Challenges and opportunities to strengthen democratic governance, accountability and transparency

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Regional Centre for Latin America and the Caribbean, Panama Regional Bureau for Latin America and the Caribbean Democratic Governance Practice Area

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UNITED NATIONS DEVELOPMENT PROGRAMME- UNDP UNDP REGIONAL CENTRE PANAMA Freddy Justiniano DIRECTOR a.i. UNDP REGIONAL SERVICE CENTRE FOR LATIN AMERICA AND THE CARIBBEAN Gerardo Berthin GOVERNANCE AND DECENTRALIZATION POLICY ADVISOR

UNDP REGIONAL BUREAU FOR LATIN AMERICA AND THE CARIBBEAN- NEW YORK Gerardo Noto COORDINATOR, a.i., DEMOCRATIC GOVERNANCE CLUSTER

AUTHOR Gerardo Berthin

Cover Photo: Santiago Matamoro

APRIL 2013 The views expressed in this publication are those of the authors and do not necessarily represent those of the United Nations Development Programme (UNDP).

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Content Presentation ……………………………………………………………………………………………………………………………………..... 13 Acknowledgement ………………………………………………………………………………………………………………………………. 15 I. Introduction, Scope and Objectives ……………………………………………………………………………………………….... 19 1. Why is access to Information Important?

II. Developing and Adequate Legal Framework for AILs ………………………………………………………………………. 27 1. Maximum Disclosure 2. Minimum Exemptions 3. Ease of Access 4. Enforcement III. From Adoption to Implementation ………………………………………………………………………………………………... 41 1. Political Will 2. Proactive Disclosure 3. Complementary Legislation 4. Organizational Capacity and Record Management 5. Allocation of Financial Resources 6. Civil Society, the Media and other Key Stakeholders 7. Monitoring Implementation IV. Programmatic and Policy Options to Support AILs ………………………………………………………………..……….. 57 Annexes ………………………………………………………………………………………………………………………………………………. 63 Bibliography ………………………………………………………………………………………………………………………………………… 75 Web Resources …………………………………………………………………………………………………………………………………… 81

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Acronyms AILs

Access to Information Laws

ATI

Government’s Access to Information Unit of Jamaica

AusAID

Australian Agency for International Development

BDP

Bureau for Development Policy

CSOs

Civil Society Organizations

DGTTF

Democratic Governance Thematic Trust Fund

EVA

Voluntary Access to Information Strategy

IACAC

Inter-American Convention against Corruption

ICT

Information Communication Technologies

IFAI

Mexico’s Federal Institute for Access to Information

OECD

Organization for Economic Co-operation and Development

PACDE

Global Thematic Programme on Anti-Corruption for Development Effectiveness

RBLAC

Regional Bureau for Latin America and the Caribbean

TRAALOG

Transparency and Accountability in Local Governments

UNCAC

United Nations Convention against Corruption

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Index of Figures and Tables Figure 1: Evolution of AILs around the World (Cumulative Number by Period) Table 1: The Longer the Law, the Better the Final Outcomes Table 2: Snapshot of Needs to Ensure Implementation of AILs Table 3: How Key Actors Enable Access to Information and AIL Implementation Table 4: Examples and Measurements for Access to Information Laws

Index of Boxes Box 1: Access to Information Laws and Democratic Governance Box 2: The Value of Information Disclosure for Democratic Governance and Human Development Box 3: Using AILs: People´s Stories from Bangladesh and Mexico Box 4: Principles/Standards of Access to Information Laws Box 5: Rating AILs in 90 Countries Box 6: Ways of Facilitating Access to Information Box 7: Mexico’s Federal Institute for Access to Information Box 8: How AILs Handle Appeals and Denials?

Box 9: New Initiatives for Oversight on Transparency and Access to Information: The Council for Transparency in Chile and the Network for Transparency and Access to Information Box 10: Implementation Trends around the World Box 11: Establishing Government and Community Partnerships Box 12: Independent Specialized/Coordinating Access to Information Offices: Evidence from Mexico, Jamaica and Trinidad & Tobago Box 13: Civil Society Networks, the Experience of Latin America and Eastern Europe

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Presentation The Transparency and Accountability in Local Governments (TRAALOG) Regional Initiative started in April 2010. The TRAALOG has been supported by the Democratic Governance Thematic Trust Fund (DGTTF), the Global Thematic Programme on Anti-Corruption for Development Effectiveness (PACDE), the United Nations Development Programme (UNDP) Spanish Trust Fund, and the Australian Agency for International Development (AusAID). The TRAALOG is an initiative of the UNDP Democratic Governance Practice Area of the Regional Bureau for Latin America and the Caribbean (RBLAC), and is implemented from the UNDP Regional Centre for Latin America and the Caribbean in Panama.

The TRAALOG targets small initiatives at the local level that can be scaled up through policy support and capacity development and partnerships. One of the key activities of TRAALOG is to promote the development and systematization of knowledge products and tools, focusing on specific initiatives aimed at increasing transparency and accountability, as well as to mainstream anti-corruption issues into other areas, such as access to information, ethics, climate change, health, Millennium Development Objectives and social audit. The idea is for these knowledge products to serve as means, to generate interest and discussion among UNDP Country Offices in and outside the region, regional service centers and other units of UNDP and the wider United Nations System, as well as development and democratic governance practitioners.

Similarly, it is hoped that these knowledge products could serve as reference in pursuing initiatives and in seeking opportunities for replication. These can also be used to develop and support projects and programs, as well as regional activities. These knowledge products are the result of partnerships with a number of UNDP Country Offices, donors, consultants and associate experts, academic institutions and civil society organizations. All helped to identify experiences that provide valuable practical information relative to improving democratic governance and increasing transparency and accountability.

These knowledge products are not meant to be prescriptive. Rather, their aim is to:      

Provide examples of transparency and accountability activities; Generate discussion and policy dialogue; Illustrate practices; Present tools, methodologies, approaches and frameworks; Highlight case studies; Direct readers to additional resources.

Freddy Justiniano Director, a.i.

Regional Centre for Latin America and the Caribbean Regional Bureau for Latin America and the Caribbean United Nations Development Programme

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Acknowledgements The development of this Guidance Note was made possible through the support of the Global Thematic Programme on Anti-Corruption for Development Effectiveness (PACDE), and through them the Australian Agency for International Development (AusAID).

The Guidance Note has benefited from comments and suggestions by the following UNDP staff: Arkan El-Seblani, Francesco Checchi, Samuel de Jaegere, Charmaine Rodrigues, Job Ogonda and Diana Torres.

Thanks are also extended to Luisa Fernanda Cardozo from the Democratic Governance Area of the UNDP Regional Service Centre for her support in further expanding the research and producing a more articulated document.

Our sincere thanks also to Phil Matsheza, the Global Policy Advisor on Anti-Corruption and International Principles Cluster Leader at the UNDP Democratic Governance Group/Bureau for Development Policy (BDP) for his constant support.

Also many thanks to Anga R Timilsina, Programme Manager of UNDP Global Thematic Programme on Anti-Corruption for Development Effectiveness (PACDE); Aida Arutyunova, Programme Specialist on Anti-Corruption and MDGs of DGG/BDP/UNDP; colleagues from the Democratic Governance Team at the Regional Centre, Luis Ruiz-Gimenez and Adriana Ballestin.

Last but not least, a heartfelt appreciation goes to Freddy Justiniano, Director, a.i. of the UNDP Regional Service Centre for Latin America and the Caribbean and Gerardo Noto, Coordinator of the Democratic Governance Practice Area of the Regional Bureau for Latin America and the Caribbean (RBLAC).

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I. Introduction, Scope and Objectives Efforts to promote reform in favor of transparency and accountability are a normal part of the ongoing evolution of democratic governance. During the past two decades, and to this day, considerable sums of country and international donor funds have been invested in transparency and accountability reform, including freedom and access to information. In all of these efforts, there are lessons to be learned that can guide future initiatives. This Guidance Note examines the global experiences in designing and implementing Access to Information Laws (AILs), political and bureaucratic environments in which they evolve and currently function, and the roles and perspectives of stakeholders and key actors and policy considerations.

