Right Of Public Access Research Articles

The Right of Public Access to Legal Information: A Proposal for its Universal Recognition as a Human Right

This Article examines the desirability of the universal recognition of the right of public access to legal information as a human right and therefore as part of a legal framework for improving national and global access to legal information. It discusses the right of public access to legal information as a legal right and the importance of its international human rights framework. The Article argues that every person has the right of public access to legal information, which casts a legal and moral duty on every government and every intergovernmental organization (IGO) with judicial and legislative functions to provide adequate and free access to its laws and law-related publications. It argues further that every government can afford the provision of adequate public access to its legal information and that the lack of political will to do so is the preeminent factor responsible for inadequate—and in some cases extremely poor—public access. Additionally, this Article advocates the universal recognition of the right of public access to legal information as a human right and makes a proposal for a UN Convention on the Right of Public Access to Legal Information. It provides the essential contents of the proposed UN Convention which incorporate The Hague Conference Guiding Principles to be Considered in Developing a Future Instrument. These contents provide valuable input for urgent interim national and regional laws and policies on public access to legal information, pending the Convention's entry into force. The proposed UN Convention will significantly enhance global access to official legal information that will promote widespread knowledge of the law. It will also facilitate national and transnational legal research and remedy the chronic injustice from liability under inaccessible laws under the doctrine of “ignorance of the law is no excuse”—which is similar to liability underex post factoand nonexistent laws—and promote the proposed doctrine of “ignorance of inaccessible law is an excuse.”

Public access to private land in Scotland

This article attempts to understand the radical reform of Scottish land law in its provision for a general right of public access to private land introduced in 2003 as part of land reform legislation, an important aspect of the initial agenda of the Scottish Parliament revived in 1999. The right is to recreational access for a limited period and the right to cross land. Access can be taken only on foot or by horse or bicycle.
 
 As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right.
 
 A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible.
 
 Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land.
 
 Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasises the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' – the subject of the Potchefstroom Conference at which the paper was initially presented – largely remains a matter for domestic law; the lex situs concept is alive and well.

Media access to juvenile proceedings: Balancing the tightrope between privacy rights and freedom of the press

The First Amendment to the U.S. Constitution has been invoked as the basis for the grant of media access to adult trials. Because the U.S. Supreme Court has not determined that the First Amendment right of public access similarly applies to juvenile delinquency proceedings, juvenile courts are faced with the issue of balancing the juvenile's privacy rights with the media's right to access information. This article undertakes research on media access to juvenile delinquency proceedings, including, the standards, limits, and conditions for such access through analyzing decisions of United States federal and state courts.

Tax Confidentiality in Sweden and the United States—A Comparative Study

This article, based on my PhD thesis:“Tax Confidentiality: A Comparative Study and Impact Assessment of Global Interest, “compares Swedish and US tax confidentiality legislation concerning public opportunities of accessing tax information held by their respective tax administrations. The article concerns itself with the historical development of tax confidentiality legislation, the general legal framework, the reasons behind tax confidentiality, and the main content of the tax confidentiality rules. The overall comparative conclusion is that Sweden provides a high level of tax transparency based on the right of public access to official documents, while the United States offers a high-level of confidentiality and protection of taxpayer information based on the individual's right to privacy. Notwithstanding this overall difference, there are certain similarities, such as public accessibility being source-based. That is, if the individual's tax information is contained in a tax return, then the information is confidential, however, if it is contained in public court records, then the information is public.

Allemansrätten in Sweden: A Resistant Custom

By studying parliamentary proposals, debates, and reports as well as governmental inquiries and proposals from the first half of the twentieth century, the authors analyse the status of the allemansrätt – ‘every man’s right’ to public access - in Sweden. The founding principles of this use-right have been generally accepted since the late nineteenth century, but for almost as long there has been a feeling that it has been used (and abused) for commercial as well as personal interest, first by ‘for-profit’ berry harvesters and later on by tourist companies. These uses have been questioned by a minority of conservative and (to a less extent) liberal landowners, who have tried to limit the right of public access to private land by addressing the issue in the parliament. At the same time, a political majority of socialists, liberals, and conservatives has defended the right from being either limited or regulated by law. This resistance is explained by the economic characteristics of the resources at stake, and by the difficulties associated with transferring a customary right into law, i.e. an informal institution to a formal institution.

