C Explanatory memorandum
by Ms Klotilda Bushka, rapporteur
1 Introduction
1. The present report is based
on a motion for a resolution
Note which notes that several Council
of Europe member States justify restricting access to historical
documents from civil society and researchers by arguments based
on national security and the need to protect the right to privacy
of individuals concerned. But the right of access to documents may
fall within the scope of what is protected by the right to freedom
of expression under Article 10 of the European Convention for Human
Rights (ETS No. 5). The motion for a resolution recalls that in
June 2013, a broad assembly of experts from international organisations,
civil society and State institutions adopted, in Tshwane, South
Africa, the “Global Principles on National Security and the Right
to Information” designed to give guidance to legislators and relevant
officials with a view to reaching an appropriate balance between
public interests both in national security and in access to information.
The Parliamentary Assembly endorsed the “Tshwane Principles” in
its
Resolution 1954 (2013) and
Recommendation
2024 (2013) “National security and access to information”. As healing
from tragic historical events may require full transparency and
open discussion based on well-documented facts allowing to learn from
past mistakes, the motion calls for the examination of the situation
in Europe with regard to access to historical documents with a view
to preparing relevant practical recommendations.
2. The committee appointed me as rapporteur on 10 October 2022.
During the preparation of the report, I attended a seminar on “access
to historical documents” organised by the Albanian Parliament in
Tirana on 31 March 2023. Several sessions took place, triggering
discussions relevant to this report, with Council of Europe member
States’ parliamentarians such as Mr Taulant Balla, Mr Enkelejd Alibeaj,
Ms Blerina Gjylameti, and Ms Jorida Tabaku from Albania, Mr Zbigniew
Girzynski from Poland, Mr Boriss Cilevičs, former Chairperson of
the Committee on Legal Affairs and Human Rights, and Mr Andrejs
Jurdins from Latvia. The Speaker of the Albanian Parliament, Ms Lindita
Nikolla, the Vice Speaker of the Albanian Parliament, Ms Ermonela
Felaj, and the Head of the Parliamentary Studies Institute in the
Albanian Parliament, Mr Elvin Gjevori, also participated. Mr Niels
Schwiderski, Head the Office of the Commissioner for the Victims
of the East German Communist (SED) Dictatorship at the German Bundestag
presented the German perspective. I also received input from authorities
and experts on the topic of access to information such as Ms Elvana
Thaci, Secretary to the Council of Europe Access Info Group, Mr Flynn
Heckert, from the Council of Europe Observatory on History Teaching
in Europe, and Ms Gentiana Sula, Chair of the Authority for Access
into ex- Sigurimi Records, the political police which operated during
the communist dictatorship in Albania. Human right activists, Mr Eldar
Zeynalov from Azerbaijan and Ms Erinda Bllaca from Albania, presented
their perspective for improving the right of access to information
for civil society.
3. At its meeting in Larnaca (Cyprus) on 23 May 2023, the committee
held a hearing with the participation of Ms Paige Morrow, Senior
Legal Advisor (External) to the UN Special Rapporteur for Freedom
of Opinion and Expression, Ms Gentiana Sula, Chair of the Authority
for Access into ex-Sigurimi Records, and Mr Denis Shedov, a human
rights activist and lawyer who was active at the Russian NGO Memorial,
before its liquidation. The committee also held an exchange of views
with Mr Boriss Cilevičs, former member of the Assembly and chair
of this committee, on 20 June 2023.
4. Article 10 of the European Convention on Human Rights protects
freedom of expression, including the freedom to receive and impart
information, which may under some circumstances encompass individuals’
right to access information. State recognition of the right to access
information held by public authorities has dramatically grown, particularly
since the fall of the Berlin wall. This is because there has been
a wide understanding that it is in the public interest to make public
as much information held by institutions as possible – for the sake
of transparency, public participation and trust in State activities,
thus favouring democratic processes.
5. In this explanatory memorandum I will firstly outline the
context and issues at stake when addressing this topic. Secondly,
I will highlight the Council of Europe’s action in favour of the
right of access to information by the Parliamentary Assembly, the
European Court of Human Rights, the Convention on Access to Official Documents
(CETS No. 205, Tromsø Convention), and the Observatory on History
teaching in Europe. Thirdly, I will outline the legal framework
and actions of several member States with a view to secure a balance
between certain protected interests and the right to access information.
Fourthly, I will point out some current challenges in ensuring access
to historical documents, and some reflections on how to best tackle
them.
2 The issues at stake
6. The right to access information
may be protected under Article 10 of the European Convention on Human
Rights, which guarantees the right to freedom of expression and
“the right to… receive and impart information…without interference
by public authority”. A global commitment to securing access to
information is demonstrated through UN Sustainable Development Goal
16 on Peace, Justice and Strong Institutions, which targets public
access to information and protection of fundamental freedoms. Its
achievement is measured in terms of the number of countries that
adopt and implement constitutional, statutory and/or policy guarantees
for public access to information.
Note As
shown by the fact that 138 States worldwide have right to information
laws today,
Note compared to 13 in 1989 at the time
of the fall of the Berlin Wall,
Note there
is an overall consensus that the right to access information is
fundamental to the enjoyment of one’s liberties, democracy and the
rule of law. This is because “by enabling public scrutiny of State
action, [access to information] not only safeguards against abuse
by public officials but also permits the public to play a role in
determining policies of the State”, in turn leading to stronger
protection of national security interests, democratic participation
and sound policy formulation.
Note
7. This is particularly the case in States that have a history
of authoritarianism characterised by censorship and State control
of media and information, as well as heavy surveillance. For the
purpose of reconciliation, justice, and healing from repression,
it is important to build an informed collective memory and to remedy misinformation.
Past, present, and future generations are owed the truth: survivors
must feel heard and be rehabilitated and society must understand
their history in order to learn from mistakes of the past.
8. There are three main reasons that support the provision of
access to historical documents collected during authoritarian rule.
- Firstly, for justice. Survivors
of totalitarian regimes and their families have a right to know
who exactly was involved in their repression in order to allow for
their rehabilitation and, ultimately, for reconciliation; and appropriate
legal action must be taken against those who may be criminally responsible,
to avoid impunity. Access to documents is important particularly
for survivors to feel believed, and for anyone to access the truth
which was warped during totalitarianism.
- Secondly, to build an informed historical record. The
accurate teaching of history warrants the full disclosure of information,
which is fundamental for shaping one’s own perception of their identity, political
consciousness and democratic citizenship. Historical research and
scholarship should be enabled and promoted, in order to allow the
dissemination of historical facts to the public at large.
- Thirdly, to grow transparency, public trust, and accountability
of State institutions. Publishing secret historical documents allows
society to understand how decisions were made in the past. Those documents
which may disclose the identities of persons involved with espionage
allow for greater public knowledge of who oversees matters today,
uncovering uncomfortable connections. This would firmly establish
that the State does not protect or otherwise approve of those that
were responsible for oppression, that reconciliation is a priority
and that definite, lasting change has occurred.
