Freedom of Information Laws Added to the Development Agenda

22 March 2006

By Toby McIntosh

Riding a wave of transparency, the idea of encouraging Freedom of Information (FOI) laws as part of the development agenda is gaining currency, but slowly.

With research and case studies increasingly identifying transparency as a key tool in fighting corruption and facilitating development, more attention is being paid to the development of FOI laws, also known as right-to-know laws. However, no concerted effort exists among the international financial institutions (IFIs), such as the World Bank, to foster FOI laws in the developing world.

Although the last decade has seen a steady increase in the number of FOI laws, the rate of adoption of such laws in the least-developed countries is quite low. A freedominfo.org survey indicates that out of the 38 poorest countries classified by the World Bank as Highly Indebted Poor Countries (HIPC), none has an FOI law.

The World Bank now appears to be putting additional emphasis on FOI laws – urging their adoption and sponsoring FOI-related projects in approximately half a dozen countries in recent years, according to research by freedominfo.org. These scattered and limited efforts, however, are not part of an organized campaign, according to officials at the World Bank and other sources. Nor is the adoption of an FOI law a requirement for obtaining IFI assistance, although the United States has made having a FOI law a very minor factor in U.S. aid criteria.

New World Bank President Paul Wolfowitz is similarly attracted to the anti-corruption attributes of a transparency agenda, sources say, but it remains to be seen if this will translate into programmatic encouragement of FOI laws.

IFI critics, despite holding deep-seated suspicion about the conditions imposed on borrowing countries, increasingly see FOI laws as a valuable building block for development.


Few Less-Developed Countries Have FOI Laws

The passage in 2002 of new FOI laws in India and Mexico garnered much attention, and some smaller, poorer countries have also recently joined the list of more than 60 nations with FOI laws, including most recently Angola. One of the world’s experts on comparative freedom of information laws, David Banisar of Privacy International and author of a major survey of FOI laws, cited as encouraging the recent adoption of FOI laws in Antigua & Barbados (2004), the Dominican Republic (2004), Ecuador (2004), Uganda (2005), and Montenegro (2005).

“So the division is becoming more even,” Banisar told freedominfo.org. “I think the reason why the poorer countries are less likely to have FOI is more related to the poor systems of governments there rather than the economic conditions,” he said.

Efforts to Pass FOI Laws Ongoing, Hard-Fought

Efforts to win passage of FOI laws are under way in a number of countries, including: Bangladesh, Ghana, Guyana, Honduras, Kenya, Malawi, the Maldives, Nigeria, Sierra Leone, Sri Lanka, and Zambia, according to information assembled by freedominfo.org and the Commonwealth Human Rights Initiative (CHRI).

Most recent FOI successes have been generated indigenously, fueled by local civil society groups, sometimes with technical, financial, and moral support from international FOI advocacy and human rights groups.

A forthcoming CHRI report is aimed at encouraging passage of a FOI law in Bangladesh and stresses the development value of FOI. “The right to information laws are the foundation upon which to build good governance, transparency, accountability and participation, and to eliminate that scourge upon the poor – corruption,” summarizes the CHRI report. It also highlights the importance of openness to the operation of free markets and calls “seriously flawed” the contention by critics that FOI laws are a luxury, rather than a right.

Getting FOI laws passed is not easy, however, as a sampling of recent press reports on pro-FOI movements indicates. In Nigeria, notwithstanding a large coalition of groups pushing for a FOI law, a deadlock exists between the House and the Senate. And in the February 23, 2006, Daily Independent, Zambian Information Minister Vernon Mwaanga is quoted as saying, “I have no immediate intention to take the Freedom of Information Bill to Parliament.”

World Bank Efforts Limited, Scattered

Against this backdrop, officials interviewed at the World Bank and other IFIs say they believe good governance reforms, including FOI laws, can help spur development and aid in the fight against corruption. The IFIs, however, have not made passage of FOI laws a formal requirement for receiving support. In IFI parlance, FOI has not joined the official list of “conditions.” On occasion, the World Bank has suggested adoption of FOI laws, but this has been rare and is not readily discussed by Bank officials. In other instances, the World Bank has supplied technical support for FOI-related projects.

Compiling a list of World Bank FOI projects was complicated by the apparent lack of central policy planning or administration on this topic and relied on anecdotal information from outside and inside the institution. For example, the World Bank subsidized a consultant’s report on FOI law in Mongolia, although ironically the report has not been publicly released.

