Home > 2.Methodology > Understand right of access to information through Hohfeld’s conceptual framework

Understand right of access to information through Hohfeld’s conceptual framework

Hohfeld’s delicate analytical scheme of right can shed light on the legal nature and façades of the right of access to information.

Hohfeld’s established that rights embrace four types of legal relation involving 8 key elements. Very often, statements about rights draw on more than one of the four relations identified. (Hohfeld 1923)
(1) A right is a liberty: a person has a liberty to X means that he has no obligation not to X.
(2) A right is a right ‘strictly speaking’ or a claim right: a person has a right to X means others have a duty to him in respect of X.
(3) A right is a power, that is, the capacity to change legal relations connected with X and others are liable to have their position altered. (For example, a policeman obtains a power-right to enter my home, when he gets a warrant.)
(4) A right is an immunity that is the absence of the liability to have the legal position altered with regards to X.
The relation between the right-holder and other persons differs in the four cases.
Table 1  Hohfeld’s theoretical model of rights: 8 key elements

 hohfeldian_framework_1.JPG

In the light of Hohfeld’s model, the ATI right can be decomposed into 3 relations between the citizens, as the right-holder, and the government agencies, as the duty-bearer or other counterpart of the right-holder.

Table 2  Hohfeld-style model of ATI right

hohfeldian_framework_2.JPG 

Therefore, the right of access through request is identified as a claim-right. Claim-right being regarded as the most important kind of rights, the right of access through request would be the centre of FOI laws. And the exemption clauses are considered as giving grounds for agencies’ immunity from the liability to disseminate information.

A right-centred analytical framework of FOI rules, which will apply to the comparison and analysis of pro-transparency rules as well as anti-transparency norms mentioned above.

1. Right-holder
2. Duty-bearer
3. Content of the right (activity of the duty-bearer, manner, term)
4. Object of the right (information that is accessible)
5. Condition of the right:
a) Immunity advanced by duty-bearer: absolute exemption
b) Administrative discretion in the qualified exemption
c) Treatment of conflicts among laws and the duties thereby imposed
d) Justifying ground of the right (moral or political foundation of the right, legislative intention)
6. Composing elements of infringement and relative defence
7. Approach of access to remedy
8. Liability and compensation

Biblo:
Hohfeld, W. N. (2001). Fundamental legal conceptions as applied in judicial reasoning. Aldershot, Ashgate

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Categories: 2.Methodology
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