9. To establish a relationship between Article 10 of the European
Convention on Human Rights and the right to access information,
it must firstly be considered whether Article 10 is applicable and
whether the denial of information constitutes an interference with
the individual’s exercise of his or her right to freedom of expression.
Secondly, it must be determined whether such interference is justified.
The right to access information is not absolute and may be restricted
under Article 10.2 of the Convention. States often restrict this right
by appealing to justifications of national security or protection
of the reputation and privacy of others. Yet, any restrictions must
be provided by law, necessary in a democratic society and proportionate.
Recognising the negative connotations associated with some historical
information, such as the collaboration of individuals with secret
surveillance authorities, some of the concerns that States may have
in granting full access to information relate to the accuracy of
the information, and the wish to avoid animosity or even violence
in society. Making names of possible perpetrators of human rights
violations publicly available may create conflict, division and
animosity: finding out that neighbours, family members or friends
collaborated in persecution may contribute to polarisation and turn
into revenge against perpetrators. Furthermore, the information
may not be accurate or complete. For example, the fact that someone
appears in secret police files as an informer does not necessarily
establish their responsibility. Someone may be listed but may have
acted under duress or played a negligible role, yet their involvement
will be noted and this will negatively affect them. The mere existence
of a card with someone’s name in these records does not prove their
collaboration. Some information might also have been falsified,
destroyed, or transported abroad.
Note It is therefore difficult
to establish an accurate picture of events and responsibilities
only from historical records. However, I believe that greater overall
transparency is achieved when the files of the former secret services
are fully open and when the legitimate limitations are applied exceptionally.
Maximum disclosure in this context reduces misinformation while
it increases transparency. It warns off individuals from spreading
information or rumours on someone’s involvement with former secret
services that could be incendiary, harmful, and false.
10. Nevertheless, in my view, the rule on the right to access
information should be “maximum disclosure”, and its legitimate limitations
the exception.
Note The burden of proof
to justify the limitations rests on States, which must explain any
restrictions following strict tests of necessity and proportionality,
especially when the information sought is of such high public interest
as access to historical documents.
Note
3 Developments
at the Council of Europe
3.1 Cases
and situations already examined by the Parliamentary Assembly
11. The Assembly has previously
examined numerous issues of relevance to the present report, including the
following, presented in chronological order.
12. In her 2009 report on “State of human rights in Europe: the
need to eradicate impunity”, Ms Herta Däubler-Gmelin (Germany, SOC)
alluded to the need to place reasonable limits on the invocation
of national security as grounds to restrict access to information.
Note
13. In 2011, Mr Dick Marty (Switzerland, ALDE), rapporteur on
“Abuse of State secrecy and national security: obstacles to parliamentary
and judicial scrutiny of human rights violations”,
pointed out the crucial importance of judicial and parliamentary
scrutiny of secret services and established the importance of granting access
to State-held information, even when it is protected by national
security limitations, in order to create more effective accountability
systems and enable the development of justice and democratic processes.
Note
14. Mr Arcado Diaz Tejera (Spain, SOC) presented a report on “National
security and access to information” in 2013 where he outlined many
issues of relevance to this report. The resolution welcomed the
adoption in June 2013 of the “Global Principles on National Security
and the Right to Information” (Tshwane Principles) as a guide for
legislators and relevant officials worldwide to reach an appropriate
balance between public interests both in national security and in
access to information. It supported the “Tshwane Principles” and
called on the competent authorities of all member States of the
Council of Europe to take them into account in modernising their
legislation and practice concerning access to information.
Note The report stressed a number of particularly important
principles, including the need for robust oversight over the activities
of secret services and the availability of a “public interest override”
as a safeguard against overly broad exceptions from the general
rule of free accessibility of all information held by public authorities,
reminding all member States that the starting point or default setting
of any access to information approach is maximum disclosure. Information
concerning human rights violations and particularly the responsibility
of State agents who have committed serious human rights violations
such as murder, enforced disappearance, torture or abduction, does
not deserve to be protected as secret. The Assembly found that the
Court’s approach to the right of access to information was too restrictive
and gave States too wide a margin of appreciation. It also noted
that the Tromsø Convention did not go far enough in recognising
access to official documents as the rule and the refusal as the
exception. Yet, vigorously promoting the ratification of the Tromsø
Convention remained the most realistic way for the Assembly to contribute
to any real progress on the issue. Resolution 1954 (2013) strongly
recommended States to follow the Tshwane principles in drafting
or amending their right to information laws accordingly.
15. The legal arguments and explanations that define the Assembly’s
perspective on the right to access information, as found in the
2013 report and resolution, accurately represent my perspective
on the issue today. To this end, the scope of this and the following
sections of the report will be limited to updating the legal developments
on the right to access information since 2013 at European and international
levels, as well as assessing in a preliminary way the approach of
some member States in providing public access to historical documents
and striking a balance between freedom of information and protected
legitimate interests.
16. Other committees of the Assembly, most notably the Committee
on Culture, Science and Education, also work on the issue of access
to information and maintain the stance that communication policies
must be open, transparent and pluralistic, and must build on unhindered
access to information of public interest and the responsibility
of those disseminating information to society. Online communication
is part of the everyday flow of information and should be used as
a tool to ensure public access to such information.
Note
3.2 The
Council of Europe Convention on Access to Official Documents
17. The Tromsø Convention remains
the only international instrument to guarantee a general right to
access information. It applies in principle without requiring any
public interest and without discrimination, regardless of the status
and standing of the requester, the nature of the information sought,
and the purpose of seeking that information. Persons seeking publicly
held information need not give any reasons.
Note
18. The 2013 report underlined the narrow scope of the Tromsø
Convention and recalled the 2008 Assembly’s request to the Committee
of Ministers to reopen negotiations in order to broaden the definition
of “public authorities”, to include a time limit on the handling
of requests and to clarify and strengthen the review process in
case of rejection of information requests within the Tromsø Convention.
Note Nonetheless, it recommended ratification
by as many States as possible as a first step, before negotiations
could be reopened, taking advantage of the Convention’s implementation
and follow-up system and its mechanism for proposing amendments.
19. The Convention entered into force on 1 December 2020 after
it reached its first ten signatures. Today it counts 15 parties
(Albania, Armenia, Bosnia and Herzegovina, Estonia, Finland, Hungary,
Iceland, Lithuania, the Republic of Moldova, Montenegro, Norway,
Slovenia, Spain, Sweden and Ukraine) of which seven are EU member
States. Compared to the 8 signatures and 6 ratifications counted
in 2013, there has been an increase by one signature (San Marino)
and nine ratifications (Albania, Armenia, Estonia, Finland, Iceland,
Republic of Moldova, Slovenia, Spain, Ukraine). Hence, there has
been an increase in membership to the Convention, particularly by
post-communist States. Nonetheless, it is disappointing to see that
several central and western European States have not yet signed
the Convention; that some have signed it in 2009 shortly after its
inception but have not yet ratified it; and that some of those States
have a history of authoritarianism, such as Germany and Italy. Looking
at the ratification and signature dates, it is difficult to say
whether the Assembly played any relevant part in the promotion of
the Convention. This also shows that States may prefer to approach
the right to access to information domestically rather than through
international instruments.