Overall, IFI officials say FOI reform tends to be crowded out by more pressing priorities. Furthermore, some fear that requiring adoption of a FOI law could be a meaningless IFI-pleasing gesture when not internally advocated by civil society and the public.

One inhibiting factor has been the stricture on World Bank interference in the internal affairs of countries. But, as one World Bank official observed, the increasing emphasis on the fight against corruption, including the misuse of World Bank funds, may provide political cover for pushing the transparency agenda harder.

Wolfowitz and the “T” Word

“Transparency” is more often creeping into speeches by World Bank President Wolfowitz, largely in connection with fighting corruption. “Developing countries also have to do better in terms of transparency and fighting corruption,” Wolfowitz said during a speech in Paris at a November 14, 2005 health conference.

At an awards ceremony for international journalists in Washington, D.C. on November 9, 2005, Wolfowitz said, “In the World Bank, people have begun to realize that you can’t really talk about development without talking about accountability and transparency.” He continued, “Which means you really can’t talk about economic development without talking about freedom of the press.” World Bank research “shows that freedom of the press is associated with better control of corruption, and where civil liberties are better safeguarded, I quote, `the effectiveness of World Bank funded projects is higher’ – that’s reassuring.”


Limited Outside Pressure; Doubts

Outside pressure on the IFIs to emphasize adoption of FOI laws has been limited. Neither national nor international FOI activists have looked first to the IFIs for help, although a few joint activities are underway.

Rather, some development activists have pressed for disclosure policy reforms at the IFIs themselves, in the belief that more openness there will help citizens in recipient countries, where policies are strongly affected by the IFIs. One group, the Global Transparency Initiative (of which freedominfo.org is a member), combines development advocacy groups and FOI groups in an effort to promote greater transparency and encourage better disclosure policies at the IFIs.

The idea of having IFIs put pressure on countries to adopt FOI laws receives some approval among pro-transparency groups, but has not been a priority request. In part this posture stems from the distaste of most IFI critics for “conditionality,” stemming from the judgment that the “Washington consensus” of other social and economic conditions has failed.

FOI laws, however, appear less controversial than some other “conditions,” fitting into a broadly accepted agenda of good governance practices and citizen rights. Besides, one Bank critic quipped, “The banks are recreating whole judicial systems in developing countries, why not pump FOI?” As Toby Mendel, Law Programme Director at ARTICLE 19 points out: “It’s one thing for the Bank to aim conditionality at social spending which has often hurt the poorest of the poor and quite another for it to use its leverage to pressure countries to respect basic human rights, including the right to know.”

Still, some activists continue to view all IFI conditionality with suspicion. One said, “The goal has to be policy sovereignty, and the empowerment of civil societies in each country to participate in shaping the laws they live under.” He added, however, that “[i]f there was evidence of Southern support for FOIA conditions, especially from the Southerners we like, we’d be inclined to support it I think.” Other doubts include the potential for “mission creep” and the possibility of World Bank micromanagement of FOI law implementation.

FOI conditionality would be a measurable achievement. But some World Bank officials and FOI activists fear that just putting laws on the books might be an easy accomplishment that governments could later subvert. Further, there are serious concerns about the capacity of developing countries to administer FOI laws and the cost of doing so. A related objection derives from the observation that imposed solutions are less valuable than indigenous ones.

The rebuttal by FOI supporters is that a law on the books at least provides a building block and that weak administration is another battle to be fought, as it is in most countries with FOI laws. Mendel said, “Adoption of a law is just the starting point and implementation is an ongoing and significant challenge, even in countries with relatively established access to information laws. At the same time, you need a law to guarantee the right to know and these laws can provide civil society with powerful tools to combat official secrecy.”

In fact, some data agrees that adoption is one thing, implementation another. Data developed by Freedom House for its 2005 Freedom of the Press report counts just 31 countries with “good implementation” of FOI laws, and 43 lacking full implementation.

Banisar of Privacy International said, “I’m of two minds on whether having the World Bank or IMF force a country to adopt a FOI law is entirely useful. I suppose it’s better than not, but in a lot of places, it’s really just a ticking of a box and no serious implementation is then done. There does need to be a civil society there that wants to use it and force the government to implement it. Where there is not, it can just sit there dead. But that is the experience in countries like France also.”


Examples of FOI Conditionality

The World Bank has supported FOI-related conditions in recent agreements with the governments of Bolivia, Honduras, Ghana, and Nicaragua, according to officials and others familiar with the agreements.

