Right to Information Guide for Myanmar It is universally recognised that the right to information is not absolute and that certain types of information should not just be disclosed to anyone who asks for it. The core idea behind the right to information is that access is the default or presumed position and that any refusal to provide information is exceptional in nature. One of the important consequences of the creation of a presumption in favour of access is that public authorities must justify any refusal to make information public. The right to information is part of the general right to freedom of expression under international law which, as noted above, protects the rights to seek and receive, as well as to impart, information and ideas. As such, exceptions to the right to information are subject to the three-part test for restrictions on freedom of expression, which requires restrictions to: ! be provided by law; ! protect one of the interests listed under international law; and ! be necessary to protect this interest. The second part of the test means that restrictions on freedom of expression must have the purpose of protecting one of the aims listed in Article 19(3) of the ICCPR. This list, which is exhaustive so governments may not add to it, includes only the following interests: 1. 2. 3. 4. the rights or reputations of others; national security; public order; and public health and morals. In the context of the right to information, this is generally understood as requiring exceptions to meet a three-part test: a. The restriction must aim to protect one of a limited number of interests set out in the law which conform to the list of protected interests noted above. b. Information may be withheld only where its disclosure would cause harm to one of the protected interests (as opposed to information which merely relates to an interest). c. Information must be disclosed unless the harm to the protected interest outweighs the overall benefits of disclosure (the public interest override). Principle IV of the Council of Europe’s (COE) Recommendation of the Committee of Ministers to Member States on access to official documents, titled “Possible limitations to access to official documents”, reflects the test outlined above and also provides an indication of what sorts of interests might need to be protected by secrecy. It reads as follows: 1. Member states may limit the right of access to official documents. Limitations should be set down precisely in law, be necessary in a democratic society and be proportionate to the aim of protecting: i. national security, defence and international relations; ii. public safety; iii. the prevention, investigation and prosecution of criminal activities; The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 7