Through the examination of these efforts, a basic framework evolves for understanding three major challenges: 1) developing adequate laws; 2) implementation; and 3) programmatic assistance options to support AILs. This Note represents a concerted effort to document selected experiences and practices of AILs around the world. The goal is to analyze the scope and depth of AILs in a sample of pre-selected cases, document challenges and identify important findings about the design, the implementation and policy implications of AILs. This Note seeks to provide United Nations Development Programme (UNDP) and other United Nations agencies with an understanding of how the principles of freedom and access to information can be used as an integral part of the approach to support democratic governance and human development. It provides a baseline overview of the design and implementation of AILs, as well as inputs for an effective, realistic, and comprehensive approach to promote and support AILs. Although not exhaustive, it maps opportunities and challenges, and focuses on programmatic and policy options.

As such, it serves as a starting point to document recent trends, programming and policy approaches and potential entry points for supporting AILs activities.

The main purpose of the Note is to provide a basic description of the existing trends, challenges and opportunities in AILs, as well as highlight areas of program/policy opportunities and recommend feasible policy approaches. Rather than being prescriptive, the Note focuses on the processes involved, in order to identify useful lessons for those currently building and strengthening AILs or contemplating doing so.

No judgment is made of the quality of the experiences, as many AILs are still works in progress. By examining and analyzing (based on secondary information available) the policy and implementation processes pursued in cases drawn from around the world, the Note hopes to contribute to a policy dialogue on institutional reform, generally, and on transparency and accountability, specifically, thereby enhancing the potential for success of future democratic governance reform efforts.

The first section provides an overview of AILs around the world, including trends and links to democratic governance and human development. The second section focuses on the design of AILs and specific issues, such as coverage, exemptions, access and enforcement. The third section focuses on the implementation of AILs, and the importance of political and bureaucratic environments, as well as the capacity and the role of stakeholders. The last section provides guidance on how to incorporate support of AILs into programming. The Annex, the Bibliography and Web Resource sections provide additional resources and examples from different countries on of how AILs are being implemented.

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1. Why is Access to Information Important?

Freedom of information1 has long been recognized as a basic human right. Article 19 of the Universal Declaration of Human Rights (1948) explicitly states that everyone should enjoy freedom of opinion and expression, including the right to “seek, receive, and impart information and ideas.” In addition, freedom of information also includes access to the widest possible diversity of points of view on a particular issue.2 As such, AILs go beyond the rights of freedom of expression, embracing a fundamental premise of democratic governance: the notion that the government apparatus and its public entities hold information not for themselves, but as guardians of a public good, and as such this information must be accessible to citizens.

Free access to information is a critical mechanism for increasing accountability and transparency.

Democratic governance is based on two core principles: participation and accountability. Everyone has the right to participate in the management of public affairs. Likewise, everyone has the right to access information on government activities, to petition government and to seek redress through impartial administrative and judicial mechanisms.

In many countries, the democratic governance and human development processes, along with technological forces are opening more opportunities for ideas and for new voices and viewpoints to be heard. Most people have many more sources of information—both in quantity and diversity—than they did a decade ago. Widely available information is crucial to democratic governance because it helps challenge government authorities and provokes more balanced debate on problems and policies.

Accessibility and diversity are reinforcing the people’s roles as mobilizing agents and watchdogs.

AILs constitute a key element of democratic governance and human development, as they are means to promote accountability and transparency of public officials and greater scrutiny from citizens to the public policy cycle. Without information, citizens cannot effectively exercise their political participation rights and voice, or their obligation to hold government to account for its decisions and actions.3 Journalists and civil society organizations (CSOs) can use the right to access information to monitor public policies, to hold policy makers accountable and expose wrongdoings. In short, AILs have important practical, not just theoretical implications for both democratic governance and human development policy (See Box 1 and Box 2).

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Throughout this Guidance Note, we are going to use, as suggested by Birkinshaw, Freedom of Information and Access to Information, as two expressions that mean the same thing. According to Birkinshaw, Freedom of Information means access by individuals and/or organizations to information held by public authorities. See, Birkinshaw, Patrick (2008) Freedom of Information: The Law, the Practice and the Ideal (Law in Context), 3rd ed. Cambridge: Cambridge University Press.

2 Ackerman, John M. and Irma E. Sandoval-Ballesteros (2006). “The Global Explosion of Freedom of Information Laws,” Administrative Law Review, Volume 58, Number 1 (Winter):85-130.

3 See for example, Roberts, Alasdair (2007), “Future Challenges For the Right to Information Movement,” Paper delivered at the 5th International Conference of Information Commissioners, 26-29 of November, Wellington New Zealand.

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It is not surprising that along with the democratization wave, during the past twenty years there has also been a global surge of AILs. In 1998, only a handful of nations had specific legislation that guaranteed the right of citizens to access government information. During the last decade, more countries have adopted AILs than in any other period in recent history (Figure 1). As of December 2012, according to most experts,4 nearly 100 countries passed an AIL and/or some form of actionable access to information and/or an actionable constitutional provision. There are at least 30 other countries in the process of reviewing or drafting AILs. These laws vary considerably in terms of depth and scope and the extent to which access to information is guaranteed in practice (Annex 1 contains a list of countries with AILs and countries that are in the process of designing and/or adopting one).

Box 1: Access to Information Laws and Democratic Governance AILs can generate added-value to at least three different spheres of democratic governance: In the political realm, AILs can contribute to citizens’ ability to become aware of and involved in government activities. With information citizens could transform themselves from passive citizens, who may occasionally go to the polls, into active citizens who demand government accountability and actively participate in the design and evaluation of public policy.

In the economic realm, AILs can increase efficiency and reliability of the investment climate and allow investors to better calculate where and when capital can best be invested. Long-term economic health and resilience depends on a steady and reliable flow of trustworthy information.

In public administration, AILs can improve the decision making process and influence the behavior of public servants by making them more responsive and accountable to the public. They can also control corrupt practices by making it more difficult to hide illegal agreements and actions. AILs also improve the legitimacy and trust in government in the eyes of the people, allowing for more effective implementation of public policies.

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http://www.freedominfo.org/2012/10/93-countries-have-foi-regimes-most-tallies-agree/

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Box 2: The Value of Information Disclosure for Democratic Governance and Human Development In this interconnected information age, the combination of technology and easy availability of knowhow, coupled with guaranteed access to information offers unprecedented opportunities to develop innovative strategies for tackling governance and development challenges in several dimensions, for example: 

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Supporting sustainable development: The sharing of information is essential for sustainable development, as it can stimulate public debate, broaden understanding of development issues, and enhance transparency and accountability. It can also strengthen public support for efforts to improve the lives of poor people, and improves the quality of assistance projects and programs.

Encouraging equitable economic growth: Easy access to fulsome information that is not mired in bureaucratic processes can encourage long-term investor confidence.

Supporting horizontal and vertical governance articulation efforts: The free flow of information between different levels of government, and between governments and the public can enhance effective multi-governance and more effective service delivery, in particular by facilitating more informed participation by communities Improving efficiency of public administration: An open government regime can make administrative procedures more transparent at all levels of government.

Entrenching participatory democracy: Information disclosure can play a crucial role in ensuring that citizens are better informed about the people they are electing and their activities while in government.

Strengthening responsible media reporting: A robust access to information regime can provide a framework within which the media can seek, receive and impart essential information accurately.

Reducing conflict by cementing public trust: Democratic governance can be enhanced by policies of openness which can engender greater public trust in government.

Supporting human rights: Lack of information denies people the opportunity to develop their potential to the fullest and realize the full range of their human rights.

Source: Based on Information Disclosure Policy: A Toolkit for Pacific Governments. Pacific Media and Communications Facility (PMCF) and AusAID, July 2006.

