Int. j. econ. manag. soc. sci., Vol(3), No (11), November, 2014. pp.

732-741

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International Journal of Economy, Management and Social Sciences

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ISSN:
2306-7276

Copyright 2014. All rights reserved for TI Journals.

The right of information and free access to information

Amir Kondori*
Department of law, university of zabol, Iran

Mohammad Noori
Department of law, university of zabol, Iran

Mohammad Mahdipour
Department of law, university of zabol, Iran
*Corresponding author: am.ko@uoz.ac.ir

Keywords

Abstract

The right of information

Freedom of speech
Democracy
Determining future
Governmental documents

The right of information is one of the citizenships rights that has broad dimensions. On the one hand, the right of
search with having access to information can be counted one of the most important elements of freedom of speech
and on the other hand, democracy cant guarantee a clear future without guarantying the right of information. The
right of information has two narrow and broad meaning. This right in its narrow meaning takes in to account the
freedom of seeking information but its broad meaning is consist of the right of access to information or the right
of receiving information. Sometimes policy of agents can limit public cooperation for obtaining information from
government and governmental elements that have information. Freedom of information requires the right of
access to information under control of public authorities and this right not only has been identified for long term
as a requirement for democracy and accountability of authorities and public effective participation, but also is
protected as one of the fundamental human rights under international and constitutional laws of countries.
In this research, were going to explain the difference of freedom of information with other freedoms in addition
to explanation of its meaning and principles. Also, about the right of participation in determining future, I want to
remind that Nowadays without access to public information citizens will not be able to participate in public
affairs, directly or indirectly. As a whole, I want to mention that, principles of citizens right to have access to
governmental information and documents and basic principles for legislation about freedom of information.

1.

Introduction

Access to accurate information on National and International issues and events, and freedoms of Press, print and publish, establish publishing
houses, ban censorship, attempt at objectivity and healthy of Press and establishing accurate rules on media like: radio, television is considered
of peoples right in benefit from information in democratic government.
Many people believe that contemporary age must be called information age. Different studies, formal studies and also different governmental
documents around the world shows that information is the most important reserve and source of 21 century. With various changes that occurred
in the meaning of democracy and increasing citizen-centered approach in policy-making area, peoples information and benefit from correct
information especially in public welfare is one of the essential prerequisites in the processes of public decision and is unavoidable for effective
control on performance of political and economic authorities. If governments want to give people a greater rule in managing their affairs in longterm and give more responsibility in social and political groups, it is necessary to provide people with more suitable facilities and tools.
Governments cant keep people in unawareness in excuse of expedient, if people dont know what happens in their society and if rulers acts be
concealed from them, how they can share in determining their future or management of social affairs.
Government accountability, reinforces democracy all over the world as some people have called information as democracys oxygen. Legal
protection of this right provides increasingly conditions for democracy to be consolidate. The right of access to information, the right of freedom
of speech, the right of political participation are all freedoms that make easy perpetuation of peoples sovereignty in the Islamic Republic. Oblige
government to release information about government performance can increase general knowledge. Put pressure on governments for releasing
details of events with giving information leads to public information in broad level and will be a base for informed decision.

2.

Conceptualism

2.1 Freedom of information

Freedom of information is a term that was forged in the United States for first time and it is somewhat misleading in its meaning. One might
think, the meaning of this term is releasing all kinds of information but it isnt a correct idea and its meaning is, the right of public access to
existing information of public organizations and institutions. The law of some countries has a more specific meaning about this kind of freedom
which shows its content, too. For example, this term is used in the meaning of access to administrative documents in France1 and used in the
meaning of access to information in Canada2 .
2.1.1 The right of access to information
The right of access to information means product and result of information and on the other hand, freedom of information. The meaning of the
right of access to information is that any member of society can request to have access to information which is kept in one of the public or
sometimes private institutions at any time. That institution can reject his request on the base of written and clear reasons.
1
2

Loi no 78-753 du 17 juillet 1978 de la liberte d acces au documents administratifs

Access to information Act

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2.1.2 Difference with other freedoms

