Access to Information
Access to information is a necessary right to prevent and remedy corporate abuses of human rights. Where harms have occurred, companies involved often have far more information about the processes, products and decisions that resulted in the harm, including scientific information about companies’ operations, contracts with business partners, and documentation of their decision-making. If victims of these harms are to have meaningful access to remedy, they must be able to obtain all relevant information.
The 2011 United Nations Guiding Principles on Business and Human Rights recognised this, requiring that businesses communicate their human rights impacts especially in response to stakeholder concerns (principle 21), and that victims of harm seeking remedy have a specific right of access to information (principle 31).
The rights to receive information and the responsibility to make information available are widely recognised human rights. The Universal Declaration of Human Rights (UDHR) protects the right “to seek, receive and impart information and ideas” (article 19), and Article 19 of the International Covenant on Civil and Political Rights requires governments to protect, respect and fulfil the freedom to seek and receive information.
The primary means in many countries for obtaining information in legal cases is discovery or disclosure. Companies can and should substantively report on and disclose their social and environmental impacts during their operations and before any harm occurs, and government actions and information with respect to companies, such as contracts, licenses, natural resource concessions and company filings, should be transparent and publicly accessible. However, in most cases robust discovery mechanisms are needed to access information in the hands of companies and governments.
Meaningful access to information for people affected by corporate activity requires on-going disclosure by companies. The 2011 OECD Guidelines for Multinational Enterprises devote an entire section to disclosure, explaining that: “enterprises should ensure that timely and accurate information is disclosed on all material matters regarding their activities, structure, financial situation, performance, ownership and governance” as well as “foreseeable risk factors” and “information on relationships with workers and other stakeholders.” Where these principles are followed, this should result in less of a burden for victims of abuse seeking judicial remedy to get information such as impact assessments and environmental data through legal discovery.
Companies carrying out projects supported by government, or tendered by the government for public services or infrastructure, have a particular responsibility to disclose information because of the public interest in monitoring the state’s role in projects affecting human rights, as well as in other public priorities such as monitoring the expenditure of public funds and effective provision of services.
Some companies seek to block access to information by the public or by plaintiffs by arguing that doing so would force them to disclose and therefore lose the value of trade secrets.
Access to information is crucial for victims of business-related human rights abuses to hold companies accountable for the harm caused, so that they can build their cases and to show the links between the company and the harm suffered. The inability to access information compromises the ability of victims to seek legal remedy. In Indonesia, victims of the haze – air pollution due to burning of forests to clear land for agribusiness, including palm oil – and their lawyers face difficulties in accessing company information, especially maps showing plantations’ boundaries. In 2014, the South African Supreme Court of Appeal ordered ArcelorMittal, the world's largest steel producer, to release environmental records, in a lawsuit brought by a community NGO who had been fighting for access to information about pollution levels for three years. The Supreme Court of Appeal highlighted the public interest of environmental impacts and also the “dangers of a culture of secrecy and unresponsiveness.”
Communities adversely affected by business activities may also need information about the governance structure of the business involved to determine where to bring a complaint; to prove the parent company’s role in actions of a subsidiary that committed the abuse; or to demonstrate how supply chains and subcontractor relationships operate and communicate. Documents, such as emails, memos, and meeting minutes, can meet legal requirements that a plaintiff show that the company knew about the abuse and could have prevented it from occurring.
Discovery rules, governing access to information in litigation, vary between judicial systems. Some rules require parties to specifically name and describe the document that they are seeking; these seek to prevent plaintiffs from seeking proof of facts that they may not know occurred, often called “fishing expeditions”. However, when these rules are strict, they can make gathering evidence on corporate structures and practices difficult – jeopardising access to justice and the right to fair trial.
In some cases, governments may object to disclosing information on bases such as national security; it is then vital for courts to view these objections fairly and weigh them against the interests of substantive justice. For instance, in the Paladin Lawsuit (re Malawi), the plaintiffs requested access to the Environmental Impact Assessment regarding a uranium exploitation project but the government of Malawi argued that this document was classified. This classification made it impossible for the plaintiff to monitor any breaches and to prove the defendants role in adverse impacts on the environment.
Access to information can also be a cross-border issue. A plaintiff wishing to access the corporate-defendant’s information that is stored abroad may face barriers. For instance, corporations that are based in the US may face lawsuits in other countries when they are implicated in human rights abuses over their operations there. One of the tools community lawyers are using is the US Foreign Legal Assistance (FLA) Statute which allows any “interested person” from another country to ask a US court to order a US corporation to turn over relevant documents. After not obtaining justice in a US lawsuit against Shell over alleged complicity in human rights abuses in Nigeria, Esther Kiobel, the wife of an Ogoni activist arbitrarily detained and executed in Nigeria, filed a lawsuit against Shell in its home country: the Netherlands. To obtain evidence critical to her case, she used the FLA Statute. In 2017, a US court granted her access to relevant documents in the possession of a US law firm that defended Shell in the US lawsuit. See other examples of the use of FLA in business & human rights cases here.
The flip side of discovery is that in some cases, it can be used abusively by companies against lawyers representing communities to slow them down in their work. In 2011, for example, a law firm representing Chevron was sanctioned and ordered to stop harassing a witness in the discovery process while defending enforcement of an Ecuadorian court judgment for oil pollution: "It is a reasonable conclusion that Chevron's subpoena for Johnson [ELAW’s Director, an organization that supported Ecuador’s plaintiffs case with an amicus brief]'s deposition was, at least in part, meant to harass," wrote the US District Court.
Click here for examples of lawsuits raising access to information issues.
IBA Practical Guide on Business and Human Rights for Business Lawyers, Intl. Bar Association, 2016 (p24 – reporting and disclosure)
Access to information for litigation in UK, Leigh Day law firm, July 2015
Business and Human Rights guidance for Bar associations, Intl. Bar Association, 2014 (pp35 and 62 re UN Guiding Principle 21; p41 – Reporting and disclosure; p47 – Reporting and disclosure)
Using U.S. Courts to Obtain Information for Foreign Legal Cases (re US Foreign Legal Assistance Statute), EarthRights International