6, November, 2012

ELLA Expert Review: Transparency and Access to Information

Here Toby Mendel, Executive Director of the Centre for Law and Democracy, offers his reaction to the ELLA knowledge materials on Transparency and Access to Information.

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ELLA Expert Reviews: As part of ongoing efforts to ensure quality in our research and communications, the ELLA team asks recognised experts to conduct reviews of the knowledge materials in a given theme and produce a short written response. The purpose is to highlight a range of distinct perspectives amongst experts in the field and link readers with additional research, cases and arguments that the original ELLA materials may not cover.

In the spirit of discussion and debate, we encourage you to share your own comments about the ELLA materials and the review in the comments section below.

Overall, these materials provide an excellent overview of the very significant and often innovative developments in the region in terms of transparency. As such, they will be useful for those working on this issue both within the region and globally.

As a general comment, the materials focus on the legal environment, corruption, the regional network and accountability. Another key benefit of access to information is facilitating participation in decision-making. It might be interesting to consider producing a fifth Practice Note on this important issue. Otherwise, in some places the materials seem to focus exclusively on positive developments, although a few sections do also highlight challenges. While the positive developments are impressive, at the same time it would also be useful to include some of the challenges faced in the region.1 Finally, though the comparative assessments only focus on Africa and South Asia, given they are the target regions of the initiative, other regions, especially Southeast Asia, could also benefit from the work.

Below, observations and suggestions for additional considerations are presented regarding individual knowledge materials.

Guide: The Latin American Approach to Transparency and Access to Information

The Guide opens with the following statement: “Transparency and the right to access information is now a reality in many Latin American countries.” Unfortunately, this is not quite correct. What is true is that a majority of Latin American countries have passed access to information laws but, as the Key Lessons Learned describes, translating this into reality remains a challenge in many countries.

The first Key Lesson Learned notes that regional and national court rulings have helped create a legal framework for access to information even in the absence of freedom of information acts (FOIAs). This is true, but at least as importantly, these court rulings have had another key impact: supporting local campaigns to adopt local laws (as the international rulings have required). This is recognised later in the Guide but not at the front end. Ultimately, access to information can only effectively be protected through a FOIA.

Although the Guide refers to several standard setting initiatives in Latin America, it omits one which is quite important, the Inter-American Juridical Committee’s Principles on the right of access to Information.

The section on national FOIAs claims that many Latin American laws incorporate ‘innovative elements’ in their design, such as establishing oversight bodies and requiring public bodies to disclose information proactively. While these are certainly positive features, and the Mexican oversight body, the Federal Institute for Access to Public Information (IFAI), is one of the strongest in the world, it is not actually correct to describe these as innovations, as they are found in many older access to information laws.

In contrast, the electronic systems in Mexico and Chile are defined as “good practice in the region,” but in fact these systems are more than just reference points for the region, they are actually global leaders. The Claude Reyes case was also a global trailblazer, being the first international court to adopt such a decision. It is fair to go even further and note that the European Court had consistently refused to recognise a right to information, and that recognition by the Inter-American Court played a rule in pushing the European Court towards recognition in its 2009 case, Társaság A Szabadságjogokért v. Hungary.

The Guide discusses ‘targeted transparency policies’ as though they were a new phenomenon but, although the term was only coined in 2007, in fact there has been a reasonably long-standing practice of this in many countries. This is better seen as a process of evolution of the wider practice of proactive disclosure than a specific new development. Indeed, the whole development of e-government is closely linked to this.

Finally, the Guide describes Colombia as a country without a FOIA, but all of the leading lists recognise Colombia as having a FOIA, albeit a rather weak one.2

Brief: Building the Legal Framework to Support Transparency and Access to Information in Latin America

One overall comment is that this Practice Brief regularly refers to ‘citizens’ as the group enabled to make access to information requests.  But in fact, better practice is to allow anyone to make such requests.

The Key Lessons Learned highlights three features of FOIAs: broad scope, sanctions and an oversight body. This seems to be somewhat arbitrary, as there are several other features that are arguably at least as equally important, such as good procedures for processingrequests, a narrow regime of exceptions and effective promotional measures. The sections on innovative elements are a bit broader, but they also omit the issues of exceptions (at least in the list on page two, although there is a short section on this on page four) and promotional measures. Latin America has contributed some interesting innovations in the latter area, for example in terms of requirements of public education about the right to information, which it would be useful to highlight.

Once again, the claim that Latin American countries have been at the forefront of designing and enacting innovating FOIAs is probably overstated. While there have been strong developments in this region, the same is true of East and Central Europe and Asia, and to a lesser extent Africa.

The section on scope defines this as the range of public bodies covered by the law; this is certainly important but the issue also extends to the range of types of information covered, which is limited in some laws in the region. The section on sanctions and protections refers to protection for whistleblowers, but it is also important –probably even more important in terms of changing the culture of secrecy – to provide protection to civil servants who disclose information in good faith pursuant to the law. In the area of procedures, it would be useful to add in that Latin America is again a world leader in terms of measures to enforce timelines. The section on exceptions refers to the need for a harm test, but it omits to mention the equally important need for a public interest override, unfortunately something that Latin American laws are weak on.

Brief: Fighting Corruption by Improving Transparency and Access to Information

This Practice Brief contains a good description of two key openness systems for reducing corruption: procurement and official asset disclosures. The claim that the region pioneered the former is a bit overstated, although the region has certainly introduced some interesting innovations.

A third transparency approach might also be worth mentioning, namely the proactive publication of information about all beneficiaries of public programmes. This has the potential to significantly reduce corruption. While this information would be considered private in most countries, it is its potential to reduce corruption that justifies making it public (ironically, legally this would be pursuant to the public interest override that is missing in most Latin American laws). It would, therefore, be interesting to assess the way these systems function in practice.

Briefs from the Civil Society Perspective: Civil Society’s Regional Network and Using Information for Accountability and Justice

The Brief ‘Civil Society’s Regional Network’ contains an excellent description of the work across the region of the Regional Alliance for the Freedom of Expression and Information. It might benefit from adding in a bit of a description of the global network which preceded it, FOIAnet, as well as at least a reference to the regional networks that exist in South Asia (SARTIAN) and Africa (AFIC). This would provide readers with a sense of the wider context in which the Alliance works, as well as examples of the work other similar groups are doing.

The second Brief, Using Information for Accountability and Justice, once again presents a very good overview of some of the ways information has been used for accountability. Two comments here. First, in the absence of a full Practice Brief on participation, it might be useful to discuss here some aspects of how information can foster participation. Second, it would be interesting to add a discussion of the challenges Latin American civil society has faced.

1 One useful resource which compares all of the access to information laws in the region is Mendel, Toby. 2009. The Right to Information in Latin America: A Comparative Legal Survey. UNESCO, Quito.
2 See, for example, the RTI-Rating, available at: http://www.rti-rating.org/index.html.

Toby Mendel is the Executive Director of the Centre for Law and Democracy, a Canadian-based international human rights NGO that provides legal and capacity building expertise regarding foundational rights for democracy. Prior to that he was for 12 years Senior Director for Law at ARTICLE 19, a human rights NGO focusing on freedom of expression and the right to information. He has provided peak level expertise on these rights to a wide range of actors including the World Bank, various UN and other intergovernmental bodies, and numerous governments and NGOs in countries all over the world. He has published extensively on a range of freedom of expression, right to information, communication rights and refugee issues.

Other ELLA knowledge materials relating to Transparency and Access to Information:






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