20. In the context of the preparation of this report, I asked
member States (through their national parliaments) what their reasons
for not having signed and/or ratified the Tromsø Convention were.
Note Unfortunately,
many member States did not provide any reasons, and as a result
I am not able to draw any conclusions regarding the effectiveness
of this Council of Europe convention. Nevertheless, the main responses
outlined reasons of conflict with constitutional provisions or pre-existing
legal standards. In
Austria, the
Tromsø Convention is in conflict with constitutional provisions
on official secrecy. In the case of
France, the
Commission on Access to Administrative Documents (CADA) noted in
2021 that ratification of the Tromsø Convention would profoundly
modify the philosophy of the right of access to information. This
is because the Tromsø Convention's standard test assessing public
interest in accessing information against legitimate limitations
is “proportionality” and the test under French law is different.
Note Cyprus noted
that there were significant economic costs and regretted that certain
provisions of the Convention did not allow opting out.
Luxembourg’s progress is promising.
In 2022, the Ministry of State conducted a survey on the application
of the law on transparent administration. After analysing the results,
the Ministry met with the Luxembourgian Commission on Access to
Documents and the Press Council. I am pleased to have received information
that the Ministry is working on a draft legislation to make access
to information laws more effective, taking into account any adjustments
needed to be made to sign and ratify the Tromsø Convention in the
near future. According to the
Polish Ministry
of Administration and Digitalisation, since 2015, the standards
for access to official documents provided for in Polish law
Note guarantee
the implementation of the civil right to information to a wider
extent than provided by the Tromsø Convention. Similarly, according
to a statement of the
German Federal
Government, the Act on Freedom of Information of 2006 already fulfils
the general requirements of the Tromsø Convention, which justified
abstaining from signing the Convention. The Conference of Commissioners
on the Freedom of Information of the Federal and Länder governments
(Konferenz der Informationsfreiheitsbeaufragten aus Bund und Ländern
(IFK)) has nonetheless invited the Federal Government to sign and
ratify the Tromsø Convention. The
Portuguese Commission
on Access to Administrative Documents, underlined the clarity and
transparency of the existing laws that regulate access to information
in Portugal. It nevertheless found that Portugal should consider
joining the Tromsø Convention as it could usefully strengthen the
general climate in favour of access and counterbalance opposing
currents.
Note
21. It is also undesirable that member States which have signed
but not ratified the Tromsø Convention have not provided reasons
for their delay in ratification. By signing, member States undertook
to be bound by the Tromsø Convention.They may of course take a reasonable
amount of time to make the necessary adjustments to their legal
order. But Belgium, Georgia, North
Macedonia and Serbia signed
the Tromsø Convention in 2009 and have not ratified it to this day.
In their answers to the questionnaire, these countries did not explain the
reasons for this delay of 14 years. This makes it difficult for
the Assembly and the Council of Europe as a whole to suggest ways
and means to support this process.
22. The Convention sets out 11 main grounds for possible limitations
on the right of access to information,
Note which must be set out in law. Some
of these may be applied absolutely, meaning that the State need
not evaluate the existence of an overriding public interest in disclosure.
Others can be applied after their evaluation by the institution
following a “harm test” and a “public interest test”. Firstly, it
must be assessed whether the disclosure of information harms the
protected interest in actual fact and secondly whether the harm
can be justified by the strong public interest in disclosing the
information. Factors such as public curiosity, embarrassment for
the government or loss of confidence in it, the technical character
of the information, etc. may be irrelevant to the necessity of disclosing
information. Hence, States may protect their national security interests
or privacy rights of individuals, yet these criteria must not be
applied arbitrarily. The Council of Europe Access Info Group is
one of the two bodies established by the Convention responsible
for monitoring the implementation of the Tromsø Convention by the
parties.
Note
3.3 The
Observatory on History Teaching in Europe
23. The Observatory on History
Teaching in Europe is an Enlarged Partial Agreement of the Council
of Europe that tracks curricula, textbooks, methods, and everything
related to history teaching in 16 member States. It reports on the
state of history teaching in Council of Europe member States every
three years, with the first report published in 2023.
Note Its
Scientific Advisory Council may assess the degree of freedom of historians
to conduct research, which will be included in the 2026 report.
The Observatory does not have monitoring or decision-making power,
yet it provides information for debates on history teaching practices,
the ability to develop critical thinking in students, the production
of reliable information, and access to historical documents.
24. Knowing one’s own history is of utmost importance for the
perception of identity, culture, and current affairs and for the
development of one’s own perspective and political opinions. Historians,
researchers, NGOs, and individuals must therefore disseminate information
of public interest and assess it critically. To do so, they must
be able to access State-held historical documents. This includes
recent or sensitive histories, those that reveal authoritarian rule,
violence, human rights abuses and victims seeking justice. Lack
of access to historical information hinders informed and democratic
debate. The Assembly should support the Observatory’s work.
3.4 The
European Court of Human Rights jurisprudence on the right of access
to information
25. As the 2013 report of this
committee signalled, until 2006 the European Court of Human Rights
had been reluctant to interpret Article 10 of the European Convention
on Human Rights as conferring an individual’s general right of access
to State-held information.
NoteNoteNoteNoteNote The
right of access to information was explicitly recognised in
Társaság A Szabadságjogokért (Hungarian Civil
Liberties Union) v. Hungary.
Note The explicit recognition
of this right does not, however, automatically confer on the individual
the right of access to State-held information nor oblige the public
authorities to impart information to the individual. Such a right
or obligation may arise, firstly, where disclosure of the information
has been imposed by a judicial order with legal force and, secondly, in
circumstances where access to the information is instrumental for
the individual’s exercise of his or her right to freedom of expression,
in particular “the freedom to receive and impart information” and
where its denial constitutes an interference with that right.
Note
26. The Court applies a test whereby depending on the purpose
of the request for information, the nature of the information sought,
the role of the person requesting the information and whether it
is readily available to the State, withholding access may interfere
with Article 10 rights. Relevant factors that the Court will consider are
whether dissemination by the requesters will be in the public interest,
perhaps because the applicant is writing a book or conducting research
that will ultimately be made public and whether the provision of information
does not entail too much research and collection work for the public
entity.
NoteNoteNote
27. Firstly, the purpose of the information sought must be to
enable one’s exercise of the freedom to receive and impart information
and ideas to others.
Note The information must be essential to
exercise freedom of expression, for example, in the preparation
for journalistic activities or other activities creating a forum
for public debate.