Who Gets a Press Pass? Media Credentialing Practices in the United States

The journalism market in the United States is more diverse than ever before, with a wide array of independent newsgatherers complementing the work of institutional news organizations. But regardless of where journalists practice, it is essential to their mission that they have access to information about the activities of government and private organizations. In many cases, laws that grant the public rights of access to government (such as open meetings laws, freedom of information acts, and constitutional rights of access to judicial proceedings) also guarantee that members of the media can obtain information they need.But when journalists need access to government or private spaces beyond what is allowed to the public at large, they must obtain special permission. This frequently takes the form of a media credential, an official document or statement from an organization that the journalist is permitted to be somewhere or engage in particular activity, regardless of rules applicable to the rest of the public. The issuance of credentials is, however, far less uniformly regulated than other interactions between press and government. Diverse standards imposed by federal, state, local, and private organizations have led to confusion over who should receive media credentials in different contexts, and raised questions about the definitions of journalism used by these organizations.This study, the first of its kind to perform a quantitative examination of media credentialing in the United States, surveys the experience of journalists throughout the country in their efforts to obtain media credentials from different types of credentialing organizations from 2008 to 2013. The survey results show that one out of every five respondents who applied for a credential was denied by a credentialing organization at least once. Moreover, certain categories of applicants are more likely to be denied than others: freelance journalists were significantly less likely to receive media credentials than employed journalists; photographers were more likely to be denied than non-photographers; and respondents who identified themselves as activists were more likely to be denied than those respondents who did not.

Librarians and copyright

AbstractThe contribution presents a collection of basic information from the field of copyrights, which Slovene librarians should be familiar with since their everyday work with materials and contacts with users increasingly touches upon issues of the protection of author’s interests and the public rights of access to information. The paper gives a short historical survey of the development of copyrights abroad and particularly in Slovenia, an overview of acts adopted in Slovenia and international contracts from the field of copyright protection. Special attention is paid to the current articles of the Slovene Copyright Act, particularly those affecting the activities of public libraries.

Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the Widest Possiblee

The recent years have witnessed a growing concern in the EU institutions for the ways in which openness and citizen participation are believed to distract efficient decision-making. Various examples of such attitudes can be easily identified, demonstrating how the EU institutions still fail to possess a deeper understanding of the role of transparency in legitimate governance. This paper discusses the ways in which the right of public access often turns into institutional politics with the institutions and the Member States in fact buttressing their own interests. This has serious consequences for the understanding of citizens’ rights to participate in democratic decision-making. These questions are examined in the areas of legislative matters and international relations. The problems identified are then placed in the context of wider administrative culture in the relevant EU institutions, reflected in their responses to the citizens’ concerns. The paper concludes with a few remarks on the wishes of the European Council to create greater legitimacy for the Economic and Monetary Union, and the role of openness in that discussion.

Performing Nordic Heritage: Everyday Practices and Institutional Culture by Ed. Peter Aronsson and Lizette Gradén

Reviewed by: Performing Nordic Heritage: Everyday Practices and Institutional Culture by Ed. Peter Aronsson and Lizette Gradén Timothy R. Tangherlini Performing Nordic Heritage: Everyday Practices and Institutional Culture. Ed. Peter Aronsson and Lizette Gradén. The Nordic Experience, 1. Surrey: Ashgate Publishing, 2013. Pp. xvii + 348. This recent collection of essays exploring aspects of cultural heritage, its display, and, as the editors frame it, its “performance,” provides an interesting series of case studies, all interrogating the idea of Norden and examining how different institutions, groups, and individuals across the region have engaged this idea, either explicitly or implicitly, as part of their representational activities. The introduction to the volume attempts to clearly demarcate the area of Norden, at the same time as it struggles with the contingent and shifting notions of Norden and the differential investment in the concept across the Nordic region. Ultimately, the editors and their contributors recognize that Norden as a concept is riven with dissension, contradiction, and outright rejection. The stated goal of the volume, to “investigate how images of Norden (as the five Nordic countries are referred to in Denmark, Finland, Iceland, Norway and Sweden) as a supranational identity have provided, and continue to provide, arenas for negotiating cultural understandings of community in specific public contexts” (p. 1) is an interesting one, yet one that never quite comes to fruition over the course of the ten case studies that comprise the main contents of the collection. Rather, what becomes apparent is that Norden is not a universally functional category and that, rather than acting as a central conceptual cultural category that organizes the region, the concept of Norden is deployed rhetorically as [End Page 98] part of specific ideological projects. Even “belonging” in or to Norden, as the chapters that include considerations of the Baltic countries make clear, is subject to debate. The case studies, each written by scholars from across the region and from a broad range of disciplines, do an excellent job of exploring the particularities of a series of these ideological projects, highlighting along the way the importance of nation (as opposed to region) as an organizing trope, even when these projects ostensibly gesture at region and eschew nation. The case studies are interesting each in their own right, but do not always cohere as a group; indeed, the organizational principles of the volume suggest that the editors and the contributors had difficulty devising a general organizing principle for the volume and settled on “performance” as a means for bridging the two projects, “Nordic Spaces in the North and North America” and “National History—Nordic Culture: Negotiating Identity in the Museum,” which are the basis for these essays. That aside, the chapters are fascinating explorations of how cultural heritage is constructed and displayed, both in Norden and outside of Norden (particularly North America), and the inherent contradictions or deliberate lacuna that emerge from these projects. In the first chapter, Susanne Österlund-Pötsch provides a history of the emergence of the relatively obscure sport of “Nordic Walking,” linking its emergence to an interesting discussion of the concept of allemansrätten (freedom to roam; right of public access to the wilderness). Subsequently, she is able to tie it into the history of folklore collection in the Nordic region. Folklore collection, as she accurately points out, relied on intensive walking tours, a physical engagement with the space of the emerging nation. She uses these practices to open up the concept of the environment and the varying types of engagement with the environment that characterize the Nordic countries. While the paean to Nordic walking that comprises part of the chapter is slightly odd, Österlund-Pötsch moves on to a thought-provoking discussion of the recent popularity of “pilgrimage.” What I found missing was a discussion of the popular sport of orienteering, as that would have made a clear bridge between pole-walking and pilgrimage. In the next chapter, by Katla Kjartansdóttir and Kristinn Schramm, the focus shifts to Icelanders “abroad” and how they negotiate their positionality as slightly exotic outsiders even in other Nordic countries such as Denmark. The discussions of food and the practice of navigation in the urban/suburban environment...

