Freedom of information (FOI; also known as right to information and access to information) laws around the world establish rights and procedures around access to public information. Normative assumptions examine what’s behind FOI legislation, including rationales stemming from human and political rights frameworks, participatory democratic theory, and transparency and accountability initiatives. Although the freedom of information concept first arose as part of 18th-century enlightenment thinking, recent FOI law took shape in the mid-20th century, influenced by post–World War II human rights treaties, incentives provided by transnational organizations and funders, and individual country support for access to government information. Today, the majority of the world’s countries have FOI laws, most of which were adopted after 1990. FOI laws commonly address who can request information, who must provide information, what information is accessible, what information must be proactively disclosed, and what information is exempted from the law. FOI laws also establish procedural rules around information requests, including mandated response times for requests, appeals processes for denied requests, penalties for improperly withholding information, processes fees, and government reports on the law’s usage. Only a small percentage of people make FOI requests in most nations. Although it varies from country to country, requests from specific groups, including private individuals, commercial businesses, journalists, and nongovernmental organizations, often predominate. FOI requests may be political, professional, or personal in nature, although many FOI laws prohibit governments from asking about or evaluating the reasons for an information request. The ability of FOI laws to provide effective access to information depends on several factors. These include how the laws are written, public awareness of FOI, the cooperation and compliance of government agencies and institutions, and broader political and social conditions affecting FOI implementation and use. Scholars have measured the effects of FOI laws in both quantitative and qualitative terms. While quantitative data yield a picture of who uses FOI laws and how frequently, qualitative and anecdotal data provide ample evidence that such laws have had a positive impact on individuals’ abilities to obtain and use public information. Finally, FOI laws are necessary, but not sufficient, mechanisms for producing more accountable governments. They are unlikely to accomplish government reform on their own, but they can help expose and reform democratic deficits and push governments toward broader democratic reforms.
Multiple rationales surround freedom of information laws, which establish rights and procedures around what different countries have variously termed freedom of information (FOI), access to information (ATI), and right to information (RTI). FOI supporters commonly assert the law’s ability to serve as a tool for achieving desirable social and political outcomes, including government accountability, good governance, and economic development. These and other rationales for FOI in turn stem from different frames of reference that emphasize various, though often overlapping, purposes. These frames include broader discourses and philosophies pertaining to human rights, political rights, participatory democratic theory, and transparency and accountability initiatives.
Early conceptualizations of FOI in the 20th century were part of international declarations of universal legal principles that sought to find a firmer foundation for law and morality in the aftermath of Nazi atrocities in World War II. These laws sought to protect what were seen as fundamental civil, political, and economic rights grounded in the “inherent dignity” and “equal and inalienable rights” of all human beings (Universal Declaration of Human Rights, Preamble, 1948). Within this human rights framework, the freedom to “seek, receive and impart information” was intended to help redefine power relationships among the various groups in society that have a stake in public information (Snell & Sebina, 2007; Stiglitz, 2002). The FOI provisions included in early human rights treaties were designed to tackle the inherent information asymmetry between those that govern and the governed and mend potentially problematic relationships between citizens and their governments (Snell & Sebina, 2007). These treaties conceived of governments as the guardians of public information on behalf of citizens rather than that information’s owners. They also provided a legal mechanism through which citizens could access government information proactively instead of passively waiting for the government to release information at its discretion (Paterson, 2008). FOI principles sought to empower “the right-holder (the subject of the right) to demand information from the duty-bearer (in this case the state),” creating a mechanism whereby the state would be accountable to citizens to perform this duty (Calland & Bentley, 2013, p. 71).
FOI has also been understood within a liberal political rights framework that views rights as tools both to restrict state power and to further collective public interests. The liberal democratic tradition holds that all citizens should participate in self-governance and that rights are a central means of protecting individual liberty. In this view, the ability of citizens to act as rational political beings, to self-govern, and to participate in civic life is central to representative democracy (Dahl, 1989; Habermas, 1991). In this approach, FOI is necessary to protect both the functioning of democracy as well as other political rights. Democratic functioning requires informed citizens to collectively determine the larger public good and to possess the information necessary to choose leaders who represent their views and interests. FOI laws serve as tools to address democratic deficits and even developmental failures (Gaventa & McGee, 2013). FOI also acts as a leverage right (Jagwanth, 2002) or a prerequisite for the exercise of other socio-democratic rights (Calland & Bentley, 2013; Gaventa & McGee, 2013). For example, information about the activities of politicians is necessary to effectively exercise voting rights, and knowledge of government policies and procedures may be necessary to obtain government services or benefits.