Note
28. Secondly, the Court has recognised that, to consider providing
access to State-held information, the information sought must meet
a public interest test. Information is in the public interest when
it relates to matters which legitimately affect the public, attract
its attention or concern it to a significant degree, especially when
it affects the well-being of citizens or the life of the community.
This applies also to matters that may cause considerable controversy.
Note For the purposes of this report,
“original documentary sources for legitimate historical research”,
Note information regarding
the number of formal employees and informal collaborators of the German
Foreign Intelligence Service, and how many of those were formerly
members of Nazi organisations,
Note and
classified documents from the archives of the Office of the President
of the Republic of Croatia needed by the applicant to write a book
on the creation of the Croatian State
Note are categories
of information considered to be in the public interest. Therefore,
it is quite likely that access to historical documents will be found
to be in the public interest.
29. Thirdly, the role of the person requesting the information
is of special importance if that person will be “receiving and imparting”
it.
Note Therefore,
NGOs,
NoteNote journalists
NoteNote as
well as academic researchers
Note and
literary authors
NoteNote enjoy
an especially high level of protection if they disseminate information
of public concern.
30. Fourthly, if the information requested is ready and available
to the authority in question, their refusal to provide it could
qualify as an interference with the freedom to receive and impart
information. If the authorities already hold the information and
its collection would not pose practical difficulties or an unreasonable
burden, the information sought can cover an extensive period of
time.
Note Further, the fact that
declassifying information may be a laborious process does not justify
interferences with the freedom to receive and impart information.
Note This may well
be the case for information sought from State archives.
31. Once the Court concludes that the State has interfered with
a person’s freedom of expression, it will consider whether said
interference is justified. The applicable justifications are found
in Article 10.2 of the Convention, as the right to freedom of expression
is not absolute and may be limited. The Court will assess the necessity
of State interference with the individual’s freedom to receive and
impart information. The Court tends not to counter State justifications
or ask to clarify legitimate limitations for national security concerns,
even in contexts of access to historical content, such as classified
documents on the creation of the Croatian State.
Note Nonetheless,
if the matter is of particular public concern
Note and
the Court regards the State not to have carried out a meaningful
necessity assessment or provided sufficient explanations, it may
reiterate that the decision not to disclose must be detailed and
well-reasoned. When the limitation is based on the protection of
the privacy of others, the Court may be more exigent. This happened
in
Saure v. Germany (No. 2),
where the Court found a violation of the applicant’s rights under
Article 10 because the State party refused to disclose additional information
on the former involvement of 13 judges and a public prosecutor with
the German Democratic Republic Ministry of State Security. The State
did not sufficiently justify why the refusal to provide anonymised information
was “necessary in a democratic society” when compared to the applicant’s
inability to contribute to debate on a matter of general interest.
32. As can be clearly seen, since 2013 the Court has tackled access
to information in the context of State-held historical documents
a number of times. Although its approach remains restrictive, the
Court has made progress to further recognise the necessity for researchers,
NGOs, journalists, authors disseminating information of public interest
to access State-held information.
4 Other
international organisations’ approach to the right to access State-held
historical information
4.1 The
United Nations Human Rights Committee
33. The International Covenant
on Civil and Political Rights (ICCPR) protects the right of access
to information in Article 19(2) (“freedom to seek, receive and impart
information and ideas…”). General Comment 34 on freedom of expression
elaborates on the state of the right at the international level.
Note
34. This right extends to any information held by public bodies
regardless of the form in which the information is stored, the source
or date of production.
Note The
Human Rights Committee also clarified that States parties should
proactively put in the public domain any government information
of public interest and make every effort to ensure “easy, prompt,
effective and practical access” to such information. States parties
should also enact the necessary procedures, including by enacting
freedom of information legislation. The procedures should provide
for the timely processing of requests for information. Authorities
should provide reasons for any refusal to give access to information.
States should put in place domestic appeal mechanisms against negative
or unreasonably delayed decisions.
35. Crucially, “any restriction of freedom of expression constitutes
a serious curtailment of human rights”.
Note Therefore,
legitimate limitations to the right as provided for in ICCPR Article
19(3) must not put the right itself in jeopardy: the relationship
between the right and limitation is one of norm and exception.
Note Particularly,
a law may not confer on a public body unfettered discretion to curtail
access to information and all invocations for a legitimate ground
of restriction must be demonstrated as prescribed by law, necessary
and proportional in a specific and individualised fashion. The precise
nature of the direct connection between the threat and the provision
of information must be established. Further, the specific action
taken to avoid unwarranted harm must be stated.
Note
36. This shows that, even when a limitation on grounds of national
security or protection of privacy is invoked by States, public bodies
have a duty to give thorough and precise reasons for withholding
information. This is of utmost importance as the ICCPR places a
high value on uninhibited expression in public debate in a democratic
society concerning figures in the public and political domain.
Note Contrary to
the European Court of Human Rights’ perspective, the UN Human Rights
Committee is of the view that the scope of freedom to access information
is not subject to “margin of appreciation” assessments.
Note Following
the UN Human Rights Committee, therefore, free and open access to
historical documents is of the highest importance.
37. The UN Human Rights Committee regularly assesses access to
information policy and practice in member States during its periodic
reports. On 11 September 2023, for example, it welcomed the entry
into force of the Cypriot Law on Right of Access to Public Sector
Information (No. 184(I)/2017) in 2020.
Note The Committee also examines
individual communications, hence, it can evaluate whether there
have been violations of one’s right to access information under
Article 19 of the ICCPR.
4.2 The
United Nations Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression
38. The Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression
- currently Ms Irene Kahn - regularly reports to the United Nations
on the right to access information. Their mandate encompasses advocating
for the right to freedom of expression, including the right to information,
and to provide advice to governments and other stakeholders about
how to promote these rights. The UN Special Rapporteur tends to
focus on contemporary examples on access to information, rather
than on historical documents specifically. Nevertheless, the representative
of the UN Special Rapporteur confirmed during the hearing of the
committee in Larnaca, in May 2023, that the UN Special Rapporteur
advocates the same guiding principles as the ones outlined above,
namely: maximum disclosure, proactive publication of information,
strict guidance on exceptions, and a reasonable cost for access
to information. Promoting online access is also important in the
digital age. This implies digitalising archives, investment in infrastructures, promotion
of access for different groups (including historically marginalised
groups), collaboration and partnerships between competent authorities
and civil society.
39. The UN expert also noted that within the Council of Europe
space, Germany, the successor countries of the former Yugoslavia
and Cyprus stressed the importance of transparency. Contemporary
examples outside of Europe include South Africa, where the Truth
and Reconciliation Commission was established in 1995, which was
followed by a very extensive law providing for the right of access
to information. This showed that access to historical records can
provide a basis for transparency and good governance going forward.
