Privatization and Access to Government Information under State Law,‚ÄĚ
Florida State University Law Review 27 (2000): 825‚Ä“864. The restricted
approach taken in U.S. federal law, and possible alternative approaches,
are discussed in Craig Feiser, ‚ÄúPrivatization and the Freedom of Informa-
tion Act: An Analysis of Public Access to Private Entities under Federal
Law,‚ÄĚ Federal Communications Law Journal 52, no. 1 (1999): 21‚Ä“62. Con-
trasting approaches taken in laws outside the United States are also dis-
cussed in Roberts, ‚ÄúStructural Pluralism and the Right to Information.‚ÄĚ
53. Nicole Casarez, ‚ÄúFurthering the Accountability Principle in Privatized
Federal Corrections,‚ÄĚ University of Michigan Journal of Law Reform 28,
no. 2 (1995): 249‚Ä“303, 251.
54. A comparable question is raised by Daphne Barak-Erez, ‚ÄúA State Action
Doctrine for an Age of Privatization,‚ÄĚ Syracuse Law Review 45 (1995):
55. See Casarez, ‚ÄúFurthering the Accountability Principle in Privatized Fed-
eral Corrections,‚ÄĚ 251.
Notes to Pages 162‚Ä“165
56. Open Democracy Advice Centre, The Challenge of Implementation: The
State of Access to Information in South Africa (Cape Town: Open Democ-
racy Advice Centre, 2004).
57. Interim Constitution of the Republic of South Africa, 1993, Section 23
and Schedule 4, Principle IX.
58. COSATU, Submission to the Constitutional Assembly on the New Consti-
tution (Cape Town: Congress of South African Trade Unions, 1996).
59. Calland, Transparency in the ProÔ¬Āt-Making World: The Case for the Right
to Know, 14‚Ä“15.
60. Constitution of the Republic of South Africa, 1996, Section 32(1)(b). The
Constitution referred to information held by ‚Äúpersons,‚ÄĚ but this includes
entities with legal status as persons, such as private corporations.
61. Gideon Pimstone, ‚ÄúGoing Quietly About Their Business: Access to Corpo-
rate Information and the Open Democracy Bill,‚ÄĚ South African Journal of
Human Rights 15, no. 1 (1999): 2‚Ä“24. The new rules are contained in the
Promotion of Access to Information Act, Act No. 2 of 2000, Part 3. The
name of the law tells something about its provenance: Elements of the
law were modeled on the Canadian Access to Information Act.
62. Several of these cases were brought by the Open Democracy Advice Cen-
tre. See Calland, Transparency in the ProÔ¬Āt-Making World: The Case for the
Right to Know.
63. The phrase is Murray Hunt‚Ä™s: Murray Hunt, ‚ÄúConstitutionalism and Con-
tractualisation of Government,‚ÄĚ in The Province of Administrative Law,
ed. Michael Taggart (Oxford: Hart Publishing, 1997), 29.
64. Pimstone, ‚ÄúGoing Quietly About Their Business: Access to Corporate
Information and the Open Democracy Bill,‚ÄĚ 11‚Ä“18.
65. The purpose of the law, Klaaren and Currie argue, ‚Äúis to require private-
sector transparency to prevent harm to those fundamental rights asso-
ciated with a human rights culture.‚ÄĚ Jonathan Klaaren and Ian Currie,
The Promotion of Access to Information Act Commentary (Cape Town:
SiberInk, 2002), 67‚Ä“71.
66. For example, see this inÔ¬‚uential American case: Supreme Court of
California, Tarasoff v. Regents of the University of California, Case No. S.F.
23042, Judgment July 1, 1976. The case considered the ‚Äúduty to warn‚ÄĚ of
67. The growing popularity of pollutant release registers is discussed in Czech
Ministry of the Environment, Discussion Paper for the First Meeting of the
UN/Ece Task Force on Pollutant Release and Transfer Registers (Prague:
Czech Ministry of the Environment, 2000).