While many countries have constitutional provisions that guarantee the right to information, AILs are important because they provide more specific means to uphold the public’s right to know and the government’s obligation to inform. Nonetheless, by themselves, AILs do not necessarily guarantee a more open, accountable and transparent democratic government. That is, they are a necessary, but not sufficient condition. Even the most comprehensive AILs are limited unless they are rooted in an enabling environment that allows for their full implementation. Effective implementation of AILs requires sufficient institutional, technological and human resources and capacity, as well as the government’s commitment to disclose information and the capacity of citizens to request, understand and analyze the information provided. This explains why trust in government, transparency and accountability do not

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Figure 1: Evolution of AILs around the World (Cumulative Number by Period) 100 90

80 70 60 50 40 30 20 10 0 1951-1970

1971-1980

1981-1990

1991-2000

2000-2012

Source: www.freedominfo.org (2012) and Open Society Justice Initiative (2012)

automatically increase due to the introduction of AILs. Often, real access to information remains circumscribed by the vagueness and interpretability of the laws, cumbersome bureaucratic procedures, public officials reluctant to provide access to information, and judiciaries’ failure to enforce the legal frameworks.

In the context of economic and human development growth, AILs could also help in addressing sticky issues such as inequality, poverty and perceptions of corruption. As Amartya Sen pointed out, access to information gives both instrumental and intrinsic value to human development, as it can foster political freedoms, people’s ability to choose where and how they wish to live, and transactional costs.5 As such, the right/access to information is a cross-cutting area that can contribute not only to the overall strengthening of democratic governance, but also to human development as it can empower people and collective action by increasing participation (including CSOs and media), and can help to distribute power and make the delivery of public services more effective. Without access to information, people may not be able to engage their governments in social audit processes. Ultimately AILs have to make a difference in people´s lives and in their human development (See Box 3).

This Note reviews the important elements of AILs and focuses on three major challenges: 1) developing adequate laws; 2) implementation; and 3) programmatic assistance options to support AILs. While passing an AIL remains a major challenge for many countries, for those countries who have managed to pass these laws, the most difficult challenge is to operationalize implementation in a way that makes a difference for human development. Moreover, for donors and international cooperation agencies the challenge is not only how to support AILs, but also when and what kind of support to provide.

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See, Amartya Sen, Development as Freedom. Oxford University Press, 1999.

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Box 3: Using AILs: People麓s Stories from Bangladesh and Mexico

Shamima uses the AIL to help Women in her Village Shamima is an 18-year-old college student. She is the President of a youth group in Bangladesh trained on civic engagement and participatory local governance. The group participated in AIL training and learned about their rights and those of their community members. At the same time as the training, the Upazila Administration was preparing a new Vulnerable Group Development (VGD) list for 2011-12. Shamima learned that some extremely poor women from her village were not included in the list. She and her fellow group members decided to use the AIL training experience to fight this exclusion by requesting the list. Immediately after the training, Shamima filed an RTI application on behalf of the group. Initially, the concerned authority looked into the matter very reluctantly and did not respond in writing within the allowed official time. The Upazilla Nirbahi Officer (UNO or Chief Executive) learned about the VGD list request and set up a small inquiry committee that reviewed the list and suggested to remove a few names that were not eligible while including four women who actually were. The VGD selection committee, headed by the UNO, approved the report of the inquiry committee as well as the revised list. Nearly two months after the initial AIL request, Shamima finally received the revised list from the Union Parishad, in which the names of the four women were included. Shamima and her group can now verify if the beneficiaries selected are actually eligible according to the established criteria.

Poor Farmers in Mexico Benefit from Information obtained using AILs In the 1990s the Mexican government introduced new agricultural programs to promote trade liberalization while also protecting poor farmers from the ill effects of such a transition. The programs included subsidies for both large and small farmers. By 2007 government had spent the equivalent of more than US$17 billion on these programs, but many argued that the subsidies had not reduced rural poverty. Instead, the programs increased inequality between poor and rich farmers and between poor and rich areas of the country. The public debate focused on the total budget allocated to the rural sector and not on the distribution of the resources within the rural sector. In 2007 IBP partner Fundar and the Asociaci贸n Nacional de Empresas Comercializadoras de Productores del Campo (ANEC) established the Subsidios al Campo campaign to create a more informed public debate on the issue.

This coalition used freedom of information laws to obtain the lists of agricultural subsidy recipients from the government. After 30 information requests and 16 appeals, they had the information needed to set up a website to publicize information on the size, beneficiaries, and distribution of farm subsidies. The website showed, for example, that five Mexican states received 40% of the subsidy total but only had 27% of beneficiaries. This analysis brought a large amount of new information into the public domain, and managed to shift the debate about agricultural subsidies from a focus on their overall size to a discussion of how equitably they were being distributed, challenging a powerful agricultural industry in the process. The Mexican Ministry of Agriculture reacted by reforming the system to ensure that subsidies were flowing only to those that needed them.

Sources: Commonwealth Human Rights Initiative (CHRI), 2011 and International Budget Partnership (IBP), 2012.

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II. Developing an Adequate Legal Framework for AILs The range of adoption and scope of AILs around the world varies significantly. The first country adopting this type of law was Sweden in 1866 as a result of the parliament´s interest of getting information from the King. Finland and the United States followed it in 1951 and 1966 respectively, and Denmark and Norway were the next countries in 1970. The fall of the Berlin Wall, transitions to more democratic governments and the rapid growth of organized civil society groups demanding access to information explain in great part the significant raise of AILs between the 1990s and 2000s.

Governments may choose to promote an Access to Information law for a variety of reasons: a new constitution (e.g. South Africa 2000 and Angola 2002); corruption scandals or crises brought about because of lack of transparency and accountability (e.g. Japan 2000, Peru 2002 and Ecuador 2004); external pressures, including compliance with international conventions and treaties, such as European Union accession and the Aarhus Convention (e.g. Latvia 1998 and Bosnia-Herzegovina 2001); or, as part of governance reform initiatives (e.g. Slovenia 2003, Chile 2008).

Thus, a first key lesson to keep in mind is, how AILs come into effect determine often issues and challenges for implementation. For example, whether AILs were the product of international donor pressure or came about as a result of internal domestic politics, and whether they came as a result of a transition towards democracy, or a result of greater political opening by democratic regimes. The motives behind AILs tend to delineate the extent of country ownership, the level of political will on the part of the government, and/or the strength of civil society to demand greater transparency and accountability.

Moreover, a country’s political regime (parliamentary or presidential democracy; unitary or federalist; centralized or decentralized) and its institutional capacity can also influence the design of an AIL, as well as and eventually its implementation. For example, in countries with a long tradition of centralized authority and bureaucratic opacity, AILs may need to be more explicit in defining what is considered public information, as well as describe and assign roles and responsibilities of public entities and officials. Similarly, in countries where the record keeping and/or archive systems are underdeveloped, AILs may need to focus more on issues related to strengthening data bases and systematizing records.

In many countries, the process from introduction of a AIL to adoption can be lengthy, and government commitment can be hard to assess.6 In these cases, one indicator of political will and the enabling environment for full implementation is whether governments take actions that demonstrate commitment to transparency and accountability even before the law is finalized. In Peru (2000), Bolivia (2004) and Guatemala (2005), for example, the executive branch issued “Decrees” to promote transparency and access to information while political discussions over the larger and broader AIL itself were ongoing. In Nicaragua from 2004-2006, the government introduced a Voluntary Access to Information Strategy (EVA) while the legislature reviewed the AIL. Such preliminary initiatives can be 6

For example, in Jamaica it took eleven years, in South Africa and Honduras five years, in Nicaragua four years, and in Bulgaria three years.

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accomplished quickly for a few key pilot entities and serve eventually as a platform to implement the more extensive AIL. When civil society has played a significant role in advocating for the AIL and lobbied around the key provisions, the process has generally tended to flourish. In countries such as Nicaragua, Honduras, South Africa, Bulgaria, India, Mexico, Peru, and Jamaica, widespread civil society campaigns or wellpublicized efforts from highly influential civil society coalitions have increased and encouraged government efforts to develop and adopt AILs. While civil society alone may not be sufficient to either to advocate for an AIL and/or to ensure full implementation of existing AILs, at minimum they can either keep the issue in the public agenda and/or monitor implementation efforts. In turn, this can highlight implementation problems and/or progress and influence government to assign greater emphasis and resources to resolve them and/or publicize achievements.