40. The UN expert also stressed the importance of an open multi-stakeholder
adoption process of relevant legislation; clear rules about what
information can be withheld, including strict guidelines defining
legitimate exceptions; effective complaint and appeal processes,
oversight, and whistleblower protection.
41. In addition to providing policy analyses for member States,
in 2017, former United Nations Special Rapporteur on freedom of
opinion and expression, Mr David Kaye, presented a report to the
United Nations Human Rights Council on access to information in
international organisations. He regretted that the United Nations,
along with other international organisations, did not have an access-to-information
policy that applies to their own department and specialised agencies.
Despite not explicitly pointing out deficiencies in access to information
policy at the Council of Europe, the report makes a series of recommendations
that are also relevant to the Council of Europe and the Assembly
specifically, namely, that:
- International organisations should
begin the process of adopting rigorous access-to-information policies. At
a minimum, organisations should identify and appoint access-to-information
focal points to coordinate the adoption process. They should develop
a multi-stakeholder process to engage civil society, including the
media, and member States in identifying the key elements of an access
policy; as well as learn from other organisations that already have
access to information policies (such as the United Nations Development
Programme (UNDP)).
- The political bodies of [international
organisations] should promote the adoption of access
to information policies through resolutions and other governance
mechanisms; ensure the development of monitoring and oversight functions;
provide comprehensive information concerning organisational governance mechanisms,
promote knowledge of access to information policies, including through
the provision of clear information on websites and active dissemination
and promotion of those policies to staff and stakeholders.
- Member States should
encourage intergovernmental organisations to adopt access-to-information policies
that meet the (requisite international standards); participate actively
in the development of policies that advance everyone’s right to
freedom of information; focus on ensuring the broadest possible access
to information, only seeking to protect from disclosure State-generated
information that could be withheld under international human rights
law.
- Civil society organisations,
the media and members of the public should engage directly
and seek a formal role with intergovernmental organisations in the
process of development of access to information policies, including
by identifying for them the key areas of interest in information;
and should make requests for information from intergovernmental
organisations as soon as possible, even before the development of
access policies, in order to determine the way in which they currently
handle such formal requests.Note
4.3 The
United Nations Special Rapporteur on the situation of human rights
defenders
42. The UN Special Rapporteur on
the situation of human rights defenders - currently Ms Mary Lawlor
- also often tackles access to information issues faced by civil
society. Their mandate is to promote the effective implementation
of the United Nations Declaration on Human Rights Defenders. Its
Article 6(a) provides that “everyone has the right, individually
and in association with others … to know, seek, obtain, receive
and hold information about all human rights and fundamental freedoms,
including having access to information as to how those rights and
freedoms are given effect in domestic legislative, judicial or administrative
systems”.
Note
43. The Special Rapporteur deals with access to information policies
and the right to access information as it is applied for human rights
defenders, particularly within the context of country reports. So
far, the Special Rapporteur has held country visits to Hungary and
the Republic of Moldova, among the Council of Europe member States.
Further information on the reported findings of 2017 and 2019 respectively
will be mentioned below in section 5.
5 Member
States’ approaches to the right to access State-held historical
information
44. All Council of Europe member
States presently have right to information laws. This does not mean, however,
that all laws are compliant with relevant international instruments
or that they adequately protect the right to access information
for all individuals. Several civil society organisations have assessed
and ranked the right to information laws of Council of Europe member
States as well as the openness of their archives. The countries
holding the best access to information laws within this group are
Serbia, Slovenia, Albania and Croatia.
Note Some of the least positively ranked
laws are found in Germany, Monaco, Liechtenstein, and Austria.
Note The most accessible
archives among Council of Europe member States studied by the Open Archives
Organisation are Lithuania, Estonia, Latvia and Bulgaria. Some of
the least open are Bosnia and Herzegovina, Moldova, Azerbaijan and
Armenia.
Note Effective right to information laws
must be applied within a human rights compliant system and practice
that allows historians, researchers, civil society and the general public
to easily access historical documents. Through the European Centre
for Parliamentary Research and Documentation (ECPRD) questionnaire,
I tried to gain a picture of the practice of member States.
Note Through the
information below, I do not attempt to advise on a system that should
be followed by all Council of Europe member States, as that would
not necessarily reflect the diversity of contexts and financial
possibilities of different States. However, I highlight some good
practices that could best achieve compliance with access to information
and the right to freedom of expression.
5.1 Oversight
on decision making
45. Historical documents are usually
held in archives, under the authority of the executive, through specialised
government Ministries and/or agencies. Some archives are kept by
regional or local authorities, and as such they are not centrally
regulated.
Note Executive authorities
whether they be national, federal, regional or local, make decisions
on how public access to their documents is granted in practice.
In access to information systems compliant with international legal
standards, the decision-making executive authorities are subject
to an independent oversight and judicial appeal system, in order
to allow transparency and prevent abuse of secrecy.
46. A majority of member States specified that decisions of the
executive not to allow access to documents can be appealed to administrative
courts, which may overturn the decisions.
Note Some member States highlighted
that lower administrative courts’ decisions may be appealed to the
highest administrative courts.
Note
47. Several member States have independent authorities, which
can be individual officers or a commission, with varying degrees
of competence and powers on the issue of access to information.
The most common role of these authorities is that of intermediary
or mediator between the executive power holding the documents and the
requester in cases of denial of access to the said documents. In
the best systems, the independent authority may provide its opinion
on individual complaints, as well as advice to relevant government departments,
or may make proposals to the legislature on policy changes.
Note Such authorities collaborate
with the executive, legislative and judicial powers and may be the
first appeal system for refusal decisions before resorting to litigation
before courts. However, in some States, the only review system is
the independent authority, without the possibility to appeal to
a court. Other systems have parliamentary ombudspersons, responsible
for overseeing decisions of the executive.
Note
5.2 Accessibility
48. Historical documents must be
accessible and the bureaucratic processes to use such documents
shall not overburden the interested person. Asking requesters to
register their interest in specific documents does not necessarily
weaken open access, especially if registration, explanations of
the types of documents needed or of the research topic are used
to expedite the process. Several member States, however, adopted
a series of bureaucratic measures that do not comply with the principles
of maximum disclosure and openness of archives. Such measures can
include requiring the payment of high fees for archival services
such as submitting a query, photocopying
Note or requiring
to specify in detail the purpose of the research for which information
is needed. Bureaucratic processes, however strict they may be, should
be accompanied by detailed and clear information materials (such
as information sheets, step-by-step guides) that explain the process,
for each relevant authority.
Note The most
effective access is provided by public archives that allow physical
entry or the filing of requests without prior registration
Note or the need for explanation of the
purpose of accessing information.
Note
49. The processing of requests shall not take an unreasonable
time. The majority of responses point to reasonable time-limits
in law, but they are not always respected in practice. In general,
appeal mechanisms such as the independent authorities mentioned
above should have the power to review complaints on excessive time
taken to process requests by the executive authorities. In the best
systems, requests are processed within a few working days,
Note and
there are procedures for expedited requests to access information in
urgent situations.
