Access to Information as a Human Right: Analysis of the United Nations Human Rights Committee Documents

Paper accepted to the Communication Law and Policy Division, International Communication Association, Dresden, Germany, 2006.

Cheryl Ann Bishop Roy H. Park Fellow, Ph.D. Student University of North Carolina at Chapel Hill Campus Box 3365 Chapel Hill, NC 27599-3365 Office: 919/843-5857 Home: 919/523-1127 cabishop@email.unc.edu

Access to Information as a Human Right Access to government-held information as a means of holding governments accountable and facilitating democratic processes has attracted much international attention in the past decade. More than 50 countries have freedom of information legislation guaranteeing their citizens the right to government-held information, and more than half of those laws were passed within the last decade.1 Intergovernmental organizations such as the World Trade Organization and the World Bank also have responded to recent international pressure to become more transparent to the public.2 A current trend among several international nongovernmental organizations is to envision access to information as a human right.3 Most positing this idea base their arguments on the specific wording of two United Nations human rights instruments: The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (Covenant). Both proclaim the right to freedom of expression, which explicitly includes freedom to seek, receive and impart information.4 According to some legal scholars, the words seek and

David Banisar, The Freedominfo.org Global Survey: Freedom of Information and Access to Government Record Laws Around the World, May 2004, at http://www.freedominfo.org/survey/global_survey2004.pdf. 2 See Hetty Kovach, Carloline Neligan & Simon Burall, Power without Accountability. Global Accountability Report 2003. One World Trust (2003) at http://www.oneworldtrust.org/documents/GAP20031.pdf. Shalmali Guttal, Disclosure, or Deception? Multilateral Institutions and Access to Information, paper presented at Conference on Access to Information, Hua Hin, Thailand (March 4-6 2002). Ngaire Woods & Amrita Narlikar, Governance and the Limits of Accountability: The WTO, the IMF, and the World Bank. 53 INT SCI. J. 53, 569 (2001). 3 E.g. The Commonwealth Human Right Initiative, an independent, non-partisan, international non-governmental organization that is mandated to ensure the practical realization of human rights in the countries of the Commonwealth stated: Many people believe that access to information is a fundamental human right. This belief is reflected in international human rights instruments, the most significant being the Universal Declaration of Human Rights Freedom of expression presupposes something to express. Therefore, access to information is inextricably tied to freedom of expression. The words to seek, receive, and impart are set out in the Universal Declaration as if they were the constituent parts of one indivisible right, at http://www.humanrightsinitiative.org/programs/ai/rti/rti/what.htm#1. See Robert Martin & Estelle Feldman, Working Paper: Access to Information in Developing Countries, Transparency International (1998) at http://www.transparency.org/working_papers/martin-feldman/1-what.html. 4 Article 19 states, Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. The Universal Declaration of Human Rights, Dec. 10, 1948, UN Doc. A/RES/217 A (III). Article 19(2), which states, Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice. International Covenant on Civil and Political Rights, GA Res. 2200 (XXI), UN GAOR, 21st Sess. UN Doc. A/6316(1966) [hereinafter ICCPR].

Access to Information as a Human Right receive imply a right of access to information.5 This argument is significant because if access to information were determined to be a human right, it would be an individual right located in international law; therefore, it potentially could extend to nations without freedom of information legislation.6 What occurs in international law can also have an effect on national courts. In the recent United States Supreme Court case, Roper v. Simmons,7 involving the constitutionality of the use of the death penalty for those under 18, the Courts opinion was influenced by international laws and norms. Writing for the majority, Justice Anthony Kennedy stated that it is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty [T]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.8 In making his assessment, Kennedy referred to provisions against the death penalty in the United Nations Convention on the Rights of the Child and parallel prohibitions contained in other significant international covenants, citing the Covenant, among others.9

