C Explanatory memorandum
by Mr Roberto Rampi, rapporteur
1. For a democratic society to
function properly and vigorously, there is an essential condition:
the citizens must be well informed, actively participate in policy-
and decision-making processes, and have the practical possibility
and effective means to exercise democratic control over the action
of governments and legislators.To make conscious and valid choices,
the citizens must have the freedom, the capacity and culture to
choose with full knowledge of the facts, including the evidence
base of public-governmental choices, and to analyse critically the
various points of view and express themselves without fear.
2. Beyond traditional and new media, the citizens are entitled
to have also other channels through which the information of public
interest should be provided to them, such as the public administration,
governmental offices and parliaments. The recent entry into force
of the Convention on Access to Official Documents (CETS No. 205,
the “Tromsø Convention”) is a significant step forward in this direction.
But this is just the first step.
3. I strongly believe that we must continue this move forward
toward a right to know, a wide-encompassing citizens’ entitlement to be actively informed
of all aspects regarding the administration of all public affairs.
The objective of this report is advancing the recognition and effective
safeguard of the right to know, in order to secure legitimate, transparent,
and accountable policy- and decision-making processes at all levels
of governance. A natural result of the implementation of the right
to know will no doubt be the strengthening of citizens' trust in
institutions and the foundations of democratic societies.
4. The three core elements of ensuring that citizens can enjoy
their right to know are ensuring a comprehensive right of access
to information, protecting freedom of expression and media freedom
and guaranteeing a right to participate in public decision-making
5. The Council of Europe, as the continent’s leading promoter
of democracy, human rights and the rule of law, has already done
much to advance the right to know through its standard-setting on
the right of access to information since 1981, and through its significant
body of work on freedom of expression, the freedom, pluralism and
diversity of the media, and promotion of media literacy. Less has
been done on the right to participate, which is not explicitly protected
by the European Convention on Human Rights (ETS No. 5).
6. This report examines the full set of standards developed by
the Council of Europe on the right of access to information and
focuses on the current challenges to guaranteeing to citizens a
comprehensive right to know, suggesting a series of future actions
by the Organisation.
7. Throughout the report I have identified the other inter-governmental
fora, such as European Union, the United Nations Educational, Scientific
and Cultural Organization (UNESCO), Organisation for Economic Co-operation
and Development (OECD), Organization for Security and Co-operation
in Europe (OSCE), the Open Government Partnership and the Group
of States against Corruption (GRECO) of the Council of Europe, which are
currently working on the issues mentioned, as well as relevant standards
and ongoing research and standard-setting processes.
My analysis builds on the excellent background report by Ms Helen
Darbishire, Executive Director of Access Info Europe,Note
who I warmly thank for her
outstanding work. I have also taken account of the contribution by
and by several members of the
2 The right to know: a new notion at
the Council of Europe
According to the Global Committee
for the Rule of Law “Marco Pannella”, the right to know is a citizen-centred
perspective on the range of rights, in particular those protected
by Article 10 of the European Convention on Human Rights on freedom
of expression and information. It has been defined as “a citizen’s
civil and political right to be actively informed of all aspects
regarding the administration of all public goods during the entire
political process, in order to allow for the full and democratic
participation in public debate regarding such goods and hold public
goods administrators accountable according to the standards of human
rights and the rule of law.”Note
10. In order for each and every person to be well informed, to
be able to fully comprehend and use the information received, to
be able and to be free to form and express opinions, and to have
the rights and infrastructure necessary to participate fully in
public life, States must undertake a series of measures, both to ensure
respect for and to actively promote these rights.
11. The Council of Europe has developed a significant body of
standards on media freedom, enumerating and clearly defining the
obligations upon States to ensure plurality and diversity in the
media sphere. The Council of Europe has also done extensive work
on media literacy.
12. In 2020, still just a few decades into the Fourth Industrial
Revolution, the digital revolution, it is clear that there are two
main challenges with media freedom. The first is that the existing
standards are not fully implemented or adequately monitored in many
Council of Europe member States. The second, that the digital age
has brought new challenges which are requiring an urgent rethink
of the standards, such as how to combat the use of social media
to disseminate misinformation.
13. It is also clear that however well-regulated and pluralist
the media environment, the citizen’s right to know is not complete
without a series of complementary measures. In particular, there
is an urgent and outstanding need to deliver a strong and comprehensive
set of transparency measures which give full effect to the right
of access to information. It is only when there is sufficient information
entering the public domain that media freedom is meaningful. It
is only when there is sufficient information available to an individual
that his or her right to participate in public debate and in public
affairs is meaningful.
14. As a starting point it should be underlined that the considerable
advances in the right of access to information in the past 20 years
have resulted in a definition of a right, and indeed its incorporation
into the international human rights framework, which is very close
to the concept of the right to know.
15. Specifically, a right of citizens to access information held
by public bodies and the positive obligation to pro-actively publish
information has been clearly established. The right of access to
information has been recognised by the UN Human Rights Committee,
the Inter-American Court of Human Rights, and, to a certain extent,
by the European Court of Human Rights, as well as by the special
mandates on freedom of expression, including the Representative
on Freedom of the Media of the OSCE.
16. Furthermore, many constitutions recognise a right of access
to information, and the European Union recognises a fundamental
right of access to its documents. Besides, while these laws generally
regulate the right to request information, many also impose proactive
publication obligations on public bodies.
17. A total of 130 countries worldwide, including all Council
of Europe countries with the exception of Andorra, have some kind
of access to information or freedom of information law, and these
are now seen as a sine qua non of
a democratic society. The quality of the laws and their implementation
varies, and it is these shortcomings in law and practice that continue
to limit the public’s right to know in 2020 and weaken the value of
this right in the face of inaccurate, distorted, or deliberately
18. The importance of a right of access to information in advancing
the United Nations Sustainable Development Goals, and in particular
Goal 16 on promoting “peaceful and inclusive societies for sustainable development,
provide access to justice for all and build effective, accountable
and inclusive institutions at all levels,” means that there is a
specific indicator, Indicator 16.10.2, on the “number of countries
that adopt and implement constitutional, statutory and/or policy
guarantees for public access to information.”