Note
50. The research topic and/or an explanation of the purpose to
access information may be useful to support an application to access
restricted or secret documents and may guide the authorities in
redacting information that could otherwise present data protection
or national security concerns. Member States should be encouraged
to make an objective assessment of the sensitivity of the information
requested and to consider attentively any potential threats to the
right to privacy, national security, or even, in some extreme cases,
the protection of the right to life of persons featured in the information,
who might become targets for retaliation. In the event that a request
for access to restricted or secret documents has been denied, the
executive authorities should always provide detailed reasons as
to why that is the case. The majority of responses did not however expressly
outline the type of reasoning the executive would commonly provide
when denying a request.
51. In-person access to archives should be granted as a matter
of course. Reading rooms should be provided on-site. It is acceptable
that for the preservation of originals, access to certain historical
documents is only granted on-site.
Note Online
processing of requests should allow requesters to receive summaries
of information or scanned copies of historical documents via email,
or paper copies, if they so prefer. The foundational principles
on access to information require the relevant authority to provide
information to requesters in the desired format to the extent possible.
Note Some
services, such as photocopying, may come with a fee;
Note however, such fees should be reasonable.
52. In order to achieve the greatest possible level of accessibility,
digitalisation is necessary to respond to the technological advances
of today and provide the access to historical documents to the widest
possible extent. To this end, it is strongly advised that authorities
provide online archives of documents, especially with scanned copies
of historical documents.
Note All
relevant authorities are encouraged to publicise and organise information
events on the historical documents they collect. Expositions, public
events, workshops, and group visits are some ways in which greater
access to historical documents may be achieved.
Note Compiling official lists
and bibliographies of newly declassified documents is also a good
way to let the public know what historical information is freely
accessible.
Note Once
these are compiled, they should be publicised on official websites. Some
responding States have highlighted their practices of promotion
of this information through press releases, newspaper articles,
statements, newsletters, social media, parliamentary debates and
many other means.
5.3 Council
of Europe member States: selected practices
53. The parliamentary seminar on
“Access to historical documents” held in Tirana on 31 March 2023,
as well as the hearings held on 23 May and 20 June, provided us
with very valuable information on selected practices of member States.
5.3.1 Albania
54. Albania was subject to Hoxha’s
harsh communist dictatorship between 1944 and 1985. Albania’s right to
information laws are fairly recent. The Sigurimi was the secret
service which collected information on thousands of Albanian individuals
and their families, and a significant number of Albanians collaborated
with the Sigurimi during the dictatorship. Albania has been moving
towards ex-Sigurimi files’ declassification since 2015, with the
approval of Law 45/2015 “On the right to access to information about
the documents of ex-secret State services in the Socialist Republic
of Albania”. Following recent amendments to this law and the adoption of
Law 10/2023 “On classified information”, the documents of the former
secret State service are all considered declassified, unless there
are risks to national security and to the relations with other States.
55. The Albanian system sees the Government, the Albanian Authority
for Access to Information on ex-Sigurimi Files (the Authority),
created in 2017, and the Institute on the Effects of Communism as
working in synergy to allow access to the historical truth. The
Authority is a special collegial non-political body elected by the
parliament to ensure the collection, organisation, and publication
of the documents. Its work has been crucial in assessing candidates
for important public positions, including in academia, justice governing
bodies, local and central governments and parliament with regard
to their involvement with the Sigurimi and communist persecution.
The most recent legal changes to Albania’s access to ex-Sigurimi
files happened in 2023; it is predicted that they will permit to
quintuple declassification request rate by the relevant Authority.
Efforts are made to collect all ex-Sigurimi files in the Authority’s
archives. Individuals may request to access files relating to them
personally or to their immediate family. They must explain their
reasons for requesting information and establish their personal
tie to the information. The media and anyone who has a research
interest may also be granted access, provided there are no data
protection and privacy concerns. The Authority processes the request
and collaborates with other State entities. Albania may avoid granting
access on national security grounds. The digitalisation process
has also begun, with a public website soon to be available for free
access to certain documents. The Authority is evolving into a memory
institution which additionally works to document as much evidence
as possible to expedite the justice process for the victims. Its
activities may include searching for those that have gone missing
during the communist era and collaborating with the Ministry of Education
on civic education activities, especially targeted at the youth.
There are also efforts to ensure the mapping and commemoration of
mass graves and areas where particularly troubling human rights
abuses took place.
5.3.2 Azerbaijan
56. Azerbaijan was under communist
rule until 1992. Azerbaijan swiftly adopted access to information
laws after the fall of the regime. Nonetheless, access to historical
documents is limited and poorly rated as subsequent amendments led
to a closing of State and KGB files. During the Perestroika period,
some USSR surveillance service documents were declassified for a
short time. In 1996, the files were closed again to researchers
through a series of laws.
57. The Law “On State Secrets” classified a wide range of topics.
The law “On the Rehabilitation of Victims of Political Repressions”
limited access to investigative and judicial documents only to already
rehabilitated persons and their heirs. Access to information for
the public is not allowed without a power of attorney ordered by
victims of the repression. In 2001, Azerbaijan passed 40 laws that
limited access to State-held information for historians, researchers,
and others. The 2004 Law “On State Secrets” provided that human
rights violations by public officials cannot be classified. Yet,
under other laws on intelligence and counterintelligence, under
the pretext of protection of privacy and secrecy of the methods
of the secret services, authorities may continue to lawfully classify
documents even after the expiration of secrecy period.
58. As a general rule, the secrecy period should not exceed 30
years. However, an executive authority can extend it. Access to
documents on someone’s personal life is only possible with permission
from the heirs. During the repression, however, entire families
were often killed, so there would be no heirs to permit declassification.
In this case, the documents are not declassified.
59. Azerbaijan stores 3.7 million files in State archives.
Note Documents from the Central Committee
of the Azerbaijan Communist Party and former communist governmental
organisations are held in the Archive of Political Documents under
the Administration of the President of the Republic of Azerbaijan.
Despite its archival laws, Azerbaijan lacks practical protection
and promotion of the right of access to information. It is not simple to
access archives, and the State is reportedly slow in making historical
documents accessible online.
5.3.3 Germany
60. Eastern Germany was under communist
rule between 1945 and 1990. During the period of the German Democratic
Republic, the Ministry of State Security (Stasi) kept close surveillance
on millions of citizens. It had 91 000 full-time employees and 180
000 unofficial collaborators. 111km of filing shelves were left
behind after the Stasi offices were stormed by citizens. In many
locations, Stasi employees anonymously joined in the rioting and
destroyed the most compromising materials. The political elites
that benefited from the Stasi no longer held onto power in 1989,
hence, opening the archives was easier than in other countries.