These and other elements, to a great extent determine the scope and content of AILs, and in turn these determine opportunities and limitations for implementation. In this section, the focus will be on issues related to the designing phase of AILs. Several legislation-drafting issues (that can also be considered principles, see Box 4), such as coverage, exemptions and enforcement that have implementation implications will be highlighted. Ultimately, these issues determine the feasibility and enforceability of AILs. Section III will focus on implementation.

1. Maximum Disclosure Most Access to Information laws address government entities’ obligation to publish information, even in the absence of a request. Basic information that must be published often includes how an agency operates, its policies and budgets, opportunities for citizens to participate in its work, and how to make a request for further information. However, it is not sufficient for governments to publish only the information they want the public to know. AILs must therefore provide a legal framework for public access to all government information, including the basis for any exceptions to this principle. The central issue here is how the law articulates what is “public� and what is therefore covered under the law? How do AILs articulate the principle of maximum disclosure and minimum secrecy?.

Ideally, AILs should cover all entities that receive public funding, including all branches of the government, autonomous and decentralized entities, private companies and non-governmental organizations. It should also include entities that provide public services, regardless of whether or not they receive public funding, such as hospitals, schools, and public utility companies.

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Box 4: Principles/Standards of Access to Information Laws There is not an official international standard for AILs, however, several international organizations and conventions, as well as non-governmental organizations have delineated some basic parameters that all AILs should include (see below).7 While not all national laws can measure up to all these principles, they provide a measure of best practice which is useful for interpreting existing laws, for guiding evaluation and assessments, and for providing appropriate program/project recommendations during the design of AILs. These principles/standards are: 1. Maximum disclosure, minimum secrecy 2. An obligation to publish key information (Open Government) 3. Public officials have a duty to process, facilitate and assist requests for information rapidly and fairly 4. Exceptions narrowly and clearly defined 5. All requests have the right to a prompt and effective appeal/judicial review 6. Process to request information should be simple, fast and free 7. Disclosure takes precedence (Laws that are inconsistent with this principle should be amended) 8. Meetings/decision-making processes open to the public and/or with mechanisms to ensure discussions and decisions are given a public record status 9. Whistleblowers protection 10. Right to information guarantee by an independent agency

Most laws are much more restrictive than these ideals. The U.S. FOIA for example only covers Federal agencies.8 In Mexico and the Dominican Republic, AILs encompass political parties but they do not cover private companies or public utilities, and they leave significant autonomy to the judiciary and the

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For example, in 2000, the UN Special Report on Freedom of Expression endorsed a set of principles in its report to the UN Commission on Human Rights and in 1999. The OAS Special Report on Freedom of Expression also referred to the principles in the report of the Inter-American Commission on Human Rights. The Committee of Ministers of the Council of Europe also laid down similar parameters in a Recommendation on Access to Information Held by Public Authorities in 1981, and more recently in 2002 in which the Council of Europe recommended to turn this principle into a legally binding set of standards. Moreover, more recently the UN Convention against Corruption and other regional anti-corruption conventions (Inter-American Convention against Corruption) have also set clear parameters to guarantee access to information. International NGOs, such as Article 19, the Commonwealth Human Rights Initiative, Transparency International and the Open Society Justice Initiative among others, have also delineated and endorsed a set of principles.

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In the United States there is a wide range of other State, County and Municipal legislation and regulation related to access to public information, as well as coverage of private and non-governmental entities. See Relyea, Harlold C. and Wendy Ginsberg (2008) Access to Government Information in the United States. Washington D.C. CRS Report for Congress.

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legislative branch on how to apply the law. In some countries, like Pakistan, “public information” is narrowly defined.9 In Jamaica and South Africa, the AILs include the private sector.

To assess maximum disclosure of different AILs, the following basic questions should be asked:  How broad is the definition of what constitutes public information?  Which entities are covered by the law, as well as what branches of government? Are the judiciary and legislature covered?  To what extent are private institutions that provide public services covered under the law?  What is the role of civil society?

2. Minimum Exemptions AILs always contain provisions for reserving or restricting information, whether for national interest reasons, public security, personal privacy, commercial/industrial security, or for other justifications based on the argument that disclosing the information would bring more harm to the public interest than keeping that information reserved. The definition of exemptions is one of the most controversial aspects of AILs. As Ackerman and Sandoval argue, a “badly written set of exemptions can gut the law by allowing the authorities to withhold information virtually at their discretion.”10 The extent, to which AILs permit authorities to use their own discretion to exclude information from disclosure, and the range of exceptions allowed under the law, greatly determine the degree to which AILs actually uphold the principle of free access to information. A snapshot of how various AILs have dealt with issue related to the principle of publicity, classification of information and exemptions is provided in Annex 2.

One of the key lessons emerging from countries’ experiences (see Box 5), is that AILs should include a comprehensive list of clear, narrow and legitimate reasons justifying exemptions. Broad exemptions can compromise the effectiveness and purpose of AILs; clear and narrow definitions of exceptions can close opportunities for discretion. Any definition of reserved, confidential and secret information must be well justified. Reasons that are usually considered legitimate include individual privacy, national and commercial/industrial security, and to a lesser extent information related to ongoing judicial processes.

If the benefits of disclosure outweigh the risk, there should be an option to disclose. Banking and financial information, for example, might be considered reserved for privacy reasons but might be released for use as evidence in a corruption case.11 Every AIL should clearly mandate that information 9

See, Neuman, Laura and Richard Calland (2007), “Making the Law Work: the Challenges of Implementation,” in Ann Florini, ed, The Right to Know: Transparency for an Open World. New York: Columbia University Press, (pp. 179-213); Villanueva, Ernesto (2006). Right to Information around the World. México: IIJ/UNAM-Miguel Angel Porrúa; and World Bank (2004). “Legislation on Freedom of Information; Trends and Standards.” PREM Notes Public Sector (October), No. 93.

10 Ackerman and Sandoval, op.cit. p. 100.

11 In Mexico, for example, a court had to issue a special order forcing banks to disclose information to the Federal Electoral Institute regarding financial contributions to one political party as a result of a corruption investigation. See Alonso Lujambio, “Enforcement: The Experience in Mexico” in Transparency International, Global Corruption Report 2004; Lorenzo Cordova

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requests will be denied only based on a specified exemption, and that the denial and reason for rejecting the request will be provided in writing.12

Box 5: Rating AILs in 90 Countries The result of the world’s first rating of AILs in 90 countries shows a significant spread: out of a possible total of 150 points, the range is from 39 points to 135 points. The vast majority of countries have a score over 60 out of 150 points (87% of countries have over 60 points).

The analysis shows vast room for improvement: two thirds of countries (64%) scored in the middle range, between 60 and 100 points out of 150. Typical weaknesses were the limited scope, overbroad exceptions regimes, shortcomings in oversight and appeals mechanisms, and lack of legal requirements to promote awareness of the public's right of access to information.

The top 20 countries with scores over 100 tend to be younger laws which reflect the progress made in international standard setting on this right in the past 20 years: with the exception of Finland (a score of 105 for a legal framework which includes a law adopted in 1951) the average age of the laws in the top 20 countries is just 5 years.

Features of the stronger laws include that they establish clear procedures for requesters and have strong oversight bodies. It may be too early to conclude how these laws will work in practice, but reports on implementation in some of the top countries, support the conclusion that strong laws can lead to strong protections for the public's right to know.

Source: Centre for Law and Democracy and Info Europe (2011). http://www.rti-rating.org/results.html

The central question is what constitutes “public” and what constitutes “private” information. Where is the boundary and who has the authority to define it.

In assessing the range of exemptions in AILs, it is important to ask questions like:  How narrow is the definition of exceptions/restrictions/reservations and the types of information that can be released?  Who interprets legally what information is exempted and why?  Are there mechanisms in place to make exempted information public?