19. Where international standards have been less clear, and less
ambitious, is when it comes to defining the extent to which the
right to information applies to information held by private bodies.
Whilst no private body may interfere with exercise of freedom of
expression, it is not clear to which extent they much facilitate
it by providing information.
20. There have been, however, a series of advances with the aim
of ensuring integrity and accountability in public life. Progress
has been made in setting standards on opening company registers,
on the regulation and transparency of lobbying, and on non-financial
reporting requirements whereby companies report on human rights
and environmental impacts. The gradual strengthening of rules for
the protection of whistle-blowers is an example of where complementary
measures have been developed to ensure that information enters the
21. The link between participation and access to information is
also recognised. The Inter-American Court of Human Rights chose
to link the right to freedom of expression, although they had the
option of linking it to participation, a right that appears in the
Inter-American Convention but not in the European Convention on Human
The Court of Justice of the European Union, has, however,
underscored the relationship between accessing documents and participation
in decision making, stating that “If citizens are to be able to
exercise their democratic rights, they must be in a position to
follow in detail the decision-making process” and that they should
“have access to all relevant information.” Note
In the past decade, the global transparency movement has been
greatly strengthened with the emergence of the concept of “open
government”, something very much in line with the right to know
as put forward by the Assembly. The OECD’s 2017 definition is that
“Open Government” is “a culture of governance that promotes the
principles of transparency, integrity, accountability and stakeholder
participation in support of democracy and inclusive growth.”Note
24. The Council of Europe has not always been the primary driver
of some of these developments. Regulatory leadership has often come
from the European Union, with standard setting by bodies such as
the OECD and the OSCE, as well as intergovernmental processes such
as the Open Government Partnership.
25. That is not to say that the Council of Europe has not made
a contribution to the debate, as it undoubtedly has, particularly
on issues relating to media freedom. The jurisprudence coming out
of the European Court of Human Rights, on both the right of access
to information and in areas such as protection of whistleblowers,
as well as protection of media freedom more broadly, has contributed
directly to regulatory advances.
26. Furthermore, the work of GRECO, has contributed to strengthening
the transparency and accountability frameworks at the national level
in member States. The specific transparency recommendations that
GRECO makes, be it directly with relation access to information
laws or with respect to other norms – transparency of public procurement
or assets declarations for example – helps advance the overall right
to know framework at the national level.
27. The Council of Europe, and the Assembly could, nevertheless,
have a stronger impact with the development of a consolidated series
of actions on the complementary measures that comprise the right
to know. By engaging with the access to information and open government
communities across Europe, both civil society and inter-governmental
bodies, this impact could be reinforced.
right of access to information in 2020
The first international human
rights tribunal to give full recognition to the right of access
to information was the Inter-American Court of Human Rights which,
in the case of Claude Reyes v. Chile
September 2006 found that “One good definition comes from the UN
Human Rights Committee, in its General Comment No. 34 of July 2011,
which affirmed that there exists a fundamental human right to access
information held by public bodies and private bodies performing
public functions, and that it is linked to the well-established
right to freedom of expression set out in Article 19 of the International
Covenant on Civil and Political Rights”.Note
29. The European Court of Human Rights has been less clear cut
in recognising an absolute right of access to information, although
in a series of key cases it has linked the right of access to information
to freedom of expression. The notable cases are TASZ v. Hungary (2009), Youth Initiative for Human Rights v. Serbia (2013), Magyar Helsinki Bizottság v. Hungary (2016), and Centre for Democracy and the Rule of Law v
Whilst the advances made by the European Court of Human Rights
(the Court) are welcome, there is something of an over-insistence
on the link between the right of access to information and freedom
of expression, so that the wider value of citizens exercising their
right to know risks being undermined. In particular, this is because
the Court has developed four criteria, namely: (a) the purpose of
the information request; (b) the nature of the information sought;
(c) the particular role of the seeker of the information in receiving
and imparting it to the public; and (d) whether the information
was ready and available.Note
31. On the one hand, it is positive that this right has being
strengthened for journalist and other watchdogs such as civil society
organisations, but on the other it is of great concern that this,
in turn, weakens the right for members of the general public wishing
to exercise their more general right to know about the conduct of
32. The standard set by the Court is out of step with other international
human rights bodies, and sets a lower standard than the framing
of the right in many national laws in the Council of Europe region,
thanks in part to constitutional provisions which make clear that
there is no conditionality on the exercise of the right.
33. The Court jurisprudence is also at odds with the Convention
on Access to Official Documents, which makes clear that no motives
for requesting information need be provided.
Council of Europe Convention on Access to Official Documents (“Tromsø
34. The Council of Europe Convention
on Access to Official Documents, is the world’s first binding treaty
on the right of access to information. It was drafted between 2006
and 2008, and was opened for signature in 18 June 2009, in Tromsø
at a meeting of Ministers of Justice.
35. The rate of ratifications has been slow, but the Tromsø Convention
came into force on 1 December 2020, after Ukraine became the 10th country
to ratify it.
36. It is noted with concern that most member States of the Council
of Europe are parties to the 1998 Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental
Matters, but the take up of the Tromsø Convention has been very
poor in comparison.
37. Key elements of the Tromsø Convention are that it gives a
right of access to all information held by obliged public bodies,
with only limited exceptions all of which are subject to harm and
public interest tests. The requesting process must be simple – permitting
anonymous requests is encouraged – and free of charge. Access to
documents or information must be given in the preferred format of
the requester. The Tromsø Convention does not establish time frames
but does require that requests are handled “promptly”. There is
a right of appeal to either an independent oversight body or the
The Tromsø Convention was acknowledged, even at the time of
its conclusion, to be, in the words of its Explanatory Report, “a
minimum core of basic provisions.”Note
The Convention has been somewhat
superseded by developments in the 12 years since drafting was concluded,
including by many new laws, and by the jurisprudence of the Court
and other human rights courts.
