Government Information Quarterly

Freedom of Information spreads to Europe

Henry H. Perritt, Jr.[1]

Dean and Professor of Law

Chicago-Kent College of Law

Illinois Institute of Technology

565 West Adams Street

Chicago, IL 60661

(312) 906-5010


Zachary Rustad[2]



Europe is gradually embracing freedom of information principles while at the same time restricting dissemination of information generated by public agencies through electronic databases.  These developments are important for the rest of the world, including the United States because the Internet is already becoming a vast virtual library facilitating global access to statutes, court decisions, and administrative agency decisions that make up the raw ingredients of a rule of law. The utility of the virtual library depends on including legal information from all countries, including those in Europe.

Historically, the United States and Europe differed sharply on legal approaches to governmental transparency.  After the Freedom of Information Act was enacted in 1966, governmental agencies were obligated affirmatively to publish their rules and orders, and citizens had broad rights to compel relief of other, nonpublished, governmental information subject to narrowly construed enumerated exceptions to protect national security, privacy, commercial secrets, financial oversight, and law enforcement investigatory information.  Courts and legislatures honored a long tradition of publishing statutory and decisional materials, reinforced by constitutional due process requirements.  The Electronic Freedom of Information Act of 1996 built upon recommendations by the American Bar Association and the Administrative Conference of the United States, to make it clear that Freedom of Information Act disclosure and dissemination obligations extend to electronic formats, and to obligate agencies affirmatively to publish often-requested information in electronic spaces such as the Internet's World Wide Web.  EFOIA and the Paperwork Reduction Act provide a framework for cost allocation and pricing, aimed at facilitating republication of basic governmental information through multiple public and private channels.  Europe, on the other hand, was more reticent in opening up public agency information.

Privacy and freedom of information represent opposing values or interests. Individuals are interested in restricting dissemination about themselves, but they want to know about official decisions and conduct of official business. Public institutions hold much information affecting both values, and privacy values also are threatened by data collected, organized and disseminated by private entities. Global networks such as the Internet facilitate dissemination of information held by both public and private institutions, thus potentially furthering freedom of information and threatening privacy.

European and American positions on privacy and freedom of information are mirror images of each other. Europe has comprehensive systems of protection reflecting a commitment to protection of privacy. America has a patchwork of incomplete protections reflecting uncertain commitment to privacy.

Freedom of information reflects the inverse position. America has a comprehensive system, reflecting commitment to access. Europe has a patchwork system, reflecting uncertain commitment to access.

Freedom of information with regard to governmental information involves various values. For individuals freedom of information access can be understood as part of fundamental freedom of expression. For society, freedom of information is a tool for controlling government and thus serving democratic values, and has legitimating effects by giving citizens a feeling of being closer to policy decisions. The legitimacy of public institutions increases when the public knows what the institutions are doing. Compliance with law increases when the law is available. Accountability and quality of government decisionmaking improves when members of the public have information allowing them to express meaningful views before decisions are made.

Role of Technology

One of the greatest promises of the global information infrastructure is greatly improved public access to government information. As court decisions, legislative enactments, and orders and rules of administrative agencies become available through the Internet's World Wide Web, a Rule of Law is strengthened. Already, more than 900 federal agencies in the United States and many European authorities have Web sites providing information about their organization and containing materials making it easier for the public to participate in their proceedings. All of the opinions of the federal appellate courts are available in full text form and in popular word processing formats on the World Wide Web, and a growing number of state courts and agencies also publish information on the Web. Internationally, most major international institutions have Web sites..

Before the Internet's World Wide Web became ubiquitous, conducting legal research into the laws of other countries and of intergovernmental organizations such as the European Commission, the Council of Europe, and the United Nations was difficult.  Systems for reporting court decisions and legislative enactment varied widely from country to country.  Paper formats were expensive and not quickly available.  Now, the major international organizations provide legal texts through the World Wide Web, and major industrialized countries are quickly following suit with respect to their parliaments, judicial bodies and governments.  Much of this has happened without clear legal mandates to do so, merely because judges, legislators and government officials have understood that democracy and a rule of law presuppose ready access to legal texts.

Nevertheless, the law should encourage transparency, and provide enforceable duties that overcome occasional reluctance by officials to encourage dissemination of public information.