Vianello and Ciro Murayama Rendón, “Transparencia y Partidos Politicos. Los Casos de Pemexgate y Amigos de Fox” in Virtual Library of the Instituto de Investigaciones Jurídicas, UNAM. http://biblio.juridicas.unam.mx/libros/5/2456/11.pdf 12 Jenkins, Rob (2008). “Access to Information and Pro-Poor Development: Lessons from Two Cases in India.” Background note prepared for Carter Center Conference on Access to Public Information; and Neuman, Laura 2004. “Access to Information Laws: Pieces of the Puzzle; an Analysis of the International Norms.” The Carter Center.

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3. Ease of Access The ease or difficulty with which the public can access information is a central consideration in evaluating the quality of AILs. High-quality laws will include provisions guaranteeing equal treatment to those requesting information, defining response times, describing requirements for requesting information, and designating responsible offices and officers. Ideally, the process should be as simple and practical as possible and should not create bureaucratic barriers. Similar provisions should apply to all information held, regardless of form, source, date of creation, or official status. Laws that facilitate access should not require citizens to demonstrate or justify a specific reason for their requests (See Annex 3 for a brief revision of how different AILs set the scope of who can and/or cannot request information). Public officials responsible for responding to citizens requests should have clear understanding of their responsibilities and of the justified exemptions considered under the law.

As can be seen in Box 6, there are many ways to facilitate the process. Nonetheless, in practice, this process is far more complex, as it is directly linked to institutional/organizational capacity issues, specialized skills, integrated information systems and political will.

Box 6: Ways of Facilitating Access to Information • • • • • • • • •

The right to make written and/or oral requests.

An obligation for public entities to appoint information officers to assist requesters.

An obligation to provide information as soon as possible and, in any case, within a set time limit.

The right to specify the form of access preferred, such as original document, electronic version and/or a photocopy.

The right to appeal a denial and/or a refusal of access.

Provide a technological tool (web-platform) to encourage people to exercise the right to information.

Develop and offer training programs for citizens and public officials in charge of guaranteeing the right to information.

Promote trust and collaboration between local governments, civic organizations and communities.

Develop and adapt a teaching model oriented to vulnerable communities with the support of intermediary agencies that the target population trusts.

Source: The World Bank, PREM Notes Public Sector, October 2004, No. 93 and Guerrero and Sepulveda (2010). The right to Information for marginalized groups: The experience of Proyecto Comunidades, Mexico.

The response timeframe is one of the critical issues in determining ease of access. Most AILs establish time limits to respond to requests. In Peru, for example, the time limit is 7 working days, in Colombia and Macedonia it is 10, in Poland 14, in Albania and the Dominican Republic 15, in Mexico 20 and in Panama, Jamaica and South Africa it is 30. The capacity of government authorities to respond to

33

requests also affects ease of access. In many countries, many types of public information are simply not available, or government may not have the capacity to produce or process the information requested.

In some cases, the information provided to citizens is not reliable or might be released in a complicated format that makes it difficult to understand and analyze.

CSOs and the media can play an effective role verifying the information provided and reporting whether the information was relevant, appropriate and provided in a manner that can be analyzed. Another strategy for increasing governments’ capacity to produce more reliable information and to respond more adequately to citizens’ requests is to include provisions in the law that mandate government entities to publicize annual reports on the number of requests received, responses to these requests, as well as the number and type of exemptions claimed. Such reports can generate valuable information to evaluate performance and help identify gaps and areas for improvement. The Jamaican Access to Information Act instructs each Minister to provide annual reports to the Parliament on the functioning of the act. FYR Macedonia’s Law on Free Access to Information of Public Character also instructs a combined annual report to the Parliament.

Civil servants’ and citizens’ knowledge and awareness of AILs also affects ease of access. To ensure that requests are not denied or ignored when requests are made to the wrong entity, for instance, civil servants and citizens must understand the proper procedures and the options that AIL offer to resolve conflicts. Civil servants must have the capacity to redirect requesters appropriately. Nonetheless, the burden to access should be on the government rather than the requestor. This alleviates the “PingPong” phenomenon, where a requester is directed from one agency to another. To ensure that transfers and/or delays do not encounter bureaucratic barriers, strict time limits are necessary for managing requests, transfers, and responses,, and mechanisms for notifying the requester about a potential delay and/or transfer must be established.

A fourth aspect influencing the ease of access relates to the actual handling of public information requests. The central issue is the discretion of public officials and whether they respond differently based on “who” makes an information request. Typically, the media tends to have easier access than an anonymous individual, even when the law guarantees all citizens equal access to information.

Finally, the issue of cost is directly related to ease of access. Ideally, access to information should be free of charge. However, some AILs require minimal payments to offset the costs of searching for documents, processing requests, and reproduction of documents. To facilitate access, fees should not be so high as to deter requests. Some AILs limit charges to the cost of duplication, sometimes along with a set application fee. Other laws establish different fee categories, charging less for basic public information or personal requests. There may be additional charges if copying, computer processing or search and preparation time is required.

Regardless of the approach used to charge for information requests, consistency and accessibility are more likely when a central authority establishes fee structures and schedules, rather than when each public body is allowed to set fees separately.

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In general terms, to facilitate the access to information for different sectors and groups of the society, governments need to incorporate a proactive disclosure approach in the design and implementation of AILs. Thus, the information must be:13  Available: Use of multiple communication channels, besides the internet, to reach more specific and vulnerable audiences. For instance, notice boards, leaflets, radio, tv and public meetings.  Findable: User´s need should be the starting point to define where and how to publish information.  Relevant: The type of information should be aligned to user´s needs and organized in a practical and simple way.  Comprehensive: Information must be presented in languages that most people are familiar with.  Up to date: Information should be posted timely and correctly.

4. Enforcement AILs need to include appropriate enforcement mechanisms. The optimal model is the establishment of an independent and specialized entity responsible for enforcing the AIL, receiving appeals and enforcing the right to public information. Such entities need to have clear and explicit responsibilities, adequate levels of funding, and competent staff.

Most countries with AILs do not have such national independent and specialized information agencies.

As of 2012, about twenty countries had independent information commissions at the national level.14 Mexico illustrates a model of establishing such an independent agency. The AIL created an agency at the federal level, the Instituto Federal de Acceso a la Información Pública (IFAI)—The Federal Institute for Access to Information--to review cases where the authorities deny access to information, determine whether the information requested is public, privileged or confidential, and decide whether the information requested should be disclosed. In addition to producing awareness campaigns and designing standards for archiving and processing information, the IFAI has the power and authority to act as an administrative court (See Box 7).

13

Adapted from World Bank (2010). Proactive Transparency: The future of the right to information.

These countries include: Belgium, Canada, Estonia, France, Hungary, Ireland, Latvia, Mexico, Portugal, Slovenia, Thailand, Bangladesh, Chile, Nepal, Macedonia, Germany, Australia and the UK. http://right2info.org/information-commission-ers-andother-oversightand and www.freedominfo.org 14

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Box 7: Mexico’s Federal Institute for Access to Information Mexico’s Federal Institute for Access to Information (IFAI in Spanish) stands out on the global stage as a particularly powerful oversight agency. The IFAI functions simultaneously as an administrative court responsible for reviewing negative responses by executive agencies and an ombudsman in charge of strengthening the “culture of transparency” in both government and society. Although it is part of the executive branch, it has significant financial and operational autonomy and is led by five councilors approved by the Senate for seven year terms.

During the first three years (2003-2006) of implementation of Mexico’s federal AIL, the Executive Branch received a total of 159,639 information requests and responded to 88.9% (141,849) of them.15 The IFAI received 7,473 appeals during this same period. These numbers compare positively at the global level.16 In 2007, Mexico reformed its Constitution to include a full range of access to information guarantees.

Today, all government agencies at the municipal, state and federal level have to grant free access to government documents, follow the “principle of maximum publicity” when interpreting freedom of information statutes, and make available all information about public funds given to private individuals and groups.

In 2012 the level of demand for information has increased significantly so as the complexity of the requests. From 2003 to July 2012 the executive branch had received 665,965 information requests and had responded to 589,523 (89%).17 As in previous years, the Mexican Social Security Institute was the institution that received the greatest number of requests, followed by the Education Ministry and the Ministry of Finance and Public Credit.

