In this feature we revisit older posts which remain of current interest. In this revised and updated series of posts from May 2010 Hugh Tomlinson QC considers the relationship between freedom of expression and freedom of information in European, international and domestic law.
In contrast to modern human rights instruments, the European Convention on Human Rights does not contain any express right to freedom of information. This has often been identified as an important weakness in the Convention. However, the position is changing: the Convention is a “living instrument” and recent case law suggests that, in accordance with international trends, the Convention may be evolving its own “right to freedom of information” as a fact of the right to freedom of expression in Article 10 of the Convention. In the first part of this post we consider the position under Article 10. The second part will deal with the trends in international law and other jurisdictions. In the third part I will consider the present position in English law.
Article 10 and its case law
As is well known, Article 10(1) of the European Convention on Human Rights provides that:
“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”.
The freedoms to ‘receive’ and ‘impart’ information and ideas are not mere corollaries of one another: they are two independent rights (Sunday Times v United Kingdom (No 1) (1979) 2 EHRR 245 paras 65-66).
The conventional view is that the right to receive information under Article 10 does not entail a corresponding right of access to official information. Thus In Leander v Sweden ((1987) 9 EHRR 433) the applicant sought confidential Government information so he could bring a claim arising out of an unsuccessful job application. In dismissing the Article 10 claim, it was said:
“The Court observes that the right of freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to them. Article 10 does not, in the circumstances such as those of the present case, confer on an individual a right of access to a register containing information about his personal position, nor does it embody an obligation on the Government to impart such information to the individual” .
However, in subsequent decisions, the Court of Human Rights has recognised that there can be a right to access to official information. Initially, this was done by reference to Article 8 of the Convention (see Gaskin v United Kingdom (1989) 12 EHRR 36 paras 37, 52; see also McGinley and Egan v United Kingdom (1998) 27 EHRR 1). Most recently, in Haralambie v. Romania (Judgment of 27 October 2009) the Court reiterated the vital interest for individuals who were the subject of personal files held by the public authorities to be able to have access to them. The European Court of Human Rights emphasised that the authorities had a duty to provide an effective procedure for obtaining access to such information and that their failure to provide for an effective and accessible procedure to enable the applicant to obtain access to his personal security files within a reasonable time constituted a violation of Article 8.
More importantly, 0ver the past 5 years, the Court has shown itself prepared to recognise a right of access under Article 10. The first signs of this were in the admissibility decision of Sdruzeni Jihoceske Matky v Czech Republic  ECHR 1205. Article 10 was central to the Court’s reasoning in the Hungarian Civil Liberties Union case (Társaság a Szabadságjogokért v. Hungary,  ECHR 618). The applicant had been refused access to a constitutional complaint made by an MP. The Court said that “the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information” . It went on to say that it had
“recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right of access to information” 
In that case, the Court found a violation of Article 10 when the domestic courts had refused access to a complaint which sought constitutional scrutiny of certain amendments to the Criminal Code. It concluded that obstacles created in order to hinder access to information of public interest might discourage the media and other public interest organisations from pursuing their vital role as “public watchdogs” . As a result, the refusal to disclose the complaint was a breach of Article 10.
A similar result was reached in Kenedi v Hungary (Judgment of 26 May 2009) where it was held that access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant’s right to freedom of expression.
The case of Bubon v Russia concerns an attempt by a researcher to obtain access to crime statistis. It has been communicated to the Russian government by the Court of Human Rights. The Court asks whether there has been an interference with the right to receive information and refers to the Tarsasag case. The Open Society Justice Initiative has submitted Written Comments which contain a useful overview of the position in relation to access to information under the Convention and under international law.
Council of Europe Materials
The recognition of a human right to freedom of information by the Court of Human Rights would be consistent with the trend of international human rights jurisprudence which is dealt with in the second part of this post. It should also be noted that the Consultative (Parliamentary) Assembly of the Council of Europe has resolved that the right to freedom of expression involves a:
“corresponding duty for the public authorities to make available information on matters of public interest within reasonable limits and a duty for mass communication media to give complete and general information on public affairs” (Res 428 (1970), 21st Ordinary Session (Third Part), 22-30 Jan 1970, Texts Adopted.).
Although this resolution does not have binding effect, it indicates a trend in legal opinion within Contracting States (See P van Dijk, F van Hoof, A van Rijn and L Zwaak eds, Theory and Practice of the European Convention on Human Rights (4th Edn, Intersentia, 2006) pp.787-788). It was noted in a previous post that this formulation is wider that the modern concept of “freedom of information” which is now confined to “access to official information”.
In 2002, the Committee of Ministers adopted a detailed “Recommendation on Access to Official Documents” (Rec(2002)002) which invoked Articles 8 and 10 and recommended that
“Member States should guarantee the right of everyone to have access, on request, to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and should be proportionate to [specified legitimate aims]“
The Recommendation contains a detailed Explanatory Memorandum setting out the then understanding of the status of freedom of information under the Convention.
This trend is also illustrated by the Council of Europe Convention on Access to Official Documents (“the COAD”)(CETS No 205, 18 June 2009). This was the world’s first treaty on the access to official information. It is discussed on the Access Info website. This has not yet been signed by the United Kingdom and is not yet in force. It has, so far been signed by fourteen member states but has only been ratified by Iceland, Norway and Sweden. In its recitals, the COAD refers to Article 19 of the Universal Declaration and Articles 6, 8 and 10 of the Convention and to Declarations and Recommendations of the Committee of Ministers on freedom of expression and information. By Article 2, the COAD provides that parties shall
“guarantee the right of everyone, without discrimination on any ground, to have access, on request to official documents held by public authorities”.
In June 2009, the last Government indicated that it did not intend to sign the Convention at that stage. Perhaps the Coalition Government will revisit this issue, in line with its expressed commitment to freedom of information.
Finally, in relation to the European position there is an interesting OECD paper (“The Right to Open Public Administrations in Europe: Emerging Legal Standards”, Sigma Papers, No. 46) which sets out to provide guidelines to policy makers, including legislators, governments and public administrators based on the comparison of Freedom of Information Acts and their administrative/judicial enforcement in 14 EU member states and the EU institutions.