The right of access to existing information in governmental institutions is considered as one of the main tools of speech and Press freedoms
because is counted the most important tool for providing necessary and accurate information for applying the said freedoms. Nevertheless,
freedom of information is not equal with freedom of speech and Press and has a different meaning. In many documents and international
conventions like: universal declaration of human rights, international covenant of civil and political, African charter on human rights and people,
American convention of human rights andis mentioned that freedom of information is one of the most important bases of freedom of speech
and these freedoms are inseparable of each other.
Because of this, people who have the right of freedom of speech, they must also have the right of access to information but it must not be forgot
that access to information isnt necessarily for the sake of expressing them and expression is just only one of its functions. So, freedom of
information is a category which must be protected independently from freedom of speech and must not just be focused on the right of access to
information disseminating protections of freedom of speech.
Additionally, freedom of speech is one of the civil and political freedoms which only citizens and people of private law have that and
governmental authorities and people of public law havent that. Freedom of information is an expression of expressing information by
government but when government makes its information available to people, it cant be said that it uses freedom of speech because it just do its
duty to inform. Also, the right of access to information on the base of freedom of information has individual aspect. Press are equal with people
in having this right and in fact, they have the right of access to governmental information like one of people of private law. Nevertheless, Press
usually try to have access to information to publish them while freedom of information may allow to access information that is prohibited to
publish.
2.2 Freedom of speech
One of the related topics to the right of access to information and one of the principles of this right is the right of freedom of speech. In this
topic, relation of freedom of speech and the right of access to information and dependence of the right of access to freedom of speech and also
the importance of the right of access to information for complete realization of freedom of speech will be discussed.
People and thinkers have paid attention to freedom of speech from long time ago and discuss and protection of it is not limited to a special
geographical area or period of time. As ancient Greek philosophers and great men of Islam in addition to obliged people to enjoin others to good
works and forbid them from bad works, encouraged them to express their ideas and criticisms towards government, freely. As an example, Imam
Ali, Peace Be Upon him, said: Dont think about me which if you tell truth words, it is hard for me to accept and dont think I want to count me a
great person; because a person for who hearing truth words or showing justice is hard, doing right and justice is more harder3.These duties and
encouragement all require the existence of freedom of speech.
Freedom of speech is known as one the fundamental freedoms of human and it is said that freedom of information and freedom of speech are
infrastructure of all freedoms that United Nation try to gain them4.
Additionally, in the second paragraph of article2 of constitution of Islamic Republic of Iran is mentioned that one of the government duties is to
increase public information in all aspects by correct use of Press and media and other devices. Also, in the seventh paragraph of the same article
is mentioned that, the other duty of government is to secure political and social freedoms on the framework of law which certainly one of
freedoms that government is responsible for its security is freedom of speech. Because there are few people who would deny freedom of speech
and if there is any disagreement, it is about its scope and limitation not itself.
Various changes of the meaning of freedom of speech since the publication of the first declaration in protection from this freedom by John
Milton (English poet) in17 century until now contains different stages.
In the first stage which contains since John Miltons defense until the end of World war2, the emphasize has been on advocating of freedom of
information.
The second stage, starts after the World war2. In this stage different factors lead to change of the previous view. For instance, Marxist theory
about human rights takes under question the previous view and calls the first generation of human right which also contains previous meaning of
freedom of speech only apparent freedoms and believes that providing necessary conditions and specially economic conditions for realization
of freedoms is a matter which is important very much. In this view, different freedoms are really realizable only when favorable environment
and necessary conditions be provided. So, is not enough to mention only freedoms in a document.
In the third stage of change in the meaning of freedom of speech, in the late seventies of the twentieth century and with confirmation and
expansion of ideas which were created after World war2,we can see the emergence of a new meaning of freedom of speech which is called: the
right of being informed.
Of course first, universal declaration of human rights noted implicitly to this meaning and shortly thereafter, the Vatican religious authorities
referred to it explicitly. Some count the right of access to information one of the fundamental human rights like freedom of speech.
But on other hand, many others dont recognize this right like this, yet. Because international documents dont specifically refer to the right of
access to the existing information in public institutions, directly. And on the other hand this issue has not been discussed when articles related to
freedom of speech inserted in the universal declaration of human rights or universal covenant of political civil rights. Even, when the draft of
European convention on human right was written, many countries opposed to Sweden efforts for making relation between the right of access and
freedom of speech.
But, people who dont accept that the right of access is one of examples of freedom of speech, they count it an independent right that can help to
the freedom of speech and at last they accepted that the relation between freedom of speech and the right of access is undeniable.
But anyway, it should be accepted that today freedom of speech is not just a negative freedom. Aside from the fact that government must not
prevent from free speech, it must be accepted that it has some duties for realization of this freedom and must provide necessary contexts. The
right of access to existing information with government is also one of the most important contexts for complete realization of freedom of speech.

3.

The right of participation in determining future

In addition to what has been said about freedom of speech, the right of access to information has an important place in relation to complete
realization of the right of participation in determining future. In this discussion, it will be shown that due to deep correlation between the right of
access and the right of determining future, the positive reasons of the right of determining future can be regarded as related to the right of access
3
4

M. Ray Shari, 1379, page46

Hashemi, 1384, page350

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and these two are somehow correlated. In addition to the right of access is one of the effects and consequences of the right of determining future,
complete realization of the right of determining future without guarantying the right of access to governmental documents and information will
be shaken.
It has been said that according to the natural laws order nobody can give others guardianship and arbitrary domination on itself5 and even in the
societies that there isnt democracy, it is necessary that people supervise government action.
In the introduction of the constitution of the Islamic Republic of Iran has been written that the purpose of establishing government is to help
people to develop in moving to Gods government (And all return to God)in order to gain Gods attributes( get decorated with God Ethics )and
this cant be until there isnt broad active participation of all social members in the process of change in the society. According to this,
constitution provides the context of such participation in all levels of political and decisive decisions for all members of society in order to in the
path of human development everybody be responsible for going forward and leadership. This will be the same realization of the oppressed on the
earth.
The origins of the right of peoples participation in determining future also can be seen in Islam which can refer to the issues like: counseling
(And consult about your affairs with each other) Shora sura, verse38 and also (..and counsel about affair with them) Alomran sura, verse159,
allegiance and ways, public control like: the right of advice, enjoin to good works and forbid from bad works 6.
So, while in the eighth article of constitution is written that, enjoin to good works and forbid from bad works is peoples duty towards
government, its requirement which is peoples information must also be provided and no doubt, one of the most important tools for this, is the
right of peoples access to information and documents that are with government. As a result, the right of access to governmental documents and
information is also came within the right of determining future(the right of having democracy) like the right of freedom of speech. The
commission of human rights in the resolution entitled extension of the right of having democracy emphasized that one of the related issues to
the right of determining future is the right of freedom of inquiry, gaining and expanding information by different media and also clean and
accountable government institutions.

4.