See Tony Mendel, Freedom of Information as an Internationally Protected Human Right at http://www.article19.org/docimages/627.htm; Geoffrey A. Hoffman, In Search of an International Human Right to Information, 25 L.A. INTL & COMP. L. Rev. 165. In a 1991 decision, the South Korean Constitutional Court, citing Article 19 of the UDHR, ruled that the right to know is naturally included in the freedom of expression. May 13, 1991, 90 HonMa 133, 3 KCCR 247. 6 There exist two key sources of international human rights law treaty-based law and customary law. Treaties, the most common source of international law, impose binding obligations on countries that become parties through ratification. The main international human rights treaties are the two United Nations Human Rights covenants: the International Covenant on Economic, Social and Cultural Rights (CESCR) and the International Covenant on Civil and Political Rights (ICCPR). Regional human rights treaties also exist. The other key source of international human rights law is customary law, which occurs when provisions of international treaties, declarations, or resolutions become widespread and pervasive on an international scale. Some have argued that many of the provisions of the Universal Declaration of Human Rights have become customary law. The International Court of Justice has ranked customary law secondary to treaty-based law. 7 125 S. Ct. 1183 (2005). 8 Id. at 1201. 9 Id. at 1200. It should be noted that the reference to international law in the Court opinion was controversial. Justice Antonin Scalia in his dissent stated that the basic premise of the Court's argument--that American law should conform to the laws of the rest of the world -- ought to be rejected out of hand. Id. at 1227 (Scalia, A., dissenting). Republican Senator Tom DeLay called the decision outrageous in part because it referred to international law. Jesse J. Holland, DeLay Criticizes Supreme Court Justice Kennedy, Activist Republican Judges, ASSOC. PRESS, April 20, 2005.
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Access to Information as a Human Right The purpose of this paper is to assess the current status of the right of access to government-held information in international human rights law by analyzing the documents of the United Nations Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights (ICCPR). The committee was chosen because the ICCPR is the only international human rights treaty dealing exclusively with civil and political rights. Regional human rights courts exist, but their jurisdictions are limited.10 The International Covenant on Civil and Political Rights is a United Nations treaty based partly on the Universal Declaration of Human Rights. It consists of 51 articles, which guarantee the right to own property, the right to nationality, and the right to freedom of expression, among others. It is monitored by the Human Rights Committee, a group of 18 experts who are elected by member states but do not represent any nation. They meet three times a year to consider reports submitted by signatory nations on how those nations are enforcing the covenant. The committee then publishes concluding observations. During those meetings, it also hears individual complaints.11 Its rulings on these complaints have created the most complex jurisprudence in the UN international human rights system of law. Together the committees decisions and concluding observations constitute the most dynamic and prolific source of HRC guidance.12 The committee also periodically publishes general comments on its interpretations of the covenant. These comments are statements made by the committee to clarify to nations their obligations under the covenant. They also are used by the committee to communicate
See, e.g, The European Convention on Human Rights, adopted 4 Nov. 1950, entered into force 3 Sept. 1953 [hereinafter ECHR] and The American Convention on Human Rights, adopted 22 Nov. 1969, entered into force, entered into force 18 July 1978 [hereinafter ACHR]. 11 The ability to hear individual complaints is created by the First Optional Protocol to the International Covenant on Civil and Political Rights. Only citizens of signatory nations to the ICCPR that also sign and ratify the First Optional Protocol can bring complaints. The United States is not a signatory nation. Although these decisions are binding, there is no enforcement mechanism except diplomatic pressure. Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. Doc. GAOR Supp. (no. 16), U.N. Doc. A/6316 (1966) 999 U.N.T.S. 302, entered into force, Mar. 23, 1976 12 SCOTT N. CARLSON & GREGORY GISVOLD, PRACTICAL GUIDE TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (2003).
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Access to Information as a Human Right interpretations of the covenants articles.13 This paper will analyze the committees concluding observations, general comments, and rulings to assess whether the committee interprets the covenant to provide a right of access to government-held information and, if it does, what those rights confer. Literature Review The literature on access to government-held information as a human right mostly assesses regional human rights instruments and national constitutions and legislation. When the covenant is discussed, the literature suggests that Article 19 implies a right to information. Some studies have shown that a right to reproductive health information does exist in human rights law. Freedom of expression and freedom of information are closely linked. Anthony Mason stated, [G]uarantees of freedom in constitutions and international instruments expressly or impliedly include certain aspects of freedom of information in freedom of expression, that is the right to seek and impart, even the right to receive, information.14 He argued that this relationship is fostered by current international legal instruments such as the covenant, the European Convention on Human Rights and Fundamental Freedoms (ECHR), and the American Convention on Human Rights (ACHR), which all treat freedom of expression as including freedom of information.15 In regards to Article 19 of the covenant, which includes the freedom to seek, receive and impart information, Mason argued that this language implies a protection to receive otherwise accessible information but not an obligation on governments to impart information, unless that information pertains to the individual seeking information. That being said, Mason also maintained that the essentiality of freedom of expression and information to modern liberal democratic government and the emergence of freedom of information legislation
ALEX CONTE , ET AL., DEFINING CIVIL AND POLITICAL RIGHTS. THE JURISPRUDENCE OF THE UNITED NATIONS HUMAN RIGHTS COMMITTEE (2004). 14 Anthony Mason, The Relationship Between Freedom of Expression and Freedom of Information in FREEDOM OF EXPRESSION AND FREEDOM OF INFORMATION.\ (Jack Beatson & Yvonne Cripps eds. 2000) at 225. 15 Id.
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Access to Information as a Human Right and disclosure requirements of international institutions may lead to the implication in Article 19 of such an obligation.16 Tony Mendel, head of the law program of the nongovernmental organization Article 19, the Global Campaign for Freedom of Expression,17 surveyed several international human rights instruments18 and national court decision and concluded that states are under increasing obligation to give effect to the right to freedom of information.19 But the jurisprudence at the national and international levels is equivocal in that it grounds that obligation in three different areas: the right to family life, the right to freedom of thought, and the right to freedom of expression.20 According to Mendel, the European Court of Human Rights, which hears cases on alleged violations of the European Convention on Human Rights,21 has ruled in several cases that governments cannot restrict a person from receiving information that others are willing to impart. What is significant in these rulings, according to Mendel, is that they are based not on Article 10 of the European Convention,22 which guarantees freedom of expression, but on Article 8, guaranteeing a right to family life.23 Each of these cases involved information pertinent to a specific individual.24 All of Mendels examples of a right to freedom of information grounded in