39. For the Council of Europe to advance a full right to know,
it is essential that it takes into account the prevailing international
standards, which incorporate elements not in the Tromsø Convention,
such as a positive obligation to proactive publication of significant
volumes of documents and data, and a requirement to establish an
independent oversight body with adequate powers to protect and enforce
the right to information.
40. Moreover, within the Tromsø Convention, it is optional to
apply transparency obligations to the judicial and legislative branch.
I wish to address those shortcomings and propose to advance standard-setting
on these issues as part of an overall transparency framework.
limits on the right to know
41. The Tromsø Convention sets
out eleven grounds for exceptions to the right of access to information, each
representing a legitimate interest, each subject to a harm and public
These exceptions reflect the standards in many national laws.
This was partly due to the fact that by 2006 when drafting of the
Convention commenced, a huge amount of standard-setting work had
been done. The drafting of many new access to information laws in
Europe in the late 1990s, particularly in the new democracies in
central and eastern Europe, helped generate a consensus on the limits.
The debates that had gone into the Committee of Ministers’ 2002
Recommendation on Access to Official Documents, had resulted in
a set of exceptions, each subject to a harm and public interest
test, that reflected what had been incorporated into many of the
new national laws. Hence the definition of these exceptions was
one of the least contentious points in the Convention.Note
They have since become a standard
for the European region.Note
43. That said, ensuring a standardised application of these exceptions
in a region with as diverse a set of transparency cultures as Europe
is an ongoing issue. In one country public procurement contracts
may be available in their entirety and the names of a lobbyist readily
available, in another commercial confidentiality and personal data
protection will prevail and justify refusal of access. The concepts
of what is “international relations” or “national security” varies
from country to country.
44. The most complex area is that of personal data protection
where the European Union General Data Protection Regulation (which
entered into force on 25 May 2018, and which sets the standard for
the entire European region, and indeed globally) has not been adequately
designed to ensure that information relating to public actors, such
as elected officials and high level public officials, enters the
public domain. This conflict is requiring case-by-case debates about
whether certain classes of information should be released. Hence
the need for specific regulation in specific fields (lobby transparency,
beneficial ownership transparency, publication of assets declarations,
publication of names of recipients of large State subsidies, etc.).
45. To the extent that a country has an information commissioner
or similar body, these play an essential role in determining the
limits of the exceptions, often drawing on comparative information
in doing so.
46. As noted above, international
standards, including General Comment No. 34 of the UN Human Rights Committee,
have made clear that the right of access to information has two
dimensions: on the one hand, States have to respond to requests
(the “reactive” dimension), and on the other hand, information should
be published pro-actively (the “proactive” dimension”).
47. The importance of the proactive dimension of the right cannot
The European Court of Human Rights made clear as early as
1991 that “news is a perishable commodity and to delay its publication,
even for a short period, may well deprive it of all its value and
The same is true of all information
held by public bodies when it comes to participation: without timely
publication of information, the possibility of forming an opinion
about ongoing debates, exercising the right to freedom of expression
by commenting and possibly participating more directly, are undermined.
In a ruling from 2013, the European Court of Human Rights
hinted, if only in a subtle way, at the possibility of obligations
to pro-actively publication information. In a case where an Austrian
civil society organisation sought access to land records from a
regional land register, the Tyrolean Real Property Transactions
Commission, the court ruled that the refusal to provide this information
was a violation of freedom of expression, but stated that given
the “considerable public interest” in the land records, it “finds
it striking that none of the Commission’s decisions was published,
whether in an electronic database or in any other form.”Note
Not only does proactive publication ensure easier and more
timely public access to information, but it also takes the burden
off public officials. As the Global Committee for the Rule of Law
“Marco Pannella” has noted in its Right to Know Concept Definition
Document (2017), the European Ombudsman has recommended that data
be structured in ways that permit automatic and timely release rather
than having undergo the burdensome task of preparing answers to
In terms of standards for proactive publication, a huge body
of work has already been done. Increasing numbers of access to information
laws as well as many complementary laws require proactive publication.Note
Drawing on comparative law studies conducted by Ms Helen Darbishire,Note
examples of information that should
be pro-actively published include operational information on the
functioning of public bodies, and information specifically relating
to participation opportunities. The full range of 231 indicators
in the 17 Sustainable Development Goals related to a large number
of datasets, all of which should be published pro-actively.
53. International anti-corruption instruments, including the UN
Convention against Corruption and the Council of Europe anti-corruption
conventions identify many types of information that should be collected
and published, such as public procurement data, assets and conflict
of interest declarations, and data related to law enforcement efforts
to combat national and transnational corruption and fraud.
54. Given that the Council of Europe Tromsø Convention did not
establish even minimum standards on proactive publication, there
is space for future standard setting work on the matter.
55. A well-defined and well-implemented
access to information regime – one which includes both a right to request
information and also clear proactive publication obligations – should
result in sufficient information entering the public domain for
members of the public to follow decision-making processes.
56. Ideally, it will be possible to follow decision making in
close to real time so that genuine participation is possible, irrespective
of whether formal participation and consultation processes have
57. For this to happen, all inputs into a decision must be made
public. These would include, inter alia,
the documents and data used in analysing the situation, any commissioned
studies or reports, the legal advice prepared by the government’s
own lawyers, and copies of any submissions made by interest groups,
be they civil society, academic experts or lobbyists.
58. There are very few countries that have achieved this in practice.
A number of reasons for this can be identified, here are three of
the principal ones:
proactive publication rules
59. As noted above, if the legal
framework (access to information rules and more broadly) does not encompass
proactive publication, then the only mechanism for obtaining information
is through requests, which can be a time-consuming business even
in the most agile access to information regimes, and can result
in information being provided only in time to hold decision makers
to account but not to be able to engage in an informed manner in
keeping: no standards, few rules
One of the biggest challenges
that transparency is facing right now is the lack of record keeping.
