The Right to Know

The public interest override is the important feature. Information otherwise exempt must be disclosed if the public interest in disclosure outweighs the harm to the protected interest, and most of the exemptions cannot be used to withhold information that could not be denied to Parliament or a State Legislature.

The constitutional root is earlier than the Act. The Supreme Court derived a right to know from article 19(1)(a) well before 2005, and the Act gives that right machinery rather than creating it.

Why the paper wants it

Because the international order runs on reporting, and reporting runs on information. Every treaty body's periodic review, every Universal Periodic Review submission, and every non-governmental shadow report is an exercise of the right to know applied to a State's own conduct. [Reporting, and Concluding Observations] and [Non-Governmental Organizations as a Protection Mechanism] both depend on it.

And because "regardless of frontiers" makes it international. A domestic secrecy law that blocks information about a State's conduct abroad restricts a right the treaty protects across borders.

Worked example

A citizen asks for the file on the award of a road contract. The authority refuses, citing commercial confidence and an ongoing investigation.

Commercial confidence is an available exemption, and it is subject to the public interest override, so the authority must weigh the harm to the third party against the public interest in knowing how public money was spent.

The investigation exemption protects the process of investigation and prosecution, not the existence of the file, so it cannot justify a blanket refusal.

Severance is required, since where part of a record is exempt the remainder that can reasonably be severed must be provided.

And the burden lies on the authority, which must show that the denial was justified.

The structure of the answer: identify the exemption claimed, ask whether it fits, apply the override, require severance, and place the burden.

What it does NOT mean

It is not a right to be told anything by anyone. It runs against public bodies and, where a regime so provides, against bodies substantially financed by public funds.

And it is not absolute. Privacy is a competing right, and disclosure of personal information with no relation to public activity is a violation of article 17 of the Covenant, not a vindication of article 19.

Quick revision

• Derivation: the word seek in article 19 of the Declaration and the Covenant, plus the democratic, instrumental and accountability arguments.
• Stated in terms: ACHR article 13 as read by the Inter-American Court; Aarhus Convention 1998 for environmental information; UN Convention against Corruption 2003 on transparency.
• India: Right to Information Act 2005; suo motu publication; thirty days, forty-eight hours for life or liberty; two appeals, the second to an Information Commission; a closed list of exemptions with a public interest override and the Parliament test; severance; burden on the authority.
• The constitutional root precedes the Act, in article 19(1)(a).
• Limits: runs against public bodies; privacy under article 17 is the competing right.

Test yourself

1. Derive the right to know from the text, and say why the derivation matters. The textual root is the word seek in article 19 of both the Universal Declaration and the Civil and Political Covenant, each of which protects the freedom to seek, receive and impart information and ideas. Receive on its own would protect only a person's ability to take in what someone else chooses to send, so a State could satisfy it by not jamming broadcasts. Seek points outward at whoever holds the information and converts a liberty into a claim addressed to a holder, which is what an access regime is. Three functional arguments complete the derivation: the democratic one, since article 25 guarantees a genuine choice at periodic elections and a vote cast in ignorance of what the government did is not genuine; the instrumental one, since no other right can be enforced without facts about the decision complained of; and the accountability one, since secrecy is the condition in which misuse of public power survives. The derivation matters because the right is nowhere stated in terms in the Bill, so an answer that merely defines it has skipped the question the examiner asked.

2. Describe the working of the Indian Act. The Right to Information Act 2005 obliges every public authority to maintain its records in a manner facilitating access and to publish specified categories of information on its own motion, so that citizens need to ask for less. A citizen may make a request without giving reasons; a Public Information Officer must dispose of it, ordinarily within thirty days, and within forty-eight hours where the information concerns the life or liberty of a person. Refusal must state the exemption relied on and the appeal route. Two appeals lie, the first internally to a senior officer and the second to the Central or State Information Commission, which can order disclosure and impose a penalty on an officer who refused without reasonable cause. The exemptions cover sovereignty and integrity, security and foreign relations, contempt of court, breach of privilege, commercial confidence, fiduciary relationships, confidences received from foreign governments, danger to life or safety, impediment to investigation, cabinet papers, and personal information without public interest. Two features do the real work: information otherwise exempt must be disclosed where the public interest in disclosure outweighs the protected harm, and exempt portions must be severed so the rest is supplied.

3. How does the right to know connect to the international order rather than only to domestic administration? In three ways. First, article 19 protects the freedom to seek information regardless of frontiers, so a restriction on obtaining information about a State's conduct abroad, or on transmitting it outward, engages the treaty right directly and is not a purely internal matter. Second, the supervisory machinery of the order is built on information: periodic reporting to the treaty bodies, the national report and the stakeholder submissions in the Universal Periodic Review, the country visits of special procedures, and the shadow reports of non-governmental organisations all consist of information about State conduct, and a State that can lawfully conceal that information disables the machinery without breaching any reporting obligation on its face. Third, the right supplies the evidentiary basis for individual complaints, since a communication alleging discrimination or an unexplained death depends on records the State holds. That is why access to information appears in the anti-corruption convention as a transparency obligation and in the environmental field as a treaty right with fixed time limits and review, rather than being left to domestic policy.