Information Access Laws

At its broadest, the family of information access laws may be taken to include all those statutes and [Page 446]regulations that determine who may or may not see information held by organizations—governmental or otherwise. These laws fall within one or more of five categories:

• 1.
  Access to information—other than personal information—held by the state in all its forms (e.g., freedom of information, which has archival access legislation as a subcategory).
• 2.
  Access to information about the individual. The sectoral scope of such laws varies from one national jurisdiction to the next, but the trend is toward coverage of state, private, and voluntary sectors (e.g., data protection).
• 3.
  Power of state agencies to pass personal data from one to another for certain, specified purposes (e.g., data sharing; strictly speaking a subspecies of data protection, but worth distinguishing because of its growing social and political salience).
• 4.
  Protection for employees who make unauthorized disclosures of information whose release may be seen to be in the public interest (e.g., whistleblower).
• 5.
  Determination of when state officials may or may not disclose confidential information held by the state. They also identify the sanctions to be imposed on those who make unauthorized releases (e.g., official secrecy).

It will be immediately apparent that this typology is based both on the organizational scope of the laws and the character of the information to which they relate. They may be combined in many ways, and they have been adopted by states in quite different sequences. In many states, all five categories may now be found alongside one another, integrated with varying degrees of success.

A number of official secrecy regimes had been established by the middle of the twentieth century (e.g., the British Official Secrets Act 1911), but the development of the broader family of information access laws is mostly a phenomenon of the second half of the century. It has its origins variously in a reaction to totalitarianism, in a mistrust of the democratic state, in consumerism, and in libertarianism. There is a growing debate about whether the rights enshrined in these laws constitute fundamental human rights. International legal instruments do lend support to the argument that information privacy rights have this status (for example, the European Convention on Human Rights). But there was some suggestion in the latter part of the twentieth century that the European Court of Human Rights was also willing to infer a right to information, albeit a partial one, from other rights in the European Convention.

The spread of this family of laws across the Western world and beyond has been encouraged by donors and development agencies (who see freedom of information as a bulwark against corruption) and by trading blocs (notably the European Union, which has sought agreements with its trading partners to secure the application of data protection principles to transborder data flows).

The speed of development of information access laws increased sharply in the last two decades of the twentieth century. The advent of the information society meant that greater economic and social power was vested in the control of access to information. Technological change also brought with it a raft of new legal challenges, not least those governing the definition in statute of basic information concepts whose significance had been transformed in the electronic environment (e.g., “original” and “record”). It seems probable that technological change will drive the renewal of information access regimes within shorter and shorter cycles for the foreseeable future.

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