The right of access to public information is considered to be one of the basic rights that open up the opportunity for everyone to participate in public life. The active role of each of us does not end with participation in elections. There are also other forms of social activism, such as through the fact of requesting information about the activities of public authorities. This becomes a factual form of social control over the entities that administer public affairs on behalf of society and its various communities.
The implementation of this right is detailed in various legal acts and it is subject to regulation at various levels of the legislation in most countries. In order to present three different legal systems of freedom of information this comparison will describe and later assess the most important elements of Freedom to Information acts relevant to Illinois in the United States, to the European Union and to Poland.
II. IL FOIA Overview:
The Illinois Freedom of Information Act (FOIA) is the state law that governs access to public records. FOIA operates under the fundamental belief that citizens have the right to access information pertaining to the functioning of their government. This legislation empowers citizens to actively oversee the conduct of public officials and enforce their accountability.
In the state of Illinois, FOIA is an instrument of public policy that ensures every individual has the right to obtain comprehensive and unrestricted information regarding governmental affairs, official acts, and policies of public officials and employees. Furthermore, this policy emphasizes the necessity for public bodies to conduct their actions and deliberations in a transparent and open manner.
The legislature has declared that “access [to government records] is necessary to enable the people to fulfill their duties of discussing public issues fully and freely, making informed political judgments and monitoring government to ensure that it is being conducted in the public interests.”
- Legal basis:
The United States legal system allows every state of a federation that is the United States of America to adopt their own state version of certain laws. Therefore, the scope of the Illinois Freedom of Information Act can be different from the scope of equivalent law adopted in Wisconsin or Michigan. The Illinois Freedom of Information Act, adopted in 1989 by the General Assembly of Illinois and most recently updated in 2010, is a series of laws designed to ensure that the public has access to public records of government bodies at all levels in Illinois.
Typically for the United States legal system, a case law relevant to the Freedom of Information Act on federal or state level must be taken into consideration when it comes to interpretation of its provisions – “the legislative history of the FOIA reflects the explicit intention that case law construing the federal Freedom of Information Act is to be used in Illinois to interpret the Illinois Act”.
- Scope of the Act:
The scope of the Act encompasses any entity classified as a public body. The term “public body” is defined in a comprehensive manner, encompassing legislative, executive, administrative, and advisory bodies at the state level, as well as state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts, and all other municipal corporations. Additionally, it includes various boards, bureaus, committees, and commissions within the state, along with any subsidiary bodies associated with the aforementioned entities, including but not limited to their committees and subcommittees.
In contrast to numerous other states, the judicial branch in Illinois is granted complete exemption from the obligations and provisions of the Freedom of Information Act (FOIA). While the Illinois FOIA does not specifically address the judiciary, through case law the courts have decided that the exclusion of the judicial branch from the definition of “public body” in the FOIA statute implies its exemption from FOIA requirements.
- Enforcement of the Act:
The Illinois’ FOIA grants individuals the ability to seek information from the government, serving as a crucial tool for ensuring accountability of public officials and the government. When making a request, individuals have the opportunity to obtain information in different formats, including documents, datasets, and electronic communication such as emails and texts. To comply with FOIA, a public body is obligated to conduct a reasonable search for records based on the specific circumstances of the case.
5. Grounds for refusal and appeal:
- Grounds for refusal:
The Illinois FOIA sets out specific categories of exemptions. The Illinois Supreme Court has held that, under the FOIA, “public records should be interpreted as open and accessible; however the Act also stipulates that there are exceptions to disclosure which should be read narrowly”. The Act stipulates that the decision to utilize any applicable exemptions is left to the discretion of the authority, whereas the release of non-exempt material is obligatory.
A catalog of exemptions includes among others: 1) Federal or State Law Exemption; 2) Private Information; 3) Personal Information; 4) Law Enforcement and Administrative Enforcement; 5) Correctional Institutions; 6) Records Requested by Committed Persons; 7) Preliminary drafts; 8) Trade Secrets and Commercial Information.
