Do I Have a Right to See Government Documents?

Section 51 of the Constitution is one of the more remarkable provisions in the document: a constitutional freedom-of-information right, enacted in 1975, before most countries had statutory freedom-of-information regimes at all.

The ten categories of permitted secrecy

1. (a) national security, defence or international relations, including relations with other governments or international organisations;
2. (b) records of meetings and decisions of the National Executive Council, and of executive bodies and elected governmental authorities prescribed by Organic Law or Act;
3. (c) trade secrets, and privileged or confidential commercial or financial information obtained from a person or body;
4. (d) parliamentary papers subject to parliamentary privilege;
5. (e) reports, official registers and memoranda prepared by governmental authorities prior to completion;
6. (f) papers relating to lawful official activities for the investigation and prosecution of crime;
7. (g) the prevention, investigation and prosecution of crime;
8. (h) the maintenance of personal privacy and security of the person;
9. (i) matters in reports prepared by or for a governmental authority responsible for regulating or supervising financial institutions;
10. (j) geological or geophysical information and data concerning wells and ore bodies.

Section 51(3) — the duty to make access work

Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.

This is a constitutional direction to the legislature, expressed as a duty. Where no general procedure is in place, section 51 does not become inoperative: section 11(2) makes constitutional provisions self-executing so far as their nature permits, and section 22 directs the National Court to supply missing machinery, as far as practicable, in the light of the National Goals and by analogy from other laws.

Section 51(4) — two things it does not authorise

The section does not authorise:

• (a) withholding information or limiting the availability of records to the public except in accordance with its provisions; or
• (b) withholding information from the Parliament.

Paragraph (b) is important and under-used. Whatever the position on public access, section 51 provides no basis for withholding information from Parliament — a point that bears on the work of the Public Accounts Committee and other parliamentary committees.

Why dual citizens are excluded

The right is confined to citizens other than citizens who have dual citizenship. That places section 51 alongside section 50(1)(ba) and section 56(1), which reserve voting, elective office and freehold land to citizens without dual citizenship, and section 56(3), which allows Parliament to reserve further rights on the same basis. See dual citizenship in PNG.

How to make a request in practice

1. Identify the document as precisely as you can — title, date, author, subject.
2. Write to the agency that holds it, citing section 51 of the Constitution and stating that you are a citizen who does not hold dual citizenship.
3. Ask for reasons in writing if refused, and for the specific paragraph of section 51(1) relied on.
4. Keep copies of everything, with dates.
5. Escalate. A refusal to give reasons, or unreasonable delay, is a matter for the Ombudsman Commission, whose jurisdiction covers defective administration. The right is also enforceable under section 57.

Section 51(2) — further regulation

A law complying with section 38 may regulate or restrict the right. Such a law must be expressed to be made for that purpose, specify the right, be certified as passed by an absolute majority, be necessary for a listed public interest, and be reasonably justifiable — and the burden of establishing that lies on the party relying on it.