Id. at 227. Article 19, the Global Campaign for Freedom of Expression, is an international nongovernmental organization that promotes freedom of expression and the free flow of information as fundamental human rights that underpin all others, Article 19 at http://www.article19.org/. 18 The European Court of Human Rights; the ICCPR; the UN Commission on Human Rights, and the UN Special Rapporteur on Freedom of Opinion and Expression. 19 Mendel at supra note 5. 20 Id. 21 The European Court of Human Rights hears cases of signatory nations of the ECHR. 22 Article 10(1) states: 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. 23 Article 8 states: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 24 For example, in Gaskin v. United Kingdom, 7 July 1989, 12 EHRR 36, the court ruled that an individual who was in foster care had the right to obtain the government agency records that pertained to him.
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Access to Information as a Human Right the right to freedom of thought come from national supreme courts, not international human rights instruments. As an example of the right to freedom of information grounded in the right to freedom of expression, Mendel referred to Article 19 of the covenant. He argued that Article 19 implies a right to freedom of information because freedom to receive information prevents public authorities from interrupting the flow of information to individuals and that freedom to impart information applies to communications by individuals. It would then make sense to interpret the inclusion of freedom to seek information, particularly in conjunction with the right to receive it, as placing an obligation on government to provide access to information it holds.25 But his discussion of the covenant does not address decisions of the Human Rights Committee. Two authors analyzed the right to freedom of information in terms of womens rights to receive information about reproductive health. Geoffrey Hoffman assessed several international treaties and bodies and found that this right does exist in international law. Many of his findings are based on provisions guaranteeing a womans right to education, not specifically the right to information. The authors analysis of Article 19 of the covenant is brief and does not include decisions, concluding observations, or general comments of the Human Rights Committee. The author concluded that Article 19 is weak in reference to guaranteeing women access to health information.26 Sandra Coliver also examined international human rights law in reference to womens right to reproductive information.27 Her study assessed international law regarding nondiscrimination, rights to health and life, rights to family life, and freedom of expression and

