The concept of openness of government started developing in the 1970’s and the 1980’s. Until then the notion was that the government and its organs decided how open they should be. This applies to both the extent to which the government made itself and its actions visible and to the amount of information which was made available to the public. The effect was that the government was in control and that the government committed, as it were, “propaganda”, i.e. the government provided only information it wanted the public to know.

A recent history of growing distrust, both in Western Europe and in the U.S.A., caused an increasing change in attitude. The problem, however, was that there were no constitutional provisions (with an occasional exception), no international treaties and scarce provisions dealing with the accessibility of court proceedings and sessions of representative organs. But there was no general provisions entitling the individual citizen to obtain specific information or documents. At the same time, there was a growing sense that the government had access to information about individual citizens, without control over what happened to that information. It’s no coincidence that people in several countries objected against holding censuses, because they were afraid that the government would use the information obtained in the wrong way.

In several countries, laws emerged which dealt with these problems. Elements of those laws were that:

- the individual citizen could obtain information upon request,

- decision-making sessions or meetings of government institutions would in principle be open to the public, and

- the government would voluntarily inform the citizen in an objective way, without making “propaganda”.

The idea behind these laws was that the information would assist people in determining their position in society, in particular with relation to their voting behavior. A well informed citizen was considered to be better able to make his own decisions.

In creating access laws, several problems had to be overcome:

(1) How do you provide the information?

(2) How does an individual know that certain information is available?

(3) Should there be a distinction between the mass media and ordinary citizens?

(4) Should there be exceptions to the right of access, dealing with such interests as the right to privacy, commercial secrets, state secrets and territorial integrity, or for information about the internal processes leading to decisions?

(5) Should the exceptions be absolute or should there be a balancing of interests?

(6) Should there be some constitutional foundation?

In many countries, access laws were created without a constitutional foundation, or without a foundation other than that a constitutional provision obliges the government to create a law of access to information, without giving the (constitutional) right obtain or access information (such as The Netherlands). Access laws were often comprehensive laws, in that they regulated both the right to access, the exceptions, the government’s duty to actively inform the public and, in some cases, even the right to attend sessions and proceedings. In the U.S., such laws are frequently called “Government in the Sunshine Acts”.

The exceptions listed in those laws could either be absolute or be subject to a balancing process. State secrets are often absolute exceptions, but an individual’s right to privacy is frequently weighed against the need for the person who required the information. The same applies to commercial secrets and information about the internal decision-making process. Finally, most laws did (and do) not make a distinction between ordinary citizens and the mass media. Anything the mass media may have which is not made available to the ordinary citizen should be considered to be a facility rather than a right or privilege.

Technically, lawmakers had to decide whether to give access to information or to documents. In asking for information, the requesting person may ask for any information about a specific topic or event. In getting the information, he cannot be sure whether he received everything. In a document-based access system, the person requesting the information has to know that a certain document exists and may be deprived of necessary information if he doesn’t know that there exists another document on the event about which he wants to know. Some laws have mixes of these two forms.

Whereas the Internet (and, to a large extent, the use of computers) had not developed yet in the early 1980’s, current technology has brought about significant changes in the way in which the government can store and process information, but also in the way in which individuals can access such information. Countries, such as the Russian Federation, which are at the brink of introducing access laws, have the advantage of being able to include provisions on the use of general-use information systems such as the Internet. A more recent development is, what is called, commodification, the commercial exploitation by the government of information obtained in carrying out its duties and processed for various purposes. Some countries (such as The Netherlands) are making attempts to create laws regulating the government’s ability to use such facilities for denying or limiting the right of access to such information claiming copyright protection.

While many European countries have access laws (with the notable exception of federal law in Germany), few can be considered to comply with all the principles which should be applied. Similarly, the European Union is very reluctant to open up its own files. Access laws created around 1980 have the advantage of being comprehensive. The benefit is that the right to access is primary and the exceptions secondary. Also, having comprehensive laws makes it unnecessary to look at other laws and to determine which one prevails.

It is against this background that one can observe the current situation in the Russian Federation. The RF has the advantage of having a constitutional provision. The problem is that certain laws already exist or have their own process of development. Furthermore, the RF has to define the boundaries between federal law and regional law. The result is that there will be a general law on access to information, separate laws on the exceptions and separate laws for individual citizens on one hand and the mass media on the other hand. Furthermore, regional laws should be subject to the RF law or deal with aspects which RF law doesn’t touch upon. Considering the advantage of having one law on access to information, it would be helpful and advisable at some point in the (near) future to consolidate the relevant laws.

The following specific comments can be made on the draft RF law and the draft law for the Kaliningrad region:

(1) The general definition of information should be rephrased so as to encompass any information held by the government and not be limited to information relating to facts, events, processes and developments. The provisions on the limitations to the right to access provide for the necessary exceptions.

(2) The provisions listing the basic principles can be looked upon in a very positive way, including those dealing with specific duties imposed upon the government.

(3) Article 4 of the RF draft law: according to the principles of the Council of Europe, the exceptions to the right of access to information should not be absolute. Instead, there should be a balancing between the interests of protecting the information (for instance, the right to privacy or the need to protect commercial secrets) against the need of the person who requests access to that information (in the public interest of openness of government). Exceptions dealing with national security and territorial integrity may be absolute. By using the term may be limited (and by including a balancing test in the law dealing with confidential information), the desired result can be achieved.

(4) One may wonder whether it is necessary to provide such an extensive list as the one in Article 9 of the RF draft law, but that is a matter of legislative technique.

(5) The requirement for information users to submit personal data concerning themselves (Article 10, second half, second item) is in contradiction with the provision of the last sentence of Article 1, which states that the draft law doesn’t deal with situations in which individuals request information about themselves.

(6) The provision entitling government departments to delegate some of their powers to perform certain duties should be limited to tasks or functions (Article 12 of the RF draft law).

(7) Article 24 of the RF draft law: it should be clear which specific acts are subject to criminal liability. Also, criminal liability should not be imposed on individual civil servants, but on the management or the institution.

(8) As for the Kaliningrad draft, it is questionable whether the mass media (other than those owned by the government) should be used for publishing extensive amounts of information, in particular if they don’t receive adequate compensation. An obligation imposed on the mass media to publish specific information (other than by way of paid advertisements) is a violation of the freedom of expression.

(9) Article 16 of the Kaliningrad draft obliges citizens who want to attend a session of a representative or executive body of government to file a form. This should be omitted, as citizens visiting such events should not be required to provide personal data.

(10) Article 18 of the Kaliningrad law states that there shall be a record of attendance. Such a provision is unnecessary.

(11) Records of closed sessions should be open in principle and be made inaccessible only if there is specific reason for it.

Finally, some remarks about the draft Accreditation Rules. During the discussions about the draft Law on Mass Media, the question was raised why provisions on access to information and accreditation failed to include individual journalists. The same question applies to the draft Accreditation Rules. There is no ground from the viewpoint of Article 10 of the European Convention on Human Rights and Fundamental Freedoms to give a preference to journalists who belong to media organizations. In this context, it is interesting to note that accreditation is a validation by the editorial office of a mass media outlet.

It may be beneficial for the Russian Federation to have general accreditation rules with which accrediting organizations can comply. Such accreditation rules don’t exist in Western European countries. Instead, government and similar organs have their own accreditation rules (which, of course, have to comply with the relevant laws on access to information). As such, the proposed rules are in compliance with the relevant provisions of international law.

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