If an individual is refused access to public records by any public entity excluding the General Assembly and its committees, commissions, and agencies, they have the option to submit a review request to the Public Access Counselor (hereinafter PAC) appointed within the Office of the Illinois Attorney General.
If a public body rejects a FOIA request, the appeal process can be initiated by either contacting the PAC within the Office of the Illinois Attorney General or by approaching the circuit court. The Public Access Counselor serves as an ombudsman and is responsible for making determinations and potentially facilitating mediation in cases involving FOIA disputes. The specific guidelines and timeframes for presenting arguments before the PAC’s office are outlined in 5 ILCS 140/9.5.
- Administrative appeal:
The PAC, which operates under the Office of the Illinois Attorney General, holds authority to settle and mediate FOIA disputes. If a public body claims that certain records are exempt according to the relevant statutes provided in the FOIA, it must inform the requester and the PAC in writing within the specified response time, indicating its intention to deny the request either partially or entirely. Subsequently, the PAC will assess the validity of these exemptions. Additionally, the PAC has the ability to issue binding opinions, which are regarded as final decisions made by an administrative agency, and can be used for administrative review under the Administrative Review Law.
In summary, “the Attorney General may choose (1) to issue a binding opinion pertaining to a request for review; (2) to issue an advisory opinion pertaining to a request for review; (3) to mediate a dispute; or (4) otherwise address the matter without the issuance of a binding opinion”.
There are no other administrative appeal procedures provided by the FOIA. Only a binding opinion is appealable—an advisory opinion is not.
- Court action:
If an individual is refused the opportunity to examine or obtain a copy of a public record by a public body, they have the right to initiate legal action seeking injunctive or declaratory relief. Similarly, a public body has the option to file a lawsuit in order to initiate an administrative review of a binding opinion issued by the Attorney General.
The court holds the authority to prevent the public body from withholding public records and can issue an order for the release of any public records that have been improperly withheld from the individual seeking access. In any legal proceeding before the court, it will review the matter anew (de novo) and may conduct a private examination (in camera) of the requested records as it deems necessary. This examination aims to determine whether any portion of the records can be withheld under any provision of FOIA.
The court will also require the public body to provide an index of the records, including a description of each document and the specific exemption claimed, for which access has been denied.
III. EU FOI Overview:
1. EU FOI objective:
The European Union has its own Freedom Of Information (FOI) law, called Regulation 1049/2001 on access to EU documents. It applies to all EU bodies, including the three main institutions (European Parliament, European Commission and Council of the EU), all EU agencies (such as the European Medicines Agencies, EU border agency Frontex or Europol), and other EU bodies such as the EU’s military missions.
The first two motifs (which serve a role of preamble where legislator explains its motivation for adopting specific law) of this regulation state that:
(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.
2. EU FOI legal basis:
- Article 15(3) of the TFEU (Treaty on the Functioning of the European Union) gives EU citizens, residents and businesses the right of access to documents of the EU institutions, bodies, offices and agencies subject to certain principles and conditions.
- The Regulation 1049/2001 lays down the general principles and limits on access. It aims to ensure that citizens can exercise their right of access in the easiest possible way. Access can be requested to all documents drawn up or received by an institution, in all areas of EU activities.
3. Scope of the law:
In contrast to most national Freedom of Information laws in Europe, the EU FOI law specifically focuses on access to documents rather than access to information. This implies that individuals can make requests for documents held by EU institutions rather than seeking general information. It is not necessary for the applicant to have prior knowledge of the specific document they are requesting. For instance, an applicant can submit a request for “all documents containing information about” a particular topic or relating to an event of interest.
This is outlined in Article 3 of Regulation 1049/2001, where ‘document’ is defined: “Document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility”.
4. Enforcement of the law:
- The public must apply for access to a document in writing (including by electronic means) in one of the official EU languages. The applicant does not have to state reasons for the application, but has to be precise in their request.