Mendel at supra note 5. Geoffrey Hoffman, In Search of an International Human Right to Receive Information, 25 LOY. L.A. INTL & COMP. L. REV. 165. 27 Sandra Coliver, The Right to Information Necessary for Reproductive Health and Choice Under International Law in THE RIGHT TO KNOW: HUMAN RIGHTS AND ACCESS TO REPRODUCTIVE HEALTH INFORMATION (1995).
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Access to Information as a Human Right information. The authors brief analysis of the latter consisted of decisions from regional human rights courts28 and only briefly discussed the covenant. Although the literature suggests that some scholars have surveyed international legal instruments in regards to access to information, no studies have assessed all the decisions of the Human Rights Committee in terms of a right of access to government-held information. All of the studies give only a cursory look at the rulings of covenant. Analysis of those decisions, concluding observations, and general comments can help to assess the current status of access to information in international human rights law. Research Questions & Methodology This paper will address the following research question: How do the Human Rights Committees decisions, concluding observations, and general comments interpret the Articles of the covenant, particularly Article 19, in regards to guaranteeing a right of access to governmentheld information? This paper analyzes the following types of documents from the Human Rights Committee that pertain to access to government-held information. Concluding Observations: Reports from the committee to countries regarding their compliance with the covenant. General Comments: General statements from the committee on its interpretations of specific articles in the covenant. Decisions: Rulings from the committee regarding individual complaints of human rights violations. The Human Rights Committees Views on Access to Information

The African Charter on Human and Peoples Rights, adopted 26 June 1981, entered into force 21 Oct. 1986; the American Convention on Human Rights, adopted 22 Nov. 1969, entered into force, entered into force 18 July 1978; and the European Convention on Human Rights, adopted 4 Nov. 1950, entered into force 3 Sept. 1953.
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Access to Information as a Human Right The committees jurisprudence regarding the right to government-held information is very limited. Of the approximately 850 complaints heard by the committee since 1977, only six decisions considered access to government-held information. In two of the complaints, the committee held that the complainants rights were violated by denial of access to governmentheld information. One of the complaints dealt with Article 19, which guarantees the right to freedom of expression including the freedom to seek, receive and impart information and ideas of all kinds.29 The other decision involved Article 10,30 which concerns the rights of those held in government detention. The committee ruled against complainants in three other cases, all of which concerned Article 14,31 the article pertaining to fair trials. The sixth complaint, which also involved Article 19, was ruled inadmissible under the committees procedural rules.32 All of these complaints except one dealt specifically with access to personal information held by public authorities. Of the 183 concluding observations (committee reports on the status of countries compliance with the covenant), only nine addressed access to information, and many of the statements were exceedingly vague. In all except one, the discussion involved Article 19. Only one of the committees 34 general comments (committee comments clarifying interpretations of

ICCPR, Article 19. ICCPR, Article 10(1): All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 31 ICCPR, Article 14(1): All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interests of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children; Article 14, paragraph 3: In the determination of any criminal charge against him, everyone shall be entitled to the following: (b) To have adequate time and facilities for the preparations of his defense and to communicate with counsel of his own choosing. 32 Optional Protocol to the International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. Doc. GAOR Supp. (no. 16), U.N. Doc. A/6316 (1966) 999 U.N.T.S. 302, entered into force, Mar. 23, 1976.
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Access to Information as a Human Right the covenants articles) addressed the issue of access to government-held information and that was in reference to Article 17, the right to privacy.33 The following sections will assess the committees jurisprudence, observations, and comments based on the particular articles addressed. Because each of the covenant articles address different rights, it is important to discuss the findings in terms of specific rights enumerated in the articles. Article 17 1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. The committee voiced one if its strongest statements affirming a right of access to government-held information in a general comment regarding Article 17. The Comment states that the gathering and holding of personal information whether by public authorities or private individuals or bodies, must be regulated by law. It also went on to state: [E]very individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Every individual should also be able to ascertain which public authorities or private individuals or bodies control or may control their files. If such files contain incorrect personal data or have been collected or processed contrary to the provisions of the law, every individual should have the right to request rectification or elimination.34 Then in the 1999 concluding observations on Norway,35 the committee praised Norway for passing a law giving citizens the right to access records about themselves held by the Police
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ICCPR, Article 17 states: 1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks. 34 CCPR General Comment No. 16, 8 April 1988. 35 CCPR/C/79/Add.112, 1 November 1999.