Determining future about information

The right of determining informational future is one the related issues to determining future and is rather a new concept which has very close
relation to the right of access to information. This concept is originated from Europe continent and specially constitution court of Germany and it
is also recognized in other liberal democracies and considered in the laws of human rights of Cuman Lamurd countries.
This concept states that peoples right in controlling and giving ideas about information that being published about them and also conditions of
use and maintenance of related information to him by government. In the countries like: Germany and Hungary which have had tyranny before
that, there is much sensitivity to this issue. But, this sensitivity is not limited to these countries and for example in England, information
commissioner of this country stated his worry about the risk of information integration in 2004.
From the applied-administrative view, this worry is a little strange. If people dont have any ill will, why they should fear that government
officers can access to the information that are with governmental institutions? For example, if a person doesnt want to escape from paying tax,
why he should worry about this issue which tax officers access to his social information? In reply, it has been said that the philosophy of limiting
different governmental institution to access to all individual information of a person is to dont lose confidence that citizens have in government.
Because, with enormous volume of information that governments have about people, distrust of people towards governmental institutions about
this, is completely reasonable and probable.
The right of access takes on more importance of the view of human rights in this concept because for protection from civil freedoms it is
necessary that everyone who thinks that government breaks his rights, especially by applying favoritism, he must have access to governmental
information for proving his claim. People who are also encounter statutory accusations must have access to documents and testimonies that are
related to penal accusations and can help them to prove their innocent.
Of course in this concept, the right of access to information isnt only consisting of access to existent information that are with government and
also contains existent information with private organizations. The later view, becomes more important day by day because for example, wrong
credit classification (by banks or other powerful private organizations) can easily damage private life of people. The right of determining
informational future has also a close relation to other contexts like: privacy and human dignity7.

5.

Transparency

The freedom of information is not only necessary for people but also it is unavoidable for a good government. A corrupt government needs
dissimulation for continuing to exist. Dissimulation will allow inefficiency and wastefulness and corruption to continue to exist. nevertheless,
most governments(even democratic one) prefer to conceal their affairs and find an excuse for their concealment.(national security requirements,
public order and interest are some of these excuses.)
Transparency also contains concepts like: simplicity and universality in addition to openness of government. Since democracy is a vague
concept, arguments that are related to the reason of its transparency and scope are also different.
The most important reasons that are discussed for necessity of openness of government are:
First, transparency makes easy controlling activities and where government authorities fail in their duties. This believe is on the base of this
supposition which power can lead to corruption. This is the most traditional perception of need to transparency. With different approaches, here
can separate two aspects from each other. From the individual view, controlling needs access to information that are related to ones position in
relation with government in order to can defend himself against political abuse. But, in the citizenship or social view, control is necessary to
prevent candidates for government from abuse.
The second justification for transparency which has more epistemological approach is tendency to promoting rationally, expert and efficacy in
the process of public decision and thus increasing public confidence in this process. Being open and specially accountability to criticisms
encourages participants in discussion to take more care in their beliefs and arguments. In fact, obligation to discuss in public makes essential
usually stating exact position, defending it against opposite unexpected arguments, considering opposite views, reveal argument processes that
one used, and explicit statement of principles that one resorts to them.
5
6
7

Katozian,1383,page99
Hamid Zanjani,1384,page287-306
Robertson,2004,page127

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The third justification (and probably the most important one) emphasizes on the accompanying of openness and the concept of citizenship as
participation in political affairs. In this justification, transparency is considered as one of the vital conditions of decision-making process which
is essential in a democratic society. This justification has more trend to ideas that are related to deliberative democracy. In this view, government
openness must not only limited to parliamentary control solutions But it must be consist of wide range different parliamentary solutions that
provide the possibility of citizens comment and participation in political processes by effective access to these processes.
Cover up is also reprehended in the Islamic texts. Separation of management from master and camouflage towards organizations forces under
management, makes away manager from facts and disrupts organizations relations and makes weak its control8.
One of the most important aspects of transparency is, fighting with corruption and freedom of information is considered one of the key tools for
this case. Press and non-governmental organizations can use this right to expose and uproot corruption. Universal non-governmental
organization(international transparency) that are established for fighting with corruption is allocated one of its annual reports completely to the
right of access to information in fighting with corruption and in the introduction of this report is written that the right of access to information
probably is the most important weapon against corruption.
These days, accompanying with rapid commercial progresses in the universal level requires transparency and the right of access to governmental
documents and information is one the unavoidable elements in this way. So, developing countries more need to confirm this right.

6.