- Institutions must promptly handle applications for access to a document. They must acknowledge receipt of the application and, within 15 working days of registering it, either grant or refuse access to the document requested. This deadline may be extended once by another 15 working days.
- In the event of total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position. The applicant may access documents either by consulting them on the spot or receiving a copy of them, or by receiving information on how to easily obtain them.
5. Grounds for refusal and appeal:
- Grounds for refusal: The fundamental premise of the EU FOI law states that “all documents of the institutions should be accessible to the public.” However, the law sets out a limited (9) series of exceptions where institutions can deviate from this principle and refuse access to a document. These exceptions are outlined in Article 4 of the EU FOI law and encompass a defined set of reasons. These reasons include the protection of public security, preservation of commercial interests, and safeguarding the decision-making processes of institutions.
- Appeals: If an institution has refused access to the document an applicant is requesting, he has the right to file an appeal. If appeal is also refused, there are two options to further challenge this refusal: filing a European Ombudsman complaint, or taking the EU institution to court.
IV. PL FOI Summary:
- PL FOI objective:
In Poland Freedom of Information is realized by the right of access to public information, which in this country is covered by constitutional guarantees. It is one of those constitutional solutions that both strengthen state institutions and empower citizens. It is noted that it not only constitutes a basic condition for the transparency of public institutions, but also allows for the reuse of information produced by public sector institutions and those performing public tasks. The possibility of access to information on the activities of public entities and those implementing public tasks is also one of the conditions for effective prevention of corruption.
- PL FOI legal basis:
- The right to public information in Poland derives from the Constitution of the Republic of Poland. Indeed, the provision of Article 61(1) of the Constitution indicates that a citizen has the right to obtain information about the activities of public authorities and persons performing public functions.
- The Act on Access to Public Information (AAPI) regulates the scope and procedure of providing information. It is therefore a significant legal act, thanks to which the principle of transparency of public life has broad impact. The application procedure specified in the Act is a procedure that allows the applicant to obtain the information he expects, in the term regulated by act. Thus, it is a procedure thanks to which the right to obtain public information is realized in the most complete way.
- Scope of the law:
According to Art. 1 of the AAPI, public information is any information about public affairs. The catalog of information that counts as public is contained in the provision of Article 6 of the AAPI, and it is, among other things, information on domestic and foreign policy, including information on the actions of the legislative and executive authorities, the legal form of certain entities, their organization, object of activity and competencies, on the ways in which public law acts are enacted, positions on public affairs taken by public authorities and by public officials as defined by the Criminal Code, on public assets. However, this is not a closed set, and the subject of public information is much broader, often shaped by the case law of administrative courts, which play an important role in this regard.
According to the Art. 2(1) of the AAPI, everyone (regardless of the legal form of the entity in question) has the right to request public information. Obligated to provide public information and, at the same time, the addressees of requests for public information are the entities specified in Article 4 of the AAPI, and these include public authorities and other entities performing public tasks.
- Enforcement of the law:
The AAPI regulates three modes of providing public information:
- The first mode is publication of information in the Public Information Bulletin, which every public authority should have. The Public Information Bulletin is considered to be the basic, application-free mode of making public information available, constituting a compendium of public information and excluding the need to make the information contained therein available by means of an application.
The purpose of granting access to public information is to enable citizens to acquire any relevant information regarding the actions of public authorities, including individuals carrying out their duties, as well as the activities of entities engaged in public tasks. Therefore, a “public matter” is primarily the activities of public authorities, economic and professional self-governing bodies, as well as individuals and organizations involved in carrying out public tasks and managing public assets, such as municipal or state-owned property. Therefore, the term “public matter” should be broadly interpreted as any activity in public affairs, that is, concerning the interests and welfare of the public.
- The second mode of access to information under the AAPI is admission to the meetings of collegial bodies of public power from popular elections. Thus, everyone is entitled to attend the sittings of collegial bodies, but only those that are elected by popular vote.