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Access to Information as a Human Right Security Service. The committee specifically indicated that this development fell under Article 17 of the covenant. These two statements indicate that the committee views access to personal records held by public authorities as a human right. Surprisingly, though, the committee has not heard any complaints under Article 17 about denial of access to personal government-held information; therefore, there is no jurisprudence in this regard. Although five of the six complaints identified in this study concerned access to personal information, none of them implicated Article 17. Article 10, paragraph 1 Article 10, paragraph 1: All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The committees decision in Zheludkova v. Ukraine (2002)36 is one of the two rulings in which the committee affirmed the right of access to government-held information. The complaint involved Article 10, which guarantees the right to be treated with humanity and dignity while in prison. A Ukrainian man, Igor Zheludkov, was denied access to his medical records while in prison. The government provided a summary of Zheludkovs records but not the actual records. His mother submitted his complaint arguing that denial of access violated Zheludkovs rights under Article 10, paragraph 1. Zheludkovs mother argued that access to the records was necessary to help assess his current medical issues, for which he was treated while in detention. She also claimed that her son was beaten while in detention and access to the records could help confirm this. In a split ruling of 14 in the majority and three dissenting,37 the committee concluded his rights were violated under Article 10, paragraph 1. The committee acknowledged that it was not in a position to determine the relevance of the medical records to his physical

CCPR/C/76/D/726/1996, 6 December 2002. Traditionally the committee has made decisions based on consensus, but more recently members have begun to issue individual opinions of dissent or concurrence. Scott Carlson and Gregory Gisvold. PRACTICAL GUIDE TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, Transnational Publishers, Ardsley, NY, 2003.
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Access to Information as a Human Right treatment while in detention or the medical treatment he received there, but because the government did not explain why the records were denied, the committee gave due weigh to the complainants allegations.38 The committee concluded that consistent and unexplained denial of access to medical records39 did violate Zheludkovs rights under Article 10, paragraph 1. Three committee members40 dissented and one member41 concurred but with reservations. The three dissenting members argued that Zheludkovs rights were not violated under Article 10, paragraph 1, because the government had given access to a summary. They also argued that denial of access to medical records does not in and of itself constitute a violation of Article 10. In the most vehement dissent, a member wrote, To conclude that the denial of access to medical records to a person deprived of his liberty, assuming such a denial is proved, constitutes inhumane treatment and is contrary to respect for the inherent dignity of the human person goes beyond the scope of the said paragraph and runs the risk of undermining a fundamental principle which must be above whimsical interpretations.42 In the concurring opinion, the author argued the opposite. She argued that the opinion: excessively restricts the interpretation of article 10, paragraph 1, by linking the violation of that provision to the possible relevance which the victims access to the medical records might have had for the medical treatment that he received in prison [A] persons right to have access to his or her medical records form part of the right of all individuals to have access to personal information concerning them regardless of whether or not this refusal may have had consequences for the medical treatment.43 Although this concurring committee member did not mention Article 17, her comments regarding a persons right to government-held personal information are similar to those expressed by the committee in its general comment on Article 17 and its concluding observation
Supra note 39 at Para. 8.4. Id. 40 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Mr. Nisuke Ando, Individual Opinion by Committee Member Mr. P.N. Bhagwati, Individual Opinion by Committee Member Mr. Rafael Posada. 41 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Cecilia Medina. 42 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Mr. Rafael Posada. 43 CCPR/C/76/D/726/1996, 6 December 2002, Individual Opinion by Committee Member Ms. Cecilia Medina.
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Access to Information as a Human Right of Norway. When making decisions, the committee has the option to bring in covenant articles that are not addressed in the complaint. It is unclear why the committee chose to rule based on Article 10 rather than Article 17, which possibly is more appropriate, especially in light of the three dissents. It also is not clear if the committee would have decided that a violation under Article 10 occurred if the government would have shown that the medical records were not relevant to the complainants medical treatment. The committees decision to some extent, as the concurring decision suggests, hinged on this potential relationship. The decision that the complainants rights were violated under Article 10 is not a strong statement regarding the right of access to government-held information. It is based not on a right to government-held information, but on the right to fair treatment while in prison.