Today, much of the discussion of what should be done in Europe with regard to freedom of information starts from norms developed and applied in the United States. But in global terms, the first law establishing freedom of information was enacted in Sweden in 1766. Sweden was the only country with such legislation until 1951, when Finland adopted such a law.

There is a move toward greater transparency, implemented through freedom of information law at the European and national level. Both Britain and Germany are moving to adopt freedom of information laws, and the European Commission has published a regulation allowing access to European institution materials. Directorate General 13 of the European Commission has been working for more than five years on the development of legal regime for freedom of information, seeking to implement the transparency guarantee of the Maastricht treaty. But these move occurs against a background of governmental secrecy. The European approaches are linked to individual rights under a rule of law, beginning with rights of participants in particular proceedings to access information pertinent to those proceedings, contrasted with the American approach which links freedom of information to democratic oversight of governmental operations and thus grants rights of access to all citizens.

International legal issues pertinent to freedom of information are less pervasive than those pertinent to privacy protection. This is so because in the freedom of information area, law seeks to compel disclosure of information, while in the privacy arena it seeks to prohibit disclosure. Freedom of information values are served by transborder dataflows; privacy values are threatened. Therefore, despite divergent traditions less normative reasons for dispute between states exist. Even under changed technological conditions each country can in principle pursue its own policy.

There are good reasons for an accomodation to freedom of information principles in Europe: First, global networks enable people to explore the practice of access to governmental information in other states. This can lead them to demand more openness and access in their own country. Secondly, a restrictive national policy with respect to freedom of information principles is more likely to be undermined due to the dissemenation capabilities of the Internet. Ironically, this became recently obvious as drafts about freedom of Information regulation in the European Community were leaked and published on the Internet. Thirdly, economic reasons may provide even stronger reasons for adapting freedom of information principles in Europe. As the European Commission’s "Green Paper on Access to Public Information" states, ”without user-friendly and readily available administrative, legislative, financial or other public information, economic actors cannot make fully informed decisions.” Therefore, according to the European Commission ”the ready availability of public information is an absolute prerequisite for the competitiveness of European industry. In this respect, EU companies are at a serious competitive disadvantage compared to their American counterparts, which benefit from a highly developed, efficient public information system at all levels of the administration.”[3] Additionally, public sector information may be a vehicle for economic growth itself, since the public sector is the biggest single producer of information in areas like legislation, statistics, culture, finance, geography, transport, research.

Freedom of Information Under International Human Rights Law

Although arguments can be made that the international covenant on Civil and Political Rights and the European Convention on Human Rights mandate open access to basic legal information,[4] these arguments require stretching decisional law, and hardly provide a certain basis for assuring freedom of information.

Conflict Within Europe

The Maastricht Treaty of ___ specifically encouraged action by European Institutions to increase governmental transparency.  In the early 90's, Directorate General 13 of the Commission undertook to develop a Freedom of Information Directive.  At an open meeting held in Stockholm in the Spring of 1997, it appeared that the Directorate was ready to issue a draft directive, but the initiative has lost momentum since then.  A generally worded statement of freedom of information principles was released by DG 13's legal advisory board in 1998, but no action was taken by the Commission until 2000. 

Meanwhile, the Commission issued a directive limiting certain uses of electronic databases, broadly enough drafted to include electronic repositories of primary legal information.  As initially written, the directive included compulsory licensing provisions that could have opened up multiple channels for redissemination of governmental information contained in databases, but the compulsory license provisions were removed in consultations with the European Parliament.

Accordingly at the European level, the principle of governmental transparency has lost ground legally.  No affirmative duties for freedom of access have been issued, while the database directive threatens to undermine vigorous redissemination of material contained in electronic libraries.

EC Regulation on Public Access

In February, 2000, the European Commission adopted a regulation governing access by EU citizens and residents to documents of the European Parliament, the Council and the Commission.[5] As background and authority, the regulation cites art. 255 of the EC Treaty, introduced by the Amsterdam treaty, grating an access right, 1993 and 1994 Commission codes of access, the UN/ECE Convention on Access to Information, and the Green Paper on public sector information in the information society.[6] The document confers a right of access on citizens of the EU and natural or legal persons residing or having registered offices in member states. Applicants need not state a reason for desiring access.[7] The regulation covers all documents held by the three institutions, including those created by third parties and held by the institutions as well as those created by the institutions themselves.[8]Third party documents may be privileged from disclosure.[9]

