about the police, including abusive conduct, deliberate editing of useful information and negligently failing to maintain original evidence. The provincial police investigated and issued a press release saying there was no evidence of a deliberate attempt to obstruct justice.   The claimant was an NGO which monitored the criminal justice system. It was concerned about the discrepancy between the judge’s findings and the outcome of the investigation by the provincial police. It sought access to documents concerning that investigation, which was refused by the government, relying on solicitor-client privilege. The exemption claims were upheld, but the Information Commissioner applied the public interest override to order release of the documents to which it applied. The commissioner could not do so with respect to the documents to which solicitor-client privilege applied because this was excluded from the operation of the override by the terms of section 23.

The Court held that section 23 unjustifiably limited the applicant’s right of freedom of expression as guaranteed in section 2(b) of the Charter because section 23 did not allow solicitor-client privilege to be overridden when the public interest compellingly required it.   It held that the public interest override provision infringed the association’s right to freedom of expression because the scheme of the freedom of information legislation was to assist expression.  It ordered words to be read into the statute to permit a public interest override in solicitor client privilege cases.

The case has been appealed to the Supreme Court of Canada.  The case information is here.  The appeal was heard on 11 December 2008 but judgment has still not been given.  There is a discussion of the case on the “The Court” blog.   This is the longest period of deliberation by the court for nearly 20 years, see this post on “The Court” blog.)

The latest case to consider these issues was in the Victoria Civil and Administrative Tribunal.  In XYZ v Victoria Police ([2010] VCAT 255 para 558) after full consideration of the international cases and textbooks, the judge held that

• The right to freedom of expression is foundational to democracy, the rule of law, and individual, social and cultural development.

• Freedom of information is ‘a necessary constituent of freedom of expression, for the purposes of the right to seek, receive and impact information will be frustrated if the government, without justification, can simply refuse the information sought’.

• ‘International jurisprudence is moving strongly in the direction of a positive obligation being part of freedom of expression’ – his Honour cited the European Court of Human Rights, Canada, the UN Human Rights Committee, the Inter-American Court of Human Rights, and the Supreme Court of India in this regard.

He concluded that the right to right to freedom of expression in section 15(2) of the Victoria Charter of Human Rights and Responsibilities

“implicitly imposes a positive obligation on the government to give access to government-held documents (freedom of information). The obligation I am specifying does not extend to creating documents, collecting data or disseminating information which has not been sought. The right to obtain government-held documents is not absolute and is subject to justifiable exceptions for objective, proportionate and reasonable purposes”.

Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee. He is also a founding editor of the UKSC Blog.