Article 14 Article 14, paragraph 1: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Article 14, paragraph 3(b): In the determination of any criminal charge against him, everyone shall be entitled to the following: To have adequate time and facilities for the preparations of his defense and to communicate with counsel of his own choosing. Three of the decisions that deny a right to government-held information involve two separate sections of Article 14 that guarantee the right to a fair trial. In van Marcke v. Belgium (2004),44 the complainant was convicted of forgery and fraud. During the prosecutions investigation, van Marckes tax records were obtained but not added to the criminal file; therefore, van Marcke could not access them. He argued that his right to equal access to information was violated under Article 14, paragraph 1, due to the courts refusal to add the fiscal records to the criminal records. The committee ruled that his rights to a fair trial were not
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CCPR/C/81/D/904/2000, 9 August 2004.

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Access to Information as a Human Right violated because the fiscal file was not the basis of the prosecutions case. It also stated that Article 14, paragraph 1, does not require that the prosecution bring before the court all information it reviewed in preparation of a criminal case unless it was withholding exonerating evidence. Anthony Fraser, et al. v. Jamaica (1999)45 also involved Article 14, paragraph 1. This complaint concerned two men who were convicted of murder and sentenced to death. The prosecution relied on eyewitness accounts by three persons. The complainants argued that their rights were violated under Article 14, paragraph 1, because their defense was denied access to one of the witnesss police statement. Again, the committee ruled that the complainants rights to a fair trail were not violated because the statement was not used by the prosecution. The third Article 14 decision is based on paragraph 3(b), which guarantees adequate time and facilities to prepare a defense and to receive choice of counsel. In Errol Smith, et al. v. Jamaica (1999),46 the complainants also where convicted of murder and sentenced to death. They argued that their rights were violated under Article 14 because they were denied access to a statement given by the prosecutions main witness. The committee ruled that there was no violation of Article 14, paragraph 3(b), because the state had shown that the statement had not named the complainants and was not part of the prosecutions case. In all three Article 14 decisions, the committee ruled that the denial of government-held personal information did not violate the complainants rights to a fair trial. These decisions were based on the fact that the prosecution did not use the information during trial. In van Marcke v. Belgium, the committee bluntly stated Article 14 did not require the prosecution to hand over all of its information concerning the trial. The decisions do seem to imply, though, that if the

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CCPR/C/65/D/722/1996, 31 May 1999. CCPR/C/65/D/668/1995, 12 May 1999.

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Access to Information as a Human Right prosecution did use the information during trial, a violation of Article 14 may have been found, although this is speculative. Article 19 2(b) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of choice. The committee has released several concluding observations pertaining to freedom of information legislation. In concluding observations the committee traditionally begins the discussion by pointing out the positive aspects of a nations progress in adhering to the covenant. It then goes on to list its concerns and suggestions to better comply with the covenant. Although the committee has never chastised a country for not having freedom of information legislation or for withholding government-held information in general, it has on four occasions expressed approval of a governments intention to pass freedom of information legislation47 and approval of countries that recently passed legislation. In a 1995 observation,48 the committee praised the Ukraine for passage of a freedom of information law in 1992. Irelands passage of the 1997 Freedom of Information Act also received approval,49 as did Lithuanias passage of legislation in 1996.50 On several occasions, the committees observations implied concern about nations lack of access to information, but these statements are very broad and vague. In an observation to Uruguay, the committee wrote, With respect to freedom of expression, there should be greater freedom to seek information, as provided for under article 19(3) of the Covenant.51 It is unclear what the committees intention was in making this observation, and the suggestions do not
CCPR/C/70/Ass.81, 4 August 1997. CCPR/C/79/Add.52, 26 July 1995. 49 A/55/40, paras. 442-451, 24 July, 2000. 50 CCPR/C/79/Add.87, 19 November 1997. 51 CCPR/C/79/Add.90, 8 April, 1998.
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Access to Information as a Human Right address this concern. In an observation to Nepal, the committee stated, The Committee notes with concern the excessive restrictions on the right to freedom of expression and information.52 Again, the committee did not elaborate on its concern or make suggestions to Nepal on how to remedy the non-compliance issue. In an observation to Azerbaijan, the committee stated, The Committee notes with concern the lack of laws guaranteeing the right of information and the fact that the laws inherited from the former regime have not been amended to guarantee the rights provided for in article 19 of the Covenant.53 In the only suggestion related to the committees concern, it recommended that the state party revise the former legislation as soon as possible in order to introduce a democratic system more in keeping with the requirements of the Covenant. In a 1993 observation, the committee was more specific. It rebuked Ireland, stating that with respect to freedom of expression and the right of access to information, the committee notes with concern that the exercise of those rights is unduly restricted under present laws concerning censorship, blasphemy and information on abortion.54 In the recommendation section of the report, though, the committee recommended only that Ireland take necessary measures to ensure the enjoyment of freedom of expression as set out in article 19 of the covenant. In this regard, the Committee suggests that steps should be taken to repeal strict laws on censorship and ensure judicial review of decisions taken by the Censorship on Publications Board.55 It is not clear from the committees comments whether the right of access to information also refers to government-held information such as government-held information on abortion. In concluding observations on Great Britain and Northern Ireland, the committee reprimanded the governments use of the Official Secrets Act. The State party should ensure