The Honduran government, as part of its 2004 Poverty Reduction Support Credit Program, was “planning to submit in 2005 a new law to Congress on the disclosure of public information, which promotes stakeholder participation in monitoring of public policies by providing citizens with the right to information,” according to the May, 26, 2004 document. A World Bank document describing the Poverty Reduction Strategy Program notes that a consultant has been contracted to draft the law on the disclosure of public information and to consult with stakeholder groups. At the same time, the World Bank asked Honduras to expand transparency on budgetary and procurement matters.

By November 8, 2004, a World Bank “Development Policy Review” could report that “important advances” included “the drafting of a Financial Management Law, a Public Ethics Code, and a Law on Public Access to Information,” among other things. However, adoption of an FOI law in Honduras never became an official “condition” of lending included in later checklists. Nor has Honduras passed an FOI law although discussions are continuing. The new president has said he wants to sign a bill, but no bill has emerged from Congress. “They haven’t approved it yet; it is still kind of stuck there,” said one knowledgeable observer. A pro-FOI coalition, Allianza 72, is seeking improvements to the government proposal.

In Nicaragua, a 2003 World Bank technical assistance project includes a component to “improve technical assistance, equipment and training to build up the administration’s capacity to coordinate its own information flows.” A World Bank document further states that one part of this effort would be “promoting open access to information.” (1)

FOI Part of Ghana’s Poverty Reduction Strategy

The February 19, 2003, Ghana Poverty Reduction Strategy was developed by the Ghanian government to fulfill a World Bank/International Monetary Fund planning requirement. It set the goal of adopting a FOI law by 2004. The strategy states, “Access to government information is inhibited by entrenched attitudes and exacerbated by official secrets legislation dating back to the colonial era.” The document says, “The need for a Freedom of Information law is paramount.” (2)

Adoption, however, has not been achieved. An open letter to Ghana’s president from supporters of an FOI law, dated October 11, 2005, states, “Sadly, but perhaps due to a desire by some members to perpetuate a culture of secrecy for self interest, the bill has developed cold feet.” (3) A FOI bill was resubmitted to the Cabinet in 2005.


Other Transparency Related Activities

The IFIs have engaged in a variety of pro-transparency activities directly or indirectly related to FOI. The World Bank is conducting a study on Social Accountability in Mongolia, for which they relied on the assistance of consultants and which, among other things, calls for the adoption of FOI legislation. In addition, a project by the World Bank Institute resulted in 2005 publication of a report written by Toby Mendel of the UK-based pro-FOI group Article XIX, entitled “Parliament and Access to Information: Working for Transparency Governance.” (4)

FOI-related training sessions of various kinds have also been held. In conjunction with the Carter Center, the World Bank is conducting a series of video conferences on FOI, linking persons from civil society and government in Bolivia, the Dominican Republic, Honduras, Nicaragua, and Guatemala. (5) The Carter Center is active in supporting pro-FOI efforts in other ways as well. (6) This April, a similar session is planned for government information officers in Bangladesh, to address issues “relating to the enabling environment of information access.” (7)

Less directly related to FOI, the IFIs have stressed various sorts of specific disclosures. The IMF, for example, has a code of fiscal transparency concerning disclosure of economic and other data. The other IFIs also have endorsed more transparency around procurement practices.

More specifically, the disclosure of revenues from “extractive industries” such as oil drilling operations has been a contentious issue. Under pressure by the Publish-What-You-Pay movement, the G-8 group of industrialized countries and the World Bank have taken steps to require that countries disclose revenues they get from extractive industries. Very recently, on February 27, the World Bank decided to impose better oil revenue accounting requirements on the Republic of Congo as a necessary condition for it to eventually obtain debt relief.


U.S. Government Scores FOI in Aid Calculus

The United States’ new performance-oriented foreign aid program, the Millennium Challenge Corporation (MCC), has incorporated adoption of FOI laws as one small factor in its scoring system for determining eligibility. Moreover, the U.S. Agency for International Development has financed some small projects in support of FOI.

The MCC evaluation scheme incorporates rankings done by Freedom House, a nongovernmental organization based in New York City. In the larger context of measuring governance, Freedom House makes freedom of information two percent of the potential perfect score in its governance score card, “Countries at the Crossroads.”

The MCC includes the Freedom House FOI rankings in its “Civil Liberties” subcategory, one of six within the “Ruling Justly” category. There are two other such general categories (Economic Freedom and Investing in People), altogether making 16 subcategories. (8)

To qualify for U.S. aid, a country must exceed the median for similar countries in a majority of the subcategories in each of the three areas, and be above the median in the Control of Corruption” category.