68. James McLellan, ‚ÄúHazardous Substances and the Right To Know,‚ÄĚ Inter-
national Labour Review 128, no. 5 (1989): 639‚Ä“650. Tom Tietenberg and
David Wheeler, Empowering the Community: Information Strategies for
Pollution Control (Waterville, ME: Colby College, Department of Eco-
69. Several jurisdictions recognize a public interest defense in actions for
breach of conÔ¬Ādence. In the United Kingdom, such disclosures are also
protected by the Public Interest Disclosure Act 1998.
Notes to Pages 165‚Ä“167
70. United Nations Declaration of Human Rights, Art. 3.
71. See the United Nations Declaration of Human Rights, Art. 26, and the
United Nations Covenant on Economic, Social and Cultural Rights, Art.
72. Access to educational records is provided for in the Family Educational
Rights and Privacy Act, 20 USC 1232(g); other disclosure requirements
are created by the Student Right to Know and Campus Security Act, 20
73. John Portz, ‚ÄúPlant Closings and Advance-Notice Laws: Putting the
Pieces Together,‚ÄĚ Economic Development Quarterly 9, no. 4 (1995): 356‚Ä“
74. Commission for Children and Young People Act of 1998, section 43.
75. In the United States, the relevant law is the Fair Credit Reporting Act, 15
USC 1681; in Britain, the Consumer Credit Act 1974 and the Access to
Medical Reports Act 1988.
76. ‚ÄúEveryone is the rightful owner of their personal information, no mat-
ter where it is held, and this right is inalienable.‚ÄĚ House of Commons
Standing Committee on Human Rights, Privacy: Where Do We Draw the
Line? (Ottawa: House of Commons, 1997). See also Jessica Litman, ‚ÄúInfor-
mation Privacy/Information Property,‚ÄĚ Stanford Law Review 52 (2000):
77. Commonwealth Human Rights Initiative, Open Sesame: Looking for the
Right to Information in the Commonwealth (New Delhi: Commonwealth
Human Rights Initiative, 2003).
78. For an argument that the right to information is a fundamental human
right, see Patrick Birkinshaw, ‚ÄúFreedom of Information and Openness as
a Fundamental Human Right,‚ÄĚ in Proceedings of the International Institute
of Human Rights (Brussels, Belgium: Bruylant, Forthcoming).
79. Associated Press, ‚ÄúPrison with Isle Inmates in Lockdown after Brawl,‚ÄĚ
Honolulu Star-Bulletin, May 16, 2004.
80. And perhaps even more than this: A study of the controversial Youngstown
prison found that risks of disorder and escape were tightly linked to dis-
ciplinary procedures as well as work and educational opportunities. John
Clark, Inspection and Review of the Northeast Ohio Correctional Center
(Washington, DC: Department of Justice OfÔ¬Āce of the Corrections Trustee,
81. In 1999, California adopted a law that prohibits private prisons from hold-
ing out-of-state inmates; residents of Oklahoma could choose to impose
a similar ban.
82. A summary of state laws is provided by the Reporters‚Ä™ Committee for Free-
dom of the Press on its website, http://www.rcfp.org. On the interpreta-
tion of Hawaii law, see Feiser, ‚ÄúProtecting the Public‚Ä™s Right to Know: The
Debate over Privatization and Access to Government Information under
State Law,‚ÄĚ Note 18. Although the three states in question do not impose
residency restrictions under their disclosure laws, this is not always true;
for example, a New Yorker cannot make a request for information under
Notes to Pages 167‚Ä“172
83. The distinction was Ô¬Ārst proposed by the French jurist Karel Vasak in
1979. Vasak actually described three generations of rights, but for sim-
plicity I have omitted his third category.
84. For a discussion and rebuttal of this view, see Jack Donnelly, International
Human Rights, 2d ed. (Boulder, CO: Westview Press, 1998), 24‚Ä“26.
85. I develop this argument in more detail in Roberts, ‚ÄúStructural Pluralism
and the Right to Information,‚ÄĚ 263 and 267‚Ä“268.
86. Australian Law Reform Commission, Open Government: A Review of the
Federal Freedom of Information Act 1982, Para. 15.15.
