Learning from Finland & updating the right to information process

Exercising the Right to Information as a principle has been the focal point in Finland for many decades. This has been an evolving exercise for establishing good governance and accountability through transparency for its citizens.

We in Bangladesh can learn a lot from the manner in which that country has been exercising its options. The aspects highlighted below could possibly be seriously considered for modulation in the context of some of the Sections that exist at the present moment in Bangladesh’s Right to Information Act.

In Finland, the Act on the Openness of Public Documents of 1951 established the openness of all records and documents in the possession of officials of the state, municipalities, and registered religious communities. Exceptions to the basic principle could only be made by law, or by an executive order for specific enumerated reasons such as national security.

The openness of unsigned draft documents was not mandated, but up to the consideration of the public official. This weakness of the law was removed when the law was revised in the 1990s. The revised law, the Act on the Openness of Government Activities of 1999, called in short “Publicity Act” also extended the principle of openness to corporations that perform legally mandated public duties, such as pension funds and public utilities, and to computer documents.

The Publicity Act establishes a process by which any person can access any record in possession of an authority. The person may ask the authority for the document in person or in writing. When making the request, the requester needs to specify the document so that it can be identified. However, the authority is liable to assist the person with its document registers and indices in this task.

After receiving the request, the authority has two weeks to give the document. If the decision is negative, and document is withheld, the requester may appeal to the administrative court. The document may be given orally, for reading and copying in the authority’s premises or as an electronic or paper copy, as requested by the person. However, the copying may be declined if it would be unfeasible because of the large number of documents or otherwise technically difficult. There are also a number of limitations on the release of electronic documents designed for the protection of individual privacy.

The reasons for withholding a document are listed in the Article 24 of the Act referred to above. They may be grouped to three categories: automatic non-openness, conditional non openness or conditional openness. The documents where automatic non-openness is prescribed remain withheld in all cases. In the case of conditional non-openness, the reasonability of the non-openness is reviewed case-by-case by the authority and, if appeals are made, by the court. In the third category, openness is a rule, and the reason for non-openness needs to be established by the authority.

The absolute reasons for non-openness are – (a) documents of the foreign policy committee of the Council of State, foreign policy memos of the foreign ministry on political status, negotiations with foreign governments or organisations and diplomatic cryptograms, unless released by the ministry, (b) registers held by law enforcement for investigation and prevention of crimes, as well as passport or ID card photos and biometric information on them, (c) statistics and other documents on economic policy that might affect financial markets, until they are released to public, (d)  documents handed over to a statistical authority for the compilation of statistics and documents handed over voluntarily to an authority for purposes of research and statistics, (e) documents containing medical information, information on sexual orientation or information pertaining to a customer of labour administration or of social services, (f) documents containing information on a judicial psychiatric examination or on certain personal investigations relating to execution of prison sentences and similar custodial sentences, (g) documents containing results or information from individual psychological testing, (h) documents relating to the care of students, as well as any student evaluation containing verbal information on the personal qualities of the student, (i) documents containing a secret phone number, or the location of a mobile communications device, (j) documents identifying an anonymous witness, and (k) documents containing information on individual’s political opinions, hobbies, personal habits, membership and activities in associations, family life or opinions uttered within private life.

Conditional non-openness is mandated for the following categories of documents, unless it is” obviously clear” that the protected interest is not endangered- (a) documents concerning international relations of Finland, Finnish institutions or Finnish persons, unless it is obviously clear that no harm will befall on Finnish foreign relations now or in the future, (b) documents concerning criminal investigations or pending prosecutions until the investigation is over or the prosecution has pleaded, unless it is obviously clear that the investigation or the prosecution is not harmed and no private person will suffer material harm nor suffering, (c) documents on security of buildings, facilities, communications or information systems, unless it is obviously clear that the security is not endangered, (d) all documents of Finnish Security Intelligence Service and other documents concerning state security, unless it is obviously clear that state security is not endangered, (e) documents concerning national defence or military intelligence, unless it is obviously clear that national defence is in no way harmed or endangered, (f) documents, records and data used as a basis for or concerning an academic thesis, scientific or scholarly research or product development, unless it is obviously clear that the research, development or study, their proper evaluation, the student or the researcher or the funder of the work are not harmed, (g) documents concerning a refugee or an applicant for a visa, residence permit or an asylum, unless it is obviously clear that the person or his loved ones are not harmed, and (h) information contained in the criminal register and in other registers held by authorities overseeing the execution of punishments.

Conditional openness is prescribed for the following categories of information: (a) release of information about the technical and tactical methods of police, and prison authorities, if such availability of information makes the work of such authorities more difficult, (b) administrative complaints during their handling, if their release would harm investigation or be likely to cause suffering or harm to a party in the matter, unless grave reasons exist for release of information, (c) information on civil defence or rescue preparations and on safety investigations, if the release would endanger rescue work, civil defence preparations, safety or security or their continued development, or would endanger getting information in future safety investigations, or would hurt the victims of an accident, their memory or their loved ones, (d) information on financial, monetary, labour or fiscal policy measures or their preparations or pre-studies if the release would defeat the purpose of such measures, endanger the negotiation position of the state or otherwise and cause great harm to the management of such policies, (e) studies conducted by regulatory authorities of financial and pension institutions, if the studies include information on the regulated bodies and the release would endanger the proper functioning of financial markets, (f) documents containing information on endangered species or valuable natural areas, if the release of information would endanger their preservation, (g) documents pertaining to an investigation or other control measure by an authority if the release of information would endanger the regulatory control measure or its purpose, (h) detailed returns of political candidates on their campaign funding, (i) documents used by a public body in a collective bargaining or labour action if the release would harm the public body as the employer, (j) documents used for preparation of a legal action, if the release would harm a public body as a party to a suit, and (k) documents containing sensitive information on the private life of a suspect, plaintiff, witness or other party to a criminal investigation, or information on the victim that would hurt the victim’s memory or her loved ones, unless the release is necessary to conduct the work of an authority.

Non-open information in Finland also remains non-open for 25 years after it was created or obtained by an authority. Documents that are non-open to protect the privacy of an individual remain non-open for 50 years after the protected individual has died.

One needs at this juncture to refer to the special efforts put in by the Commonwealth Human Rights Initiative (CHRI) to try to facilitate not only the principle of Right to Information but also the use of freedom of information. An independent, non-governmental organisation headquartered in New Delhi, with offices in London, United Kingdom and Ghana, CHRI realised that absence of full information can affect practical realization of human rights.

I believe that the recent evolving scenario in South, South East Asia and the Far East and also the unfortunate dynamic in the Middle East needs to be carefully scrutinised by not only the legal authorities but also the other Human Rights Commissions in these regions — especially in these troubled times.

Muhammad Zamir, a former Ambassador and a former Chief Information Commissioner, is an analyst specialised in foreign affairs, right to information and good governance.
muhammadzamir0@gmail.com