Principles of freedom of information

6.1 Peoples participation and continuous control

In the recent ancestor, freedom of information is known as a require for participatory democracy and because of its useful functions is titled as
oxygen of democracy. Because, if people dont know what happens in their society and if actions of rulers and administrators be concealed from
them, how they can have role in running society and have an important share. One of the big criticisms that goes on against democracy is that
numerical majority cant be the reason for truth or accuracy of something. Perhaps one or a few informed people can think better than majority
and make more correct decisions. Freedom of information is an expedient for giving answer to this criticism and by virtue of this freedom public
information and specially information of governmental organizations must be accessible freely for everybody in society and except in
exceptional cases must not limit the right of public access to information. There in after, only numerical majority dont make decision but
majority of informed people about issues of the society are base for democratic decisions. In the past, public participation in government and
determining future was more during election days and after that selectors didnt aware of quality of affairs that their agent and choice did and
selected persons didnt oblige themselves to inform or give answer to people or their clients. But these days, this type of casual participation
must be replaced with broad participation and continuous control of people. People not only must choose their rulers and administrators but also
they must have this right to have access to information about how they act and ask them to inform them whenever they want. public
organizations must also be obliged to make available their information for people with observing some exceptions and take necessary steps to
accomplish this duty and in other word, freedom of information and the right of public access to information of governmental organizations is
the most important introduction of public control on government which is written in the eightieth article of our constitution.
6.2. Fighting with corruption
The right of access to existing information with public organizations is an important tool for fighting with office corruption in addition to
providing contexts for peoples participation in decisions about general issues and peoples control on performance of managers of society.
According to some authorities, transparency is one the most important keys for perverting corruption and protection of integrity of government.
When people be aware of amount of countrys budget, way of its allocation to governmental organizations and condition of its use, and contracts
that these organizations sign with different people and on different occasions, many areas of office and financial corruption will be disappeared.
Incompetent people cant easily enter in governmental organizations. Radical secrecy is a cover that conceals faults of government and its
officers and freedom of information tend to replace open government instead of it.
6.3 Information belong to people
The other base for defending freedom of information and the right of access to public information is that in a democratic society, the whole
government and its information belong to people. Rulers and administrators are peoples agents directly and indirectly. Accordingly, each owner
can have access to their properties and inform about the quality and quantity of managing it. Existing information with governmental
organizations doesnt belong to government but belong to people and government keeps them as peoples representative. People also can ask
their lawyers whenever they want to give them information about what he has done with public budget and how managed their affair in his
tenure period9.

7.

Accountability

At last, the right of public access to the existing information with governmental organizations is counted the introduction of governmental
accountability. When people inform about the quality and quantity of managing their affairs may tens questions or vague points will be
discussed. Accountable government, is a government that hears these questions and vague points and answers rationally to them.
So, the right of knowing is linked to accountability namely, main aim of all democratic governmental organizations, forever. If government
activities and decisions process be concealed from public control, informed judgment and peoples evaluations, Press and Parliament will be
difficult or even without any result.

8.

Science production

As mentioned before, the meaning of freedom of information, is the right of peoples access to existing information with public institutions. The
importance of this access from the view of science production is because of more scientific and technical and literary and artistic researches is
8
9

Amid Zanjani,1384,page501
Transparency international, 2000:238

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done in public organizations and institutions in some societies like our society. Valuable and diverse data are produced by the direct and indirect
helps of government and in the form of research contracts and free access to these data or information and complete publication of researches
results are vital for innovation system which is emphasized on the importance of it in laws and regulations of some countries and legal
mechanism is predicted for protecting it.
The orientation of civil and research policy-making system of some countries is such a way that help to produce and publish and expand and as a
whole making available the scientific data and results of scientific researches for scientists and researchers and all interested people, more and
more. So, especially researches and data that are produced in public research institutions or research or data that are collected and produced by
using governmental resources are in priority and is attempted to conduct the principle of availability of maximum of the said data and researches.
So, we should agree with thinkers who believe that data and information which is provided by government necessarily must be in public scope
and for all people and be separated from the scope of intellectual properties. The most important reasons for this offer are:
1. Governmental units unlike the authors and investors and publishers of private sector dont need to give ownership rights to data and
information that is produced by them to have enough motivation to continue their activities. Because they do their duties about
collecting data and research information on the basis of their competence and duty that they have about giving public services and not
for the purpose of gaining intellectual property.
2. About information that is provided by government, necessary costs is paid by tax payers, people,. So, it can be claimed that the rights
which derived from that information is belong to citizens who paid related costs to their production not to governmental units that
produced the said information on behalf of people.
3. With publishing and expanding governmental information and data via internet, many interests like: social welfare and realization of
cultural and educational values will be secure which is more valuable than economical interests which is derived from intellectual
properties.
In our country, universities, institutions, and related laboratories to universities or ministries of Industries and Mines, Jihad-Agriculture,
ministry of Health, Treatment, and Medical Sciences are also of the most public institutions of countries which have great amount of information
of data, analyses and results and research reports. Freedom of information means conducted researches by public budget and information and
their results belong to public and isnt exclusive. It is clear that access of scientists and researchers and even all people to the said information
can have a great role in expanding knowledge in society and also control on conducting researches in public institutions.

9.

Media and the right of access to information

9.1 Air waves

National radio and television in Iran, are the most important and accessible media in the country.article175 of constitution states that: in the air
waves of Islamic Republic of Iran, freedom of speech and expanding ideas must be secured in conformity with Islamic principles and countrys
interests. Ambiguities of this article in the meaning of freedom of publications and advertising and also change in the way of managing air waves
caused this article to be changed. Air waves is not a one dimensional institution in our country but it has social, public, and governmental
dimensions a therefore it cant act apart from these dimensions. Priorities of this institution must also be investigated on this base10.
9.2 Satellites
The emergence of satellites had great effect on the related legal issues to media. Before satellites and their expansion, freedom of information
had more direction in attention to transmitter and basically laying down the term of freedom of expression has more emphasize on transmitter. In
this period, the main use of satellites was also sending information from one TV station to another and majority of activities and products were
controllable around the territory11.
But when satellites became popular, government couldnt control transmitter and attention to the right of free access to information is product of
this changes in the media world. Third generation in the changes of freedom of speech was developed at the beginning of the 1980s12. In Iran the
approach of complete bow against satellite was considered. In 1373, the law of prohibition use of receiver equipments from satellite was
approved in Islamic parliament. According to this law, import, distribution and use receiver equipments from satellite except in cases where law
has set is forbidden13 . Users of receiver equipments from satellite will be sentenced to pay penalty, of one to three million Rials, in addition to
seizer and confiscation of properties which is founded14.
9.3 Press
Freedom of Press is a part of freedom of information and one of the fundamental rights. Press are the symbol of civilization of a nation and are
the sign of its development and awareness. The amount of growth and development of Press in every notion, shows the amount of its growth and
awareness. Every nation can be judged by its Press15. The scope of Press is also determined in the forth chapter of current Press law.

