Covid-19-impact on access to information in CoE countries
The Centre for Law and Democracy has released an executive summary of the report on the Right to Information during Health Emergencies in English, French and Spanish. Below is a summary of (potential) changes to access to information and right to information law in Council of Europe Member States.
The European Federation of Journalists (EFJ) has urged governments during the pandemic to ensure full transparency about the pandemic and to guarantee the capacity of journalists to act in the public interest, without any limitation. In view of the changing situation it is now time to lift any restrictions which may have been installed. In a common letter to EU leaders on 25 March 2020, EFJ and press freedom organisations insisted to:
- Demand that governments ensure full access for media professionals to decision makers and actors on the front line of the health crisis as well as the broader workings of government,
- Declare journalism and the free flow of information as essential to Europe’s efforts to contain the COVID-19
Armenia: Armenia is considering a change to its right to information law which would add an exception for information that would negatively harm the environment. Civil society has criticized this as an unclear exception and broader than earlier versions which focused on information on breeding sites for endangered species. This sourceimplies that the introduction of the new language on 2 April 2020 took advantage of the COVID-19 crisis to propose the change.
Bulgaria: Bulgaria has declared a state of emergency and adopted a law on emergency measures which enables the Minister of Health to issue decrees on any urgent matters. However, at the moment it appears these have not targeted RTI obligations. The National Health Insurance Fund reportedly extended deadlines for responding to RTI requests, but upon objections from civil society that there was no legal basis for this, the order in question was rescinded. Problematic amendments to the RTI law had been proposed before the state of emergency, but these are now on hold.
France: An Ordinance dated 25 March 2020 suspends all statutory time limits which expire starting on the 12 March 2020 until one month after the date on which the state of emergency ends.
Georgia: Georgia declared a state of emergency on 21 March 2020 lasting until 21 April 2020 via a presidential decree approved by Parliament. The Decree gives the Government the power to set rules which differ from current RTI legislation. The Government, under this power, issued a resolution which suspends the normal timeframes for issuing public information, meaning authorities do not need to comply with RTI deadlines. The state of emergency has been extended through 22 May, which likely means that the suspension of deadlines has been extended as well, although we have not yet confirmed this.
Hungary: According to news sources, under Decree No. 179/2020, issued on 4 May 2020, requests for information cannot be submitted in-person or orally and the period for responding to requests is extended to 45 days (instead of 15 days), which may then be extended one time for another 45 days.
Ireland: A statement on Ireland’s FOI portal affirms that authorities must still comply with the terms of the Freedom of Information Act, which does not permit for extending timeframes or otherwise limiting obligations on the ground of office closures due to health and safety. The statement also underscores that websites should be updated to clarify potential disruptions to FOI service due to reduced staffing or closures and to redirect requesters towards online channels. However, within the current law, it notes that arguably requests delivered by post may not be properly “received” within the meaning of the law while offices are closed, and that in interpreting the requirement to carry out a “reasonable” search for records, it may be necessary for authorities to consider the lack of access to physical records. While the official policy therefore remains continued RTI services under current law, this news article suggests that some journalists have been asked to withdraw RTI requests and that the Department of Social Protection has placed new FOI requests on hold.
Italy: Decree-Law No. 18/2020 of 17 March contains a provision (Article 67(3)) permitting the suspension of all activities related to access to information requests unless they are urgent and cannot be postponed. A statement on the 27 March 2020 indicates that requests for information about the pandemic and health emergency are excluded from the suspension, but Italian RTI experts have indicated that there is still a lack of clarity about whether COVID-19-related requests will be automatically processed.
Montenegro: A coalition of Montenegrin and international NGOs have called upon the Ministry of Public Administration to postpone public consultations on proposed reforms to the Law on Free Access to Information. The consultation deadline is 4 April. Given COVID-19 restrictions, meaningful consultation on the amendments cannot occur, raising concerns over amendments which will restrict the right to information being pushed through under the cover of the pandemic. Read more here and here. UPDATE: The Ministry of Public Administration extended the public consultation to allow suggestions to be emailed for an additional 10 days.
North Macedonia: This source reports that some civil society organisations were concerned about a suspension of right to information deadlines under the 23 March Law on Public and Administrative Procedures, which states that all administrative procedure deadlines are frozen during the state of emergency. However, it appears that public authorities have interpreted this provision so as not to apply to freedom of information requests, and as of 24 April, no ministry had said it would suspend deadlines for right to information procedures.
Poland: Polish news sources (and an English version) indicate that deadlines for responding to right to information requests are suspended. Other sources (here and here) indicate that the package of amendments responding to the COVID-19 pandemic, termed the “anti-crisis shield”, generally suspends a number of administrative proceeding deadlines, so this is possibly the legal basis for the suspension of the right to information timelines.