Access Info has conducted research (at present unpublished) which
revealed that in many European countries there are weak rules on
record keeping. Guidelines for public officials have not been updated
since before the digital era fully took hold, and although final
decisions are often recorded, there is insufficient traceability
of the decision-making process. Even where minutes of meetings are
kept, they are often rather brief and do not contain the justifications
for decisions taken. Only if a specific piece of legislation requires
a justification (something we see in the field of public procurement
for example) will that exist. Furthermore, many decisions are taken
as a result of exchanges carried out by email, in a more informal
way, or even using other communication platforms such as WhatsApp
and Telegram which make it harder to track the course of the decision-making
process. Without wishing to interfere unnecessarily with the speed
and effectiveness of decision making, there are measures that can
be recommended, based on existing best practices. These include
defining which types of decisions require pre-decisional documents
to be published (to permit participation) and which require specific
records to be kept and made public. Useful work on standards has been
done by bodies such as the International Council on Archives and
while these apply more to the archival process, they are a good
There are also statements from information
commissioners – including on the “duty to document” – and there
are also good practices at the member State level that can be drawn upon.Note
for digitisation and “transparency by design”
The Covid-19 pandemic highlighted
the challenges that countries face with their own information management.
We saw countries across Europe struggling to provide accurate daily
data updates on infection rates and deaths. The pandemic revealed
how weakness in data-collection systems across a country can impede
rapid data compilation at the central level. This is resulting in
decision making that is often based on imperfect or even little
or no data. This is a transparency issue but also a governance issue.
Access Info reported in 2020 that many countries across Europe do
not publish full data sets on the Sustainable Development Goal indicators,
and interviews with government officials revealed that this was
usually due to data collection challenges.Note
There is increasing discussion in
open data and transparency circles – in particular among governments
and civil society engaged in the Open Government Partnership – about
how to ensure “transparency by design” so that administrative processes
are planned in such a way that the data collected can both be transmitted
with speed to decision makers and made available to the public relatively automatically.
To achieve this also requires “privacy by design” so that personal
data is excluded from publication.
62. In recent years, the rise in
the use of algorithms and artificial intelligence is changing the
way in which governments function and the ways in which decisions
are taken. We are seeing an increasing use of automated decision
making (ADM), including for decisions that affect the everyday life
of citizens, such as how school and university places are allocated,
how subsidies are calculated, or how traffic flows in a city are managed;
often it is not transparent to the public that artificial intelligence
(AI) underpins decisions which affect them. There is also increased
use of algorithms in the private sector, for example, when deciding
on issuing credit and bank loans.
63. The EU GDPR which came into force on 25 May 2018 contains
a clause which, from a data protection and data sovereignty perspective
gives individuals the right not to be subject to a decision based
solely on automated processing when that decision produces legal
effects concerning him or her or similarly significantly affects
him or her.
64. When, however, the decisions do not have such a direct effect
on the individual, but are rather broader in nature – the traffic
flows example, in planning infrastructure projects, or, to take
an example of current relevance, in modelling the spread of infectious
diseases and allocating resources to the health service – it may not
be so obvious to citizens that this is happening and they do not
have the same rights as under the GDPR.
65. This is an area which is a prime example of where technology
is moving at such a fast pace that law and policy often lags behind.
This lack of regulation, and the lack of understanding from the
public, is resulting in governments use of AI and ADM without strong
regulation or oversight, and certainly with a lack of transparency.
In most countries we do not have transparency regimes that guarantee
that civil society, journalists, and the public can obtain information
about how AI is being used and how data feeds into ADM.
There are some notable exceptions. For example, in France,
the Commission on Access to Administrative Documents concluded in
2017 that an algorithm is an administrative document for the purposes of
access to information requests.Note
In other countries requests to obtain
information about the use of algorithms, the source code, or the
data used inputs, have not always prospered, resulting in the public
being left in the dark about how decisions have actually been arrived
The Committee of Ministers of the Council of Europe, in its Recommendation
on the human rights impacts of algorithmic systems,
has made an important contribution here.Note
The Recommendation includes specific
language on transparency, recommending that actors that use algorithmic processes
should be able to provide easy and accessible explanations with
respect to the data that is used by the algorithm, the procedures
and criteria the algorithm uses to make its decision. Data collection
methods should be made accessible in order to spot the potential
biases that may be embedded in the algorithm’s design. More generally,
appropriate levels of transparency should be maintained throughout
the process of procurement, design, development and use of algorithmic
systems, notwithstanding claims of intellectual property or trade
68. These recommendations do not, however, go so far as to define
that users of access to information laws can obtain all the information
about the use of algorithms from public body, including the design,
sources code, and input data. There is an opportunity here for the
Council of Europe to set standards and promote debate among member
States on a stronger right of access to information, a right to
know, about the use of algorithms. This is something that the Open
Government Partnership is working on and there are opportunities
for synergies in this context.
69. A specific media freedom issue related to the issue of algorithmic
transparency is the question of the large social media companies
and how their algorithms determine which content a particular user
views. These algorithms are having a direct impact on the right
to know of millions upon millions of people, and yet there is almost
no transparency about how these systems operate nor do individual
users have much control over how their particular news feeds are
transparency and legislative footprints
70. It is clear that an effective
right to know, which delivers an informed citizenry able to participate
in the democratic life of their countries, must ensure that the
public is informed about all aspects of the legislative process.
71. In this context, it is rather remarkable that the Tromsø Convention
does not make it mandatory for ratifying countries to apply the
right of access to information to the legislative branch, with the
exception of administrative information (which would cover finances
of the parliament, for example, but not reports on discussions on
draft legislation in committees).
72. In this respect, the Council of Europe standard is at odds
with, say, the Organisation of American States’ Model Law Inter-American
Law on Access to Information, which does require transparency of
the legislative branch, and also of the judicial branch.
It is positive to note that, in total, 31 out of 46 access
to information laws in the Council of Europe region do apply to
the legislative branch (although there can be some exceptions when
it comes to document held by elected representatives, for example).Note
74. In practice, many legislatures have a long history of open
decision making, although that is not always the case when it comes
to discussing or voting outside the plenary (in committees for example),
and nor is there transparency of lobbying.