10. Global trends towards freedom of information

These days among all members of international society namely countries, inter-governmental organizations, civil society organizations and
people is observed that they trend to accept the right of benefit from information and according to many authorities this issue must be included in
the text of protection of human rights. In the recent years in order to realize this right, many laws of countries has provided regulations that make
binding this right. It is observed in many organization that they disclose and release information in a regular process.
In the contemporary world, criterions like accountability of officials and adopting appropriate governmental measures are points that have
attracted the attention of international observers and there are while, the right of benefit from information freely must be realized as
presupposition and introduction. Concealment and officials trend to secrecy hasnt any result except increasing abuse of power,
10

Saed Vakil, Constitution in the current rights order, page447

The office of national studies of youth, youth and satellites, page3
Shekar khah, Yunes, Cyber journalism(informational society and freedom of speech), pages200-201
13
Article1 of law of using receiver equipment from satellite
14
Article 9 of using receiver equipment from satellite
15
Motameni Tabatabai, Public freedoms and human rights, page101
11
12

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mismanagement, and dictatorship. On this bases, no government can deny officially the right of people to benefit from information or necessity
of transparency of public authorities actions as a fundamental principle of democracy and accountability of government towards people.
This right before be recognized as an underlying factor in democracy, is one the fundamental rights of human which has a deep relation to
inherent dignity of all human beings. As concerns this important issue, media have an important role. In fact, these public informational
institutions must act as an observer for authorities actions and be effective in increasing flow of information for public.

11. Freedom of information a human right under international protection

Freedom of information requires the right of public access to information that are under the control of public authorities and this right not only is
identified for a long time as prerequisite for democracy, officials accountability, and effective participation of people but also is protected as
one of the fundamental human rights by virtue of international laws and constitutions of countries.
Public right of access to information with government, has recognized over 200 years as law in Sweden legal system. But, in the past three
decades, we can see it is widely accepted in both countries and international organizations. In this period, governments, international
organizations, inter-governmental financial institutions has approved some laws and adopted policies that each of them contains principles for
access to information with public elements of government. Main core of the right of benefit from information must be found in the right of
freedom of speech. Freedom of information requires the right of research, receive, and transferring information and thoughts. In the other hand,
as a whole derived from democracy and the whole system of protection of human rights which without that system of protection of human rights
cant find any means and on this base freedom of information must be considered a basic human right which other rights are dependent to it.
Guarantying the right of benefit from information is dependent to its context be approved in the form of law and obligation to respect it clearly
be explained in the regulations or binding policies of international elements.
11.1 International standards
Some international organizations respect to legal and fundamental nature of the right of benefit from freedom of information in the course of
fulfilling their duties in order to increase and protect human rights as they accepted the need for effective legislation for secure the respect to the
right of freedom of information.
11.2 United Nations
In 1946, United Nation General Assembly with approving resolution (1)59 emphasized that the freedom of information is one of the most
fundamental human rights and freedoms that United Nation is established for its realization and invited economic and social council for
arranging a conference about that. This resolution expresses that: freedom of information is a fundamental human right and is a measure for all
freedoms that United Nations has stated and established to realize them 16. This conference was held in Geneva in1948 and three plans of
protocols that their titles were: protocol of collecting and distribution of international News, protocol of international right of correction and
international protocol of gaining information prepared and submitted which two first plans approved in General Assembly in1949 and the third
one was issued and announced as a declaration by economic and social council in1962.
In the later international documents, freedom of information is not considered as a separated subject but declared as a part of fundamental right
of freedom of speech which contains the right of research, receive and transfer information.
Also, United Nations has accepted the fundamental right of access to information under the control of government during the administration of
Bosnia Herzegovina and in1999, high representative who was sent to Bosnia Herzegovina17 is stated that approving regulations for freedom of
information according to the highest international standards for practical protection of the right of freedom of speech is necessary.
11.3 Inter-governmental organizations
Over the past decade, inter-governmental organizations have begun activities in order to acknowledge the right of access to information that are
with public authorities. These organizations become more important day by day in the life of people around the world. International economics
institutions especially in developing countries have this availability to impress natural macroeconomics policies and governmental plans and
structures like development priorities with their influence18.
International financial institutions also like United Notions have acknowledged the right of freedom of information on the base of democracys
principles like public participation in decision-making and public access to information. Among these institutions can refer to international bank,
development between American countries bank, group bank of African development, European and Asian development bank which noted to this
important issue between 1994 and 1996.
11.4 Commonwealth countries
The importance of freedom of information is acknowledged by Commonwealth countries over two decades and means the right of access to
information that are with government. The meetings result of justice ministers of commonwealth countries with Russia in 1980 was the
declaration of this issue: public participation will be complete in the process of democratic and governmental when citizens have enough access
to official information19.
11.5 European council
This inter-governmental organization contains 43 members who work to promote protection of human rights, education and culture and one of
its fundamental documents is European convention of human rights20 .
Member countries must guarantee the right of every one to ask for official documents with public authorities and in part of possible limitations
in this draft is written that: member countries may limit complete implementation of the right of access to official documents. Limitations that
must be clearly stipulated in law, must be from cases that are essential for a democratic society and be on the base of protection of these cases:

16

National security, defense and international relations

14 December1946
This mission was stated by resolution 1031 in 15 December 1995 of security council in line with Dayton peace agreement.
cSaladin, public participation, an essential component of sustainable economy
19
Commonwealth countries expert group meeting about the right to know and promote democracy and development, London, 30 and 31March 1999
20
.3E.H.R)European Convention on human rights
17
18

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International Journal of Economy, Management and Social Sciences Vol(3), No (11), November, 2014.

