Reaching 100 FOI Laws, Movement Looks to Future

18 September 2014

By Toby McIntosh

This article also appeared Sept. 19 in The Guardian.

Paraguay on Sept. 18 became the 100th country in the world to have freedom of information law, a milestone for Paraguay and for the transparency movement.

A bedrock of government openness, FOI laws (also called right to know or access to information laws) have experienced several decades of explosive growth.

Despite having an ancient root (Sweden’s 1766 law), FOI laws did not sprout up until 200 years later when a FOI law was passed in the United States. ( lists – chronological and alphabetical.)

Since the late `70s, there has been steady adoption of FOI laws, which guarantee access to government records subject to certain exemptions.

By 1997, 22 countries had FOI laws and after that growth averaged about four per year.

More are on the way.

The path has not been easy. FOI laws, despite having a non-ideological appeal, often engender resistance, particularly from incumbent governments.

Campaigning for the Paraguayan law started almost 10 years ago. The effort took a dramatic turn in 2014 when the Supreme Court ordered the disclosure of public officials’ salaries, relying on a ruling of the Inter-American Court of Human Rights that access to government information is a fundamental human right, also spelled out by the United Nations.

“This series of events was known in Paraguay as the `transparency spring’ and it is contributing to alter the power equation between citizens and public servants,” according to Ezequiel F. Santagada, Executive Director of the Instituto de Derecho y Economía Ambiental (IDEA).

Paraguay’s president Horacio Cartes signed the bill at a ceremony (link to video). The bill was passed by the legislature in August. (See Previous article.)

Campaigns for Laws Difficult

The path in other countries is often rocky.

Top politicians give lip service support for FOI bills–in the Philippines, Ghana, Bermuda and other countries still without a law – but drag their feet about pushing a bill through legislatures

Four new laws have passed since October 2013: in the Maldives, Côte d’ Ivoire, Spain and Sierra Leone.

Promising prospects exist in Bhutan, the Bahamas, Bhutan, Morocco, Mozambique, Tunisia and other places. Campaigns are active in about 20 countries.

Access Laws Play Key Role

Access laws are key legal tools to expand government transparency, both by creating rules for requests and replies and by mandating proactive disclosure of information,

New technology is facilitating transparency; including the increased digitization of records, online systems for disclosing information and software to facilitate FOI requests.

The growing, vibrant and multifaceted international “openness” movement includes many specialty components: open data, open budgets, open contracts, open foreign aid, open extractive industry payments, open parliaments, and open government generally, as embodied in the Open Government Partnership.

The drive for access to information has burgeoned at the local and state level, too. International organizations such as the World Bank and other development bodies now have access to information policies, although many other international bodies still do not.

Many Laws Weak

The strength of the access laws varies dramatically. Many are substandard.

Out of 150 possible points in the major international assessment, the average score was only 86 points. Three quarters of the countries received less than two-­thirds of the possible total, according to a respected rating system developed by the Centre for Law and Democracy (CLD) and Access Europe. (The top scorer was Serbia with 135 points, followed by India with 130 and Slovenia with 129.)

Promisingly, the quality of newer RTI laws has been improving.

“100 is a massive milestone for the right to information community; over one-half of UN member countries now have RTI laws,” commented Toby Mendel, executive director of CLD. “But there are still approximately another 100 countries that do not have laws, and of course implementation is an ongoing challenge everywhere, so our struggle is not over yet.”

In countries with FOI laws, efforts to amend existing laws are increasingly frequent with both negative and positive outcomes.

In Japan and South Africa, stiffer restrictions are being placed on disclosure of national security information. This is a prime area for debate, with openness advocates in 2013 issuing a major statement of principles, the so-called Tshwane Principles.

In Australia, the conservative government is seeking to eliminate the office of the information commissioner.

More positively, in the United States, legislation is pending that would reduce the overuse of an exemption designed to protect free discussion among officials. Amendments passed in Mexico last year have further empowered the information commission. In Croatia, an information commissioner position has been created.

Implementation Challenges

The implementation of access laws is uneven.

There’s no international measurement for FOI performance, but it’s well known that some laws are a nullity in practice. Audits by national pro-disclosure watchdogs often point to such problems as suboptimal response rates to requests and adverse court decisions.

After access laws are passed, said Mukelani Dimba, Executive Director of the Open Democracy Advice Centre in South Africa, “there are many stories of disappointment.”

When the first Liberian information commissioner was appointed, in 2013, he worked out of his garage for many months until a budget was approved. The first big case under the Liberian law, to obtain the financial statements of the anticorruption commission members, is still languishing in court.

The 2005 Indian RTI law has had monumental social effects, most observers concur, but faces many challenges. A major backlog of RTI appeals exists. Chronic poor performance exists at the state level. The national political parties are defying an order from the Central Information Commission to comply with the law.

Implementation problems usually reflect questionable commitment by politicians and bureaucrats to transparency.

Positive Impact

Despite the challenges, the overall impact of these laws is widely considered to be positive, if hard to quantify.

Documents may reveal details about local government spending, statistics about the performance of national agencies, or reports about national policies.

Users include businesses, civil society groups, academics, the media and average citizens.

There’s no reliable total number of requests filed annually worldwide, but it is in the millions. India logged in about 900,000, according the last available report.

Increasingly, researchers are striving to measure the effects of transparency to see if it delivers on promises of greater accountability.

One study in India showed that an RTI request works better than a bribe to obtain certain government services.

Whether or not scientific evidence will prove the value of FOI laws, campaigns for the right to information are unlikely to fade.

As forcefully expressed by a leading advocate for the 2005 Indian law, Aruna Roy, “Right to information is the right to life.”

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