Ideas about FOI also stem from more participatory democratic traditions within liberal democratic theory. Participatory democratic theory places greater emphasis on citizen participation in democratic processes, seeks to extend democratic decision-making more broadly throughout political and social institutions, and asserts that citizens require adequate resources to enable participation (Held, 1987, p. 262). Ideally, citizen participation should not be limited to voting for representatives but should include deliberative participation in policymaking and other realms. According to this school of thought, greater access to information allows citizens to be more knowledgeable, to meaningfully engage in decision-making, and to demand accountability (Snell & Sebina, 2007). FOI can also be looked at as integral to the exercise of free speech and other rights and to ensuring greater democratic participation. As Ackerman and Sandoval (2006, p. 91) put it, “FOI laws are a further development in age-old struggles for freedom of opinion and of the press, as well as the right to participate in government decision making.”
As more countries, not all of which are mature democracies, engage in freedom of information initiatives, FOI has been associated with concepts of accountability and good governance (Calland & Bentley, 2013). FOI is often a central part of transparency and accountability initiatives (TAI) that address developmental problems (Gaventa & McGree, 2013). TAI typically combine FOI legislation with other mechanisms designed to bring government information into the public domain and hold governments accountable for their actions. These initiatives presume that increasing access to information leads to more transparency, while transparency leads to more accountable decision-making. In this approach, FOI is intended to deliver more participatory democratic forms of government, to improve government delivery of goods and services, to increase government accountability, and to reduce corruption (Ackerman & Sandoval, 2006; Darch & Underwoode, 2010; Mendel, 2008). TAI posit a direct relationship between access to information and socio-economic development. This school of thought often draws on market metaphors to understand the relationship between governments and their citizens, conceptualizing the state as an essential service provider and citizens as its customers (Gaventa & McGee, 2013; Kosack & Fung, 2014). Ultimately, TAI positions FOI as a mechanism to help achieve a more efficient economy, better standards for health and food security, and a better environment (Darch & Underwood, 2010).
Drawing on these theoretical frameworks, several authors have formulated lists of concrete FOI objectives and potential outcomes (Article 19, 2004; Banisar, 2006; Darch & Underwood, 2010; James, 2006; Mendel, 2008). Mendel (2008, p. 141) identified the common principles and objectives found across FOI legislation around the world as (1) transparency, (2) accountability, (3) public participation, and (4) informing citizens. Banisar (2006) named (1) democratic participation and understanding, (2) the protection of other rights, (3) making government bodies work better, and (4) the redress of the past harm as common objectives. James (2006) noted among the benefits emphasized during the United Kingdom’s debates over FOI’s adoption (1) encouraging greater transparency, (2) enhancing public participation in government, (3) enhancing the quality of decision-making, (4) allowing citizens and organizations to assert their rights, (5) raising public confidence in the process of government, (6) increasing the effectiveness of administration, (7) increasing the accountability of the government, (8) safeguarding probity, (9) increasing the effectiveness of the media, and (10) altering the culture of public service. Taking a global perspective, the international nongovernmental organization Article 19 (2004) provided a more specific list of benefits that included (1) a less corrupt society, (2) a society that is healthier and hunger-free, (3) a society that respects the environment, fundamental human rights, and privacy, (4) more security and democracy, (5) a more efficient government and better decision-making, (6) a more efficient economy, and (7) better treatment of individuals by institutions (p. 9, as cited in Darch & Underwood, 2010). Hazell, Worthy, and Glover (2010) synthesize the above lists of objectives into six categories: (1) increasing governmental transparency, (2) increasing accountability, (3) improving the quality of decision-making, (4) improving public understanding of government, (5) increasing public trust, and (6) increasing participation.