CCPR/C/79/Add.42, 10 November 1994. CCPR/C/79/Add.38, 3 August 1994. 54 CCPR/C/79/Add.21, 3 August 1993. 55 CCPR/C/79/Add.21, 3 August 1993.
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Access to Information as a Human Right that its powers to protect information genuinely related to matters of national security are narrowly utilized and limited to instances where it has been shown to be necessary to suppress the release of information.56 In the only general comment pertaining to Article 19,57 the committee did not indicate any right to information nor encourage counties to pass freedom of information legislation. This could be due to the fact that the general comment was released in 1983, more than 10 years before the above concluding observations regarding freedom of information legislation and access to information were released. As stated previously there has been a dramatic increase in freedom of information legislation in the past 10 years. This recent development may have contributed to the committees statements on this type of legislation. It also is important to note that the committee has not chosen to write another general comment on Article 19. Without further clarification from the committee, it is difficult to assess if the committees statements in the concluding observations about freedom of information legislation are broad comments about good governmental practices or if they indicate that the committee views access to information as a human right protected under Article 19. The jurisprudence regarding Article 19 and access to government-held information only includes two complaints, one of which was determined to be inadmissible. X v. New Zealand (1999)58 concerned a man who was involuntarily admitted to a mental hospital. He brought a complaint to the committee because he felt that he was improperly committed and also because he was denied access to his police and medical records. He argued that his rights under Article 19, paragraph 2(b), were violated because he was refused access to information held by the police and Department of Health under the New Zealand Privacy Act of 1993. The complaint

CCPR/CO/73/UK, 6 December 2001. CCPR General Comment No. 10, 29 June 1983. 58 CCPR/C/66/D/754/1997, 2 August 1999.
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Access to Information as a Human Right was ruled inadmissible because he had not exhausted all of the state remedies.59 This included his failure to appeal the government decision to the New Zealand Complaints Review Tribunal, which is authorized to hear complaints under the New Zealand Privacy Act. What is interesting is that the complaint was brought under Article 19, and not Article 17, which protects privacy. The complaint clearly could fall under Article 17 because the complainant was denied personal information under New Zealands Privacy Act. As stated above, the committee has never heard a complaint regarding access to government-held information under Article 17, yet it did make it clear in its general comment on Article 17 that governments are obligated under the covenant to provide access to government-held personal information. The second Article 19 complaint was Gauthier v. Canada (1999).60 Robert Gauthier, publisher of a newspaper, was refused the same access as other reporters to the Canadian Press Gallery.61 The Press Gallery is a private organization that administers the accreditation for journalists to attend parliamentary proceedings. Gauthier was given a non-journalist temporary pass that gave him limited access, which resulted in his not being allowed to ask questions at press conferences or have a mail slot for receiving all the information available to active members.62 He also filed numerous requests for access to the speaker of the house to no avail. A federal court refused to hear his case because the Press Gallery is not a department of the government. A provincial court also refused to hear the case stating that the speaker of the house was exercising parliamentary privilege.

