To this end, it will give step-by-step guidance on how to submit an access to information/document request, at both the national and the EU level. It will take into consideration the different EU and national legal landscapes and tell you how this affects the access to information regime, and ultimately how to submit a request.
Lastly, it will offer some strategic and tactical tips relevant to journalists.
What is the right to information?
The right of access to information is recognised as a universal human right by numerous courts and international bodies, linked to freedom of expression.
This right of access to information places both a proactive and reactive obligations on governments:
- Proactive: this is the obligation to publish and disseminate key information about what different public bodies are doing.
- Reactive: governments have the obligation to receive from the public requests for information and the obligation to respond, either by letting the public view the original documents or by sending them copies of documents and information held by the public bodies.
International standards
A 2006 decision by the Inter-American Court of Human Rights confirmed that the right to information forms part of freedom of expression. The American Human Rights Convention (Article 13) protects the “right of all individuals to request access to State-held information” and that there is a “right of the individual to receive such information and the positive obligation of the State to provide it” subject only to limited exceptions.
This was then echoed by the European Court of Human Rights in a 2009 decision that recognised that there is a fundamental right of access to information held by public bodies protected by Article 10 of the European Convention of Human Rights, which is the article on freedom of expression: 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.
The Court said that the right to information is especially protected when these bodies are the only ones who hold this information (an “information monopoly”) and when the information is needed by media or by civil society organisations who are using the information to facilitate public debate and to hold governments accountable.
The United Nations Human Rights Committee confirmed in July 2011 that the right to freedom of expression protected by Article 19 of the International Covenant on Civil and Political Rights includes the right of access to information. The Committee said: “Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production.
The Council of Europe Convention on Access to Official Documents, also known as the Tromsø Convention, entered into force on 1 December 2020. It is the first binding international legal instrument to recognise the right to access official documents held by public authorities without discrimination and regardless of the requester’s status or motives in seeking access. All official documents are in principle public and can be withheld subject only to the protection of other rights and legitimate interests specifically listed in the Convention unless there is an overriding public interest in disclosure.
Access to Information vs Access to Documents
Many countries around the world have now adopted access to information laws to give effect to the right of access to information:
National level: Access to Information laws have been adopted by 135 countries. Through these laws, it is possible to submit access to information requests.
Some laws refer to “access to information” and others to “access to documents”. Normally the definitions overlap, and both are very wide concepts and include many kinds of formats on which information is held (including photographs, videos, DVDs, etc.) In practice there is little difference, but it is useful to know what the law says so that you can formulate your request in a way that is most likely to result in an answer.
EU level: The European Union has recognised a fundamental right of access to its documents (Article 15 Treaty of the Functioning of the European Union, and Article 42 of the European Charter of Fundamental Rights). This mechanism for exercising this right, the EU’s version of an “access to information law” is Regulation 1049/2001.
Note: Requests to the EU should specifically mention “documents” or they may be processed under the Code of Good Administrative Procedure which refers to the “right to information” but does not have the same timelines nor appeals possibilities.
Submitting an Access to Information/Documents Request
Can I submit a request in any country?
The right of access to information is a fundamental right and therefore it’s a right of everyone, no matter which country they live in. Almost all national access to information laws recognise this and state that “anyone” may submit an access to information request.
Furthermore, in many countries, the only formalities for submitting a request are a name and either a postal or an e-mail address, so the request process is open to everyone.
TIP: While you have the right to submit a request to the EU in any of its official languages, and receive a response in that language, at the national level it is better to submit the request in the national language of the country.
If a law states that only nationals or residents may submit an access to information request, this goes against international standards. This has been demonstrated through a recent court case where Malta’s Court of Appeal ruled in favour of Access Info that the Maltese government was discriminatory and violated the rights of EU citizens when it refused to register an information request by a non-Maltese citizen.
Unfortunately, despite being against international standards, we do see that some national laws limit the ability to submit requests to nationals/residents and then ask requesters to provide extra personal information to prove their status.
TIP: if you would like an easy overview of national laws, to find out for example whether a specific country allows non-nationals/residents to submit requests, check out the Right to Information Rating. This rating analyses all access to information laws in the world and rates them, giving points for specific indicators.
In the case of the European Union, in practice anyone can make a request for documents or submit a complaint to the European Ombudsman. In the EU treaties, however, the right of access to documents and the right to appeal to the Ombudsman applies only to citizens, residents, and businesses registered inside the Union. While in general anyone whose right has been violated by EU institutions can appeal to the European Court of Justice, in the case of the right of access to documents, the court is only obliged to admit cases from EU citizens, residents and businesses.
What can I ask for?
In principle, all information held in a recorded form by public authorities can be accessed under access to information laws.
Under the Tromsø Convention, a document is defined as “all information recorded in any form, drawn up or received and held by public authorities”.
