OGP Develops Strategies Dealing With Deviancy

22 October 2015

Two years ago, when the Open Government was convening in London for its second summit in London, the hottest issue was the demand by leaders of civil society organizations for the OGP to deal with members not living up to open government principles.

In particular, CSO activists wanted assurances that the OGP would respond when members, in the parlance of the day, reduced the space for civil society.

The OGP created a “response policy” that has been used once, with Azerbaijan, following vociferous civil society complaints about that government. (See previous Freedominfo.org report.) OGP disapproval may be voiced again soon. A report on allegations about Hungary is in process.

The OGP’s bias, however, has been to encourage government engagement and to help CSO’s build their capacity to effectively protest domestically. At the same time, from its earliest days, the OGP recognized a need to protect its credibility as a pro-openness club and to insure compliance with its processes. Under the response policy, members eventually could be declared ”inactive” members, but first are urged to mend their ways.

As the OGP prepares for its third summit, in Mexico City Oct. 28-29, some activists are saying that the civic space environment is worsening around the world.

Cathel Gilbert of Civicus (in a posting on the OGP blog) wrote, “In 2015, civic space is facing an unprecedented assault.” He did not call for a new OGP response, but said the summit would be an opportunity for civil society to think about how to respond to the negative trend. Civicus plans to promote a new measurement tool called Civic Space Monitor.

The Steering Committee agenda includes an evaluation of the response policy. (See FreedomInfo.org article.)

Handling Complaints About Members

Member actions, or inaction, have prompted other kinds of OGP reactions.

When countries have missed deadlines, the OGP has occasionally, and as a last resort, issued public warnings about the need to get back on track, usually with good effect.

One member, Australia, has done virtually nothing. This caused the Steering Committee in July to set a deadline of next week for Australia to recommit. (See FreedomInfo.org report.) Australia, joined up under a liberal leader, but left its membership card in the wallet under a conservative government. A recent change in governments back to the liberal persuasion may trigger recommittal, but no official word has emerged.

When specific controversies have cropped up in member countries, OGP leaders have been reluctant to comment, despite periodic appeals from CSOs. But there may be a very slight shift under way on that front.

OGP CSO Chairs a Bit More Vocal

The two top civil society leaders of the OGP Steering Committee appear to be a bit more likely than their predecessors to express their dissatisfaction with member government actions.

The evidence is slight. Twice this year the CSO co-chairs on the OGP Steering Committee have written to national governments – Brazil and Mexico — protesting proposed actions.

“We felt that there was a concrete opportunity where a public statement would be supportive,” said one of the co-chairs, Suneeta Kaimal, the Chief Operating Officer of the Natural Resource Governance Institute, in an e-mail for FreedomInfo.org. She continued, “For me it was a case by case assessment, mindful of the role, responsibility and opportunity of being a co-chair.”

Kaimal and Alejandro Gonzalez, the CSO co-chairs, in February of 2015 criticized the Mexican government, now the OGP’s lead chairman, for proposing to undercut the Mexican FOI law. (See FreedomInfo.org report.) Gonzalez is the director of Gestión Social y Cooperación (GESOC) in Mexico.

In the October, Brazilian President Dilma Rousseff had proposed to reduce the size of her Cabinet and remove Cabinet status for the Office of the Comptroller General (CGU), which is responsible for supervising the Brazilian FOI law. The move prompted strong objections from Brazilian transparency advocates and regional supporters. Kaimal and Gonzalez said in a Sept. 29 statement that they were “deeply concerning.”

In both cases, the governments did not follow through on the controversial proposals, but it is not possible to gauge the weight of the OGP involvement.

Historical Resistance

The Steering Committee as a whole, with an equal number of government and CSO members, historically has resisted publicly criticizing members.

The only exception came in November 2014, however, the whole OGP Steering Committee issued a statement saying it was “deeply concerned about recent personal attacks on Ms. Vanja Calovic, the Independent Reporting Mechanism (IRM) researcher in Montenegro.”