Nevertheless, the Mexican law also has some important weaknesses and challenges. For instance, the IFAI has no jurisdiction over government bodies outside of the executive branch. The appeal of freedom of information requests to the legislature, the judiciary and independent agencies (electoral institute, human rights ombudsman) have to go through a cumbersome process of judicial review. Additionally, after almost a decade of implementation there is evidence that some government agencies still refuse to give information to citizens arguing that such information does not exist. The problem is that the IFAI has no independent capacity to issue sanctions for compliance; in fact the agency in charge of sanctioning these issues has a high rate of non-compliance of IFAI rulings.

Source: John Ackerman and Irma Sandoval, Mexico’s Freedom of Information Law, mimeo, 2007 and Regional Alliance for freedom of speech and information (2011). “Regional Report Regarding Access to Information,” 18 (2011).

15

www.sisi.org.mx.

Mexico’s AIL is already at the levels of use in the United States AIL. During the 2004-2005 fiscal years the USG received 16 52,010 requests and processed 2,921 appeals. See http://www.usdoj.gov/oip/annual_report/2005/05foiapg6.htm.

17 http://inicio.ifai.org.mx/_catalogs/masterpage/AIP-Estadisticas.aspx 18 http://www.proacceso.cl/noticia/alianza_regional_lanza_informe_sobre_acceso_informaci_n_en_am_rica_latina 16

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Peru and the Dominican Republic, on the other hand, represent the opposite model. In these countries, requests for information are handled by individual ministries or public offices and if the requests are denied, citizens have to resort to an appeal process in each entity. For this model to be effective there must be institutional capacity to manage appeals and order disclosure. Moreover, the lack of standards and a coordinating mechanism can compromise uniform implementation of the AIL and can generate the opportunity for discretion. The absence of a central coordinating and independent enforcement agency can result in an uneven and highly inconsistent compliance with the law.

The majority of countries with AILs fall somewhere between these two enforcement models. Some countries have specialized information agencies, but they do not have the power to make binding decisions. They act as Ombudsman Offices responsible for defending citizens’ rights. In Hungary, for example, the Commissioner for Data Protection and Freedom of Information is an Ombudsman that reviews requests for information, but has no enforcement authority. In Ecuador, the Ombudsman is in charge of monitoring and promoting the AIL. It can hear complaints and/or make investigations on its own initiative and it can also take cases to the court. Yet, the Ombudsman does not have the power to make binding decisions (See Box 8 for selected examples of appeals, and Annex 4 and 5 for a brief description of appeals and enforcement cases).

Ultimately, enforcement is a key ingredient of AILs, and if the issue is not effectively considered in the drafting and adoption process of the law, it could undermine its implementation, impact and sustainability. If there is widespread perception that the AIL is just a “written document,” and/or the enforcement mechanisms are weak and ineffective, it could lead to a flawed implementation.

Irrespective of the enforcement model ultimately selected, some factors more than other could ensure that the right of access to information is being upheld effectively. According to a World Bank, study, these are some of the factors to consider:19  Independence: The independence of the enforcement model and process (perceived and real) is a key element. This includes how it makes difficult decisions surrounding release of information; whether it operates free from political influence; how decision-makers in the entity are elected/ selected; to whom are they accountable and whether they have budget autonomy.  Compliance: Essentially what are the costs of not complying with the law? What are the incentives for complying and/or not complying? Jail time and high fines could provide some incentives to comply, while lack of recourses for ensuring that orders are carried out could encourage non-compliance.  Additional Dynamics: leadership, partnerships, professionalism and ethical behavior of enforcement entities.

19

World Bank Institute (2009). Working papers Enforcement Models: Content and Context.

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Box 8: How AILs Handle Appeals and Denials?

At least three levels of appeal should be available for AILs. Most provide for an appeal to the courts, and many also provide for an internal appeal process to a higher official in the public entity where the information is being held. Some AILs also provide for an appeal process to an independent administrative body. This level of appeal has proven crucial to an effective functioning of AILs, because courts could be too time-consuming and expensive for all but a small minority of requesters. 

In Mexico, for example, the Federal Law on Transparency and Access to Public Government Information created the implementing entity, the Federal Institute of Access to Information (IFAI), which can hear appeals from any refusal to disclose information, from a failure to comply with established time limits, against the level of fees charged or from a refusal to disclose the information. In other countries, the AIL allocates the task of hearing appeals to an existing entity.



According to Pakistan’s Freedom of Information Ordinance, appeals or denials can be made to the Wafaqi Mohtasib (ombudsman) or to the Federal Tax Ombudsman for cases involving taxes.



In Armenia, the Law on Freedom of Information establishes that appeals can be made to the Human Rights Ombudsman, although appeals can also be made to a court.



In Romania the Law Regarding Free Access to Information of Public Interest, directs those denied can appeal to the agency concerned or to a court, although the People’s Advocate (Ombudsman) can also hear complaints and make recommendations. In general, these entities are granted the necessary powers to conduct investigations and hearings, including summoning witnesses. In most cases, they are empowered to request any information from public entities, including the information to which access has been refused.



In some cases, such as the United Kingdom, the law also establishes a specialized tribunal to hear appeals from the administrative body.

Source: Based on information found at www.freedominfo.org

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Box 9: New Initiatives for Oversight on Transparency and Access to Information: The Council for Transparency in Chile and the Network for Transparency and Access to Information In Chile the Transparency and Access to Information Law (TAIL) was approved in 2008.Within this framework, they created a control and supervision organism known as the Council for Transparency (CT).

This organism is recognized as an autonomous body of the central government and has its own patrimony.

The CT monitors the compliance of this law and applies sanctions; resolves appeals; and promotes transparency in public service and the disclosure of information through training of public servants.

The CT has had an essential role in the effective implementation of the TAIL giving guidance to public officials and recommendations on existing and proposed legislation. However, it still faces many challenges to achieve transparency and accountability of public agencies that are not included in its mandate. In particular it will be difficult to resolve denial of access to information in the Legislative, Judicial, Constitutional Court and Electoral Justice in which the TAIL did not determine any complaint mechanism.

The new Network for Transparency and Access to Information.

This initiative was launched thanks to the support of the World Bank to the Council for Transparency in order to lead the creation of a network of oversight bodies for access to information. This network is formed by public authorities in charge of transparency and anti-corruption in Chile, Bolivia, Peru, Uruguay, Mexico and more recently Brazil and Argentina joined this regional effort.

This network wants to become a platform to promote dialogue, exchange of information and good practices related to transparency and the right to information. To begin with this process, they have elaborated an assessment about the context, risks and limitations in each country.

They also work in areas such as records, jurisprudence, impact indicators and training.

Source: http://www.redrta.org/SitePages/Portada.aspx

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40

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III.

From Adoption to Implementation

While many AILs can meet, to varying degrees, the minimum principles outlined above, it is in its implementation where the effectiveness, utility and value is often tested and measured. Experience from around the world suggests that implementation is usually a more difficult challenge than the mere design and approval of AILs. For example, a study of 14 countries that have AILs found that on average, almost 40% of requests go unanswered (see Box 10).

Just as the AILs design and adoption process is influenced by a number of elements, the implementation of the law also depends on a number of political, policy and operational elements.

Box 10: Implementation Trends Around the World A study of access to information conducted by the Open Society Justice Initiative in 14 countries found that on average, 47% of requests for information were not responded to. Although countries that had an AIL fared somewhat better in the rate of response to information requests, on average, 38% of requests for information in countries with AILs went unanswered. In countries that did not have AILs, the rate was 56%.

The study concluded that the unanswered request rate is lower where there has been a concerted effort by civil society and government officials to implement an AIL. The findings also indicate that the introduction of an AIL, when accompanied by training of public officials and clear political support for public access to information, can dramatically improve levels of responsiveness to information requests.

Even if responses do not always result in release of information—for example, when a government body responds to a request with a written refusal—they nevertheless provide bases for a dialogue between the public and government over the right of access to information.