Balancing public access and privacy in developed coastal zones: Factors influencing attitudes towards potential management options

The coastline of south eastern Norway is mostly privately owned and largely developed with homes and cabins. Public rights of access are permitted in what are defined as ‘outfield’ areas. However, public access may be difficult due to the location of developments, the blurred legal distinctions between outfield and infield areas and a lack of adequate recreational management. This project examined the social interactions between waterfront dwellers and local day visitors and the potential for improving recreational management in the study area of Saltnes on the Oslo Fjord in Norway. All households in Saltnes were surveyed (259 responses) to explore how local inhabitants (i.e. shoreline visitors, potential visitors and waterfront dwellers) perceived different potential management measures for improving private–public co-existence along the waterfront area. The study also investigated the extent to which the dichotomy between the need for access and the need for privacy influences attitudes towards different management measures. The multivariate structural equation model (SEM) contained two sets of manifest exogenous variables for respondent characteristics and four latent endogenous variables identifying four possible management options. The two options most favoured by respondents were Onsite information and Physical preparation, both of which were significantly more popular than Guiding boundaries and Access restrictions. The provision of Onsite information was regarded positively by both visitors and waterfront dwellers, and thus probably has the best potential for improving co-existence and co-operation between the two groups. Management implicationsWhen attempting to improve cooperation and co-existence in a potential conflict situation between local visitors and waterfront dwellers in shoreline areas, the following management recommendations should be considered:–A management solution should be based on local contextual knowledge.–Onsite information, identifying accessible and in-accessible areas along the shoreline are most preferred and accepted by visitors, potential visitors and dwellers alike.–Physical preparations, such as boardwalks, are well accepted by the visitors and potential visitors, but perceived more negatively by waterfront dwellers.–Guiding physical boundaries, like fences, and access restrictions cannot be recommended.–Planning processes should explicitly consider the requirements of potential visitors who are less acquainted with local conditions.–Private landowners should be integrated in the planning process at an early stage if planning measures are likely to affect their properties.

Recreation on private property: landowner attitudes towards allemansrätt

Sweden's right of public access – allemansrätt – allows for access to almost all rural land, so long as care is taken not to damage crops or disturb farm animals, wildlife, or landowners’ privacy. Such access systems are of particular interest as an option for western governments that seek to solve the problem of increasing public demand for access. The article outlines the formal and informal aspects of Sweden's public access system and presents the findings of interviews with landowners in Nynäshamn county, a rural area to the south of Stockholm. Few significant problems with allemansrätt were reported. Landowners displayed positive attitudes towards the continuation of the right of public access and were accepting of the few limitations access plays on rural land management. The lesson for other jurisdictions considering introducing a right to roam is that farming and recreational use can coexist and that whilst an informal behavioural code is important, this needs to be backed up by trespass law, proactive dispute resolution, cooperation between user groups, landowners, and the state, and an ongoing public education campaign.