In terms of standards, there is the Declaration on Parliamentary
which is supported by a strong community
of civil society organisations, many of whom are in Council of Europe
The Open Government Partnership has supported many of its
participating countries in making commitments on parliamentary openness
(as many as 145 commitments globally thus far) and in involving parliaments
in open government processes and debates.Note
77. There is an increasing body of good practice on legislative
footprints as well as on ensuring participation in the development
of legislation, and this is something that the Council of Europe
could study in depth to develop specific recommendations. Eventually
full “normative” footprints should be developed to deliver transparency
of the entire decision making and legislative process, from the
inception of rules and norms in the executive branch through to
their adoption as legislation.
78. There is also good jurisprudence from the Court of Justice
of the European Union on the importance of legislative transparency
for participation in decision making (cases include Access Info Europe v Council (2013)
and De Capitani v. European Parliament (2018).
As this jurisprudence makes clear, the legislative process often
starts at the executive level, so there need to be mechanisms which
deliver traceability and transparency of the entire process, not
just the debate over bills once they enter a parliament.
79. There are no recognised standards
on judicial transparency, at least not in the European region. As noted
above, the Tromsø Convention has as optional the application of
the right to request information to the judicial branch. The only
requirement is for administrative information to come under the
scope of national access to information laws. The way in which “administrative”
is defined varies across Council of Europe member States.
In practice, a long history of open court proceedings and
physical access to court documents and to jurisprudence, has been
weakened in recent years in many countries through a combination
of security concerns (for physical access) and by failures to publish
all decisions online so that anyone may access them (reasons including, inter alia
, data protection concerns).Note
Only 25 out of 47 Council of Europe countries have access
to information laws that apply to the judicial branch.Note
82. Some work has been done, including by the Council of Europe
and International Commission of Jurists to recommend transparency
of judicial councils and the appointment of judges, as well as recommendations by
the Council of Europe on media access to judicial proceeding, but
there do not exist clear, comprehensive, standards on how the right
of access to information / the right to know should apply to the
judicial branch.There are good practices that can be identified
from Council of Europe member States, which could form the basis
of developing concrete recommendations.
bodies operating with public funds and/or performing public functions/delivering
83. The idea that there is a bright
line between access to information held by the public administration
and the private sector is one that is less widely held than in the
past, and yet it persists and merits discussion.
84. The nature of democratic societies and the nature of “governance”
have evolved over the years. In 1766 the aim of the Swedish freedom
of the press act was that parliamentarians and the tiny printed
press of the time could access documents held by the administration
(largely the king and the courts). By 1978, France’s first law was
entitled the law on improving relations between the administration
and the public – «Loi n° 78-753 du 17 juillet 1978 portant diverses
mesures d'amélioration des relations entre l'administration et le
public» – and it is very clearly framed in terms of access to “administrative
85. In recent decades, just as the right to information has advanced,
the lines between public and private have become ever-more blurred
and many public services and public works are now delivered by private companies.
In this context, it has been increasingly recognised that the public
has a right to know about the relationships with these companies,
as well as the services they provide. This would seem obvious and
yet, of the 46 access to information laws in the Council of Europe
region, just 25 apply fully to private bodies that perform a public
function and/or receive significant public funding. A further 15
laws apply partially to such bodies.
86. In line with this national legislative reality, there was
notable reluctance among member States to include a mandatory provision
on access to documents held by private bodies in the Tromsø Convention.
As a result, it is optional for States to extend the right of access
to “natural or legal persons insofar as they perform public functions
or operate with public funds, according to national law.” The “according
to national law” clause here is absolutely key, because it permits
hugely varying definitions even for those countries that opt up
to this provision. For example, in one country private companies
delivering health care, waste collection, water supply, and school
buildings maintenance could be deemed all to be providing public
services, be subject to requests, and hence to accountability mechanisms.
In a neighbouring country none of these could be included under
the transparency rules.
87. Furthermore, the Tromsø Convention fails to specify the kind
of information held by private companies that they should make public
for reasons of general interest.
88. Looking beyond the Tromsø Convention, there are, however,
a panoply of standards and laws relating to transparency of private
bodies, and any registered business is obliged to make much information
public, often in the context of specific sectoral recommendations.
89. There are two ways in which this transparency is achieved.
The first is by being required to provide information to public
bodies, which will then publish it; the second is a requirement
on the private body itself to publish the information.
By way of example, an issue of concern to many citizens is
the outcomes of restaurant hygiene inspections. In some countries,
these are not only published by public authorities but there are
requirements that they be made public with a notice posted in the
establishment. In such cases, public health considerations have
been deemed by the legislator to override the commercial interests
of individual restaurant (which would no doubt see their business
suffer if they receive a bad mark).Note
91. Other examples of where data is collected by governments and
then made public include the range of measures to ensure transparency
of public procurement, an essential anti-corruption tool.
The EU’s Non-Financial Reporting Directive 2014
/95 requires publication by larger companies of specific information
in the domains of environmental protection, social responsibility
and treatment of employees, respect for human rights, anti-corruption
and bribery, and diversity on company boards in terms of age, gender, educational
and professional background.
93. For decision making to be transparent,
it is imperative to understand all the inputs into the decision-making
process, which in the case of many policy decisions and legislative
initiatives implies that there needs to be transparency of any participation
exercises carried out and, importantly, the input of interest groups, including
professional lobbyists, business associations, and organised civil
Standards have been developed on the regulation and transparency
of lobbying in recent years, including:
- The International Lobby Regulation Standards (2015), the
result of an extensive two-year process by leading civil society
organisations (Transparency International, Access Info) which involved consultations
with professional lobbyists. The standards were launched at the
2015 Summit of the Open Government Partnership (Mexico Summit) and
were included as a recommendation to Open Government Partnership
Member States in the 2016 Paris Declaration;Note
- OECD, Recommendation of the Council on Principles for
Transparency and Integrity in Lobbying (2016);Note
- Council of Europe Recommendation of the Committee of Ministers
to member States on the legal regulation of lobbying activities
in the context of public decision making (2017).Note
Still, too few Council of Europe member States have adopted
legislation which ensures transparency of lobbying. I have not found
a survey which captures exact data on current state of play across
the 47 member States. GRECO has collected data on rules related
to lobbying of persons entrusted with top executive functions, as
part of the Fifth Evaluation Round, but not more broadly.Note
96. Company registers contain information
on the owners and structures of companies. Collecting and publishing
this data has various benefits for society. For government officials
and law enforcement, it ensures those responsible for complying
with all the laws to which companies must adhere are known. For
other businesses it enables them to know with whom they are doing
business. For citizen watchdogs such as anti-corruption civil society
groups and investigative journalists, it ensures that they can track
fraud and corruption.