A more recent survey led by Access Info Europe, the Centre for Law and Democracy and the International Budget Partnership focused on request of budget information in three thematic areas: maternal health, development assistance and environment. This exercise involved 80 different countries in which over half have AILs. One of the main findings was that in one of four requests (26%) the information was fully provided, and less than half (45%) yielded any information at all. In fact, according to the study 42% of all requests met with responses that were not compliant with right to information standards.

Based on these results, the study highlights that countries with AILs had a better performance and the longer the law had been implemented the better the response rates were. See Table 1.

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Table 1: The longer the law, the better the Final Outcomes AILs Status

Number of Countries

Average attempts

Average Average time to positive respond results

Average compliant responses

Average Mute Refusals

All countries

80

2.2

62 days

45%

58%

38%

No AIL

36

2.5

73 days

33%

42%

53%

5 11

2.4

61 days

43%

55%

43%

AIL 5-10 years 33 old

2.1

55 days

57%

75%

23%

AIL 10 years old 13 or more

1.6

44 days

62%

82%

17%

AIL under years old

Source: Open Society Justice Initiative. Transparency in Silence: A Survey of Access to Information Law in 14 Countries. New York: Open Society Foundation, 2006. Center for Law and Democracy et al. Ask your Government! 6 Question Campaign: A comparative analysis of access to budget Information in 80 countries, 2011.

1. Political Will Once AILs are adopted, governments claim credit for the passage but often fail to follow through to ensure that the law is implemented successfully. Policymakers, realizing the enormity of the tasks necessary to implement the law, fail to commit the appropriate resources or simply lose interest, even when they might have demonstrated political will during the design and adoption process. Without political will on the part of the government, implementation could suffer major setbacks. The extent of government’s commitment to implementing AILs can never be ascertained beyond doubt, but signals of commitment can include: creating an implementation plan, identifying champions within the administration committed to information disclosure, allocating resources against planned implementation steps, capacity building for key officials, and launching a public awareness campaign to engage stakeholders and inform citizens of their rights and opportunities for accessing public information.

Implementation Plan: While there is no “silver bullet” to ensure a successful implementation of AILs, developing a strategic implementation plan could be valuable. The process of producing an implementation plan can serve not only to build consensus within government and with key CSOs, but it could also give government officials an opportunity to design a feasible and realistic implementation

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process that takes into account concerns, shared visions, resources, capabilities and limitations. In addition, the planning exercise could also help to set expectations about the AIL, calculate needed resources, and prioritize activities and training needs. Moreover, a strategic plan could help identify key managerial, operational, and/or logistical issues.

Identifying leadership: AILs need champions at key nodal points in the government structure, as well as institutional capacity. Implementing institutions and individuals must have sufficient seniority and stature in the hierarchy to rally support within the bureaucracy and move the implementation process forward even while facing political and logistical obstacles.20 Establishing clear consequences to prevent public entities and policymakers from ignoring directives is also imperative at the early stage of implementation. These types of actions signal commitment and can send a strong message to public servants and CSOs that the AIL is a priority.

Resource Allocation, Staffing and Capacity Building: The allocation of resources for the effective implementation of the law provides a clear indication of a government’s commitment. Resources are needed not only for classifying, processing, archiving and releasing information, but also for training and paying personnel responsible for receiving citizens’ requests. In most countries that adopt an AIL, often public officials and civil servants don’t understand their obligations, and citizens don’t understand their right to information under the new law. Public officials must be aware of the AIL and its implications and need to be trained on how to handle and process requests for information (see Annex 5 for guidelines on how to respond to information requests). In some countries, the responsibility for handling information requests has been given to press officers and/or public relations personnel. They should also be targeted for specialized training.

National awareness campaign: Whoever has been assigned responsibility for overseeing the overall AIL implementation (e.g., Commissioner, Transparency Ministry, Ombudsman, or Anti-Corruption Office) must design and implement an effective national awareness campaign to inform the public about the new law, how it works and how to make requests. In countries where literacy is low, radio and television could be important means to educate the public about the AIL. Posters and leaflets are also an efficient and cost-effective way of making the public aware of what information is available and how to obtain it. Community Partnerships are also important actors for awareness campaigns (Box 11).

20

Neuman, Laura and Richard Calland (2007), “Making the Law Work: the Challenges of Implementation,” in Ann Florini, ed, The Right to Know: Transparency for an Open World. New York: Columbia University Press, (pp. 179-213).

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Box 11: Establishing Government and Community Partnerships During the implementation phase it is important to develop an effective strategy considering local needs of the community. For example, in India they promoted government and NGO´s partnerships to carry out training programs leaded by the states and Central Government, thus in states like Maharashtra NGO´s activists were able to share their personal experiences with officials.

In Jamaica, the Government’s Access to Information Unit (ATI) created an ATI Advisory Committee with representatives from civil society, the private sector and the media. The Committee met regularly with the Director of the Unit and even the Minister at times to: (i) promote monitoring of the ATI Programme by some NGO´s; (ii) the provision of recommendations to the Government; and (iii) to provide assistance to the ATI Unit. It is important to mention that for this to happen it is necessary that government representatives are committed to work along with civil society and followed their recommendations.

In South Africa, information officers have also been trained by various organizations including the South Africa Human Rights Commission, the Justice College and the NGO known as Open Democracy Advice Centre.

Source: Rodrigues (2008). Implementing Access to Information Laws: A Practical Guide for Operationalizing Access to Information Laws.

2. Routine Publication Most AILs require that governments publish and disseminate public information routinely. This allows citizens to have access to public information without having to make a formal request. AILs around the world deal differently with the issue of proactive disclosure (see Annex 6 for examples of proactive disclosure in government portals). There is no single model, but at a minimum, each public entity should routinely publish the following information: 

Structure: What does the entity do? How does it function? What is its mission/objective/vision?



Contact: Internal organizational structure and contact information, telephone and email.



Financial Information: Current budget, budget execution reports, audit accounts.



Duties: Brief description of the powers and responsibilities of its senior officers and their curriculums.



Decisions: Procedure that is followed in making decisions. The content of all decisions and policies that affect the public, along with any background material.

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

Citizen participation: Guidance on how the public can contribute to the decision making process.



Specific Services: Details of any services it provides directly to citizens and fess, such as permits, registration, and tax payment.



Public request or complaints mechanisms.



Simple guide containing information about its record-keeping systems, the types and forms of information it holds, the categories of information it publishes and the procedure to be followed in making a request for information.



Norms: Any regulations, policies, rules, guides or manuals.



All announcements for public procurements and the related award decisions.



Job announcements.

When government entities routinely publish and disseminate information, the demand for information can actually be reduced. In turn, this can help to save resources while also strengthening the culture of transparency. Proactive disclosure has to lead to useful and relevant information that is regularly updated, and should be disseminated in as many formats (electronic and print) as possible. While using Web sites is an important and readily available means, not all citizens have access to this means of communication. Thus, proactive disclosure on the internet cannot be a substitute to distributing hard copies and other more traditional formats (annual reports, brochures).

3. Complementary Legislation AILs are not a panacea for democratic governance, transparency and accountability, or for human development policies. Unless AILs are complemented by other legal tools, by themselves they can only begin to contribute to improving democratic governance and promoting transparency and accountability and human development policies. To strengthen and complement the impact of AILs, some countries have passed constitutional amendments to increase the independence and professionalization of the judiciary. Others are working on new legislation (e.g., conflict of interest, witness/whistleblower protection and/or career civil service laws), and they have created new institutions such as ombudsmen and anti-corruption agencies.

Moreover, most countries have signed international anticorruption conventions, such as: the InterAmerican Convention against Corruption (IACAC); the Organization for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Officials in International Business Transactions; the Council of Europe’s Criminal Law Convention on Corruption and the Civil Law Convention on Corruption; the African Union Convention on Preventing and Combating Corruption; and,

46

the United Nations Convention against Corruption (UNCAC). All these conventions obligate their signatories to enact laws that prevent and sanction corrupt practices and thus can provide a roadmap for other actions needed to complement AILs. Furthermore, there are a number of international initiatives focusing on transparency and disclosure that may have relevance to national AILs and/or to topics/themes covered or not covered by existing legislature (see Annex 9).