Covered documents include electronic formats, such as e-mail messages but it does not covered internal deliberations including email messages.[10]

Although the regulation explicitly does not amend national legislation, it instructs member states not to hamper proper application of the regulation.[11]

The regulation excludes documents "already published or accessible to the public by other means."[12] Applications must be made in writing with sufficient particularity to identify the requested document(s).[13]  Significantly, "An applicant who has obtained a document may not reproduce it for commercial purposes or exploit it for any other economic purposes without the prior authorization of the right-holder.[14]It is not altogether clear from the text of the regulation or from the explanatory memorandum whether "right-holder" refers to the custodial agency or to a third party. If it refers to the custodial agency, article 8 is a significant and undesirable restriction on redissemination of public information. If it refers third parties, it is a less significant restriction and only serves as a kind of savings provisions for pre-existing private copyright or sui generis right in third party publishers.

The Regulation provides exceptions to mandatory access:

·        protection of the public interest, including public security, defense and international relations, relations within the EU, financial or economic interests, monetary stability, stability of the EU legal order, court proceedings, inspection, investigations and audits, infringement proceedings, and effective functioning of the institutions.[15]

·        privacy of individuals[16]

·        commercial and industrial secrecy, including business and commercial secrets, intellectual and industrial property, industrial, financial banking and commercial information, including information relating to business relations or contract, and information on costs and tenders in connection with award procedures.[17]

·        confidentiality requested by a third party supplying the document, according to national legislation.[18]

Database directive

Governmental transparency in Europe is potentially limited by a directive afforming protection to "sweat of the brow" in databases. The European Database Directive[19] covers databases[20] in any form.[21] It confers copyright protection on databases which, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation."[22] Copyright protection does not, however, extend to database contents.[23]

It also provides a sui generis right for makers of databases who have made a substantial investment in obtaining verifying or presenting contents.[24] The sui generis right extends to preventing extraction and/or reutilization of the whole or of a substantial part of the contents of the database.[25] Extraction is the permanent or temporary transfer of all or a substantial part of the contents to another medium.[26]Reutilization is making available to the public all or a substantial part of the contents by distributing copies, by renting, or by online or other forms of transmission. [27]It also prohibits repeated and systematic extraction and/or reutilization of insubstantial part of the contents, when they conflict with normal exploitation of the database or when they unreasonably prejudice the legitimate interests of the maker.[28]

The sui generis protection extends for fifteen years.[29]

A privilege is provided for non-commercial extraction for teaching or scientific research,[30] but not for publishers of basic legal information.

Member states are obligated to enact implementing legislation by January 1998.[31]

The directive has the purpose and effect of avoiding the rationale of the Feist[32] decision in Europe. An early proposal to allow compulsory licenses for basic legal information was deleted in the European Parliament on the grounds that compulsory licenses are a matter for competition law.

National Developments in Europe

Developments at the national level in Europe are more encouraging than those at the European level of government.  The Schroeder Government in Germany has promised to submit a freedom of information law to the German parliament.

The Blair Government in Britain has actually moved specific freedom of information legislation through Parliament.  The British developments are particularly significant because Britain historically provided the least favorable climate in Europe for freedom of information because of its adherence to Crown Copyright—which allowed public institutions and their contractors to assert copyright in basic legal texts.

German developments

The German approach to freedom of the information is defined by the German Basic Law art. 5, subsec. 1 and the Federal Law on Administrative Procedure §§29, 30.

These legal instruments express the principle of secrecy of administrative proceedings, while ensuring provision of information only for persons that take part in administrative procedures or that might be affected by administrative decisions. This tradition does not give rise to a general public right to access governmental information. There is no specific law on access to information or a provision on access to information in general.

Nonetheless the development of legal provisions promoting greater transparency was already successful in several cases and is supposed to become politically more important in the near future. The German Federal Freedom of Access to Environmental Information Act, implementing a European Directive, grants access to government files and business documents containing environmental information. It came into force in 1994... On the state level, the East German States of Brandenburg (Article 21.IV) and Mecklenburg-Vorpommern (Article 6.II) offer a general right of access to information in their constitutions. General freedom of information acts adopted in Brandenburg and Berlin in 1998 and 1999. Furthermore, in their coalition agreement of October 20th 1998 the governing parties SPD and Alliance 90/The Greens expressed their intention to enact a general freedom of  information law on the federal level: The parties promise: ”With a Freedom of Information law we intend to grant our citizens the right of access to information without compromising data protection.”

