VRÜ: Access to information and the fourth wave of rights

Michael Riegner

Humboldt University, Berlin

Among the goals of the new-look IACL-AIDC Blog is to initiate new partnerships and collaborate with global leaders in comparative constitutional law, so as to allow blog users to have prompt access to useful information from a variety of sources. One of these new partnerships is with the Journal Law and Politics in Africa, Asia and Latin America (Zeitschrift Verfassung und Recht in Übersee, or VRÜ). As part of this partnership, VRÜ editors will select one article from each of the journal’s quarterly editions to be converted into a Blog post. To inaugurate this new partnership, the following post by Michael Riegner – which is part of the VRÜ special issue on “The Right to Information” – offers a comparative overview on access to information and the fourth wave of rights. More information on VRÜ Journal can be found here.

Access to information and the fourth wave of rights

The Inter-American and the European Court of Human Rights, the UN Human Rights Committee, the European Union, Germany, India, South Africa, and Brazil all share one common legal feature: They have recognized “access to information” as an individual right since the turn of the millennium. Since the 1990s, there has been a veritable “global explosion of freedom of information” as new constitutions have enshrined the right to information, legislators have enacted access to information acts, and courts have enforced and expanded individual guarantees to seek information from public authorities. Proponents argue that access to state-held information empowers citizens for the information age, perfects democracy and promotes development. The enthusiasm about access to information (ATI) is echoed in a burgeoning body of scholarly literature, which culminates in the claim that freedom of information is part of a fourth wave of rights, equivalent to civil, political and social rights.

This post summarizes some of the findings of a journal special issue of “Law and Politics in Asia, Africa and Latin America”, which takes stock of existing ATI research and critically investigates the achievements and failures of the right to information. This post argues that ATI should be understood as a multi-level and multi-functional guarantee, which has emancipatory potential to shift power relations in individual cases but is less effective in destabilizing entrenched power structures and inequalities.

The right to information as a multi-level guarantee

From the perspective of legal doctrine, freedom of information has evolved from a legislative guarantee in a handful of countries into a globalized, multi-level right enshrined in legislation and constitutions around the world and recognized as a human right in international law. Currently, more than 60 constitutions recognize ATI as a fundamental right, the majority of them in the Global South. As ATI expanded in national law, it also gained increasing recognition in international human rights law. In 2006, the IACtHR became the first international court to recognize access to state-held information as a human right. Since then, the case of Reyes v. Chile has become the leading case on ATI around the globe. The Human Rights Committee followed suit in General Comment No. 34 on freedom of expression issued in 2011. The new text opines that Art. 19(2) ICCPR “embraces a right of access to information held by public bodies”.

“Freedom of information” has evolved from a sub-component of the right to freedom of expression into a self-standing right of access to state-held information. At the same time, ATI has expanded from a negative right, subject to an obligation to respect, into a positive right imposing a duty on the state to fulfill the right by way of disclosing government-held information. ATI thus transcends the porous boundary between civil-political and socio-economic rights and mirrors the wider trend from negative to positive rights in human rights law. All these trends can be observed across levels of governance so that ATI has become a multi-level guarantee with a measure of substantive convergence.

Surging from the South

Interestingly, the trends of expansion and convergence of ATI seem to be driven more by jurisdictions in the Global South than by legal developments in the legal orders on which traditional comparative law used to focus. This makes ATI also an interesting case for comparative constitutional law and its methods.

While the “origins” of ATI are often traced to a Swedish law dating back to 1766, it is only since the 1990s that new constitutional democracies have taken to routinely include explicit ATI provisions in their bills of rights. Likewise, constitutional courts have increasingly re-interpreted older guarantees such as freedom of expression or freedom of information as implying a positive entitlement to state-held information. Established democracies are more reluctant with constitutional recognition. The US Supreme Court refused to interpret the First Amendment as a positive constitutional right to governmental information in Houchins v. KQED (1978). Similarly, the German Constitutional Court continues to interpret freedom of information as a negative guarantee against government interference; positive rights to access information held by the federal government only came with the 2005 Freedom of Information Act. Thus, if there is a fourth wave of fundamental rights, it seems to surge from the South.

This is true not only quantitatively but also qualitatively: Strong de iure access regimes are particularly prevalent in the Global South. South Africa and India are frequently cited as leading jurisdictions. The highest concentration of strong ATI regimes can be found in Latin America: More than half of the jurisdictions in this region have elevated ATI to constitutional status. Legislation establishes exceptionally powerful enforcement institutions. Some of the strengths and weaknesses of Latin American ATI regimes are illustrated by Brazil. The Brazilian Constitution of 1988 established an individual right of access to information held by public agencies, except for information whose secrecy is essential to the security of society and of the State (Art. 5-XIV and XXXIII). The provision remained largely moot, however, until Congress enacted the Law on Access to Information in 2011. The law applies to all three branches and to all levels of government, and even extends some obligations to private entities if they receive public funds. It establishes an individual request procedure and requires public agencies to create specialized “Citizen Information Service” units. These have a high case load and comparatively high access rates. Enforcement, however, is largely entrusted to an internal administrative appeals process within the executive branch – unlike in Mexico, for instance.

