Freedom of Information

Freedom of information (FOI) is a presumptive right of access to official information, qualified by exemptions and subject to independent adjudication by a third party. The adjudicator may be a court, tribunal, commissioner, or ombudsman and may have the power to require actions be taken, or to recommend that the parties should act in a certain way.

Thus defined, FOI is a sufficiently capacious term to allow for much international variation. The definition excludes permissive and administrative access codes and should also exclude statutes—such as the one adopted in Zimbabwe—that purport to be about improved access but are really about suppression of the press. But the definition still accommodates wide variations in the scope of coverage, in the breadth of exemptions, in its temporal range, and in the enforceability of rights.

This diversity becomes even more striking if we consider the evolution of FOI laws. There is room for argument about the precise pattern of spread of modern FOI statutes, but there are three broad phases. First, their adoption begins with the United States in 1966 or, more substantively, with the strengthening of the Freedom of Information Act following the Watergate scandal. Initially, the American lead was not followed—at least not outside Scandinavia and northern Europe. The second wave of FOI did not begin until in the early 1980s. Canada, Australia, and New Zealand all adopted FOI statutes in 1982, and during the next decade, the spread of legislation gathered pace in Europe and the Commonwealth. Throughout the decade, countries were beginning to borrow from one another's experience. But FOI did not become an international norm until the 1990s. Championed by the Organisation for Economic Cooperation and Development, the World Bank, the Council of Europe, and other supranational bodies, FOI is perceived as an essential component of good governance.

The motives for adopting FOI statutes vary widely between jurisdictions and across time. Historians of FOI in the 1960s and 1970s correctly point to the intellectual origins of the new laws in the citizens' rights movement, in consumerism, in distrust of an overmighty bureaucracy, and in the struggle for press freedom. But, by the 1990s, many countries were adopting FOI for quite different reasons: to win credit with donors and, in particular, to fight corruption. This is indicative of a broader pattern. Individual FOI statutes are commonly the product of local political struggles, and their design is influenced by the objectives of the campaigners and legislators engaged in those struggles. They do not follow one, universal template; rather, they are tools shaped for particular purposes and crafted in accordance with local compromises.

Many of the earlier FOI regimes were passed into law before data protection laws were on the statute books (for example, in the United States and New Zealand). Others began as integrated regimes. A third, later, category has been enacted in countries well used to data protection. These sequential differences are not trivial. For some jurisdictions, it has meant that privacy—first in the field—has emerged as the dominant value, more likely to trump access rights when the two are in tension. In other cases, it means, more simply, that the later FOI statute has been grafted onto a legislative framework originally designed for data protection.

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