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7. Justification of restricting right of access to information The present chapter describes how the onus is not on the requestor to provide reasons for disclosure, but on public authorities to justify non-disclosure. In any country – which includes 167 Parties of the International Covenant on Economic, Social and Cultural Rights189 – where freedom of information is recognised as a constitutional right or as a human right, the legislation has to balance between the free exercise of the right and the public interests that may put limitations on it. As freedom of information is a right and not a favour or discretion granted by an authority, the burden of proving the necessity and proportionality of any restriction lies with the authority aiming to restrict it, regardless of the nature of information. Principle 4 describes it with the following terms: a. 'The burden of demonstrating the legitimacy of any restriction rests with the public authority seeking to withhold information. b. The right to information should be interpreted and applied broadly, and any restrictions should be interpreted narrowly. c. In discharging this burden, it is not sufficient for a public authority simply to assert that there is a risk of harm; the authority is under a duty to provide specific, substantive reasons to support its assertions. Note: Any person who seeks access to information should have a fair opportunity to challenge the asserted basis for a risk assessment before an administrative as well as a judicial authority, consistent with Principles 26 and 27. d. In no case may the mere assertion, such as the issuing of a certificate by a minister or other official to the effect that disclosure would cause harm to national security, be deemed to be conclusive concerning the point for
which it is made.' It is a general principle which is present in almost all freedom of information systems that in case an information request is refused, the burden of proof lies with the authority that holds the information requested. Alongside the criteria of necessity and proportionality, it is an indispensable element of the restriction of any fundamental right, including the right of access to information, that the individual concerned shall know why the restriction was needed and in which manner it serves any legitimate aim. As the UN Human Rights Committee emphasised, ‘[a]uthorities should provide reasons for any refusal to provide access to information’.190 In the practice of the ECtHR on Article 6 of the European Convention on Human Rights (hereinafter: ECHR) ‘the Court has frequently held that the reasoning provided in court decisions is closely linked to the obligation to ensure a fair trial as it allows the rights of the defence to be preserved. Such reasoning is essential to the very quality of justice and provides a safeguard against arbitrariness’.191 Nevertheless, the criteria of a fair trial enshrined by Article 6 should not be limited to criminal proceedings and not even to proceedings of courts.192 As classification may result in non-disclosure of requested information, it is crucial to provide written justification on why the right of access to information has to be restricted, as this is the only way to prevent arbitrary classifications. At the same time, it is not an otherwise unnecessary exercise which is only needed to satisfy fair procedure concerns. Justifications may reduce over-classification that saves resources of the agencies handling classified information. Justification is proof of whether information was classified as a result of a proper harm (and public interest) test and the decision-maker was able to explain ‘the factual and rational bases on which the exemptions rest’.193 The justification helps the authority to perform internal reviews on classification. Having a justification also