Courts play a more significant role in India, the poster child of ATI activism. The Indian Supreme Court ruled as early as 1982 that a positive right to information was implicit in the right to free speech in Art. 19(1)(a) of the Constitution. Hence, disclosure of information about the functioning of Government had to be the rule and secrecy the exception “justified only where the strictest requirement of public interest so demands” (S.P. Gupta v. Union of India, 1982). In practice, however, the fundamental right to information, judicially decreed from above, lay largely dormant until it met with a wave of activism from below. In the early 2000s, a broad social movement led by the grassroots organization MKSS (Mazdoor Kisan Shakti Sangathan/Association for the Empowerment of Workers and Farmers) successfully campaigned for the legislative enactment of a Right to Information (RTI) Act, which was eventually passed in 2005. The RTI Act enabled ordinary citizens to file individual requests and thus opened up administrative information that had been systematically protected under the colonial Official Secrets Act of 1889. Hailed as a “great and revolutionary law”, the RTI Act has generated a massive caseload for the “Public Information Officers” whom every agency is required to designate. It has also led to frequent appeals to the “Central Information Commission” in New Delhi and to litigation in the courts. The social life of the RTI Act on the ground is subject to exciting empirical research.

A spectacular success is attributed to ATI activism in South Africa: Investigative journalists used access requests to uncover misspending of public funds on president Jacob Zuma’s private property, leading to his conviction by the Constitutional Court and precipitating his eventual political demise by the African National Congress (ANC) in early 2018. The legal basis for this case was the Promotion of Access to Information Act (PAIA) adopted in 2000. Its enactment was mandated by the South African Constitution of 1996, whose Section 32 guarantees access to information. The provision is special because it was one of the first constitutional norms that extended access rights horizontally to privately held information if that information is required “for the exercise or protection of any rights”. Unlike the laws in Brazil and India, however, the implementing legislation did not initially envisage a system of specialized administrative review but rather channeled appeals directly into lengthy High Court litigation. This gap was addressed only in 2013 with the establishment of an Information Regulator under the new Protection of Personal Information Act.

The right to information as a multi-functional guarantee

ATI is associated with a series of theoretical justifications and social functions that relate to its democratic potential and its nature as a leverage right that shifts power relations between citizens and unresponsive state agencies. A context-sensitive comparison indicates, however, that ATI performs multiple functions in different legal and political contexts. It not only regulates relationships between individual citizens and the state, but is also used by journalists and opposition parties in the absence of strong laws protecting the media or parliamentary minorities. In international law, it may empower international institutions to enforce transparency on member states and to motivate citizens for decentralized enforcement of international norms. Effective ATI laws can also have the function of avoiding leaking and whistleblowing. Whether ATI’s functional objectives are actually achieved in practice, is an empirical question in need of socio-legal research.

Does ATI make a difference?

A precondition for having real-world impact is that ATI is implemented effectively in practice. This can be tested to some extent with statistical data about the number and success rates of requests for information. The question of whether ATI law shifts power relations and improves democracy is more difficult to measure. We know from empirical law and society research that the haves tend to come out ahead in legal reform efforts unless the have-nots are specifically empowered to actually exercise their rights. Indeed, user statistics from the US show that the most frequent users of ATI in the USA are corporations, not citizens. On the other hand, well connected business interests may have privileged access to information anyway, and ATI thus level the playing field at least to some extent.

Ethnographic studies from a range of countries make it seem plausible that ATI has at least some leverage effect where obstacles to effective implementation can be overcome with the help of institutional and societal support structures. The Zuma case is illustrative in this regard: Political accountability ultimately resulted from a combination of ATI activism by professional journalists, formal litigation in the constitutional court, public pressure from media, and political competition within the ANC. Overall, however, empirical findings on ATI suggest that it is more likely to shift power relations in individual cases than to destabilize entrenched power structures. Perhaps the most intriguing sign that ATI upsets power relations but not power structures is the fact that information seekers increasingly face backlash from the powers that be: More than ten attacks on information requesters were reported in 2010, and at least five have been killed since then. If ATI constitutes a fourth wave of rights, riding this wave is a risky affair.

Michael Riegner is a postdoctoral researcher at Humboldt University Berlin. An earlier and abridged version of this post was published at the international law blog http://voelkerrechtsblog.org/