The right to freedom of information: ensuring access to historical documents
- Author(s):
- Parliamentary Assembly
- Origin
- Text
adopted by the Standing Committee, acting on behalf of
the Assembly, on 7 March 2024 (see Doc. 15929, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Ms Klotilda Bushka). See also Recommendation 2270 (2024).
1. The Parliamentary Assembly highlights
the importance of the principle of transparency, including access to
historical information held by public authorities, for fostering
a common historical heritage and a collective memory of the past,
supporting reconciliation and rehabilitation processes, facilitating
research and academic activities, and improving public confidence
in State institutions, good governance and accountability.
2. The Assembly unequivocally recognises 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.
3. Recalling its
Resolution
1954 (2013) “National security and access to information”,
the Assembly considers that only legitimate, well-defined limitations
to the right of access to information, such as genuine national
security interests and appropriate protection of individuals’ privacy,
may be held to be valid grounds for preventing public access to
information held by public authorities. Full disclosure must be
the rule and limitations for legitimate reasons must be the exception.
Exceptions shall be interpreted restrictively; they must be provided
for by law, pursue a legitimate purpose and be necessary in a democratic
society. Exceptions based on national security and privacy grounds
may cease to be legitimate or necessary after a certain period of
time and in any event cannot be applied indefinitely. The burden
of demonstrating the legitimacy of withholding information rests
on the relevant public authority.
4. Information about serious violations of human rights or humanitarian
law and crimes committed by State agents should not be withheld
on national security grounds in any circumstances, especially when
such violations or crimes occurred in the past under authoritarian
regimes. In such cases, the right of society at large to historical
truth should always prevail.
5. The Assembly recalls that the right of access to State-held
information is constantly evolving at the international level. This
means that non-compliance with developing jurisprudence of the European
Court of Human Rights (the Court), the United Nations Human Rights
Committee and other human rights bodies may lead to findings of
a violation of the right to freedom of information and expression.
In this respect, the Assembly notes that the Court has developed
its case law to further recognise the right of access to State-held information
as part of the right to freedom of expression, in particular the
freedom to receive and impart information, guaranteed by Article
10 of the European Convention on Human Rights (ETS No. 5). This recognition
is based on the circumstantial factors of each case, including the
purpose of the request, the nature of the information sought, the
role of the person requesting the information and whether the information requested
is readily available to the State. Non-governmental organisations
(NGOs), journalists, academic researchers and authors enjoy a high
level of protection if they disseminate information of public interest.
6. The Assembly calls on member States to uphold the main principles
that govern access to information and to apply them in the context
of historical documents. These are: maximum disclosure; proactive
publication of information; strict guidance on exceptions; and a
reasonable cost for accessing information.
7. Member States should actively develop policies that advance
everyone’s right to freedom of information. The public, especially
those individuals and groups who may be affected by such changes,
should be duly informed of any changes in the legal framework on
access to information or in the archival system. Any changes in
law and policy on access to historical information should only be
approved after extensive consultation with historians, researchers,
NGOs and civil society organisations that rely on having access
to such information.
8. A request for an explanation of the reasons for asking for
specific information or for an outline of research topics may be
useful in identifying the relevant documents to be furnished. However,
the provision of detailed reasons should not be a requirement for
accessing information that is clearly in the public interest, such
as historical documents. Access to historical documents should be
granted regardless of the reasons for seeking such information.
9. Specifying reasons for requests for access to classified historical
documents may also help the competent authorities to apply limitations
of access restrictively, as required. Any denial of access to historical documents
should be duly justified, open to appeal before an independent national
authority and ultimately subject to judicial review.
10. Access to historical documents for researchers, historians,
NGOs and all those who obtain them with a view to disseminating
them in the public interest should be expeditious and not overly
burdensome or involve complicated bureaucratic procedures.
11. The Assembly calls on all member States of the Council of
Europe which have not yet signed or ratified the Council of Europe
Convention on Access to Official Documents (CETS No. 205, “Tromsø
Convention”) to do so as rapidly as possible. This includes those
whose legislation already complies with the standards therein, as
such ratification would strengthen international safeguards for
the right of access to State-held information. The Assembly also
supports the activities of the Council of Europe’s Access Info Group
in securing signatures and ratifications of the Tromsø Convention
through the promotion of best practices of member States regarding laws
on access to information, including archives and historical documents.
Recalling its
Resolution
1954 (2013) “National security and access to information”,
the Assembly invites member States to consider introducing specific
improvements to the Tromsø 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
of access to information.
12. The Assembly underlines the importance of open archives and
public information for transparency, democracy and the rule of law.
It calls on member States to demonstrate the political will to allow
the widest possible access to historical documents.
13. Historical documents and archives should be kept in their
countries of origin. In cases where they are held in other countries
due to State succession and border changes, they should be returned
to mitigate the difficulties relating to the physical distance which
can hinder the establishment of historical truth. The Assembly calls
on member States to negotiate the return of their archives in good
faith. Meanwhile, governments and civil society should foster international
collaboration in opening archives for public inspection, irrespective
of their location.
14. The Assembly further underlines the importance of civil society
groups working to preserve historical memory and urges member States
to support this work, including financially.
15. Individuals and civil society organisations involved in the
research and preservation of historical memory must, moreover, be
protected from harassment or persecution. In this respect, the Assembly
strongly condemns the dissolution, in the Russian Federation, of
the human rights organisation Memorial, and the persecution of numerous
members engaged in documenting the crimes committed during the Soviet
era and beyond.
16. The Assembly underlines the importance of co-operation with
civil society and between States in order to achieve transparency
and ensure that different perspectives are taken into account.
17. Finally, the Assembly urges member States to digitalise their
archives and allow as many documents as possible to be accessible
online.