Despite playing only a minor role in the MCC calculus, the inclusion of Freedom House’s scoring has led country representatives to contact Freedom House to ask how they can improve their score.

U.S. foreign aid has sometimes been used to support FOI laws on a small scale, for example in Albania, but officials have no tally. USAID governance-related projects concentrate more on topics such as election reform and judicial independence. Project ideas are generated by the recipient countries, which then may be provided with technical assistance, according to U.S. AID officials. Among other current projects is the development of a guide to administrative law.

World Bank Research Finds Value in Transparency

For some years, the World Bank and other organizations have conducted research on the extent to which greater transparency helps fight corruption and promotes development. This body of work appears to confirm positive attributes of greater transparency, although the studies do not pinpoint the effects of freedom of information laws specifically.

One of the latest World Bank papers on the topic, a preliminary draft paper dated September 2005, entitled “Transparenting Transparency,
concludes, “Despite their potential to promote accountability of public institutions and improve government efficiency in the provision of public services, transparency reforms have been insufficiently appreciated and integrated into institutional reform programs.” (9)

The authors, Ana Bellver and Daniel Kaufmann, director of World Bank Institute Global Programs, provide an extensive examination of the literature and construct an aggregate index of transparency in 194 counties based on more than 20 independent sources. They find considerable variability, and conclude that “in most parts of the world further advances are still needed.” They note that achieving better transparency “is not a question of major financial resources,” but that it does require serious commitment and stronger institutions.

They say transparency “appears to be significant in reducing corruption,” but add some cautionary comments about its potential in places with quasi-authoritarian governments and cite the importance of demand for information and the media in pressing for transparency reforms. “Breaking up the monopoly of information will empower civil society in developing countries to participate in discussions about their own future.” Bellver and Kaufman also point to the need for further research on measuring transparency, including “untangling directions of causality” and “further deepening on the concrete policy applications.”

The authors include FOI adoption as a small part of their index, along with many other factors, and break down the index into economic/institutional transparency and political transparency. They caution about the complications and limitations of such an index, but are able to make many observations. Sub-Saharan Africa, for example, is the region with the lowest institutional transparency.

“Transparency is not a question of resources,” they state, but further comment that donors can help in places where the commitment toward transparency is shown. A “policy applications” section reviews the benefits of a variety of pro-transparency experiences, including case studies on financial disclosure by public officials and positive developments in Chile (although the need for better information disclosure laws is noted).

Building on Previous Research

The “transparenting” paper builds on previous work on transparency. Bank researcher Roumeen Islam wrote a 2003 paper entitled “Do More Transparent Governments Govern Better?” (10) Her findings show high levels of transparency are “strongly correlated” with good governance. This held true even after controlling for country wealth. “More transparent governments govern better for a wide number of governance indicators such as government effectiveness, regulatory burden, corruption . . . voice and accountability, the rule of law, bureaucratic efficiency, contract repudiation, expropriation risk and a composite ICRG [good governance] indicator,” she wrote.

Based on other research demonstrating a correlation between good governance and higher growth, Islam concluded that “there is a close relationship between better information and how fast economies grow.”

Empowerment and Right to Know

With or without specific research proof, World Bank thinking on fighting corruption appears increasingly oriented to broader citizen empowerment. Authors Anwar Shah and Mark Schacter recommend “an indirect approach” in a 2004 paper entitled “Combatting Corruption: Look Before You Leap.” (11) Among their suggestions are various “bottom-up reforms.” They advise, “The more influence donors can exert on strengthening citizens’ right to know and on governments to release timely, complete, and accurate information about government operations, the better the prospects for reducing corruption.”

A further indication of interest in FOI at the World Bank may be the attention paid to the subject in an internal publication (“PREMnotes” of October 2004 (no. 93). Noting “growing consensus that the right to information is a crucial element of democratic, accountable, responsive government,” the PREMnotes article describes FOI laws and various drafting and implementation options.

The PREMnote also observed, “Most recent laws have been driven by civil society advocacy, international pressure, and official commitment to openness. Once a public campaign begins, it is difficult for even undemocratic governments to resists passing such laws-showing the power of the idea.”

Also receiving favorable notice by a World Bank official who trains journalists is the extensive use of FOI laws by business, as has been the case in the United States and Canada. Roderick Macdonell said in a 2003 article in a internal publication that among other things “a case can be made that the heightened transparency that leads to better prices for government procurement, translates into better value for taxpayers’ money.” (12)

Another 2003 World Bank criticizes Middle East and North African countries for weak “public governance,” including “limited and reluctant” transparency. The potential upside of governance reforms, the researchers said, could be a boost in economic growth of one percent a year.