61. The Stasi Records Act facilitates individual access to one’s
own data held by the Stasi. The individual can clarify how the Stasi
influenced their lives and with whose collaboration (for instance
family members). This data is protected from general public access,
but researchers and the media may consult it for dissemination purposes.
The names of those who worked officially or unofficially for the
Stasi are disclosed. Yet, information about the people surveilled
is not disclosed unless they or their surviving relatives have given
consent. Public and private institutions may access these records,
they must simply file a request. They may do so for the purpose
of vetting people for public office by exposing their past activities.
For the recruitment to a number of governmental or judicial positions,
checks of involvement with the Stasi are obligatory.
62. Very few files have been withdrawn from public access. The
Federal Ministry of Interior may withdraw documents if they pose
a threat to national security. The procedure requires approval by
a parliamentary body. The Stasi document administration institution
itself is independent. There is a high demand for disclosure, and no
violence or revenge seems to have occurred against exposed perpetrators.
5.3.4 Latvia
63. Latvia became independent from
the USSR in 1991. Lustration laws and other laws govern the document
declassification in Latvia in relation to KGB and other archival
files. The Archives Law of 1991 as modified in 2010 recognises the
need to preserve national documentary heritage and to respect the
right of public access to historical documents. It provides that
the State must “ensure… accessibility and use of the national documentary
heritage”.
64. Restrictions may be applied to some personal data.
Note The
Law “On Preservation and Use of the Documents of the Former Committee
for State Security (KGB) and Establishing the Fact of Cooperation
of Persons with the KGB” of 1994 ensures access to KGB and Latvian
Soviet Socialist Republic documents, except if the information sought
is about “third parties” or victims of repression. The law also
established the Centre for the Documentation of the Consequences
of Totalitarianism in 1992. This Centre is a unit of the Constitution
Protection Bureau, which is a security service. It is tasked with
storing the files, preparing documents establishing someone’s collaboration
with the KGB for submission to the prosecutor’s office, providing
this information to public authorities, ordinary institutions and
security institutions, and collecting documents that ensure political,
legal, moral rehabilitation of persons whose rights were violated
by the KGB.
65. All documents have been handed to the National Archives and
are accessible to researchers. All KGB documents have been digitalised
and a large number are easily accessible online since 2018. Anyone
can access these documents through a general procedure.
5.3.5 Poland
66. Poland was under communist
totalitarian rule for 45 years after the Second World War. The regime
had a Security Service, which surveilled all of society and ensured
the quashing of any opposition. Several millions worked for or were
agents of the Security Service. In 1990 the service was dismantled.
It had produced nearly 100 000 meters of shelves of historical files,
which remained inaccessible until 2000.The Institute of National Remembrance
collects, organises and archives all documents related to the Polish
Communist security apparatus. The have granted public access to
almost all documents, regardless of who requests information and
for what purpose.
5.4 Draft
model law on right to access to information
67. The International non-governmental
organisation “Article 19”, which works to protect freedoms of opinion and
information globally, has drafted a model law on the right to access
information.
Note Council of Europe member States
could take inspiration from the draft law to ensure their compliance
with international right to information standards.
68. The draft law highlights that a State must communicate to
individuals and entities that it holds information relevant to them.
Further, if a request for information has been filed, the relevant
authority must respond within 48 hours on whether the information
exists in the records. The model law also specifies that “a body
may refuse to indicate whether or not it holds a record, or refuse
to communicate information, where to do so would, or would be likely
to, cause serious prejudice to the defence or national security”
of the State.
Note Hence,
the model law presents a high threshold of harm for the non-disclosure
of information, in line with relevant international standards. In
addition to defining the limits of non-disclosure, the draft law
provides for the necessary structures and entities within a State
that would enable effective protection and promotion of the right
to information in terms of oversight and effective handling of requests.
In particular, it suggests the establishment of an Information Officer
or Commissioner tasked with ensuring public access to State-held
documents and archives and reporting on public bodies’ compliance,
and with accepting and investigating complaints. The model law further
underlines the necessity to train public officials on the importance
of free access to public interest information.
6 Pressing
challenges in accessing information
6.1 Deterioration
in access to information
69. In some member States the right
of access to information (including historical documents) is regressing. Several
countries have introduced burdensome requirements to provide reasons
for accessing certain documents, even when these are already in
the public domain.
70. The observed regression may also be found in structural reforms
to the system of accessing information. The former United Nations
Special Rapporteur on the situation of human rights defenders, Mr Michel
Forst, reported in 2017 that
Hungary was
once renowned for its Act on Freedom of Information, which used
to guarantee access to public interest information and was supported
by strong oversight institutions, headed by a parliamentary ombudsperson.
However, repeated amendments to the regulatory framework attracted criticism
from journalists and watchdog organisations for restricting the
accessibility of public interest data and creating the conditions
for frequent denials of requests for such information. The 2015
amendment to the Act, adopted within days of its introduction and
without public consultation, allows government agencies that possess
public interest data to charge the requesting party the “labour
costs” related to the request, an amount to be determined by the
agency concerned. Besides, the law allows public bodies to reject
requests on questionable grounds.
Note Moreover,
the mandate of the former Data Protection Ombudperson was terminated before
the end of his term of office, which was ruled unlawful by the European
Court of Justice in April 2014. The Office was transformed into
the National Authority for Data Protection and Freedom of Information,
which was not recognised by the European Commission as meeting the
requirement of complete independence.
Note In his
2019 report on the Republic of
Moldova,
the UN Special Rapporteur on human rights defenders noted the Moldovan
authorities’ lack of compliance with their own legal framework for
access to information. Despite the obligation to provide information
of public interest not including personal data no later than 15
days after the submission of a request, journalists have noted delays
of several weeks before receiving a reply, some of which even failing
to provide the requested information. Fees and bureaucratic obstacles
have also been imposed.
Note
71. A similar regression was noted in the ECPRD questionnaire
response of Romania. On 26
May 2022, a communiqué was posted on the website of the National
Archives of Romania announcing that all documents requested from
the study rooms of the archives would pass through a censorship
filter. The aim was to prevent access to classified information,
regardless of the creator, content, and year of creation. It also
mentioned that some documents could no longer be accessed by researchers.
As a result, historians and researchers drafted an open letter,
calling for a response from the management of the National Archives
of Romania. They pointed out that archivists had informed them about
the destruction of classified documents held by some institutions as
well as the occurrence of cases where researchers were detained
and interrogated by the Directorate for the investigation of Organised
Crime and Terrorism (DIICOT) after publishing documents similar
to those found in the National Council of the Study of security
Archives (CNSAS). They also allegedly had their laptops, hard drives
and USB sticks confiscated.
72. In light of the above, I recall that access to information
that is clearly in the public interest, such as historical documents,
should be granted regardless of the reason as to why one is looking
for such information. The public should be duly informed of any
changes in the legal framework on access to information or in the archival
system, especially if it has such drastic effects. A communiqué
on a website, as in the Romanian example, will not be sufficient.