97. During the Covid-19 pandemic we have seen the challenges that
governments have had in knowing which companies they were doing
business with. The consequences were a significant number of cases
of fraud, newly created “fake” companies being successful in selling
protective equipment and ventilators to unwary European governments.
The lack of open company ownership data hampered efforts by both governments
and investigative journalists to track these companies. In this
pandemic year, it has become clear that denying the public access
to company ownership data is a significant limitation on the public’s
right to know.
98. For these reasons various intergovernmental bodies and processes
have recommended opening company registers. The OECD, the World
Bank, the Open Government Partnership and other fora such as pledges
made by the G8 (as it was) in 2013 and the London Anti-corruption
summit in 2016 have all recognised the benefit of opening company
registers. The European Union’s 5th Anti-Money
Laundering Directive requires the creation of registers of beneficial
owners of companies, and that these be available to the public.
The European Union’s 2019 Directive on Open Data and the Re-Use
of Public Sector Information (Open Data Directive) also identifies
Company Registers as a “high value dataset” and negotiations are
underway to specify precisely which data should be opened up.
99. At present, however, very few Council of Europe member States
have open company registers (there are good practices in some countries
such as Denmark, the United Kingdom, and Ukraine). In the remainder, the
company registers are not open, at least not to those without the
resources to pay for records, which can cost between € 0.03 per
entry in the Netherlands to € 767 per company registration in Russia.
The total costs of the registers can run to € 75 000 in the Netherlands
to € 286 000 in Estonia and € 380 355 in North Macedonia.
100. These are prohibitive costs for investigative journalists
and civil society organisations investigating corruption, fraud,
money-laundering, organised crime, human rights violations, and
other illegal activity. These costs are also overly high for small
and medium enterprises (SMEs, which represent the vast majority
of businesses in the European region) wishing to know with whom
they are doing business.
101. Civil society campaigners across the Council of Europe region
are currently pressing their governments to open up their company
registers and deliver a right to know about who owns the companies
we do business with and which receive public funds.
of media ownership
102. In order for a citizen to be
able to know who is behind the news he or she watches or reads,
it is imperative to know who the owner of the media outlet is, which
includes the entire ownership structure up to beneficial owners.
103. If company ownership registers were open, this information
would be available. It would not, however, be easy to find or track,
especially as media ownership structures are transnational. The
solution to this is to require that, country-by-country, and even
media-by-media, the information about the full ownership structure of
any media outlet is made public. This must be done in a way that
makes it easy for the public to find and understand this information.
PACE has done a significant amount of work on transparency
of media ownership, as part of the essential infrastructure needed
to guarantee plurality and diversity of the media sphere. Ms Helen
Darbishire, the author of the background report, has contributed
to that standard-setting in the past, participating in PACE hearings
and presenting the research findings by Access Info Europe and the
Ten Recommendations on Transparency of Media Ownership endorsed
by many civil society organisations.Note
In particular, there is the Assembly Resolution 2065 (2015)
“Increasing transparency of media ownership”, which
sets out the transparency standards, and Recommendation 2074 (2015)
, which expresses concern about the “alarming” situation
with a “growing lack of transparency of the ownership structures
of media outlets in Europe”. This successful standard-setting work
resulted in Recommendation CM/Rec(2018)1 of the Committee of Ministers
to member States on media pluralism and transparency of media ownership, which
sets out clearly the transparency standards to be implemented.
106. The recommendation also calls for transparency of media organisation
and financing. I think that this transparency should include any
non-financial agreements which are in some way beneficial to the
media outlet and may have an impact on its independence or perceived
independence, and which should therefore be known to the public.
access to scientific and scholarly knowledge
107. Ensuring that the wider public
has free and easy access to scientific and other scholarly knowledge
is increasingly recognised as having significant society benefits.
The digital era has contributed to the drive towards “open
access” to such knowledge, with one landmark being the 2003 Berlin
Declaration on Open Access to Knowledge in the Sciences and Humanities,
which called for unfettered access to “original scientific research
results, raw data and metadata, source materials, digital representations
of pictorial and graphical materials and scholarly multimedia material.”Note
109. To achieve such access means encouraging the producers and
publishes of knowledge to make their works available free of charge
in open formats. There has been a focus in recent years on all material
created with public funds, although many argue that wider access
than this should be granted.
The international organisations working on open access include
UNESCO, which “promotes and supports the online availability of
scholarly information to everyone, free of most licensing and copyright barriers,
for the benefit of global knowledge flow, innovation and socio-economic
111. UNESCO notes in particular the role of science in advancing
the Agenda 2030 and the Sustainable Development Goals (SDGs), and
hence that it is imperative that research outputs are available
to all stakeholders.
The European Commission also supports open access with the
goal of ensuring that research results are more accessible to all
societal actors, with a view to delivering better science and also
innovation in the public and private sectors.Note
The Commission supports open access
through measures such as requiring that all projects receiving Horizon
2020 funding make sure that any peer-reviewed journal article they
publish is openly accessible, free of charge. EU Member States are
also encouraged to put publicly funded research results in the public
domain in order to strengthen science and the knowledge-based economy.
113. The Council of Europe could complement and add value to these
initiatives by amplifying the open access initiative to its 20 member
States which are not members of the European Union. It could also
liaise with UNESCO, which as well as working on open access, is
charged with monitoring the right of access to information under
SDG Indicator 16.10.2, and hence there is a strong connection between
transparency, the right to know, open access, sustainable development,
and defence of democratic and just societies.