Scholars further suggest that FOI laws improve democratic practice and economic development by facilitating social and institutional level changes (Calland & Bentley, 2013). While social changes include the development of a more knowledgeable, trusting, and participatory citizenry, institutional change references increased governmental transparency and accountability, improved decision-making, and good governance.
FOI evolved over the last two centuries as both a principle and a set of legal practices. Its origins are in the age of Enlightenment in the 18th century . Enlightenment ideas about governance by rule of law (rather than the discretion of autocratic rulers or professional statesmen), the ability of scientific methods to make the world knowable and thus controllable, and the need to publicize the activities of government arose during this period (Hood, 2006). Sweden established the first FOI legislation in 1766 . In response to King Adolf Frederick’s censorship of the press and secrecy surrounding government information, the Swedish parliament passed an ordinance abolishing press censorship and giving citizens a right of access to government documents. The Declarations of the Rights of Man in France 1789 and in the Netherlands in 1795 both included the right of the public to review government accounts and budgets (Banisar, 2006, p. 18). Political philosopher Jeremy Bentham advocated for freedom of information principles in the early 1800s. In his essay “On Publicity,” Bentham (1836) argued that legislatures should permit themselves and others to publish accounts of their activities, proposals, speeches, discussions, votes, and decisions. The benefits of publicity included encouraging legislatures to perform their duties, securing public confidence in and assent for legislation, allowing the public to form enlightened opinions and vote knowledgeably, and enabling legislators to look to informed members of the public for innovative solutions to political problems. Despite its Enlightenment era origins, the idea of FOI remained largely dormant until the 20th century . Few countries endorsed FOI principles or adopted them into law until after World War II.
Increased attention to human rights in the wake of World War II reinvigorated interest in FOI internationally. The principle of FOI was articulated in seminal human rights documents produced by the United Nations. Both the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) contained articles declaring that freedom of information was integral to free speech rights. The latter agreement states: “Everyone shall have the right to freedom of expression: this right shall include freedom to seek, receive and impart information.” Subsequently, the principle of FOI has been reiterated in numerous international treaties and agreements and has often provided external impetus for many countries to recognize the principle and to develop their own FOI regimes. As Banisar (2006) shows, the FOI clauses found in international agreements have become an important mechanism for furthering human rights, anti-corruption, and environmental protection. 1 In line with earlier rights agreements, the American Convention on Human Rights (1969) and the Arab Charter on Human Rights ( 1994 ) have also recognized the “freedom to seek, receive and impart information.” The United Nations Convention Against Corruption (2005) and the African Union Convention on Preventing and Combating Corruption (2003) have encouraged countries to adopt measures increasing access to information in order to combat government corruption. These measures include requiring governments to provide information on their organization, functioning, and decision-making. The Rio Declaration on Environment and Development (1992) and the Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters ( 1998 ) have required governments to adopt laws giving a right of access to government information and documents that are vital to environmental concerns. The Aarhus Convention affirmed the importance of access to information affecting the state of the environment, public health and safety, and other factors and conditions that have a bearing on human life and the environment.
Other external international or transnational influences have also been instrumental in catalyzing the adoption of FOI regimes. The Council of Europe has recommended that its member countries adopt freedom of information laws since the 1970s. The European Union gives citizens of the EU and residents of its member states the right to access information from EU bodies, making these subject to their own FOI regimes (Consolidated Version of the Treaty Establishing the European Community, art. 255, 2002). However, the EU has not always behaved transparently or honored legitimate requests for information (Bunyan, 2002). International organizations have also become alternative sources of information for citizens in some countries, providing another avenue to obtain information that might expose government scandals and corruption. International lending organizations, most notably the World Bank and International Monetary Fund, have promoted countries’ adoption of FOI as a condition for their financial assistance. The George Soros Open Society Foundations also incentivized countries to develop FOI regimes with grant programs focusing on freedom of information, access to knowledge, and government transparency. In sum, an array of international influences have spurred many countries to adopt their own FOI regimes, although in some cases the commitment to FOI has been superficial, with countries failing to design strong laws or to implement them.
