The Steering Committee for Human Rights (CDDH) held a thematic debate on access to official documents on Wednesday 1 July in Strasbourg, which looked at the right of access from the perspective of the both the Tromsø Convention and the European Convention on Human Rights (ECHR). The invited speakers highlighted the meeting points of these two treaties and their distinct features. The debate also heard arguments in favour of ratification of the Convention and encouraged Member States present who had not yet ratified the Convention to do so.
Ms Helena JÄDERBLOM, President of the AIG, opened the debate. She outlined the work of the AIG and highlighted that the principal added value of the Tromsø Convention lies in its advanced freedom of information standard and its peer-based monitoring mechanism. A common misunderstanding is that the Convention requires complete and unlimited transparency, but in fact, the Convention is about achieving an optimal level of transparency that is consistent with respect for other essential public interests. She highlighted the benefits to be gained from participation in the peer-based monitoring mechanism, and encouraged Parties present who have not yet ratified the Convention to do so. Finally, she addressed some common concerns States may have with ratifying the Convention, and why these concerns should not be seen as insurmountable barriers to ratification of the Convention.
Ms Boglarka BENKO, Senior Lawyer with the registry of the European Court of Human Rights provided an overview of the scope of the right of information set out in the caselaw of the European Court of Human Rights on Article 10 of the ECHR. She elaborated on the criteria for determining whether a denial of access to the requested information constitutes an interference with Article 10 rights, notably the purpose of the information request, the public interest nature of the information sought, the role of the applicant and the availability and readiness of the information. The lack of domestic standards harmonised with these elements often creates difficulties for applicants bringing cases before the Court. A more uniform standard of access to information in Council of Europe member States could assist in the evolution of the Court’s caselaw going forward.
Ms Päivi KORPISAARI, member of the AIG and Professor of Communication Law at Helsinki University, set out the substantive and procedural safeguards of the right of access under the Tromsø Convention. She drew distinctions between the right of access under the Tromsø Convention and the standard of protection of the right of access according to the caselaw of the European Court of Human Rights. She elaborated on the limitations of the right of access under the Tromsø Convention, notably on its requirements of harm test and overriding public interest test, and shared some reflections on how procedural safeguards make the right of access practical and effective.
Finally, Ms Mateja PREŠERN, Vice-Chair of the Consultation of the Parties and General Director at the Ministry of Public Administration in Slovenia rounded out the session by taking the CDDH through Slovenia’s process of ratifying the Convention, highlighting some of the benefits Slovenia has experienced in doing so. She discussed the positive experience Slovenia has had with the Tromsø Convention’s monitoring mechanism, noting that it creates a constructive, expert-based dialogue, helping states to continuously improve the implementation of their national access to information frameworks. Finally, she emphasised that joining the Convention does not require States to start “from scratch” in terms of their access frameworks but rather build on what many systems are already effectively implementing. The Tromsø Convention helps member States to do better, together.
Comments from CDDH members representing member States who have ratified the Tromsø Convention echoed Slovenia’s positive experiences with the monitoring mechanism, and highlighted the benefits of international cooperation. Some of the questions addressed to the experts included how artificial intelligence may impact access to information frameworks in the future, and on whether there would be outreach directly to those States who have not yet ratified the Tromsø Convention by the Council of Europe. CDDH members also requested further information on the Tromsø Convention’s standards concerning limitations of the right of access for national security reasons, and any insights which could be offered on the use of the overriding public interest test by countries who have already been evaluated by the monitoring mechanism.
The text of the speakers’ interventions are found below.