Supra note at 35. Under the rules of the Optional Protocol, one cannot bring a complaint to the Committee unless that individual has exhausted all of the States remedies. 60 CCPR/C/65/D/633/1995, 5 May 1999. 61 Gauthier fought for more than 10 years to receive membership in the Parliamentary Press Gallery. Canada, in its submission to the committee, said Gauthier did not receive a press pass because he had been uncooperative in providing enough information to determine if he was eligible. Gauthier contended that he had cooperated and the rules were whimsical. 62 CCPR/C/65/D/633/1995, 5 May 1999.
59

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Access to Information as a Human Right Canada argued to the committee that all citizens have access to parliament through a three-tiered pass system. The press pass specifically gives access to the media facilities of parliament and is only given to accredited members of the Press Gallery. Canada also argued that there is no relationship between the Speaker of the House and the independently run Press Gallery and that most of the Press Gallery facilities are not located on government grounds and thus are outside of parliaments jurisdiction. Canada also claimed that Gauthier was not significantly disadvantaged because Parliamentary proceedings were broadcast to the public. Gauthier argued that his rights were violated under Article 19(b) because the government of Canada prevents him to seek and receive information and observe proceedings on behalf of his readers, and prohibits his access to facilities and services provided for the media,63 including access to press releases, itineraries of public officials, and to the Library of Parliament. The committee did not accept the Canadas argument and stated, [I]n view of the importance of access to information about the democratic process the Committee does not accept the State partys argument and is of the opinion that the authors exclusion constitutes a restriction of his right guaranteed under paragraph 2 of article 19 to have access to information.64 Next the committee had to decide whether these restrictions were justified under Article 19, paragraph 3, which lists two exceptions to Article 19: Respect of the rights or reputations of others and for the protection of national security or of public order or public health or morals. The state argued that the restrictions were justified because they helped create a balance between freedom of expression and the effective operation of parliament. The committee agreed that the state had legitimate interest in maintaining public order through the

63

64

Id. Id.

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Access to Information as a Human Right accreditation system but that the current system was not specific, fair and reasonable nor transparent. Although this decision does seem to imply a right of access to government-held information, it is not definitive. It is promising that the committee did specifically refer to a right of access to information under Article 19, paragraph 2, yet in some ways, the decision is more about equal access to press privileges than access to government-held information. It is unlikely that the committee would have decided a violation under Article 19 had occurred if Gauthier were not a journalist. Discussion and Conclusion The strongest statement regarding citizens right of access to government-held information rests in the general comment on Article 17 stating that citizens have the right to view and access government files pertaining to them. However, there is no jurisprudence in this area; therefore it is difficult to predict how the committee would rule on such a complaint. The committees strong statements in this regard, which also include the Observation to Norway, conflict with its decisions under Article 14 concerning access to personal information. The committee stated emphatically that Article 14 did not require the prosecution to hand over all of its information concerning the trial. The committees general comment on Article 17 also raises the question of why Article 17 was not used in the decision in Zheludkova v. Ukraine. That complaint would have been a perfect opportunity to use Article 17 to guarantee access to government-held personal records. Instead, the committees decision suggested that the right of access to information was related to the usefulness of those records to the complainant, and not a general right to access personal information. In terms of Article 19, which is the most appropriate article to provide a broad right of access to information, the committees statements are vague at best. The general comment on

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Access to Information as a Human Right Article 19 adds no clarification. It is unfortunate that the committee could not rule on X v. New Zealand. Although the complaint dealt with access to personal information, it would have been illuminating to see how the committee interpreted Article 19. The committee did rule in Gauthier v. Canada that the journalist had a right to access government-held information, but, as pointed out earlier, it is unlikely that this right would pertain to non-journalists. The committees decisions and statements thus far do not indicate a broad right of access to government-held information. Its general comment on Article 17 is promising but when it had the opportunity to guarantee that right under Article 17 in Zheludkova v. Ukraine, it chose not to do so. Even if it had, basing a right to information on the right to privacy would not go far enough. Such a right would consist only of a right to personal information and not a broad right to government-held information. A right to government-held information would most logically be found in Article 19 because freedom of expression and freedom of information are explicitly linked. The committees decision in Gauthier v. Canada is a positive step but it is much too narrow to gauge how the committee might rule on an access to government-held information complaint. With the proliferation of freedom of information legislation and concerns about transparency, it is just a matter of time before such a complaint will come before the committee. It is hopeful that the committee will take that opportunity to explicitly state that Article 19 guarantees the right of access to government-held information.

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