At a country level, FOI regimes can take many forms. Many countries adopt freedom of information clauses in their constitutions. FOI clauses are more prevalent in relatively newly written constitutions, such as those of Central European, Eastern European, and Latin American countries. However, constitutional statements of principle may not flesh out access to information regimes as effectively as national FOI laws (Michenor, 2011, p. 148). Countries often adopt FOI laws in order to specify the scope of and procedures for access to government information. In countries where constitutional rights of access also exist, FOI laws can give definition to the contours of this right without necessarily limiting it. In other words, countries that view FOI as a fundamental human or political right may extend protection beyond what is written in particular legislation. In other countries, FOI legislation creates a right of access to government information, which would not otherwise garner constitutional protection. Such is the case in the United States, where FOIA legislation effectively constitutes the shape and limits of this right. Although beyond the scope of this article, principles of information access may also be found across a variety of regulatory fields, whether financial, economic, environmental, cultural, social, or political. Information policy, namely the laws, rules, structures, and practices that regulate information creation, processing, flows, and use (Braman, 2006), is not confined to FOI legislation.
The shape of any one country’s FOI law is historically contingent. How the law is written depends on the forces and factors motivating the law, as well as the vision and interests of different actors advocating on its behalf. While some countries have adopted FOI in response to external pressures or incentives, others have been motivated by the desire to minimize government secrecy and opportunities for corruption, to increase knowledge of and participation in democratic processes and decision-making, to encourage good governance, and to reorder the relationship of citizens to their governments (away from ruler–subject relations and towards elected representative–citizen relations). Advocacy efforts among interested constituencies, including government actors, the news media, social movement groups, and civil and human rights activists, have also been critical to the passage and form of different countries’ FOI laws.
The story of FOIA in the United States, which passed its first Freedom of Information Act in 1966, illustrates some of the variable influences and contingencies that can shape the law. Reacting against increased government secrecy during the U.S.-Soviet Cold War, a tenacious member of Congress, John Moss, and the American news media engaged in a 10-year campaign to institute the first U.S. FOI Act (FOIA). The resultant Act proclaimed the “right of the public to information,” and directed government agencies to publish information about their rules, procedures, and functions; to make their opinions, orders, rules, and records of proceedings available for public inspection; and to release other agency records upon request (Freedom of Information Act, 1966). The law’s procedural details, however, were weak or absent. For example, the 1966 Act lacked provisions for appeals, sanctions, or enforcement. Following the Watergate scandal and growing public distrust with the secretive and corrupt Nixon administration, the press and Congress sought to improve the Act (Schudson, 2014, p. 14). An amendment adopted in 1974 gave more teeth to the Act, strengthening FOIA’s procedures and administration. It required government agencies to publish indexes of government-held information and regulated the fees government agencies could charge for document search and duplication. It created an appeals process for denied requests. It permitted courts to impose response deadlines as well as disciplinary action and penalties against government employees who deliberately and improperly withheld records. It instructed agencies to sever and release portions of records that were not subject to specified exemptions. It enabled courts to privately review and determine the legitimacy of requests denied for national security reasons, and it mandated agencies report each year on their FOI activities. However, the U.S. law has not been as user-friendly as that of other countries that have followed, and civil society constituencies had no input into the law, a factor Michenor (2011) argues can contribute to a FOI law’s accessibility.
FOI legislation began to gain traction in the latter half of the 20th century . The U.S. law became a model for many countries that followed, as did the laws of Sweden, Canada, and Australia within their own regions and legal traditions (Banisar, 2006). Western European and English-speaking countries were among the earliest adopters of the law. Finland passed a FOI law in 1951 . Norway, France, and the Netherlands passed their laws in the 1970s, and Columbia, Denmark, Greece, Austria, Australia, New Zealand, and Canada followed suit in the 1980s. Following the collapse of the Soviet Union in the 1980s, freedom of information and government transparency were seen as important economic and political principles among countries transitioning from communist to democratic governance systems. Dozens of formerly communist countries, particularly those in Central and Eastern Europe, moved forward with laws designed to ensure access to government information (Birchall, 2011; Blanton, 2002). FOI laws allowed Central and Eastern European countries to obtain information about prior governments, to seek reprisal for what were seen as past injustices, and to join international organizations, such as the EU or NATO (Blanton, 2002; Byrne, 2003; Grigorescu, 2003). Worldwide adoption proceeded slowly, however. By 1990 , only 14 countries had FOI laws.