Recreational Use of Developed Norwegian Shorelines: How Ambiguous Regulations Influence User Experiences

In principle, public rights of access to “outfield” along the Norwegian shoreline are protected by law. A case study from the village of Saltnes indicates that it is difficult for people to stay or walk along a populated shoreline area without feeling that they are violating privacy norms. Such “mental” barriers and subjective perceptions are not formally addressed in Norwegian regulations concerning legal rights of public access, but appear to affect the extent of recreational use. Interviews with property owners and visitors in Saltnes indicated that two key elements help to improve the situation. First, physical markers demarcating public land (“outfield”) and private land (“infield”) such as vegetation, small fences, signs, boulder walls, paths, and so on seem to reduce discomfort both for visitors and residents. Second, property owners and visitors value polite behavior highly, and communication between different groups of interests seems to clarify the challenging public/private divide. A main impression was that people find present rules and regulations unclear and diffuse and difficult to practice. It is relevant to ask whether the public accessible parts of developed and populated coastal zones are identifiable through the infield–outfield divide; more specific and adapted regulation of public traffic is needed on private shoreline properties.

Public access to private land in Scotland

This article attempts to understand the radical reform of Scottish land law in its provision for a general right of public access to private land introduced in 2003 as part of land reform legislation, an important aspect of the initial agenda of the Scottish Parliament revived in 1999. The right is to recreational access for a limited period and the right to cross land. Access can be taken only on foot or by horse or bicycle. As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right. A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible.Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land.Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasizes the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' – the subject of the Potchefstroom Conference at which the paper was initially presented – largely remains a matter for domestic law; the lex situs concept is alive and well.

Divergent interests and ideas around property rights: The case of berry harvesting in Sweden

This paper illustrates the clash between interests and ideas concerning property rights and regulation by analyzing the ongoing debate on the right of public access in Sweden, which has recently intensified due to an influx of foreign professional berry harvesters. The conflicts in Sweden are found to stem from contradictory concepts concerning property (notably, ownership and the right of public access) and ideological differences in terms of whether forest resources should be regulated by government or governance. While the precise circumstances of this case are somewhat unique to Sweden, differences of opinion concerning property rights and regulations are common and so our findings will be broadly applicable when defining and analyzing forest-related conflicts, especially those involving multiple-use situations.

Protecting Unconvicted Criminal Defendants: Limiting Iowa’s Rights to Public Access in Search of Greater Protection for Those Defendants Whose Charges Do Not End in Convictions

Even when criminal defendants are acquitted of crimes or their cases are dismissed, many in the public still presume that these people are guilty. Unfortunately, with an open and public record system such as Iowa’s, there are risks involved for these unconvicted criminal defendants even when they are not found guilty of a crime. Iowa’s right of public access to its online docket allows anyone to search a name, and within a few clicks the searcher has all the dispositional information of any case in which the named subject was ever a part. Additionally, since Iowa has no anti-discrimination statutes regulating the use of criminal-history data as a basis for denial of various applications, Iowa’s decision-makers (employers, school administrators, landlords, and the like) can consider any of this information when evaluating an applicant. As a result, Iowa courts’ openness and the state’s lack of anti-discrimination statutes can have harsh consequences for criminal defendants who have not been convicted of crimes. This Note describes those potential consequences, offers and reviews possible remedies, and then suggests that Iowa adopt new policies that redact identifying information from the docket and from other court documents as well. It also suggests the state legislature should pass anti-discrimination and regulatory statutes to further protect this class of citizens.

Horse riding posing challenges to the Swedish Right of Public Access

Increasing numbers of horses are being kept for sports and leisure purposes in peri-urban areas throughout the Western world. This expansion of the equestrian sector represents a multifunctional transition, with new production of rural goods and services and increasing influence on land use. In Sweden, the number of horses has increased from 70,000 to approximately 300,000 over the last 30 years. This increase is putting pressure on the traditional Right of Public Access, an old custom allowing the public to walk, cycle or ride on private or state-owned property. This paper analyses multifunctional land use in peri-urban areas in order to provide a deeper understanding of the potential conflicts arising due to the expanding equine sector and to assess how these can affect the Swedish right of public access and spatial planning. A survey of horse riders and landowners in three peri-urban regions of Sweden revealed that these groups differ in their attitudes towards the Right of Public Access. The data also showed that the expanding equine sector is generating new demands on rural areas and there are questions regarding how the current system of open accessibility can meet the increasing market for equestrian leisure activities. The main conclusion is that there seems to be a strong need for intervention and deliberate creation of new ways of handling the accessibility question, where both a bottom-up and top-down approach may be useful.