Public security
Prevention, research and prosecution criminal activities
Private affairs and legitimate private interest
Business private or public interest or other economic interest
Equality of parties to dispute in the process of proceeding before the court
Inspection, control and supervision of public authorities
Related policies to exchange rate and financial and monetary policies of country

Access to information can be denied only if their disclosure have the possibility of damage to any of the above mentioned interest and aims.

12. Specific subject information

12.1 Related information to the environment
Over the past decade increasing orientation is created towards access to environmental information and this issue, forms the key of sustained
development and effective public participation in environmental affairs. This issue is considered for first time in the tenth article of the Rio
declaration on environment and development which implies that environmental issues will be solved with general participation in best way.
Document that makes clear a set of practical measures for implementing the principles of the Rio declaration, is the agenda 21 which states that:
Peoples, groups, and organizations must have access to information that are related to environment and development which are with national
authorities. This information contains information that are related to productions and activities that may have important effects on environment
and information protective measures.
Public information of environmental issues gives a chance to all people to express their worries about this and call authorities to consider these
points in their decisions. These affairs is done with the purpose of taking responsibility, accountability, and transparency in decision-making.
12.2 Related information to human rights
It is visible an orientation inside international society for acknowledging special aspect of the right of freedom of information about human
rights. General Assembly of United Notions approved declaration of rights and responsibility of people, groups, and society institutions for
universal protection of human rights and fundamental freedoms. In article 6 for access to information of human rights scope is provided in
particular:
Everyone has right to do the following cases directly and indirectly:
A.
B.
C.

Access to the related information to human rights and fundamental freedoms including how these rights shall be effected in judicial
and civil laws, judicial and administrative systems.
As it is provided in the declaration of human rights and other international documents can freely proceed to print, quote or publish
information or related knowledge to human rights and basic freedoms.
Can address to discuss, study and selection of opinion about implementation of human rights and fundamental freedoms and thereby
attract peoples attention.

13. Access to information in the civil rights scope

13.1 Constitutions
In many countries the right of freedom of information is considered in their constitutions and that courts sentences which searched for general
protection of freedom of speech. This tendency is more observed in new democratic governments or those countries that are in a stage of
transition to democracy. However there are also some governments that have shown their reluctance towards the right of freedom of information
in executive, judicial or legislative system. For example: in the United States its supreme court has commented that the first amendment of
constitution which guarantee freedom of express of Press, dont know necessary the right of access to public information or informational
sources that are under control of government21 . In 1982 the supreme court of India put the right of access to information as one of vital parts of
the fundamental right of freedom of speech in the article 19 of constitution. Constitution court of South Korea has made regular the right of
knowing which is incorporated into article 21 of constitution in two files in 1989 and 1991.
Sweden is an interesting example about the right to benefit from information which in addition to the whole of its law of freedom of Press
contains comprehensive regulation about freedom of information; it also has a place in constitution. For example, basic rules of Bulgaria22,
Estonia(article41), Syria federation(article 61) and Hungary(article 44) have guaranteed the right of access to information that are with
government.
13.2 National laws
About freedom of information in some countries may some articles of a common law is allotted to it or special common law has been approved
about it. In Asia some countries like the Philippines in 1987, Hong Kong in 1995 and Thailand in 1997 have approved the right of freedom of
information or in South Korea in 1998 or in Japan in 2001 enforced such laws. Special reporter of United Notions about the freedom of idea and
speech, activities of Europe council experts about access to official information, conventions, inter-governmental organizations documents and
many national laws elaborated meaning of right and determined its scope.

14. Freedom of information in Islam

Council is one of institutions which has very close relation with public participation in determining political, social, cultural, and economic
future and has pride of place. The nature of Islamic government is not dependent to a special group or class and is trust of God and people that is
21
22

Un doc. Ece /cep/43, adopted at the fourth ministerial conference in the environment for Europe process, 25 June 1998
S.p. Gupta v . president of India(1982) AIR(sc) , page 234

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with righteous people and never is compatible with absolutism and so it provides itself the context for participation of all public stratums in all
processes of seminal and political decisions and because the aim of Islamic political system is to help human to develop in evolutionary
movement and achieve justice equity in all aspects of life and this can realize only by broad and active participation of social members in the
process of change in political society. Council is an unavoidable institution for Islamic state 23 . According to Quran about defining the
characteristic of believers, council is derived from faith and Islamic society24 and also invites the messenger of Islam to establish council
system25. In several stories arbitrariness is negated and emphasized on consultation with others 26. The other institution that needs reinforcement
of freedom of information is enjoin to good works and forbid from bad works that realize public and mutual control in society. No doubt, control
of government on people and vice versa and peoples control on themselves needs prerequisite in order to people can access to all information
that are related to public interest. There is also a story of Imam Hussain, Peace Be Upon him27.