British FOIA

On April 6, 2000 the House of Commons presented HL Bill 55, the Freedom of Information Bill (“FOIB”) to the House of Lords.[33] This Bill would mark a substantial increase in the British Government’s policy on disclosing government information to the public.[34] In addition to creating a more open policy towards public access to government records in Britain, FOIB would also harmonize the British Government’s policy with that of the United States.[35] This move towards greater transparency by the British Government presents an interesting opportunity to compare the proposed British FOIB to the United States’ Freedom of Information Act (“FOIA”). 

The first obvious similarity between FOIB and FOIA is that both acts grant standing to all persons to request access to government information.[36] Under FOIB, the right to request access to government records and information is granted to “[a]ny person.”[37] FOIA similarly requires U.S. government agencies to make information available to “the public”.[38] Thus both acts make government records available to any person properly requesting access. 

The two acts differ slightly on the duties they place on their respective governments. FOIA creates an affirmative duty for U.S. government agencies to publish certain information, and provide other information upon request.[39] Under FOIA, all government agencies must publish descriptions of the structure and locations of their organizations, their general method of their functions, their procedural rules and forms, their substantive rules and policy statements and any amendments, revisions or repeals of the foregoing.[40] In addition to these affirmative publishing requirements, FOIA also requires U.S. government agencies to provide access to their final opinions and orders in cases, policy statements, staff manuals, previously released information that the agency determines likely to be requested again and a general index of its records.[41] Further, the FOIA requires that U.S. government agencies make available other records that are reasonably described and requested in accord with the stated rules.[42]

FOIB on the other hand does not place an affirmative duty on the British government to publish information.[43] Section 1 of FOIB only requires that the “public authority” inform applicants in writing “whether it holds information of the description specified in the request.”[44] If the “public authority” does hold the requested information it is then required, subject to certain limitations, to communicate that information to the applicant.[45]

Thus, FOIA requires U.S. government agencies to publish information related to its activities and indexes to their records and FOIB places no such affirmative duty on the British Government.[46] Both acts, however, require that their respective governments to provide access to government records when requests are properly made.[47] The end results are similar in that both governments are required to disclose to the public the types of information they hold and, subject to certain exemptions discussed below, to provide access to this information.[48]

Another area where FOIB and FOIA achieve a similar result through slightly different means is in the formats that the government agencies must provide the requested information.[49] In this age of electronic communication, the format that a record is stored or disclosed in becomes very important.  Both acts reflect this by providing for electronic communication of requested information.[50]

While not mentioning electronic formats specifically, FOIB states that the applicant may request that the information be provided in a particular format and that the public authority “so far as reasonably practicable give effect to that preference.”[51] Presumably, this clause would cover a request for information in an electronic format.  FOIA deals with this issue more directly.[52] FOIA requires U.S. government agencies to make records created after November 1, 1996 available via computer telecommunications or if the agency has not yet established a means of communicating via computer telecommunications then by other electronic means.[53] Thus, both acts anticipate the ease, growth and anticipated reliance on electronic forms of communication in the near future.

Another area where the two acts are quite similar is in the types of information that are exempted from the disclosure requirements.  FOIB devotes a large number of provisions to “Exempt Information” in Part II of the act.[54] In Part II, FOIB specifically exempts numerous types of information through very specific and detailed descriptions.[55] FOIA exempts very similar types of information however, it does so in broader, more general terms.[56]

Both FOIB and FOIA exempt from disclosure information related to national security.[57] FOIB however, takes the security exemption a step further by exempting information that would prejudice relations within the United Kingdom.[58] Both acts also exempt information related to the economy and the conditions of financial institutions.[59] Both FOIA and FOIB also exempt government information related to criminal investigations and proceedings.[60] Both acts also exempt government information related to the health, safety and personal information of its employees.[61] Both FOIB and FOIA also exempt information pertaining to private institutions such as trade secrets, commercial information or other privileged information.[62] Both acts also exempt information exempted from disclosure by other acts of Congress or Parliament.[63]