87. David Banisar and Simon Davies, ‚ÄúGlobal Trends in Privacy Protection,‚ÄĚ
John Marshall Journal of Computer and Information Law 18, no. 1 (1999):
1‚Ä“112, 13‚Ä“14 and 108‚Ä“111; Robert Gellman, ‚ÄúDoes Privacy Law Work?‚ÄĚ
in Technology and Privacy: The New Landscrape, ed. Philip Agre and Marc
Rotenberg (Cambridge, MA: MIT Press, 1998); Charles Sykes, The End of
Privacy (New York: St. Martin‚Ä™s Press, 1999), 74‚Ä“75.
88. The struggle over adoption of rules on the handling of medical informa-
tion by private sector organizations is one illustration: Amitai Etzioni,
The Limits of Privacy (New York: Perseus Books, 1999), 149.
89. Statistics for the United States are not easily obtained. In Canada, almost
half of all requests Ô¬Āled under the Access to Information Act are Ô¬Āled by
8. Remote control
1. The two shopkeepers, Steve Thoburn and Neil Herron, were named
Europe‚Ä™s ‚Äúcampaigners of the year‚ÄĚ in a 2001 ballot organized by Euro-
pean Voice magazine.
2. Bonnie PÔ¬Āster, ‚ÄúDolphin-Safe Tuna Debate Returns,‚ÄĚ San Antonio Express-
News, April 19, 2003, 1D.
3. Controversy over the project was examined by a 2002 World Bank
panel: Inspection Panel, Investigation Report: Uganda Bujagali Project
(Washington, DC: World Bank Group, 2002). In 2003, a World Bank rep-
resentative said that it was ‚Äúin the best interests of the country to develop
the project at the earliest opportunity.‚ÄĚ
4. Larry Rohter, ‚ÄúArgentina Calling Companies to Task,‚ÄĚ New York Times,
December 1, 2003, 17; International Monetary Fund, IMF Country Report
03/392: Argentina ‚Ä“ Request for Stand-by Arrangement (Washington, DC:
International Monetary Fund, 2003).
5. G. R. Berridge, Diplomacy: Theory and Practice (New York: Palgrave,
6. J. H. H. Weiler, The Rule of Lawyers and the Ethos of Diplomats, Working
paper (Cambridge, MA: Harvard Law School, 2000).
7. United States Department of Justice, Brief for the Petitioners in the Case
of U.S. V. Weatherhead (Washington, DC: United States Department of
8. This is an amendment of Theodore Draper‚Ä™s notion of a ‚Äúbifurcated
presidency‚ÄĚ: Theodore Draper, A Very Thin Line: The Iran-Contra Affairs
Notes to Pages 172‚Ä“175
(New York: Hill and Wang, 1991), 580‚Ä“598. In a similar vein, Aaron
Wildavsky had earlier written about the emergence of ‚Äútwo presidencies.‚ÄĚ
Aaron B. Wildavsky, The Presidency (Boston: Little Brown, 1969), 230‚Ä“245.
In the United States, Eric Alterman has complained that foreign policy is
‚Äúdeliberately shielded from the effects of democratic debate, with virtually
no institutionalized democratic participation.‚ÄĚ Alterman, Who Speaks for
America? Why Democracy Matters in Foreign Policy, 4.
9. E. E. Schattschneider, The Semisovereign People (New York: Holt Rinehart
and Winston, 1960); Jon Elster, ‚ÄúStrategic Uses of Argument,‚ÄĚ in Barriers
to the Negotiated Resolution of ConÔ¬‚ict, ed. Kenneth J. Arrow (New York:
Norton, 1995); Weiler, The Rule of Lawyers and the Ethos of Diplomats.
10. Adam Watson, Diplomacy: The Dialogue between States (New York:
McGraw-Hill, 1983), 136.
11. Hans Morgenthau, Politics among Nations, 2d ed. (New York: Alfred A.
Knopf, 1954), 519‚Ä“521.
12. Alterman, Who Speaks for America? Why Democracy Matters in Foreign
13. Watson, Diplomacy: The Dialogue between States, 104.
14. Neill Nugent, The Government and Politics of the European Union, Fourth
ed. (Basingstoke, UK: Palgrave, 1999), 59‚Ä“61, 76, 97.