114. The right of access to justice
in defence of any other right is a core principle of any human rights framework.
115. With respect to the right of access to information, the Tromsø
Convention requires that member States ensure a mechanism for defence
of this right, by requiring that “An applicant whose request for
an official document has been denied, expressly or impliedly, whether
in part or in full, shall have access to a review procedure before
a court or another independent and impartial body established by
law” (Article 8.1).
In practice, for the 46 Council of Europe member States which
have access to information laws, there are a range of models as
to how this review mechanism is established, broadly falling into
i Independent Oversight Body: An
independent body is mandated to oversee the access to information law
and to hear appeals. In some cases, these bodies have the power
to issue binding decisions; in others, they are merely recommendations.
The decisions of this body can usually be appealed to the courts.
If not, turning to the courts is an alternative.
ii Ombudsman: The
access to information law and/or general administrative law provides
recourse to the Ombudsman. This may or may not be followed by an
appeal to the courts, or a court case is an alternative or an additional
iii Courts only: To
defend the rights under the access to information law, an appeal
to the courts is the only route. This requires a lawyer and may
incur court fees.
The independent oversight body model, such as an Information
Commissioner, has been established in 19 Council of Europe countries.
These are Albania, Belgium, Croatia, Cyprus, France, Germany, Hungary, Iceland,
Ireland, Italy, Malta, Montenegro, North Macedonia, Portugal, Serbia,
Slovenia, Spain, Switzerland, and the United Kingdom, as well as
. In Belgium, Germany, Spain,
and Switzerland, there are also regional information commissioners.
118. The Nordic countries such as Finland, Norway and Sweden favour
the Ombudsman option, which works as the decisions are usually complied
with even if not binding. The Baltic countries, Bosnia and Herzegovina, and
Greece also have an ombudsman model. In Ireland the Information
Commissioner is part of the Ombudsman’s office but has specific
119. The great benefit of the information commissioner model is
that it provides the requester with a specialised body on the right
of access to information which is specifically charged with its
supervision. In some cases – Albania, Croatia, Germany, Slovenia,
Serbia, and the UK for instance – these bodies are also combined
with the data protection authority, but they are still specialised
in information rights.
120. For the individual seeking to defend his or her right to know,
the great benefit of the information commissioner model, is that
it is free of charge, and allows for very easy access. No specialised
legal knowledge nor a lawyer is required.
121. The stronger information commissioners can issue binding decisions
and sanction non-compliance or require a court to order compliance
with a decision. This is the case in, for example, Croatia, Germany, Slovenia,
and the United Kingdom.
122. Weaker models include the ombudsman model and some oversight
bodies, such as France, Portugal and Spain, which cannot issue binding
decisions. Whether or not decisions are complied with will depend
very much on the political culture. In France and Spain there are
recent cases of non-compliance by central government ministries
on issues that are important for the citizen’s right to know, such
as spending of budget funds.
123. There are significant other variations between the oversight
models in Europe, which merit a detailed report in and of themselves.
These include the broader mandate that these bodies have, such as
whether or not they are charged with training public officials,
with raising public awareness, and/or with monitoring compliance
with the right and gathering data and statistics. As well as varying
mandates and powers, the budgets and levels of independence from
government also varies. All of these variations have a consequence on
how well the right to know and access to information laws are implemented,
country-by-country, across the Council of Europe region.
124. The variety of models across Europe for oversight of the right
of access to information reflects a lack of clear standards. The
Tromsø Convention, as developed back in 2008, failed to set these
standards, in spite of recommendations from civil society at the
time that it would be valuable to do so. It is now high time that
this be done.
125. In October 2020, the OSCE’s Representative on Freedom of the
Media (RFOM) held a webinar on access to information oversight bodies,
with representatives from Albania, Ireland, and Spain talking about their
respective institutions. The OSCE RFOM plans to advance with the
discussions on standards in this area. This could be the perfect
partner for the Assembly and the Council of Europe to collaborate
with in setting a specific set of guidelines on the best model for
an oversight body, based on the collective experience and lessons
learned from across the Council of Europe region.
role of parliamentarians in advancing the right to know
126. As representatives of the people,
parliamentarians do have an enhanced right of access to information. This
is manifested in at least two ways. One is that parliamentarians
may be granted access to otherwise confidential information, such
as information relating to national security provided to parliamentarians
engaged in a committee that delivers civilian oversight of the security
127. Another is the mechanism of parliamentary questions, which
enables elected officials to request either documents or explanations
and to receive an answer from the relevant government department.
This control function is an essential part of democracy, and in
many countries predates access to information regimes.
128. There are however, across the Council of Europe region, a
variety of practices when it comes to the respect for the mechanism
of parliamentary questions. I have not conducted a detailed survey,
but am aware of a series of problems, the poor quality of answers
and, a particular concern, the very slow timeframes for responding
to parliamentary questions.
129. Given the importance of the mechanism of parliamentary questions
for ensuring that certain information enters the public domain,
particularly in countries where the right of access to information
is not particularly strong, it would be necessary that work be done
to evaluate this system across the Council of Europe region. This
is something that should be of particular importance to the members
of the Assembly, given their role as parliamentarians.
130. The public’s right to know is also served by ensuring the
issues of public interest are fully debated by parliamentarians,
in plenary sessions as well as in committees. This requires the
parliamentary procedure rules be designed in a way which facilitates
wide-ranging debates. Given that there are a variety of norms and practices
across the Council of Europe member States, this is something which
should be examined, in order to collect best practices and make
The cultural and educational
systems play a crucial role in the personal development of the citizens
and in helping them to make informed choices and to actively participate
in social life. According to the Council of Europe “Reference
framework of competences for democratic culture
”, education and culture are essential tools in the endeavour
of awakening the critical spirit of citizens and in the protection
132. While democracy cannot exist without democratic institutions
and laws, such institutions and laws cannot work in practice unless
they are grounded in a culture of democracy, that is, in democratic
values, attitudes and practices shared by citizens and institutions.