While FOIB and FOIA exempt many similar types of information, there are areas where the two acts differ in the information they exempt from disclosure.  For example, FOIB exempts from disclosure information that is reasonably accessible by the public through other means.[64] This exemption is aimed at general information that has been previously disclosed by the government to other institutions.  This type of information is already available to the public and is therefore exempt from disclosure under FOIB.[65] FOIB also exempts information that the government holds but has set for release at some later date, thus allowing the British government to release information as it deems necessary.[66]

Another exemption under FOIB that does not exist under FOIA is known as the parliamentary privilege.[67] This exemption excludes information certified by the appropriate authority as information “required for the purposes of avoiding an infringement of the privileges of either House of Parliament.”[68] FOIA creates no such exemption for internal congressional records.[69] A related clause under FOIB exempts information held by the government that relates to the creation of government policy.[70] Again, FOIA contains no such exemption for Congress, but does exempt inter and intra agency memos and letters.[71] One last exemption under FOIB but not found under FOIA protects communications between the government and members of the Royal Family.[72] Obviously, no such exemption is necessary under FOIA due to the lack of a Royal Family.[73]

FOIA contains two exemptions not found in the proposed FOIB.  The first such exemption protects information related to the internal personnel rules and practices of the individual U.S. government agencies.[74] The second such exemption protects from disclosure information related to “geological and geophysical information and data.”[75]


Both acts establish procedures for requesting information.  5 U.S.C. § 552(a)(1)(A); Freedom of Information Bill, 2000, § 7 (Eng.).  Under FOIA, each governmental agency must establish methods for applicants to request information.  5 U.S.C. § 552(a)(1)(A).  These methods must include published forms for requests establish and methods for obtaining these forms.  Id.  FOIB, on the other hand, establishes a uniform method for requesting information.  Freedom of Information Bill, 2000, § 7 (Eng.).  Requests must be written and contain the applicants name, address and a description of the information requested.  Id.


Both FOIA and FOIB require government agencies respond to requests within twenty working days.  5 U.S.C. § 552(a)(6)(A)(i); Freedom of Information Bill, 2000, § (7) (Eng.).  Both acts also require their governments to give written responses to inform the applicant whether or not the agency will comply with the request and the rationale behind the decision 5 U.S.C. § 552(a)(6)(A)(ii); Freedom of Information Bill, 2000, § (15) (Eng.).  Under FOIA, the response must also inform the applicant of her right to appeal a refusal of a request to the head of the agency.  5 U.S.C. § 552(a)(6)(A)(i).  If such an appeal is made, it too shall be answered within twenty days.   5 U.S.C. § 552(a)(6)(A)(ii).  If the agency head upholds the refusal, the applicant shall be informed of this refusal in writing and be informed of her right to have the decision reviewed by a Federal District Court.  Id.


FOIB requires that an applicant whose request is refused be notified of the exemption the relied upon in support of the refusal.  Freedom of Information Bill, 2000, § 15(1) (Eng.).  Further, if the exemption’s applicability is not clear, the notice shall state specifically how the exemption applies.  Id.  The FOIB appeals process is similar to FOIA’s.  An applicant whose request is denied may appeal her case to the Information Commissioner.  Freedom of Information Bill, 2000, § 49 (Eng.).  After reviewing the request, the Commissioner shall either uphold the denial and inform the applicant of her right to further appeal to the Information Tribunal or direct the public authority to comply with the request.  Freedom of Information Bill, 2000, § 56 (Eng.).


 Both FOIA and FOIB also establish guidelines for charging applicants for processing requests.  5 U.S.C. § 552(a)(4)(A)(i); Freedom of Information Bill, 2000, § (8) (Eng.).  FOIA states that fees must be limited to a reasonable standard based on how the applicant will use the records and the cost to the agency to provide the record.  5 U.S.C. § 552(a)(4)(A)(ii).  When the requested records are to be used for commercial purposes, the fees may be higher.  Id.  If the applicant is requesting the information for educational or public interest purposes, then the fees should generally be lower.  Id.  Also, if disclosure is in the “public interest” and likely to contribute to public understanding of government activities, then the fees should be further reduced.  Id.


