Informatierechten 'revisited': Nadere gezichtspunten voor codificatie van het recht op informatie in de Grondwet

In 1998, Mark Bovens signalled in his Utrecht inaugural lecture that digitalisation poses a major challenge to the rule of law. Information has become volatile and intangible, the government has less and less control over it and citizens lack the information they need to properly participate in society. For that reason, Bovens argued that a new fundamental right to information would have to be added to the Netherlands Constitution.
Although the matter of access to information is no less relevant today, Bovens’ proposal to enshrine these rights in the Constitution was never acted upon. This article explores constitutional, conceptual and fundamental rights-theoretical explanations for this. It first sets out what the added legal-theoretical value is of enshrining fundamental rights in documents such as the Constitution. It illustrates this by revisiting a debate on a somewhat related right: the right of access to law. Finally, it is argued that even if a right to information itself may not be well-suited to codification, this might be different for a broader, more encompassing right to good administration. In the end, this would still serve the purposed defined by Bovens, which is to protect the rule of law in our turbulent digital society.