What can I receive?
The right of access to information, however, is not an absolute right. This means that it can be limited in certain circumstances. While the right applies in principle to all information, there are exceptions to what information you can actually receive.
Internationally agreed exceptions to the right to information are:
- national security, defence and international relations;
- public safety;
- the prevention, investigation and prosecution of criminal activities;
- disciplinary investigations;
- inspection, control and supervision by public authorities;
- privacy and other legitimate private interests;
- commercial and other economic interests;
- the economic, monetary and exchange rate policies of the State;
- the equality of parties in court proceedings and the effective administration of justice;
- environment; or
- the deliberations within or between public authorities concerning the examination of a matter.
Public bodies can withhold information from the public, and therefore deny your request, if disclosure would or would be likely to harm any of the interests mentioned above, unless there is an overriding public interest in disclosure.
Harm test: the public body must clearly state why access to this document could specifically and effectively undermine the interest protected by the exception. This risk must be reasonably foreseeable and not purely hypothetical.
Public interest test: the public body must balance the possible harm with the public interest in disclosure and consider whether access could still be granted despite some harm to the protected interests.
According to international standards, as can be seen in the Tromsø Convention, all exceptions should be subject to both a harm and a public interest test.
Unfortunately, however, we do see some laws that only apply the public interest test to certain exceptions. When an exception is not subject to a public interest test, the requester cannot argue that the potential harm in disclosure is outweighed by the public interest in that disclosure. This means that even if there was a large public interest in disclosure of a specific document, if that disclosure could damage one of the interests that do not have a public interest test, access will not be granted.
What should I write in my request?
Keep your request concise and clear: If you ask for too much information or too many documents within the one request, the public body may take a long time to respond or may refuse to carry out your request, claiming that it would be too burdensome to do so. If your request is too vague, the public body will ask you to be more specific to help with their search. Both instances ultimately mean a delay in you getting your hands on the information you are after.
Mention your rights: Usually the law does not require that you mention the access to information law or freedom of information act, but this is recommended because it shows you know your legal rights and is likely to encourage correct processing of the requests according to the law.
TIP: For requests to the EU, it’s important to mention that it’s an access to documents request and it’s best to make a specific mention of Regulation 1049/2001. The name of national laws can be found in the Right to Information Rating.
No need to give reasons or state who you are: There is no need to say why you want the information or what you will do with the information. You should not have to state who you are or your occupation, the only information that should be asked of you is contact details to be able to respond to your request.
TIP: You do not have to state that you are a journalist, but depending on the country context it may be in your interest to do so:
Why should you state you are a journalist?
- Faster: In some countries, journalists tend to get faster answers and more information than individuals – this is not how it should be, but it’s a reality in practice and you could try to take advantage of this positive discrimination.
- Watchdog function: The European Court of Human Rights has established, through a series of judgments, that the right of access to information is particularly strong for public watchdogs such as journalists and civil society human rights organisations.
REMEMBER: If you do mention that you are a journalist, you should also mention the relevant access to information legislation, as otherwise there is a risk that your request will be sent to the press officer rather than having the request processed by the access to information route.
Why should you not state that you are a journalist?
- Refusals: Signalling that you are a journalist might increase resistance to providing an answer out of fear that the information will be used in a critical story.
- Data Destruction: Signalling that you are a journalist might encourage public officials to hide or even destroy information in order to cover up corruption or other wrongdoing.
Here is an example of a typical request:
Dear Sir/Madam
I am writing to request, under the Law on Access to Information (2007), for documents containing the following information:
- all procurement contracts concerning the purchase of vaccines against COVID-19 during the year 2021.
I would prefer to have this information electronically, in a machine-readable format, sent to my e-mail address which is given below.
If you have any questions or need to clarify this request, please do not hesitate to contact me.
Yours faithfully,
Jane Smith
e-mail: jane@janesmith.com
Where should I submit my request?
Once you know what you want to ask for you need to identify the relevant public institution. In most cases this will be obvious, but in some cases you might have a slight doubt, in which case it’s worth checking on the websites of the relevant bodies to see which one seems to be responsible for that area of activity. A quick phone call to each institution might clarify further. That way you can also check if the body is covered by the national access to information law in case you are not sure.
TIP: Many bodies fall under access to information laws.
In Europe the right of access to information is firmly established as applying to all administrative bodies, at the central, regional and local level.
As the right has developed, it has been progressively applied to legislative and judicial bodies. Almost all countries grant access to administrative information held by legislative and judicial bodies, and most grant access to all information held by legislative bodies.
In the Council of Europe region, 31 of the 46 national laws on access to information apply to all documents held by the legislature, and 25 countries also have laws on access to information that apply to the judiciary in its entirety.
In many countries private bodies performing public functions or operating with public funds also have the obligation to respond to requests for information.