Under FOIB, the public authority must determine the fee in “accordance with regulations made by the Secretary of State.”  Freedom of Information Bill, 2000, § 8(3) (Eng.).  One notable difference is that under FOIB, the British government need not process a request until the fee has been paid.  Freedom of Information Bill, 2000, § 8(2) (Eng.).  While under FOIA, the government agency shall not require advance payment of a fee unless it will exceed $250.  5 U.S.C. § 553(a)(4)(A)(v).  This review of FOIA and FOIB demonstrates how the implementation of FOIB would greatly harmonize the American and British governments’ policies towards transparency. 


Conflict of laws

The controversy over application of the European privacy directive to transborder data flows has heightened consciousness of the limited effect of purely national or regional restrictions on information maintained in electronic form[76] Accordingly, one must consider the legal effect of the restrictions in the database directive, and in the British and EC access laws when covered information is exploited in other countries such as the United States. Would a United States court enforce the European restrictions? Would a U.S. exploiter be subject to jurisdiction before a European tribunal? The answer to the second question is "yes," to the extent that the exploiter is physically present in Europe, either personally or by maintained a registered office. The answer also is "yes" to the extent that the exploiter has assets, such as information processing equipment or bank accounts in Europe.

The answer to the second questions is more difficult. It depends on the extraterritorial effect of U. S. copyright law, and the obligations of the United States under the WTO-TRIP Agreement and under the Berne Convention to enforce foreign copyright and quasi-copyright. Under the Second Circuit's decision in Itar-Tass,[77] an American court hearing a claim of infringement in the United States of an information right such as copyright conferred by the foreign country must look to the law of the foreign country to determine the scope of the right.[78] The Itar-Tass approach would allow Europeans to enforce limitations on exploitation in American courts, when the acts constituting violation of the European duties occur in the U.S.[79]

Under Subafilms,[80]  U. S. courts may not reach beyond the boundaries of U.S. substantive law to enforce rights arising under U.S. copyright law. It held that U.S. copyright law lacks extraterritorial reach when infringing acts occur outside the United States.[81]

More significantly, in Bridgeman Art Library,[82] the district court suggested that U.S. courts lack the power to enforce copyrights arising abroad. The interaction of the First Amendment and on constitutional limitations on copyright, recognized in Feist preclude a U.S.court from enforcing sui generis rights in European databases or from enforcing restrictions on commercial redissemination.[83] The "national treatment" obligation under WTO-TRIP only obligates the United States not to discriminate against foreign rights holders -- U.S.courts must give them the same protection they would enjoy under U.S. law. Accordingly Bridgman would permit a U. S. Web site to republish a European database covered by the Database Directive or information obtained under the EC regulation, without regard to the restrictions on exploitation contained in those European documents.

Policy principles

”Freedom of information” is characterized by a need to balance a broadly enjoyed right to access against more or less narrowly defined exceptions e.g. in order to protect national security information, personal privacy and commercial secrets The need to strike balances is recognized in the U.S. and Europe. As the newer freedom of information laws in Europe are framed and applied, certain balancing principles should be honored. There is no convincing argument to restrict access to primary legal information.. In contrast, privacy aspects must be considered with respect to public records containing personal information. Any further action with respect to database protection should recognize the special position enjoyed in democratic legal systems of primary legal information -- the texts of statutes and decisions by courts and governmental agencies.

Primary Legal Information

”Primary legal information” - information having the force of law - like parliamentary enactments, judicial decisions and comparable instruments from organs of administration (administrative agencies) like rules and orders are the raw material of democracy. There are only few considerations countervailing to freedom of information.

One important controversy relates to the question whether public entities may hold a copyright in information subject to disclosure under freedom of information laws: Controversy exists firstly over whether private entities, obtaining information from public entities under freedom of information laws may assert copyright in the information thus obtained. This controversy is focused by database protection of initiatives presented in WIPO negotiations modeled on the European database protection directive (to be distinguished from the data privacy directive).

Secondly, federal entities in the U.S. are precluded from copyrighting public information. Similarly, in Germany according to Article 5 Copyright Act “Laws, ordinances, official decrees and notices as also decisions and official grounds of decisions” do not enjoy copyright protection. The same applies to other official works published in the official interest for public information. But the information collected and maintained by public agencies may be vested with private copyright, as when governmental entities hold information written by private persons. Apart from that, in the U.S. at the state level, some state legislatures and courts have taken the position that they are entitled to copyright, and thereby can preclude the reproduction or distribution of, primary legal information in statutes and court decisions.