For a democratic system to be alive, valid and dynamic, citizens
must commit to participate actively in the public life. If citizens
do not adhere to the democratic values, attitudes and practices,
then democratic institutions will not be able to function in reality:
they would remain a “dead letter on a piece of paper”.
133. The instruments to ensure effective access to information
are fundamental but they cannot work properly if the environment
itself does not guarantee an overall climate conducive to information-sharing
and pluralistic debate that contribute to create a citizen’s informed
opinion. From the particular perspective of the right to know, the
democratic culture is a fundamental concept to adopt in order to
make this right fully implemented in our society, since there is
no reason in giving the citizens a right if the citizens themselves
do not have the necessary competences to use it in the first place.
134. Institutions and citizens’ competences and actions are interdependent.
Furthermore, where there are systematic patterns of disadvantage
and discrimination, and where there are differences in the allocation
of resources within societies, some may be disempowered from participation
on an equal basis. Disadvantaged citizens can be excluded from participating
as equals through the language and actions of those who have the privileges
associated with, for example, a high level of education, high status
through their occupation or networks of powerful connections. There
is a danger that people who are marginalised or excluded from democratic
processes and intercultural exchanges become disengaged from civic
life and alienated from participation and deliberation.
135. Therefore, the possibility of the correct understanding of
information and the public debate that follows from it by public
opinion is conditioned by the cultural and literacy level of the
population. Education must cover the democratic values since young
age in order to make future citizens conscious about their political
choices and let them be able to have an informed and critical opinion.
Acquiring and maintaining the aptitude to take part actively in
democratic processes should continue throughout life.
136. This is why, one of the prerequisites for implementation of
the right to know is the proper functioning of an educational and
cultural environment predisposed to enhancing and stimulating citizens’
continued learning in an information society. Everyone should have
the necessary competence and culture to critically analyse the various
points of view. The citizen’s right to know is intrinsically linked
to free, easy and life-long access to cultural instruments as indispensable
tools in the development of a critical and independent understanding
of information and the active, inclusive and conscious participation
in a democratic society. Art has been a proven beneficial vehicle
for the enhancement of critical thinking capabilities. To this end,
wide-spread presence of cultural avenues such as libraries, theatres,
museums and live music, is to be endorsed and its inclusion of all societal
137. Every citizen in a democratic
society must have the freedom, the effective capacity, and the culture
to participate in a real debate of ideas, based on exact and complete
factual elements. This regards not only the exercise of the right
to vote, but also the commitment and constructive participation
in decision-making processes, in democratic control over the action
of governments and legislators, and in public life in general.
138. For such an active participation in the public life, the citizen
needs to be very well informed. We live today in the age of the
information society and there are multiple channels through which
we can receive information. The role of the media in providing timely
and reliable information is crucial. The social networks are also
an abundant source of information, although these channels are too
often polluted with disinformation, hence must be checked on a permanent
139. Beyond this, there are other legitimate and very important
sources of reliable and permanent information on which every citizen
is entitled to count on: these are public authorities, legislative
bodies of various level, and judicial structures. The recent entry
into force of the Tromsø Convention is a significant step aiming
at harmonising the national legal systems regarding access to information.
Yet, the take up of the Tromsø Convention has been very poor.
140. This is even more regretful as the convention is limited to
a minimum core of basic provisions, so it would be only natural
that all member States ratify the convention. This would be the
first step, as the right of access to information should be broadened
further, to cover all areas that are not yet covered by the convention.
141. Beyond the right of access to information, our Organisation
should advance toward a right to know, namely a wide-encompassing
citizens’ entitlement to be actively informed of all aspects regarding
the administration of all public goods during the entire political
process, to participate responsibly and consciously in public debate
on such goods and to hold public goods administrators accountable
according to democratic standards.
142. The right to know is a prerequisite for citizens to better
understand and fully benefit from their other rights, and to participate
in an informed way in the public debate and in the life of the political
community at different levels. It is also a prerequisite for the
control, by citizens and their elected representatives, of the action of
the government and therefore of the democratic responsibility of
143. There are three main active dimensions for implementation
of the right to know: obligations that public authorities have to
respect independently of specific requests; the right for citizens
to be notified, informed, have access and contribute to the development
and appraisal of laws, regulations, and other policy instruments;
and an educational and cultural environment prone to enhancing and
stimulating citizens’ continued learning.
144. The main role and primary responsibility for safeguarding
the right to know lies with the States and more generally with public
authorities. Still, other actors, such as public and private media,
educational and cultural institutions, come into play and must assume
their share of responsibility in educating active and knowledgeable
citizens. The actions of the various stakeholders must be coherent
and synergistic, hence partnerships between these several actors
145. The right to know supposes that not only the citizens have
the right of access to information, but also that public bodies
should publish this information pro-actively, with a transparency
by design approach. This approach should be applied to several domains,
such as: the artificial intelligence and the way data feeds into automated
decision making; the activity of legislative and judicial branches
of power; the information concerning all private bodies performing
public functions or operating with public funds; company registers; lobby
regulation: scientific and other scholarly knowledge.
146. Similarly, citizens must be aware of who is behind the news
and what is the entire ownership structure of media outlets up to
beneficial owners. This information must be made public as it is
crucial for ensuring media freedom and avoiding manipulations of
147. Parliamentarians have a particular role to play in enlarging
the right to know. Beyond adopting legislation guaranteeing the
right to know, they should take advantage of the mechanism of parliamentary
questions, which enables them to request either documents or explanations
and to receive an answer from the relevant government department.
National parliaments should ensure that for sake of transparency,
the issues of public interest are fully debated in plenary sessions
and in committees.
148. Last but not least, one of the prerequisites for implementation
of the right to know is the proper functioning of an educational
and cultural environment prone to enhancing and stimulating citizens’
continued learning in an information society. The right to know
is intrinsically linked to free, easy and life-long access to cultural
instruments as indispensable tools in the development of a critical
and independent understanding of information and the active, inclusive
and conscious participation in a democratic society. Wide-spread presence
of cultural avenues such as libraries, theatres, museums and live
music should be endorsed and developed further.