15. Freedom of information in Iran rights

Freedom of News and information is a part of freedom of thought which means publication of ideas and thoughts by tools except by the way of
verbally. Like book, newspaper, magazine, radio, television, and other audiovisual media 28 . As far as possible, censorship must be forbidden and
dont be allowed newspapers, weekly and monthly be dependent to financial powers by measured laws and regulation. Rigorous regulation must
be codified about the most powerful media namely radio and television but in the framework of rights and freedoms 29.
Enforce this right lead to development of other rights which is inside key and administrative policies and that is the right of public information.
On the other hand, the right of freedom of information can be known as a tool and introduction for the right of public information. This issue is
noted in second paragraph of article 3 of constitution. Islamic Republic of Iran gives free play to newspapers and publications with the condition
that Islamic principles be observed and also in article 157 enjoins security of freedom of speech and publishing thoughts with observing Islamic
principles and countrys interest. On the same issue, article 5 of the law on general policy and principles of programs of Islamic Republic of Iran
airwaves approved in 17/4/1361 one of principles for airwaves programs is considered help to expanding information and development of
society in different areas as a public university. Articles 16 to 19 of the same law emphasizes on correct News from around the world with the
condition that dont conflict with military secrets, bring an accusation against people and groups and institutions, code of conduct and

16. Correct inconsistent laws with giving information in a reasonable way

If existing laws in a country consider crime disclosure of some information on the base of radical orientation to secrecy, the officer that gives
information will be at the crossroad whether he has obligation to give requested information according to freedom of information and if dont
that will be punished or vice versa, should refuse to give information otherwise will be punished. For avoiding such outcome it is necessary that
predicted exceptions in the law of freedom of information be comprehensive and impediment and dont be allowed to other laws to develop it. In
a long term program, laws and regulations that are related to information should be aligned and coordinated with fundamental principles of law
of freedom of information. In addition, if governmental authorities have provided information that have been on the base of legal requests in a
conventional way and in a good face, they should be protected against punishment even if it be proved later those information wasnt necessary
to be disclosed30. Otherwise, culture of concealment which there is in many countries will be remained because officers will be always worry
about giving information to applicants and prefer to dont risk.

17. Legitimacy and being accurate of exceptions of freedom of information

One of the most important issues in freedom of information is how to reconcile the said freedom with its numerous exceptions because always
there is a worry about this issue that numerous exception lead to the said freedoms be empty. Among important exceptions of freedom of
information it can referred to protection of national security, classified information, public health, peoples health, prevention research diversion
about crimes, business secrets, privacy, confidentiality of information that received from international organizations, buildings security and
communication systems and public transportation and to avoid sacrificing freedom of information versus the said exceptions it is necessary to
predict complete list of exceptions in a clear and accurate way in the law of freedom of information. Public institution must give requested
information unless they are assured that requested information are in the scope of exception limited system. Exceptions must be predicted on the
base of legitimate purposes and dont be broad and vague. It also must be always kept in mind that freedom of information is principle and
limitations are exception. So, in appointing rules that are govern on their relations must follow of rules that they are govern on the relation
between principle and exception. For example, no limitation can delete information or make it empty, because if that occur, the relation between
principle and exception will be inverse. No exception can be more than its principle because more exception is immoral and unacceptable.
Exception must not be vague because vague exception is invalid. Exception must be interpreted in a narrow way and determine its provision as it
is necessary

18. Usefulness of available information

What is very important in laws that are related to freedom of information is access to real information. Information that people want to have
access to it must be useful and available not just only a mass amount of information which have advertising aspect for government. For example,
Malaysias government has provided a mass amount of governmental information for people and provides a complex and fast line of internet of
necessary details about ministries and their services to the applicants. However, this action is commendable but is doesnt mean essentially

23

Amid Zanjani, Political jurisprudence, Amir Kabir publishing, volume 1, 1377, pages 462 and 463
Shora Sura
Al-Imran Sura versue 159
26
Bahar al anvar, volume 2, page 94, Ghorar al hekam and dorar al kalm, volume 7, page 183
27
Tabari history, volume 7, page 200
28
Tabatabai Motameni, Manuchhr, public freedoms and human rtghts, Tehran university press, 1375, page 103
29
Gazi, Abolfazl, Requirements of fundamental rights, Dadgostar publishing, 1377, page 163
30
Mendal, 1999, principle 8
24
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International Journal of Economy, Management and Social Sciences Vol(3), No (11), November, 2014.

providing the possibility of peoples access to governmental information because access to information and freedom of information is related to
the quality of available information more than its quantity.

19. Institutions that are subject to freedom of information

About institutions that are subject to freedom of information are discussed two basic questions: what parts of government are subject to this
freedom? And is private sector required to provide information on the base of this freedom?
19.1 Inclusion of information on three powers
Related laws to freedom of information in different countries generally considered executive power and didnt protest about legislative and
judicial powers because it is believed that the principle of openness of parliament negotiations and hearings realizes largely the aims of freedom
of information in this two powers. Nevertheless, non-stipulation to inclusion of law to legislative and judicial powers is not as ban about access
to their information.
Realization of the right of access to information requires all public institutions including private and public become subject to it. As a principle,
in order to maximize possibility of peoples access to information, definition of public institutions must be focused on the kind of service which
is provided and not on formal setting. The said definition must guarantee all powers and government levels, namely: local and provincial
councils, national industry, and public companies.
With comparative study of freedom of informations law of world countries, in general there are two major trends in defining institutions that are
subject to the law of freedom of information. The common trend is that these institutions only be defined and then marginal subjects will be
considered and ruled on the base of their context. According to the second trend, some countries provide a list of institutions that are subject to
law which its advantage over the first trend is that it is clear but its flaw is that it may be severely dry and determinative.
Many countries has known every three powers(executive, legislative, judicial)subject to the law of freedom of information but some of them
limited the said law only to executive power and basically there isnt any reason to exclude legislative and judicial powers of inclusion of law of
freedom of information and successful experience of countries that considered every three powers subject to the law confirm this principle. Of
course, in countries like Thailand only administrative function of courts are subject to the law of freedom of information.

