By Mark Salah Morgan and Sahar Aziz
Morgan is Counsel at Day Pitney LLP and Aziz is Associate Professor of Law, Texas Wesleyan School of Law. Both are members of the Egyptian American Rule of Law Association, a nonprofit organization committed to promoting rule of law through access to information. EARLA published “Freedom of Information Legislation: Best Practices for Egypt.” This article was posted May 23 in the website of the Egyptian American Rule of Law Association.
Egypt is going through a period of enormous promise through citizen empowerment. For the first time in the country’s history, citizens are electing their president through a relatively fair and free process. While there are genuine concerns about the conduct of the elections and the conditions governing them, the mood in the streets is electrifying as people from all walks of life feel vested in their country’s future. Despite the bumpy post-Mubarak transition, Egyptians deserve to be acclaimed for their perseverance and commitment to democracy.
But for Egypt to achieve sustainable democracy, many reforms remain to be implemented. The most important of which is public access to information that permits meaningful government accountability. Without accurate information, Egyptians cannot adequately stop the rampant corruption debilitating the nation’s economy and political system. Nor can the media serve as an effective check and watchdog on government abuse.
Secrecy is anathema to democracy. Government dealings shrouded in secrecy were central to Mubarak’s modus operandi, and ultimately led to pervasive corruption and widespread embezzlement of state resources. As detailed in a recent report by the Egyptian American Rule of Law Association (EARLA), Freedom of Information Legislation: Best Practices for Egypt, the country must enact freedom of information laws that guarantees citizens access to information about the government’s dealings and spending.
For centuries, the norm has been prohibition rather than access to information. Indeed, the law stymied transparency—leading to unchecked and undetectable corruption. A survey conducted just prior to the 25 January revolution by the Egyptian Information and Decision Support Center (IDSC) found that more than 94 percent of Egyptians believed corruption was a serious problem in their country, and 70 percent believed corruption had increased from the previous year.
Such perceptions were reinforced by media reports exposing corrupt land sales, corrupt licensing deals, and embezzlement by prominent members of the former National Democratic Party (NDP) government who amassed staggering wealth. For this reason, a freedom of information law would be an indispensable tool in the effort to bolster government transparency and increase investor confidence in Egypt’s economy. With the country’s foreign currency reserves dwindling rapidly and with an economic crisis looming, anti-corruption measures are no longer a luxury. They are imperative in this critical juncture in Egypt’s history.
At least 90 countries worldwide have enacted freedom of information laws—over half of them within the last fifteen years. Although Egypt’s circumstances are understandably unique, best practices from countries with similar profiles and predicaments offer valuable lessons.
The most common flaw in freedom of information laws is exclusion of entire agencies and classes of information based on overly broad national security claims. India’s experience provides one such cautionary tale. Legislators excluded some public bodies entirety from the scope of the law, resulting in the unintended concealment of important information that exposes corruption. India’s freedom of information law excluded intelligence and security agencies for the purpose of protecting sensitive security information. India’s government abused this exemption when advocates sought information regarding corrupt practices within India’s Central Bureau of Investigation—the government categorically denied the request even though it was unrelated to national security.
These days, the Egyptian parliament is debating the passage of Egypt’s first ever freedom of information law. Three separate bills have been proposed that vary in degree of restrictiveness. A coalition of human rights organizations and journalists led by the Egyptian Initiative for Personal Rights (EIPR) have submitted an exhaustive bill that incorporates international best practices. A second bill submitted by the nonprofit United Group is considered a middle of the road bill that is not as restrictive as the government’s bill, but at the same time does not go far enough in ensuring exemptions cannot be abused by the government.
Unsurprisingly, the Egyptian executive branch has proposed the most restrictive draft law that would exclude national security agencies from public scrutiny. Supporters of the draft law raise the specter of national security cower to the population into giving up their right to information about their government’s dealings. But in light of the Egypt’s appalling record of torture and disappearances of political dissidents, excluding the security agencies would be a fatal blow to human rights in Egypt.
Currently, parliament is debating which bill should be the starting point for parliamentary deliberation. Based on the experiences of India and other developing countries, as highlighted in a recent report Freedom of Information Legislation: Best Practices for Egypt, Egypt would be well served to adopt the bill proposed by civil society organizations. To effectively counter endemic corruption, the law must be comprehensive and coupled with the appropriate and adequate enforcement mechanisms to allow for meaningful transparency.
Egypt’s new law should also require non-public bodies engaged in public functions to comply with freedom of information laws. Because private companies are increasingly assuming roles traditionally performed by government, requiring them to disclose information is necessary to achieve full transparency. Some argue, however, that requiring non-public bodies to comply may discourage private investment in those functions due to the costs of compliance. Ultimately, Egyptians must weigh the significant gains from reduced corruption, which promotes private investment, with the inconveniences of record keeping and reporting imposed on the private sector. ??To promote greater confidence and trust in government, Egypt’s parliament should also require the executive branch to voluntarily publish a broad range of information to Egyptian citizens. Among other things, disclosures should include operational information relating to the activities and procedures of government agencies, lists, registers, databases, and budget information. Salaries and other benefits of government officials should also be disclosed publicly.
The disclosures must be available in a format readily accessible to Egyptians. The experience of Mexico is informative. Because Mexico has a 93 percent literacy rate and an internet penetration rate of almost 40 percent, consolidating affirmative disclosures on a web site is cheap and effective. Even though Egypt’s literacy rate is 66 percent and internet penetration rate is twenty-six percent, a staggering 60 percent of Egyptians are thirty years old or younger and wide-spread use of the internet occurred throughout the revolution on Facebook and Twitter. For that reason, posting affirmative disclosures on the internet in Egypt may also prove effective, especially as Egypt considers implementing programs to expand internet access throughout the country.
Freedom of information laws can easily be nullified by overly broad exemptions. Thus, exemptions should be narrowly tailored to prevent its circumvention by agencies. Poorly crafted exemptions could lead to an over-classification of information as exempt, leaving Egyptians in the dark about their government’s dealings. Thus, only when information harms specified interests, such as national security or privacy interests and such harm outweighs the public’s interest in having the information, should the information be exempted.
Without an independent and multi-tiered review process, freedom of information laws are futile. A three-tier review process contemplates initial review by a senior official within the agency where the information is being requested, intermediate review by an independent oversight body, such as an information commission, and judicial review to serve as a check against corruption and incompetence within an agency.
Egyptians have the right to be involved in the affairs of their government. Not only does access to information enhance Egyptians’ participation in government, but it also sets Egypt on the track towards a more equitable and prosperous country.
For the Egyptian revolution to succeed, knowledge must trump ignorance.
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