There is an overriding public interest to get easy and cheap access to primary legal information. Unless individuals have access to information about the operations of their government, they cannot exercise effective democratic oversight. Moreover, this category of information contains the outputs of governmental processes --statutes, and judicial decisions comprising the law. A rule of law cannot exist unless citizens and their representatives know what the law is. Therefore copyright protection should not be extended to primary legal material. Legal database protection under the European directive should not apply to primary legal information.

The possible need for incentives at the margin for private publication of governmental information is a rather weak objection. The need for such incentives is diminishing as the Internet and PC technologies sharply reduce the costs for governmental entities themselves to make statutes and judicial decisions and proposals for governmental action available, and make it much cheaper for private entities to publish such information.

Public Records Containing Personal Information

With respect to public records containing personal information privacy concerns must be taken in account. This need is partly caused by technological advances in informational technology. For example, many judicial records, theoretically in the public domain in the United States, as a practical matter almost never are accessed by the general public because the costs of such access are too high. As such records are computerized and become available under freedom of information law, the practical implications for personal privacy are significant. The same is true for records pertaining to real estate transactions, theoretically open to the public in most American jurisdictions. As a practical matter the records are not widely available in paper formats.

It must, however, be recognized, that often no public reason exists for keeping such information confidentially. In many cases the private interests to keep a single private information contained in a public record may be negligible.  In addition, privacy concerns may become more important when it is possible to link and combine personal data from different records. Balancing a high public interest in access to informations on the one side and privacy interests on the other side in many cases may lead to solutions like anonymizing personal informations before giving access. In general, there is no apparent need to make such information more widely available than it would be under the exclusive application of privacy principles only because the information is collected by or possessed by governmental entities.

Tools to guarantee Freedom of Information

A culture of public access may make detailed enforcement of freedom of access principles less necessary. If governmental personnel voluntarily disclose a wider range of information about governmental operations and governmental decisions, legal mandates are less important. Historically, however, American government officials have shown no greater inclination than European officials voluntarily to make information about their activities available to the public.. The history of the American Freedom of Information Act shows continuing congressional efforts to tighten enforcement procedures and penalties for failure to disclose information covered by the Act.

Accordingly, the set of policy solutions for freedom of information extend mostly to legal mandates. The most importance design principles for freedom of the information law include:

· Even if a database protection treaty is adopted, it should not be extended to primary legal information

·        The law should recognize Internet dissemination as the best mechanism for first type of information. Policymakers should make sure law does not inhibit the trend toward agency Web initiatives, regardless of the competitive effect on traditional private publishing

·        As far as personal information is involved, freedom of access law must be integrated more closely to privacy (data protection) law.

·        Broadly enjoyed right to access

·      Time limits for agency response

·      Judicial review of refusals


[1] Member of the bar: Virginia, Pennsylvania, District of Columbia, Maryland, Illinois, and the United States Supreme Court. Dean Perritt has been involved for fifteen years in developing freedom of information principles for electronic formats. He authored Recommendation 88-10, and its supporting report for the Administrative Conference of the United States, and a strategy memorandum on electronic dissemination for the first Clinton Administration. He served as a consultant on the green paper for Directorate General 13 of the European Commission, and was a member of the National Research Council's Committee on Global Networks and Local Values. He is a member of the NRC's Computer Science and Telecommunications Policy Board. Much of the material on conflicting values and on principles to guide developments in Europe and the U.S. was developed in Dean Perritt's work with the Commission on Global Networks and Local Values.

[2]  Class of 2001, Chicago-Kent College of Law, Illinois Institute of Technology.

[3]  See also Henry H. Perritt, Jr., and Randolf R. Clarke, Transparent in China. ___ Gov't Info. Q. ___ (1997).

[4] See Henry H. Perritt, Jr. & Christopher J. Lhulier, ___, Buffalo Law Review.

[5]  Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, 500PC0030,

[6]  Regulation expl. Memo. Para. 2.

[7]  Expl. Memo. Para. 3.

[8]  Expl. Memo. Para. 4

[9]  Expl. Memo. Para. 4

[10]  Expl. Memo. Para 4 (definition of "document").

[11]  Regulation "whereas" para. 11

[12]  Regulation art. 2(2).

[13]  Regulation art. 5(1).

[14]  Regulation art. 8.

[15]  Regulation art. 4(a).