20. Freedom of informations inclusion on institutions and private companies

Institutions and private companies arent basically subject to obligations that are derived from freedom of information. Nevertheless, nongovernmental organizations because of their existential philosophy or institutions and companies that provide public services in behalf of
government or any reason, must require themselves to inform and know themselves subject to requirements that are derived from the right of
access to information. About these institutions it is assumed that if government do itself duties that assigned to private sector, was obliged to
inform but because these duties is assigned to private institutions, this obligation is transferred implicitly to them. Also, if disclosure of
information that are with private institutions can help to prevent or reduce the risk of damage to public interest, will be subject to freedom of
information even if no mandate and task is determined by government. With comparative study of freedom of informations laws of world
countries it is understood that one of the controversial issues in the law of countries is inclusion or non-inclusion of the law of freedom of
information on companies and private institutions which receive some fund from public contracts. For example, the law of India contains
institutions that their property belong to government or are controlled by it and majority of their budget is provided by law directly or
indirectly31. So, private institutions have a piece of information that must be available every time that peoples interest requires. Yet, the scope of
access to their information and methods of accessing to the said information is different to scope and methods that are predicted for public
institutions.

21. Conclusion
We understood that universal social moves in this direction to recognize the right of freedom of information as a fundamental rights of human
and in deep relation to inherent dignity of human and this will help to democracy and fundamental principles like: transparency, government
accountability, and informed participation of people in determining future to be done better. So, because of the importance of this issue United
Notions and other local inter-governmental and local non-governmental organizations, legislative powers of countries and even judicial
institutions of countries and international organizations tried to lay down rules in order to this issue be more and more accurate accepted. This
freedom in some cases is more sensitive which lead to international standards have more enrichment in areas such as environmental laws and
human rights.
At the end it seems that can remind some fundamental principles for legislation about freedom of information in national, regional, and
international level.
- The principle of maximum disclosure:
This principle guarantee this assumption which all information that are with public authorities are disclosed and public elements are responsible
for exceptions to justify or deny the exercise of this right.
- The principle of narrow exceptions
Authorities must agree about providing requested information otherwise rejection of demand must be justifiable on the base of these three
criterions:
Information must be related to legitimate purpose which is in law.

Disclosure must be minatory and major damage to that aim.

This damage must be more than damage that is may occurred by disclosure of information to the public interest.

31

Indiana attorney general office of public access counselor, 2001:20

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No doubt, those limitations of disclosure of information that are related to errors committed by government arent justifiable.
- Principle of obligation to publication:
Public elements are obliged to do affairs more than only satisfaction towards accepting request for information on the base of principle of
freedom of information. They must publish all information specially those are in relation to public interest. These information are consist of
executive information, expenses, information about complainants and contents of decisions which have influence on public.
- Principle of easy access:
All requests for information must be considered quick and fair by working people in public elements to respond to demand and observing rules.
About non-acceptance, appeal flow must be established from a independent executive element or a court.
- Principle of expansion of open government
Legislative power must lay down regulations for informing people about their rights of access and expansion of transparency culture in
government.
Law of freedom of information in the minimum of its meaning must guarantee standards for gaining and disseminating information related to the
right of access to information, scope of available information and methods that this right can be observed. Also, to overcome the culture of
concealment in government the law of freedom of information must be required to educate public servants and encourage in approving set of
domestic laws about access.
- Principle of protection:
Regulations that are legislated on the freedom of information must contain protections of people against legal and executive punishments or
related to employment for disclosure of information that is related to errors committed by public authorities.
- Principle of retroactive to disclosure:
All laws must be interpreted consistent with disclosure rules. If conflict occur between the law of freedom of information and the law of
concealment, the law freedom of information should be preferred.
- Principle of proportionality of costs:
The cost of access to information must not be heavy to cause withdrawing demand. Requests that are related to public interest must be cheap and
free but for requests that are related to business information may be necessary to more costs be paid. In one sentence can be said that rapid
expansion of rights of freedom of information as a vital part of fundamental right of freedom of speech in recent times, is counted the most
important element for democratic development.

References
Allameh Tabatabai, Islamic studies, The article of guardianship and Jurisprudence, Page180.
Amid zanjani, Amir Kabir publishing, 1377, Page466.
Gutmann, Amy and Tampson, Dennis, (1996) Democracy and Disagreement, Cambridge: Harvard University Press.
Hashemi, human rights and basic freedoms, First edition, Tehran, Mizan publication.
Hashemi, Syed Muhammad, Fundamental rights of Islamic Republic of Iran, Volume2, Dadgostar publication, page489.
Jafari Langroodi, Research in rights science, First edition, Tehran, Ganj Danesh publication.
Katuzian, Naser, Principles of public law, Second edition, Mizan publication.
Martyr sani, Alruzh Albhyh fi sharh Al lmh Al Dmshqyh, Volume 2.
Mendel, Toby(2008) Freedom Of Information: A Comparative Legal Survey, Paris: UNESCO.
Motamed Nejad, Roya, Freedom of speech and informational society, Taken from Irans web site and informational society.
Nahj Al balage .
Robertson, David (2004) A Dictionary Of Human Rights, London: Europe publication.
Tabatabai Motameni, Public freedoms and human rights, Third edition, Tehran university publication.