15. As it was, the process of ratiÔ¬Ācation by the British parliament was pro-
longed and difÔ¬Ācult, while in Germany ratiÔ¬Ācation was delayed for a year
by an unsuccessful court challenge that claimed the delegation of author-
ity to EU institutions violated guarantees of democratic government in
German Basic Law.
16. See Article 1 of the Treaty on European Union, and Declaration 17 of the
Final Act of the Treaty on European Union.
17. Bill Lamp, ‚ÄúNew Poll Says Danes Will Grudgingly Approve Maastricht
Treaty,‚ÄĚ United Press International, May 17, 1993; John Palmer, ‚ÄúDanish
Plan to Go Public and Lift Plans of Secrecy,‚ÄĚ The Guardian, December 30,
18. EU leaders promised after the October 1992 Birmingham European
Council to ‚Äúmake the Community more open, to ensure a better informed
public debate on its activities.‚ÄĚ Assurances on improved openness were
repeated at summits in December 1992 and 1993.
19. The code was implemented by a Council decision of December 1993 and a
Commission decision of January 1994. Decision 93/731/EC and Decision
94/90/ECSC, EC, Euratom.
20. The problem of promoting openness in the EU‚Ä™s ‚Äúcomplex and fractured‚ÄĚ
structure is discussed by Deirdre Curtin, ‚ÄúTransparency and Political
Participation in EU Governance,‚ÄĚ Cultural Values 3, no. 4 (1999): 445‚Ä“
21. European Ombudsman, Special Report to the European Parliament Fol-
lowing the Own Initiative Inquiry into Public Access to Documents
(Strasbourg: OfÔ¬Āce of the European Ombudsman, 1997).
22. See Articles 2 and 4 of Decision 93/731/EC and the comparable provisions
of Decision 94/90/ECSC, EC, Euratom.
Notes to Pages 175‚Ä“177
23. Jurgen Neyer, ‚ÄúJustifying Comitology: The Promise of Deliberation,‚ÄĚ in
European Integration after Amsterdam, ed. Karlheinz Neuenreither and
Antje Wiener (Oxford: Oxford University Press, 2000).
24. Court of First Instance, Rothmans International BV v. EC Commission,
Case T-188/97 (1999) ECR-II 2463.
25. European Ombudsman, Decision on complaint 916/2000, July 2001.
26. See the decision of the ombudsman on complaint 1056/96, June 1998.
27. The ombudsman criticized this position in his decision on complaint
1056/96, and the Council abandoned it during investigation of the related
28. Carvel v. EU Council, Case T-194/94 (1995) ECR II-2765 (CFI).
29. European Ombudsman Decision on complaint 1087/10.12.96/STATE-
WATCH/UK/IJH, 23 November 1998.
30. Court of First Instance, Tidningen Journalisten v. Council, Case T-174/95
(1998) ECR II-2289.
31. Court of First Instance, Hautala v. Council, Case T-14/98 (1999) ECR II-
32. Council v. Hautala, Case C-353/99 P (ECJ), decision rendered December
33. In addition, many classiÔ¬Āed documents were automatically excluded from
the code. Decision 2000/527/EC, August 14, 2000. Two weeks earlier, the
Secretary-General of the European Union, Javier Solana, also amended
the Council‚Ä™s rules on security classiÔ¬Ācation, broadening the grounds on
which documents could be classiÔ¬Āed. This was also motivated by the EU‚Ä™s
decision to collaborate more closely with NATO (see Chapter 2).
34. Strictly, government representatives voted on appeals against ofÔ¬Ācial deci-
sions to deny access to documents. A report by the nongovernmental
organization Statewatch tabulated the voting records of member states
in 2000: Statewatch, ‚ÄúSurvey Shows Which EU Governments Back Open-
ness, Which Do Not,‚ÄĚ Statewatch News Online, 2000. In several instances,
the Dutch and Danish governments also began or supported litigation
over disclosure disputes.
35. Sverker Gustavsson, ‚ÄúReconciling Suprastatism and Accountability: A
View from Sweden,‚ÄĚ in Democratizing the European Union, ed. Catherine