[16]  Regulation art. 4(b).

[17]  Regulation art. 4©.

[18]  Regulation art. 4(d).

[19] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, Off. J. L 077, 27/03/1996 p. 0020-0028,

[20]  Database is defined as a "collection of independent works, data or other material arranged in a systematic or methodical way and individually accessible by electronic or other means." DD art. 1(2).

[21] DBD art. 1(1).

[22] DBD art. 3(1).

[23]  DBD art. 3(2).

[24]  DBD art. 7(1).

[25]  DBD art. 7(1).

[26] DBD art. 7(2)(a).

[27]  DBD art. 7(2)(b).

[28]  DBD art. 7((5).

[29] DBD art. 10.

[30]  DBD art. 9(b).

[31]  DBD art 16(1).

[32]  Feist v. Rural Telephone Co., ___ U.S. ___ (1990) (no copyright protection for "sweat of the brow" in compiling databases such as telephone white pages directories).

[33]   [cite to FOIB explanatory note 1].

[34]   [cite]

[35]   [cite]

[36] FOIB § 1(1); 5 U.S.C. § 552(a) (1994 & Supp. 1996).

[37] FOIB § 1(1).

[38]   5 U.S.C. § 552(a) (1994 & Supp. 1996).

[39]   5 U.S.C. § 552(a)(1) (1994 & Supp. 1996).

[40] Id.

[41]   5 U.S.C. § 552(a)(2).

[42]   5 U.S.C. § 552(a)(3).

[43] FOIB § 1(1).

[44] FOIB § 1(1)(a).

[45] FOIB § 1(1)(b).

[46] FOIB § 1(1); 5 U.S.C. § 552(a).

[47] FOIB § 1(1); 5 U.S.C. § 552(a).

[48] FOIB § 1(1); 5 U.S.C. § 552(a).

[49] FOIB § 10; 5 U.S.C. § 552(a)(2).

[50] FOIB § 10; 5 U.S.C. § 552(a)(2).

[51] FOIB § 10(1).

[52]   5 U.S.C. § 552(2).

[53] Id.

[54] FOIB §§ 19-43.

[55] Id.

[56]   5 U.S.C. § 552(b).

[57]   5 U.S.C. § 552(b)(1); FOIB §§ 21-25.

[58] FOIB § 26.

[59]   5 U.S.C. § 552(b)(8); FOIB § 27, § 31.

[60]   5 U.S.C. § 552(b)(7); FOIB §§ 28-30.

[61]   5 U.S.C. § 552(b)(6); FOIB § 36, § 38.

[62]   5 U.S.C. § 552(b)(4); FOIB §§ 39-41.

[63]   5 U.S.C. § 552(b)(3); FOIB §§ 42-43.

[64] FOIB § 19.

[65] Id.

[66] FOIB § 20.

[67] FOIB § 32.

[68] Id.

[69]   5 U.S.C. § 552(b).

[70] FOIB § 33.

[71]   5 U.S.C. § 5552(b)(5).

[72] FOIB § 35.

[73]   5 U.S.C. § 552(b).

[74]   5 U.S.C. § 552(b)(2).

[75]   5 U.S.C. § 552(b)(9).

[76]  See Henry H. Perritt, Jr. & Margaret G. Stewart, False Alarm.

[77]  Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998).

[78]  153 F.3d at 89-90.

[79]  Accord, Carell v. Shubert Organization, Inc., No. 99 Civ. 4997 (AGS), 2000 WL 863134 (S.D.N.Y. June 27, 2000) ( copyright infringement is transitory cause of action, so U. S. court with personal jurisdiction has subject matter jurisdiction over copyright claim premised on foreign law even if no violation of U.S. copyright law pleaded; Berne Convention reinforces that conclusion).

[80]  Subafilms, Ltd. V. MGM-Pathe Communications Co., 24 F.3d 1088 (9th Cir. 1994).

[81]  24 F.3d at 1099.

[82]  Bridgeman Art Library v. Corel Corp., 36 F.Supp.2d 191 (S.D.N.Y. 1999).

[83]  Cf. Bridgeman, 36 F.Supp.2d at 194 (suggesting that neither Copyright Clause nor Treaty Clause of U.S. Constitution authorize protection of expression beyond that necessary to include authorship). Feist held that the Copyright Clause limits Congressional power to confer copyright on factual information.