Romania: The presidential decree enacting a state of emergency specifically provides that during the state of emergency the deadline for processing and replying to RTI requests will double (meaning 20 days instead of the regular 10 days, 60 days instead of the 30 allowed on an exceptional basis and 48 hours instead of 24 hours for the special time limit for requests from journalists). See also EFJ press release here
Serbia: Serbia is under a state of emergency. Although RTI is on the list of rights which may be restricted during an emergency, executive decrees have not yet limited RTI. The information commissioner issued a public statement explaining that the right to access information is still valid but asking for patience if response times are slower than usual. UPDATE: According to this source dated 6 April 2020, the government has now extended deadlines to respond to requests so that authorities will have 30 days to respond once the state of emergency has been lifted. UPDATE 2: The Serbian parliament lifted the state of emergency on 6 May, presumably giving authorities 30 days from that date to respond to requests.
Slovenia: This source from 25 March 2020 cites to a law (in Slovenian) which suspended time limits in administrative matters generally, and indicates this suspension included deadlines under the Public Information Access Act.
Spain: Royal Decree 463/2020 establishes a state of emergency. It also suspends deadlines generally for procedures of public sector entities. Based on this provision, the Transparency Council, which is the RTI oversight body, has issued a notice that processing of files may be delayed, but that they will continue to work to meet the demands of citizens. On 17 April 2020, another government Note also confirmed the applicability of the general suspension of deadlines to RTI matters, and supplied greater detail on how the suspension will apply. The state of emergency has been repeatedly extended, most recently to June 7, and is expected to be extended one final time until June 21.
Switzerland: Switzerland’s RTI law establishes an arbitration procedure with the Federal Data Protection and Information Commissioner as the external mechanism for handling objections to an authority’s RTI decision. Per the Commissioner’s website, due to COVID-19, many employees are working from home but the Commissioner will endeavour to continue normal operations. The Commissioner will not hold arbitration meetings currently, but will “examine the requests for arbitration received and, until further notice, will issue his recommendations by written procedure.”
United Kingdom: Appeals from decisions by the Information Commissioner, which are handled by the First-Tier Tribunal (General Regulatory Chamber), are stayed for a period of 28 days as of 1 April 2020. Deadlines associated with those procedures are also extended. This stay has been extended until 27 May.
United Kingdom (Scotland): On 1 April 2020, Scotland passed the Coronavirus (Scotland) Act. The Act permitted time extensions for responding to requests (primarily extending 20 days to 60 days) and, under certain circumstances, permitted additional public authorities to make decisions on time extensions. It also allowed the Information Commissioner to determine that an authority who failed to provide information had not failed to comply with its obligations if the failure was a result of the impact of coronavirus and was reasonable in all the circumstances. The Act also allowed electronic notice. Scotland’s Information Commissioner subsequently launched a “COVID-19 and FOI” information hub which includes information on making requests during the pandemic and gives guidance to public authorities on the new legal provisions. UPDATE: On 20 May, Scotland’s Parliament amended the original Coronavirus (Scotland) Act, removing the time extensions for responding to requests and most other RTI provisions. The only components retained were the provision permitting electronic notice and the provision allowing the Information Commissioner to take account of the impact of coronavirus in deciding whether an authority had failed to meet RTI obligations. However, this second provision was also amended to require that the Commissioner, in assessing whether the failure was reasonable, must have regard for the “public interest”. Furthermore, the amendment imposes an additional requirement that the Scottish Ministers regularly report to Parliament on RTI for as long as the RTI provisions of the Coronavirus (Scotland) Act remain in force. The report must include specified information such as backlogs, number of requests responded to and subject to internal review, number of appeals, etc.
International Responses
Council of Europe: The Council of Europe has a 7 April 2020 “toolkit” for member States on “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis”. Section 3.3 includes a discussion of freedom of expression and access to information. It stresses that the “public’s access to official information must be managed on the basis of the existing principles set down in the Court’s caselaw” (meaning the European Court of Human Rights). It notes that restrictions on access to official information “must be exceptional and proportionate to the aim of protecting public health” and cites to the Tromsø Convention on the importance of transparency by public authorities.
International Experts on Freedom of Expression: The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the OSCE Representative on Freedom of the Media and the IACHR Special Rapporteur for Freedom of Expression released a joint statement on the importance of access to information during the COVID-19 pandemic on 19 March 2020. The statement notes that “broad restrictions on access to the internet cannot be justified on public order or national security grounds” and urges “all governments to robustly implement their freedom of information laws to ensure that all individuals, especially journalists, have access to information.”