How do I submit my request?
In general, to submit a request is simple and there are not many formalities. Requests can always be submitted in writing. The main means of submitting a request is by email or web-based forms.
Some public bodies prefer web-based forms, but Access Info Europe argues that e-mail should always be an option as it permits the requester to keep a copy of the request.
Some access to information laws also permit oral requests, which you can make by phone or in person. We do advise, however, that you make your request in writing and to save a copy or a record of it so that in the future you are able to demonstrate that your request was sent, in case you need to make an appeal against failure to answer.
There are also a number of platforms run by civil society organisations that you can use to easily submit your request in a public manner, this means that the public will not only see and be able to follow what happens with your request, but will also gain access to the documents/information you receive.
TIP: If you are working on a story and don’t want to make your request public just yet, some platforms offer a “PRO” feature, which offers you the ability to temporarily hide your request – with the intention of making it public once you have written your story. If you would like to avail of this feature, reach out to Access Info for the PRO version of the EU platform and to mySociety for more info on PRO version of national platforms.
Do I have to pay?
Submitting your request for information should always be free of charge. In the wider European region (the Council of Europe’s 46 countries), no country charges for submitting requests.
In some countries you can be charged for searching for information, in Germany for example.
TIP: Check the Right to Information Rating to see if the national laws charge for request or searching before you submit your request. If the law says it should be free but there is an attempt to charge you, you should complain. You can also contact Access Info for advice.
Some public bodies may charge requesters for the photocopying and postage costs related to answering requests. In many cases, if the answer is just a few pages, there will be no charge.
TIP: To avoid costs for copying and posting information, mention in your request that you would prefer the information in electronic format. That way you will avoid paying a fee.
When will I receive an answer?
Around Europe there is a range of maximum timeframes for answering requests. The average is about 15 working days, or about 3 weeks.
This is a maximum timeframe. The Tromsø Convention makes clear that requests must be answered “as soon as possible” and certainly within the established time limit. In countries which have ratified the Tromsø Convention the average initial response time is 11 working days.
Most countries permit public bodies to extend the timeframes for a few days or even up to a month if the request is particularly complex. In all cases the requester should be notified of the delay and the reasons should be given.
What if I don’t get the information I asked for?
In response to your request, the public body may choose to:
- Grant you complete access to the requested information;
- Grant you partial access to the requested information;
- Totally deny access to the requested information;
- Ignore your request, also known as “administrative silence”.
In the case of partial access, full refusal or administrative silence, the best option is to appeal.
In countries which have good access to information laws, there will be a simple and clear system for appeals.
Across the Council of Europe under half of countries (21 out of 46) provide for an internal appeal, sometimes optional, and more than half (25) permit recourse directly to an external appeal.
Of the countries which have ratified or signed the Tromsø Convention, however, most do not require an internal appeal, with the preferred solution in many countries is that a requester goes straight to an external oversight body or to the administrative court.
TIP: Check the Right to Information Rating to find out more about the appeals process in a given country.
All Tromsø Convention countries have some kind of independent oversight body, in addition to court appeals:
| Information Commissioner or similar | Ombudsman / Public Defender or similar |
| Albania, Estonia, Hungary, Iceland, Montenegro, Slovenia | Armenia, Bosnia and Herzegovina, Finland, Lithuania, Norway, Republic of Moldova, Sweden, Ukraine. |
What do I say in my appeal?
Appealing against an exception: According to international standards, any exception to the right of access to documents should be subject to both a harm and a public interest test. If the public body has refused you total or partial access due to an exception covering the requested information – you should check to see if that exception has harm and public interest tests and if those tests have been applied.
TIP: Mention the public interest in obtaining the information: Although you don’t need to give reasons in the initial request nor in the appeal stage, it is recommended in the appeal that you state why it would be in the public interest to release the information. For instance, if you as a journalist need it for your investigations, this is linked to your freedom of expression rights in line with the Council of Europe case law. If the information relates to a matter about which there is an ongoing public debate, then this is worth mentioning. If the data is needed to counter mis- or dis- information that is circulating, this can also be a strong argument as to why it should be released.
Appealing against administrative silence: If the timeline for responding to your request has passed, you can still appeal. This appeal however will not focus on the content of your request, only on the procedural aspects.
TIP: The European Court of Human Rights has said in many judgments that “news is a perishable commodity” and it has extended this concept to access to information requests, noting that if there is a delay in providing information, then this can undermine the right to freedom of expression. If you have administrative silence, it is worth mentioning this in your appeal.
What if I don’t know how to argue my appeal?
Don’t worry, appealing access to information requests can get complicated, especially when the public body is arguing that you have no right to the requested information.
The good news is, that we are here to help!
If you are unsure of how to argue an appeal, or need help in any other part of the process, reach out to Access Info and we’d be happy to advise you.