D. Sweden

Mercury has been previously banned on the Swedish market, including a ban on export from Sweden. However, in a preliminary ruling from the European Court of Justice (ECJ) in 2009 it was concluded that such a ban is incompatible with EEC Directive 93/42 on Medical Devices. It has also been concluded that in some aspects the Swedish regulation was in conflict with EC Regulation 1907/2006 Concerning the Regulation, Evaluation, and Authorisation of Chemicals (REACH Regulation). Thus, the Swedish Regulation SFS 1998:944 was amended to allow the export of mercury-containing amalgams and also in order to be in accordance with the REACH Regulation. The Swedish right of public access, ‘allemansrätten,’ which gives everyone a right to move freely in nature, was discussed and reviewed during the year. The first initiative in this discussion, which concerns the foundation of Swedish outdoor life, was taken by the Federation of Swedish Farmers (LRF) at the beginning of the year. This initiative was a reaction to the increasing commercial use of land that is under the ‘shelter’ of the right to public access and the damage that this kind of land use brings. Many commercial enterprises more or less base their business on the right to public access and, thus, exploit land in the Swedish countryside primarily during the summer. These companies use the land for their economic gain and leave a considerable amount of damaged land behind. As a result, the LRF wants to see an amendment to the Environmental Act that limits public access in regard to commercial use. There is a legal precedent that has allowed commercial use under the right of public access.

National parks and environmental justice: Comparing access rights and ideological legacies in three countries

National parks are often places where people have previously lived and worked-they have been formed by a combination of natural and human processes that embody an identifiable history of cultural and political values. Conservation of protected areas is primarily about how we perceive such landscapes, how we place differential values on different landscape components, and who gets to decide on these values. Thus, conservation has been and still is very much about issues of power and environmental justice. This paper analyses the social, political and environmental histories of three national park regimes (South Africa, Sweden and Scotland) through the lens of public access rights. We examine the evolving status of access rights-in a broad sense that includes access to land, resources and institutions of governance-as a critical indicator of the extent to which conservation policies and legislation realise the aims of environmental justice in practice. Our case studies illustrate how access rights are contingent on the historical settings and ideological contexts in which the institutions controlling national park management have evolved. Dominant cultural, political and scientific ideologies have given rise to historical precedents and institutional structures that affect the promotion of environmental justice in and around national parks today. In countries where national parks were initially created to preserve perceived 'wilderness', with decisions taken by powerful elites and central authorities, this historical legacy has prevented profound change in line with new policy directives. The comparative analysis of national park regimes, where historical trajectories both converge and diverge, was useful in improving our understanding of contemporary issues involving conservation, people and politics

Public Access to the English Coastline: An Analysis of Part 9 of the Marine and Coastal Access Bill

The Marine and Coastal Access Bill includes legislative provisions for improving public rights of access to the English coast. This paper examines the background to the coastal access proposals and analyses the draft legislative framework in the context of ongoing controversies over the creation of public rights of access to private land. It also considers the issue of compensation payments to the owners and occupiers of land affected by the coastal access proposals.

Copyright and knowledge advancement: a case study on the UAE copyright law

PurposeThis paper aims to give a snapshot of the copyright and neighboring rights law of the United Arab Emirates (UAE), illustrating the provisions governing the law. It seeks to frame UAE copyright provisions within the context of the principles of copyright and the structure of international copyright protection.Design/methodology/approachThe article begins with an overview of copyright laws. It highlights the central issues of concern to education, librarianship, and scholarship, depicting the complexity that the digital era has brought on copyright doctrines. It then explains the exclusive rights granted under the law, showing its orientation toward the civil law tradition with its emphasis on moral rights.FindingsThe author observes that a key effort to making practical sense of copyright in this region entails educating key communities, and emphasizing the importance of copyright limitations and exceptions pertaining to educational institutions and libraries. He advocates for applying copyright to the advantage of academic and research communities, and offers strategies strengthening the right of use in favor of these communities. Understanding the concepts and principles of copyright will make these communities proponents of sound copyright policies that will safeguard the promotion of learning and the right of public access, while still protecting intellectual property rights.Originality/valueThere has not been any discussion in the library literature on copyright in the UAE and other Gulf Cooperation Council (GCC) members – Bahrain, Kuwait, Oman, Saudi Arabia, and Qatar. Therefore, this case study of the UAE copyright and neighboring rights law aims to provoke such discussion. It should be useful to the whole library community, and particularly those in the UAE and other GCC countries.