According to the AAPI provisions, meetings of collegial bodies of public authority from popular elections and collegial subsidiary bodies of bodies from popular elections are open and accessible. With regard to auxiliary bodies (such as committees of the municipal council), the legislator formulated an additional stipulation, according to which their meetings are open and accessible if the provisions of laws or acts issued pursuant to them so provide, or if the auxiliary body so decides.
The said bodies and subsidiary bodies are obliged to provide the premises and technical means for exercising the right of access to their meetings. There is also an additional obligation imposed on them to prepare and make available minutes or transcripts of their deliberations, unless they prepare and make available audiovisual or ICT materials that fully record those deliberations.
- The third mode of access to information under the AAPI is the application mode.
- Form: the application is deformalized, as it is sufficient to indicate in it what information is to be made available and in what form. Since the AAPI does not specify the form in which the application is to be submitted, it should be considered that the application may be submitted in writing, orally, or by email, among others.
- Deadline: the deadline for providing access to information upon request shall be without undue delay, but no later than within 14 days from the date of such request. However, if this deadline cannot be met, the obligor of providing public information must notify the applicant of the reasons for the delay and provide a new deadline for processing the request, not exceeding 2 months from the date of its submission.
5. Grounds for refusal & Appeal:
- Grounds for refusal: a refusal can only be stated due to the existence of the prerequisites specified in the provision of Article 5 of the AAPI, and these are: statutorily protected secrets, the privacy of the individual, the secrecy of the entrepreneur, unless they give up their right. It should be added, however, that this limitation does not apply to information about persons performing public functions, having to do with the performance of such functions, including the conditions of entrustment and performance of functions.
- Appeal: If a public body has refused access to the document an applicant is requesting, he has the right to file an appeal. If appeal is also refused in order to further challenge this refusal it is necessary to take the public body to the administrative court. Additionally, a complaint to the PL ombudsman can be made.
In this section, a comparison of three above mentioned Freedom of Information laws will be presented and later reviewed on a basis of conclusions that can be observed when comparing Illinois’s Freedom of Information Act, Regulation 1049/2001 on access to EU documents and the Act on Access to Public Information.
|IL FOI||EU FOI||PL FOI|
|oversees the conduct of public officials and enforce their accountability; enables the people to fulfill their duties of discussing public issues fully and freely;ensures that government is being conducted in the public interests.||enables citizens to participate more closely in the decision-making process;guarantees that the administration enjoys greater legitimacy and is more effective and more accountable;contributes to strengthening the principles of democracy and respect for fundamental rights.||constitutes a basic condition for the transparency of public institutions;allows for the reuse of information produced by public sector institutions and those performing public tasks;prevents corruption by providing a possibility of access to information on the activities of public entities and those implementing public tasks.|
In every considered version of Freedom of Information law, it serves as an instrument to ensure and exercise certain rights that are accorded to citizens. In the example of Illinois FOIA, this act focuses mainly on oversight and control of public officials and in that perspective provides the citizens with solutions that allow them to actively participate in governmental affairs.
However, EU FOI is an act that puts more pressure on inclusion of citizens in the decision making process which is seen as a realization of the concept of openness. This concept in European Union law is considered to be a principle of democracy and therefore states a guarantee of legitimacy of the EU institutions and their accountability.
In the case of PL FOI, this act aims to serve as a tool for ensuring transparency of public bodies by providing citizens with access to information which can be used as a measure to counter corruption and also as a value that can be later reused by society.
2. Legal basis:
|IL FOI||EU FOI||PL FOI|
|a series of state laws adopted as a Freedom of Information Act by the General Assembly of Illinois; relevant case law that is indispensable for interpretation of the act and its use.||Regulation 1049/2001 on access to EU documents; |
certain general provisions of constitutional character enshrined in the Treaty on the European Union and Treaty on the Functioning of the European Union.
|Act on Access to Public Information; art. 61 of the Constitution of Poland providing access to information.|
In this case, the differences between three Freedom of Information laws are more distinctive. Illinois FOIA is a state law that is only applicable to the state where this act was adopted. The nature of the United States legal system results in lack of uniform application of this type of law countrywide which can lead to the situation where the level of guarantees and protection under Freedom of Information law can vary from state to state. Nevertheless, the case law relating to FOIA is indispensable to its effective interpretation.