Adoption of FOI laws is sometimes considered to be just one piece of a package of transparency-related issues, including freedom of the press. World Bank research draws affirmative connections between a functioning free press and improved decision-making. The World Bank in 2002 issued a book “Right to Tell” on this theme. “A free press can reduce poverty and boost economic development in poor countries but the success of newspapers, radio and TV stations in spurring development depends on their independence, quality, and their ability to reach a wide audience,” summarized the World Bank.” (13)

Case Study Evidence

Not all of the research on transparency and development has been conducted at a macro level. In one case study, World Bank researchers evaluated increased access to information as a tool to reduce the corrupt use of funds sent to local schools in Uganda. Although not strictly speaking about FOI, the 2003 paper, “The Power of Information: Evidence from a Newspaper Campaign to Reduce Capture,” by Ritva Reinikka and Jakob Svensson, follows an experiment with the publication in newspapers of data on local handling of a large school grant program. (14)

Previous reports had uncovered that the schools received only about 20 percent of the money. But once more information about the payments was put into the newspapers on a regular basis, the amounts of aid delivered to intended recipients jumped to 80 percent.

The paper concludes: “Through a relatively inexpensive policy action-the provision of mass information-Uganda dramatically reduced district-level capture of a public program aimed at increasing primary education. Poor people who were less able than others to claim their entitlement from district officials before the campaign, but just as likely in 2001, benefited most.”

Fresh FOI laws in India and its cities and states are showing results documented in case studies. A doctor armed with government information pointed out that the government paid more than three times the amount necessary for first aid kits for schools, and the contents were sub par.
An activist group showed that 14 hand pumps were purchased for the cost of 29, among other problems. Food rations have been purloined by middlemen, a dramatic discovery resulting in violence by the threatened interests and successful protest by villagers. These and other stories are documented by the group Parivartan, bringing home the practical value of national and local FOI laws. (15)

With such analytical and anecdotal support, transparency now has a regular place in major World Bank reports, such as “World Development Report, 2004: Making Services Work for the Poor.” A summary states: “Clarifying rules and increasing government transparency can cut corruption.”

The question is whether such rhetoric is matched by appropriate policies and practices.

Notes

1. As described in more detail: “This sub-component would promote greater public awareness of their rights to be informed and to have access to factual and timely public information by: (i) supporting necessary legal and legislative work needed to complete the establishment of a legal framework for allowing greater access to information including issues related to confidentiality and privacy of data, security interests, and obligations to provide information on a timely manner, among others; and, (ii) improve the technical and managerial capacity of officials in the executive branch to handle requests for information under a revised legal framework.” The other component in the Nicaragua program is more oriented toward building up the intra-government and public communications functions.

2. World Bank, Ghana Poverty Reduction Strategy 2003-2005: An Agenda for Growth and Prosperity, at p. 122.

3. http://www.ghanaleadership.com/democracy.htm

4. Toby Mendel, Parliament and Access to Information: Working for Transparent Governance, World Bank Institute (2005).

5. World Bank, Regional Dialogue on Access to Information, Transparency and Good Governance in Bolivia, Honduras, and Nicaragua: Description.

6. The Carter Center, Peace Programs, Access to Information: Transparency.

7. Course Description: Media, Information and Governance in Bangladesh 1, World Bank (2006).

8. Freedom House, http://www.freedomhouse.org/template.cfm?page=5

9. http://www.worldbank.org/wbi/governance/pubs/TransparencyIMF.html

10. Roumeen Islam, “Do more transparent government govern better? Volume 1,” Research working paper series no. WPS 3077 (July 8, 2003).

11. World Bank Institute, Governance and Anti-Corruption Newsletter.

12. World Bank Development Outreach, Access to Information: The Commercial Side (Spring 2003).

13. World Bank Press Release, “Free and Independent Media Empower the Poor and Spur Development: New book points to importance of free media in improving governance” (Nov. 7, 2002).

14. World Bank Education Programs, Information and Voice: Uganda (May 2002),

15. http://www.parivartan.com/success_stories.asp

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ABOUT IFTI WATCH

In this column, Washington, D.C.-based journalist Toby J. McIntosh reports on the latest developments in information disclosure in International Financial and Trade Institutions (IFTI).
Contact: freeinfo@gwu.edu or
1-(703) 276-7748