Access to information for researchers, historians, NGOs and all
others who intend to disseminate it in the public interest should
not be overly burdensome or restricted by censorship filters. Policy
decisions should only be taken after extensive consultation with
civil society and all groups most affected by such changes, such
as researchers, authors, and historians.
6.2 Preventing
the erasure of memory through international collaboration
73. Access to historical information
is crucial for building cultural heritage, establishing historical
truth and a collective memory of the past. This is particularly
the case for countries that have experienced censorship under authoritarian
regimes. In cases such as in the Soviet Union and during colonial
times, invaluable historical documents and sometimes entire archives
have been transferred to countries far away from where the information
originated, creating physical distance and obstacles to establishing
the historical truth.
NoteNote During the exchanges held for the
preparation of this report, we pointed out that several former Soviet
countries’ archives continue to be held in Moscow to this day, and
that wars in regions such as the former Yugoslavia have displaced
important historical files to unknown locations. These issues affect
the right to truth to this day.
74. Given that the Russian Federation can now be described as
a
de facto dictatorship,
Note the
Federation’s approach to preventing access to information should
be addressed. A stark example is how Memorial, a highly respected
Russian NGO focussed on creating a collective memory via access
to historical information, was liquidated in 2021. In the years
preceding liquidation its work was made more difficult in multiple
ways. The organisation has been fighting for the establishment of
the historical truth for many years. They achieved some small successes
in their fight to get access to archives, yet they lost almost all
cases relating to the crimes under Stalin’s terror and their perpetrators.
A case is still pending before the European Court of Human Rights.
Note Organisations such
as Memorial deserve the utmost protection and I condemn any attack
on civil society actors that work towards establishing the historical
truth and preserving its memory.
75. I urge member States to negotiate in good faith to bring information
on their history back home. In the meantime, the best path forward
is co-operation with civil society, financing of memory projects,
and international collaboration, such as the joint Polish and Ukrainian
initiative to publish abundant archival materials relating to the
period of the Holodomor, the famine artificially created by Stalin
in Soviet Ukraine in order to break the backbone of the Ukrainian
national consciousness.
76. There exist a number of international historians’ and research
networks devoted to the sharing of public interest information related
to history. Examples include The Netherlands’ International Heritage
Cooperation Programme, where archives and information of the Ministry
of Culture, Education and many other State entities are shared with
partner countries such as Belgium, China, Germany, Egypt, France,
Hungary, Italy, Morocco, Poland, Spain, Türkiye, the United Kingdom,
South Korea and many others.
Note The International Council on Archives
believes that effective records and archives management is an essential
precondition for good governance, the rule of law, administrative
transparency, the preservation of mankind’s collective memory, and access
to information by citizens. It is an international institution with
regional branches, such as the European Branch of the International
Council on Archives (EURBICA), which connects archival authorities
and advocates for effective knowledge management. Further, the European
Network for Remembrance and Solidarity (ENRS) promotes the study
of 20th century history and remembrance.
Partnering with over 500 institutions in Europe, the ENRS organises
conferences, workshops, symposia, seminars. They also publish and
translate work for academic and general audiences, and deliver research,
cultural and educational processes.
Note Lastly, the Council of Europe and
the European Union co-funded a project called HISTOLAB, which encourages
the exchange of knowledge, experiences, and expertise across professions
in the field of history education, including practitioners (such
as teachers, museologists), academics, junior researchers, and policymakers. HISTOLAB
also focuses on the exchange of expertise and good practices between
professionals from different countries.
Note Such organisations and projects
deserve to be supported by member States of the Council of Europe.
7 Conclusions
77. The Assembly must unequivocally
recognise the right of access to information as a universal human right,
particularly when it comes to State-held information. As a general
rule, all information held by public authorities should be freely
accessible.
78. Full disclosure must be the rule and limitations for reasons
of national security or privacy must be the exception, in all Council
of Europe member States. Exceptions to the rule of free access to
information shall be interpreted restrictively. The burden of demonstrating
the legitimacy of any restriction rests on the public authority.
79. Information about serious violations of human rights or humanitarian
law should not be withheld on national security grounds in any circumstances.
80. The Assembly must call on member States to uphold the main
principles that govern access to information. These are: maximum
disclosure, proactive publication of information, strict guidance
on exceptions, and a reasonable cost to access information. Member
States should participate actively in the development of policies
that advance everyone’s right to freedom of information. They should
focus on ensuring the broadest possible access to information, only
seeking to protect from disclosure State-generated information that
could be withheld under international human rights law.
81. The Assembly must remind all member States of the Council
of Europe that the right to access State-held information is in
constant development at the international level. This means that
non-compliance with the developing jurisprudence of the European
Court of Human Rights and the UN Human Rights Committee may lead
to more and more findings of violations of the right to freedom
of expression.
82. The Assembly must call on all member states of the Council
of Europe which have not yet ratified the Council of Europe Convention
on Access to Official Documents (Tromsø Convention) to do so urgently.
The Assembly should highlight the value of the Tromsø Convention
for all member States, including those that have already established
a compliant legislative framework. Their accession to the Convention
would strengthen the international safeguards for the right to access
information. The Assembly should also support the activities of the
Council of Europe Access Info Group in securing signatures and ratifications
of the related Convention by promoting best practices of member
States. It should recommend specific improvements to the Convention
in the spirit of the Global Principles on National Security and
the Right to Information (Tshwane Principles) and other international
legal developments on the right to access information.
83. Access to information that is clearly in the public interest,
such as historical documents, should be granted regardless of the
reason as to why one is looking for such information. The public
should be duly informed of any changes in the legal framework on
access to information or in the archival system, especially if they
affect it drastically.
84. The Assembly should foster the political will of member States
to allow the widest possible access to historical documents by underlining
the importance of open archives and public information for transparency, democracy,
and the rule of law.
85. Political will and diplomatic means are essential to ensure
historical documents reach their countries of origin, and the Assembly
should therefore urge member States to initiate diplomatic negotiations
and show a strong political will to have information on their history
brought back home. In case these fail or in the meantime while these
negotiations take place, the best way forward is co-operation with
civil society, financing of memory projects, and inter-State collaboration.
86. Access to information for researchers, historians, NGOs and
all those that obtain it to then disseminate it in the public interest
should not be overly burdensome or restricted by censorship filters.
Policy decisions should only be taken after extensive consultation
with civil society and all groups affected by such changes, such
as researchers, authors, and historians.
87. The Assembly should underline the importance of co-operation
with civil society and inter-State collaboration for multi-perspectivity
and transparency. Civil society organisations, the media and members
of the public should engage directly with the Assembly and the Council
of Europe as a whole in the process of development of access to
information policies, including by identifying for them the key
areas of interest in information.
88. Last but not least, the Assembly should urge member States
to digitalise their archives and allow as many materials as possible
to be accessible online.