An above-mentioned situation would not be possible in the European Union. Although the EU is a federation of Member States, its own FOI applies to the EU institutions in the uniform manner across 27 countries forming the European Union and it accords certain rights to the citizens of Greece, Sweden or Poland alike as long as they are EU citizens. Furthermore, in the EU the rights relevant to freedom of information like transparency or openness of government are not only laws adopted by a legislative body but they have a higher position in hierarchy of laws. Their constitutional character results in strong safeguards and guarantees in the process of their application and must be taken into consideration in the perspective of case law that very often can broaden them.
Poland’s situation is more similar to the EU system as Poland is one of its Member States, nevertheless freedom of information in regards to the government is a sole competency of Member States and they are not obliged to follow the EU’s example in this case. Like in the case of the latter, PL FOI is a nationwide law that applies in a uniform manner to every Polish citizen and the public body forming the Polish government either on a state or local level. It is also a constitutionally protected right conferring to it a higher standard of protection which also must be respected in regard to the case law.
|IL FOI||EU FOI||PL FOI|
|provides access to documents containing information and not information itself; applies to every entity defined as a “public body” including legislative, executive, administrative, and advisory bodies at the state level;does not apply to the judiciary as it is not considered to be a “public body” according to the case law.||provides access to documents containing information and not information itself; applies only to the EU institutions, its bodies, offices and agencies;applies to all areas of EU activities including legislative, executive and judiciary branches in this context.||provides access to any information defined as a “public information” which is any information about public affairs;includes legislative, executive and judicial branches as long they are defined as public authorities and other entities performing public tasks.|
In this place, it can be observed that between three legal systems referring to the freedom of information there are some noticeable similarities and differences. The Illinois’s FOIA provides access to documents containing requested information however this access applies only to “public bodies” which is a set defined by the case law. However, there are limitations to this access which are the product of case law – the judiciary branch in Illinois is excluded from the FOIA’s scope.
In example of the EU FOI, there are some similarities between this system and the Illinois one. Similarly to the previously discussed case, the EU FOI also provides access to documents containing the information rather than the information itself. However its scope is broader as it encompasses legislative, executive and judicial branches in the perspective of EU institutions and their activities.
Nevertheless, the situation of PL FOI is quite different than EU and Illinois one as it provides access to information without differentiating between documents containing information and the information itself. In this case, every entity that is subject to the definition of entity performing public tasks must provide information which is subject to the definition of public information. Nevertheless, it does not assume a situation where one of the main branches of government is excluded from its scope like it is in the case of Illinois FOIA.
|IL FOI||EU FOI||PL FOI|
|individuals are granted the ability to seek information from the government through requests;individuals have the opportunity to obtain information in different formats, including documents etc.;a public body is obligated to conduct a reasonable search for records.||public must apply for access to a document in writing (including by electronic means);EU Institutions must promptly handle applications for access to a document; EU institutions within 15 working days of registering it, either grant or refuse access to the requested document.||information is provided through publication in the Public Information Bulletin, which every public authority should have;information can be accessed through admission to the meetings of collegial bodies of public power from popular elections; access to information is provided to anyone irregardless of their legal form through application mode (deformalized with default deadline for a response in 14 days).|
In the regard to the enforcement of access to information under Freedom of Information laws, the most basic and common solution is an application mode which is provided in every discussed legal system. The IL FOI grants individuals the possibility of requesting information from the government which is obliged to conduct a reasonable search for records which should be disclosed in different formats other than the most common document form.
In the example of EU FOI, the application mode is also the most basic solution provided to the public which can access information through use of request. The EU institutions are required to handle requests promptly and grant or refuse access within imposed time limit (there are further steps envisaged under EU FOI however they also state a reason for starting an appeal procedure).