Currently, more than half of the world’s countries had adopted FOI laws. FOI laws exist in nearly all European countries. In Latin America, despite a few early adopters (Colombia in 1985 and Belize in 1994 ), most countries enacted FOI laws after the year 2000 . These include Mexico, Panama, Peru, Argentina, Ecuador, Honduras, Guatemala, Nicaragua, Chile, Uruguay, Brazil, El Salvador, and, most recently, Paraguay. Among Asian countries, Japan, South Korea, Thailand, and even some cities within China adopted FOI laws in the 1990s, while India, Bangladesh, Indonesia, the Maldives, Mongolia, Nepal, and Taiwan instituted theirs after 2000 . In the Middle East, only Israel, Jordan, and Yemen have FOI laws. In Africa, Angola, Ethiopia, Guinea, Liberia, Niger, Nigeria, Rwanda, Sierra Leone, South Africa, Tunisia, Uganda, and Zimbabwe have FOI laws on the books, most of them passed in the 2000s or 2010s. 2 However, many of these laws exist more on the books than in practice, including South Africa’s law, which is one of the most progressively written FOI laws in the world (Banisar, 2006).
Countries with more recent FOI laws have benefited from knowledge of the past experiences and best practices of others, enabling them to construct stronger FOI regimes. New laws may extend and harmonize FOI coverage across federal and local institutions, have broader definitions of what counts as information, or cover all bodies (public or private) that are government subsidized or perform government functions. They may specify public interest tests that require governments to balance their asserted interest in withholding information against the public’s interest in that information’s disclosure. They may also mandate the proactive publication of vital or frequently requested information. Many newer laws, like those in Mexico, India, the United Kingdom, and Germany, establish independent information commissions to handle appeals, enforce decisions, provide general oversight, and publicize the law. Information commissions can provide effective independent oversight and alleviate the need for those whose requests are denied to resort to lengthy and often prohibitively expensive court proceedings. Finally, a growing number of countries are adopting laws to protect government whistleblowers who call attention to people or organizations engaged in improper or illegal activity. Some of these laws, at least as written, are stronger and more modern than those currently governing the United States and Canada, two of the earliest countries to pass FOI laws (Banisar, 2006).
Countries have also taken advantage of the digital processing and networking capabilities of computers to innovate and strengthen FOI regimes. The ability to collect, process, store, and disseminate information digitally, the rise of the Internet as a public communication medium, and the recognition that governments produce information with public funds and under the auspices of the public interest have precipitated efforts to utilize networked technologies to facilitate information access. Newer FOI laws may require governments to proactively release important or commonly requested agency information online, as is the case in Poland and Estonia. Mexico’s FOIA, one of the more recent and more innovative, utilizes a web-based information portal that allows users to submit, track, and appeal information requests online, and to examine all submitted requests along with any public responses. In Turkey, people can also submit and track information requests online. Countries with older laws have amended them to enhance public access through new technologies. In the United States, the Electronic Freedom of Information Act (E-FOIA, 1996) extended open records laws to digital information held by federal agencies and encouraged agencies to make information available through new technology. The purpose of the e-FOIA was to “foster democracy,” “improve public access,” ensure timely response times, and “maximize the usefulness” of information and records collected and maintained by the federal government (5 USCS §552 (2)). Under e-FOIA, agencies must index records in their information systems, make records available electronically within a year of their production, and release frequently requested records online (5 USCS §552 (2)(e)).
FOI laws around the world mandate that governments provide access to information about their activities, functioning, and decision-making, as well as other information they collect, such as information on the status of people, land, and resources within their borders. Nations may differ, however, on how to realize access to information in practice. Despite these differences, the FOI laws of different nations address many common components, including: