By Joan Barata 

Introduction

The right to information is a fundamental right that encompasses two main aspects: a) the positive obligation of the public (and some private) bodies to provide, publish, and disseminate information about their main activities, budgets, policies, and plans, and b) the right of all persons to ask public officials for information about what they are doing and any documents they hold and the right to receive an answer.

The right to information, also known as the Right to Know or the right to Freedom of Information, is rooted in the broader right to freedom of expression, protected under international and regional human rights law. In light of this, national Governments, agencies, legislators, and the judiciary bear the responsibility to take all necessary measures and steps to effectively guarantee both the active disclosure of information of public interest under the direct or indirect control of the State and the right of any individual to request such information.

As a component of the right to freedom of expression, the right to information is not absolute and can be subjected to certain conditions, restrictions, and limitations. These restrictions must adhere to the three-part test established under international and regional human rights standards (legality, legitimacy, and proportionality). If the State restricts access to certain information, it is the State’s responsibility to prove that these restrictions comply with the standards of international law. Exceptions to the general rule of access to public information, in line with the maximum disclosure principle, must be exceptional. In case of doubt, transparency and access to information should prevail.

This policy brief will focus on a specific aspect of the interpretation and implementation of exceptions to the right to information: the so-called public interest override.

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Senior Legal Fellow 
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Joan Barata is a Senior Legal Fellow for The Future of Free Speech. He works on freedom of expression, media regulation, and intermediary liability issues.