Similarly to IL and EU FOI, Polish version of the act also provides possibility to use the application mode which is available to everyone independently of their legal form and presupposed deformalized request that can be submitted in writing, orally or electronically. Nonetheless, in the same act PL FOI also provides the public with two other ways of accessing public information. The first one being publication in the Public Information Bulletin which to certain types of information for specific public bodies is mandatory to fulfill. The second one is admission to the meetings of collegial bodies of public power from popular elections which these collegial bodies are legally obliged to provide.
5. Grounds for refusal and appeal:
|IL FOI||EU FOI||PL FOI|
|the act sets out specific categories of numerous exemptions being a product of case law which can be used by a public body in order not to disclose requested information; refusal to disclose public information can be appealed through administrative appeal which is addressed to the PAC (Public Access Counsellor);another form of appeal is to take a court action against public body which refused to disclose requested information.||the act sets out a catalog of exemptions of general character including protection of public security, preservation of commercial interests, and safeguarding the decision-making processes of institutions;refusal to provide access to the requested document can be appealed through court action against EU institution;refusal can be also appealed by filing a complaint to the European Ombudsman.||the act sets out a catalog of limited exemptions of general character including statutorily protected secrets, the privacy of the individual, the secrecy of the entrepreneur (further conditions apply); refusal to disclose requested information can be appealed to the same institution that has refused access; further step is to start the appeal procedure before the administrative court; a complaint to the PL Ombudsman is also a potential way of filing an appeal independently of result of court proceedings.|
The grounds for refusal and appeal procedure are probably the most complicated and complex part of this comparison. The three legal systems of freedom of information have different scopes and are rooted in different legal traditions however there are some common elements between them. In the case of IL FOI, like all three systems it provides a catalog of exemption, however due to the importance of case law in the US legal system this catalog is most complex and detailed. An appeal process involves lodging an appeal before the PAC which under IL FOI has a specific role of resolving disputes related to the freedom of information issues which is of significant value as it is the only specialized appeal body in three. Another possibility of appeal is to take a court action against a public body which constitutes a standard legal solution.
In the case of EU FOI the grounds for refusal are clearly stated in the act however they are of more general character then in the previous case of IL FOI. They invoke broad concepts like protection of public safety, commercial interests or decision-making process that can be efficiently used by the EU institutions in order not to disclose requested documents. Refusal to disclose requested documents can be appealed by taking an EU institution to court (however the court in question, The Court of Justice of the EU, is also an EU institution) or by filing an appeal to the European Ombudsman. The latter is the least effective solution because EU institutions are not bound by the European Ombudsman opinions.
The PL FOI, similarly to the EU FOI, provides a set of broad exemptions of general character which is characteristic for a legal system where courts do not rely on case law to the extent of the US legal system. The appeal procedure presupposes a further pre-court step where the public body who has previously refused to disclose the requested information is sent a request with an intent of reconsideration. In the Polish legal system an appeal is handled by the administrative courts which are a separate part of the judiciary branch. Nevertheless, the Ombudsman can also play a part in the court proceedings if in specific case a violation of certain rights is present.
The goal of this comparison in the first place is to describe the main elements of three legal systems of freedom of information that exist in Illinois in the United States, in the European Union and in Poland through specific acts adopted in that context. It must be taken into account that these three legal acts are rooted in different legal traditions and they are subject to different systematic solutions.
In the second place, this comparison aims to provide its readers with information about common grounds and differences in the context of various elements of freedom of information laws in the previously mentioned three legal systems. Through selecting the most basic principles that can be found in every discussed act these differences and similarities can be viewed more clearly even if their scopes vary from one another sometimes to the big extent.
The last and most important goal of this comparison is to present a certain conclusion that can be used to ignite a discussion concerning what can be improved in every one of mentioned legal system and what can be translated from one act to another in order to make freedom of information more accessible and efficient.