Constitutional Protections of the Right to Information

Overview

The right of access to official information is now protected by the constitutions of 59 countries. At least 53, and arguably all 59 expressly guarantee a “right” to “information” or “documents,” or else impose an obligation on the government to make information available to the public. The top courts of additional countries have interpreted their constitutions to recognize the right implicitly.

Almost all of these countries also have statutes that elaborate and implement a right to information. In countries with such laws, the question as to whether the right also has constitutional status may have little practical significance. Nonetheless, we suggest that the fact that so many countries have afforded the right constitutional status is noteworthy, and provides support for strengthening the status of the right under international and regional law. The fundamental status of the right has been particularly recognized in Latin America, even before the Inter-American Court’s landmark judgment in the Claude Reyes case.

Constitutions that guarantee less than a general right to government-held information are not included in this count. For instance, we do not include constitutions that guarantee a right only to personal information, or to environmental information, or extend the right only to journalists. Nor do we include in this count constitutions that recognize a “right to freely seek and receive information,” or variations of that phrasing, for instance as part of the right to freedom of expression, unless case-law, actual practice and/or assessments of in-country experts support the conclusion that the right includes a general right to information. We do, however, include in this count a right to government-held information that is limited to information of public interest (as found, e.g., by Canada’s Supreme Court in a 2010 judgment, and by the European Court of Human Rights.

We note that the constitutional status of the right to information is disputed in at least seven European countries that we include in our list. In Austria and Belgium, the constitutional provision is viewed by some as imposing important duties on government but not as conferring an enforceable right on individuals. The constitutions of Azerbaijan, Georgia, Macedonia, Russia and Ukraine all guarantee the right to freely receive information but not, explicitly, a right to receive information from public bodies. A few lower courts in some of those countries have ruled that their constitution does impose a right to receive, or a duty to provide, information. Moreover, all of the seven countries have laws that implement a general right to information, although the laws of Austria and Ukraine are relatively weak. We have included these seven countries in our list on the ground that the right is accorded special importance in those countries, sometimes as a right of the citizen, sometimes as a democratic imperative. Also, in all of the countries, at least some access to information advocates and/or other experts claim that the right does have constitutional status. While such claims are not decisive, we have allowed them to tip the scales in favour of inclusion. We welcome readers’ comments and feedback and, in particular, any authoritative interpretations, such as relevant case-law or academic analysis.

According to the above criteria, the constitutions of the following 59 countries guarantee a right to information:

• 12 countries in the Americas (Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Mexico, Nicaragua, Panama, Paraguay, Peru and Venezuela);
• 18 in Europe clearly grant a right to information (Albania, Bulgaria, Czech Republic, Estonia, Finland, Greece, Hungary, Lithuania, Moldova, Montenegro, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Sweden);
• 7 in Europe arguably guarantee a right to information (Austria, Azerbaijan, Belgium, Georgia, Macedonia, Russia, Ukraine);
• 6 in Asia and the Pacific (Nepal, New Zealand, Pakistan, Papua New Guinea, Philippines, Thailand); and
• 16 in Africa (Burkina Faso, Cameroon, Democratic Republic of Congo, Egypt, Eritrea, Ghana, Guinea Bissau, Kenya, Madagascar, Malawi, Morocco, Mozambique, Seychelles, South Africa, Tanzania, and Uganda).

The top courts of at least five additional countries have interpreted their constitutions or other basic laws to protect the right to information implicitly: Canada, France, India, Israel and South Korea. Courts below the top courts have interpreted their constitutions to give rise to the right to information in at least several additional countries including Paraguay, Uruguay and Russia.

The language of constitutional provisions is set forth by country in the right-hand menu on the above page, and also included with our list of laws and constitutional provisions.

Top courts of at least nine of these countries have ruled that the constitutional right is enforceable in court even without enactment of an implementing law, including Chile, Costa Rica, India, Paraguay, the Philippines, South Africa, South Korea, Uganda and Uruguay. Of these countries, Chile, India, South Africa, South Korea, Uganda, and Uruguay have adopted ATI laws. In three countries – Costa Rica, Paraguay, and the Philippines – which have yet to adopt ATI laws, the actionable constitutional right is all the more important.

The constitutions of a few additional countries – including Fiji – call for enactment of legislation to guarantee a statutory right of access to information.

At least five constitutions – of Kenya, Panama, Poland, Serbia and South Africa – expressly extend the right to information to state owned enterprises and/or private entities that exercise public functions as well as to public authorities. Indeed, the Constitutions of South Africa and Kenya guarantee a right of access to “any information that is held by another person and that is required for the exercise or protection of any rights” (South Africa) or “for the exercise or protection of any right or fundamental freedom” (Kenya).

Several countries that provide a right to information in their constitutions also have constitutional procedures that enable the right to be directly enforceable by the courts. For instance, in several Latin American countries (including Costa Rica, Honduras, Nicaragua, Panama and Peru) the constitutional right to information may be enforced via a habeas data petition or amparo.

Of the arguably 59 constitutions that expressly guarantee the right to information, at least 24 extend that right to “everyone”: six in the Americas – Brazil, Colombia, Mexico, Panama, Peru, Venezuela; 14 in Europe - Albania, Armenia, Austria, Azerbaijan, Bulgaria, Czech Republic, Estonia, Finland, Georgia, Greece, Lithuania, Moldova, Norway, Romania, Slovenia; and four others: New Zealand, Mozambique, Seychelles and Uganda. Several constitutions – including those of Hungary, Kenya, Macedonia, Morocco, Nepal, Pakistan, the Philippines Poland, Portugal, Spain and Sweden – expressly limit the right to citizens. Other constitutions are ambiguous on this point.

Constitutions and courts have set forth several lines of reasoning underlying or giving rise to the right to information:

• Several emphasize the importance of the right as the foundation for a democratic society, recognizing that citizens need information if they are to be able to participate effectively in decision-making and holding officials accountable (e.g., Argentina, Chile, Costa Rica, Hungary, Mexico, Peru).
• Several courts have interpreted the right to information to be an implicit component of the right to freedom of expression. For instance, in the Forests Survey Inspection Request Case, South Korea’s Constitutional Court ruled that the right to information is implicit in the right to freedom of speech and press, given that free expression and communication of ideas requires free formation of ideas as a precondition, and that “[f]ree formation of ideas is in turn made possible by guaranteeing access to sufficient information.” Colombia’s Constitutional Court has advanced similar reasoning in several cases. Freedom of speech and access to official documents in Sweden have been viewed as closely related since at least the original Freedom of the Press Act of 1766.
• Some constitutions note the particular importance of the right for journalists and the media (e.g., Ecuador).
• Colombia’s Constitutional Court has noted the close relationship between the right and the rights of victims of serious human rights violations to truth, reparation and justice.
• India’s Supreme Court concluded in S.P. Gupta v. Union of India that the right to know arises not only from the right to freedom of expression but also, importantly, from the right to life.
• South Africa’s Constitution recognizes the importance of the right to information in exercising and protecting all other rights.

The above-summarized reasoning, unusual provisions, tallied information and more, as well as citations, are supported by or supplied in the following country paragraphs.

For useful commentaries on constitutional protections of RTI, see the Centre for Law and Democracy's Entrenching RTI: An Analysis of Constitutional Protections of the Right to Information (2012, and The Constitutional Right to Information by Peled, Roy and Rabin, Yoram, Columbia Human Rights Review, Volume 42(2) (2010).

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You will find detailed country information that is not regularly updated in our Archive.

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