The last and only such advocacy by CSO representatives on the Steering Committee was back in December of 2013, concerning South Africa. Curiously, all three members chastised are founding OGP members.

Few Pending Requests

There have been relatively few requests for the Steering Committee to act. There are two pending letters. (See both here.)

Peruvian groups recently objecting that unilateral decisions from the Peruvian government about the national action plan have contradicted the OGP principles wrote a letter Aug. 20 to request the intervention of the Steering Committee to open a dialogue channel. Interestingly, Peruvian CSOs issued a statement Aug. 12 withdrawing their support for the government’s national action plan because the government has not complied with an earlier commitment to create a new National Access to Information and Transparency Authority. See CSO statement (in Spanish). There appears to be no OGP response to the Peruvian letter.

Very recently, a letter from the Spain-based Access Info Europe, identifies four ways in which the Spanish government “systematically” resists CSO involvement in OGP activities. The Oct. 5 letter asks the Steering Committee “to look into the way in which Spain is running its engagement with the OGP process, and in particular the lack of communication and consultation with civil society and the public.”

History of CSO Comments

The first comment by the CSO members on a national matter came over the so-called secrecy law in South Africa and triggered a conversation about when to speak out.

In December of 2013 all but one of the CSO members signed a letter urging the South African government to listen to the civil society concerns and warned that passage would cast “a shadow” over South Africa’s participation in the OGP. (See previous FreedomInfo.org report.) The bill was eventually passed, but has not been implemented.

After that, the Steering Committee formally decided to comment on national controversies only in “exceptional circumstances,” according to a Feb. 21, 2013 statement. (This and some other communications to and from the Steering Committee are collected on this page on the OGP website.) (See FreedomInfo.org report.)

The guiding philosophy of the policy was “to promote domesticate accountability” and to let the independent review mechanism (IRM) function. Under the IRM process, a reviewer evaluates a government’s progress toward achieving its stated goals and may also comment on the extent to which civil society was included in the development of the national action plan.

In early 2013, the Steering Committee was asked to comment on the failure of the Philippines’ government to advance freedom of information legislation.

Following its new policy, the committee decided not to comment, and neither did the civil society members. However, Warren Krafchik, then the co-chairman of the OGP representing CSOs, said the CSOs on the Steering Committee would “retain the capacity to respond separately from the full SC, when appropriate.”

Neither the Steering Committee nor the civil society leaders responded when asked in November of 2013 by more than 100 CSOs worldwide to comment on secret government surveillance. (See FreedomInfo.org report.) Nor did it get involved over 2013 protests about Hungary’s regressive changes to its FOI law. (See previous FreedomInfo.org report.) A coalition of Brazilian CSOs in July of 2014 protested their exclusion from the process to write a national action plan. (See letter here.)

Missing Deadlines

As it has matured, the OGP has had to deal with a handful of its 66 members who missed deadlines to produce national action plans, some by significant margins.

Lithuania, Malta and Turkey have failed to meet their commitments as members of the Open Government Partnership, the OGP said in an unusual public statement issued Feb. 11, 2015. (See previous FreedomInfo.org report.)

In December 2014, 12 countries were cautioned that they were falling behind on their OGP responsibilities. (See FreedomInfo.org report.)

For the most part these issues have been resolved, in some cases by setting new deadlines for creating a national action plan or preparing a self-evaluation of a plan.

The OGP Articles of Governance provide a mechanism for suspension in the event of repeated missed deadlines. The OGP Steering Committee 2014 adopted a policy under which two warnings in a row would trigger a discussion about continued OGP membership. (See previous FreedomInfo.org report.) The policy states:

Should the Support Unit or IRM process find that a participating government repeatedly (for two consecutive action plan cycles) acts contrary to OGP process or its Action Plan commitments (addenda B and C), and fails to adequately address issues raised by the IRM, the SC may upon recommendation of the Criteria and Standards (CS) sub-committee review the participation of said government in OGP.

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