4. Organizational Capacity and Record Management Building the organizational capacity to disseminate, publish and process information requests is one of the key challenging areas for AIL implementation, in particular for countries without previous experience with “transparent and open government.” Clear, consistent guidelines are imperative, including records management. One important step is developing manuals, operations procedures, and training modules for information officers and their units. Key technical areas to consider in any capacity building program are:  Complying with time limits  System to collect requests, including management of databases  Record management systems, including archiving of documents  Customer relations rules to attend requests  System to respond to requests  Human resource allocation  Designation of responsibilities, including the Chief Information Officer.  Rules for establishing internal ad-hoc committees to deal with specific issues related to disclosure.

If a particular AIL calls for establishing an independent, specialized information office (Commission), officers (Commissioners, Information Officers), and special personnel (archivist, public information officers), part of the capacity building strategy must include continuous training for these key personnel.

Information officers can work together through networks or working groups across public entities to provide mutual support and to share experiences and lessons learned (see Box 12).

From the “users/citizens” perspective, an effective independent, specialized and trained information officer can help by making the process easier to access and by offering a clear focal point for exercising their right. In contrast, where AILs do not establish such offices, or trained their information officers, implementation can be more challenging. For example, lack of uniform implementation standards across public entities can promote uneven implementation of the law. In some countries, because there is no special unit established by the law, the responsibility has been added to the long list of responsibilities ordinarily carried by the director-general of each public agency. This further scatters responsibilities and tasks and puts the AIL implementation at risk of being relegated to a secondary priority.

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Box 12: Independent Specialized/Coordinating Access to Information Offices: Evidence from Mexico, Jamaica and Trinidad & Tobago In Mexico, the IFAI has a mandate emanating from the AIL, whereas the Jamaica unit was created spontaneously as a means for addressing all implementation issues. While, the IFAI is authorized by statute, it is a “legal” body and has enjoyed a budget sufficient to meet its objectives and tasks, in the case of Jamaica, the information units in Jamaica have been financially dependent on funds from the Information Minister in the Office of the Prime Minister. Experience has demonstrated that specialized coordination units are necessary beyond the implementation phase, particularly for education, training, and monitoring.

In Trinidad and Tobago, the AIL went into force on February 20, 2001. Shortly thereafter, a Freedom of Information Unit was established to provide technical and legal guidance to government bodies, raise citizen awareness of the new law, and monitor and report on implementation efforts. The Cabinet initially authorized the unit for one year and then extended it until September 30, 2003, when the unit was disbanded. Even before its termination, the size of the staff was being reduced. Although there have been no quantitative studies to determine the effect of the unit’s discontinuance, some statistics serve to indicate its importance and continued need. In the period of August–November 2001, when the Unit was active in training civil servants and educating citizens, there were 37 requests for information and 88 quarterly reports received from government, representing 55% of all agencies mandated to submit reports. For the same period in 2002, when the unit was still engaged, there were 63 requests for information and 32 reports received, representing 20% of all agencies. By November 2003, when the contract of the last member of the unit expired, there had been only 6 information requests, and a mere 8% of all agencies were still complying with the reporting requirements.

Source: Laura Newman and Richard Calland, “Making the Law Work: the Challenges of Implementation,” in Ann Florini, ed., The Right to Know: Transparency for an Open World. New York: Columbia University Press, 2007 (page 205).

Record management is of particular importance for implementation of AILs. Many countries that have passed AILs have minimal record-keeping systems in place. This can create enormous and costly challenges, such as:  Information/documents cannot be found easily;  Excessive amounts of time and effort are spent searching for information;  Little capacity to transfer records to and from a central archives; and  Storage and archiving of documents in precarious places (e.g., outside in patios, warehouses infested with pests, or in building hallways).

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Weak record-keeping systems and space constraints in the public sector generate some common and detrimental information management practices. Documents may be burned, discarded and even sold to recycling companies. Moreover, when record management is perceived as a low-level administrative or clerical function, personnel assigned to those tasks may not be provided the necessary information, resources and training to fulfill a key responsibility.

Ideally, any record management strategy should introduce changes gradually, taking into account the diversity and distinct levels of record-keeping in the public sector. Even when old documents are available, the task of organizing them could be monumental and a long-term process. Governments with limited funding must prioritize, focusing first on current and future generated documents, and then, over time, organizing the historical information. Moreover, when prioritizing, the government must be sensitive to citizens’ information needs and ensure that information is available in key areas such as budgets, public policies related to education and health, as well as crime and access to justice.

While information communication technologies (ICT) can be an excellent tool to strengthen record management practices, not all countries with AILs have the capacity and/or resources to invest in digitalization of information (conversion and authentication of non-digital material into digital format).

Nonetheless, some countries are beginning to find creative and practical ways to use ICT to strengthen record management capacity and facilitate access to information (see Annex 7 for selected experiences).

5. Allocation of Financial Resources Allocating appropriate financial resources for the implementation of AILs constitutes an integral part of the enabling environment. While donor organizations can play a constructive funding role, particularly at the beginning of the implementation process, the government must find innovative ways to fund the implementation with as much national resources as possible. Therefore, engaging legislators in resource allocation process for implementation is also critical.

One of the key challenges in this regard is estimating the appropriate level of resources. A major part of this exercise entails determining priority needs. As illustrated in Table 2, the needs are different at the beginning of the implementation process than during regular implementation. The tasks involved range from training access to information specialists across public entities, to improving record management and archiving systems, to making sure that official information is stored and easily retrieved. Donors could play a role in helping to finance the initial costs, but should ensure that the government is also committing resources in key areas.

Priority financial decisions should deal with the following issues: ďƒź Training relevant civil servants ďƒź Designing a strategic request system that is able to process certain categories of information, while systematically and gradually adding other information categories

49

 Collecting and maintaining official documents and databases  Investing on systems to respond to information requests and appeals  Launching a public awareness campaign  Implementing the law first in a handful of strategically selected key public entities  Collecting and analyzing indicators about access to information and disseminating results to the public  Producing reports about compliance with the law  Improving the quality and usefulness of the information provided for the public





 



Table 2: Snapshot of Needs to Ensure Implementation of FOI Laws Starting Costs Fixed Costs Assessment of existing preparedness to  Salaries for commissioners/ director of implement AILs, including in the area of specialized unit, information officers. record management system.

Initial training for public officials,  Ongoing specialized training related to implementation (record management). information officers/liaisons, public relations officers, and archivists.  Awareness and advocacy campaigns and Equipment (computers, scanners, activities. photocopies, printers) Development of systems, forms and  Offices/infrastructure. procedures for managing and evaluating  Equipment maintenance. requests.

Expenses to adequately structure  Materials. specialized unit.

Priority financial decisions should deal with the following issues:  Training relevant civil servants  Designing a strategic request system that is able to process certain categories of information, while systematically and gradually adding other information categories  Collecting and maintaining official documents and databases  Investing on systems to respond to information requests and appeals  Launching a public awareness campaign

50

 Implementing the law first in a handful of strategically selected key public entities  Collecting and analyzing indicators about access to information and disseminating results to the public  Producing reports about compliance with the law  Improving the quality and usefulness of the information provided for the public A combination of factors plays a role in ensuring adequate levels of funding for the implementation of AILs:  Optimal use of internal and external resources;  Existence of leadership/champions and political will, with capacity to mobilize top-down and bottom-up support;  Gradual but strategic and steady support to strengthen the administrative and operational capacities to implement AILs; and  Recognition that AILs are not ends but long-term processes that demand long-term commitments and broad participation of government and non-governmental stakeholders.

6. Civil Society, the Media and other Key Stakeholders As the Open Society Justice Initiative report shows, in countries where CSOs were active in drafting, adopting, and implementing the AIL, not only have the laws been more effective, but they also enjoy greater credibility and legitimacy. For example, the study found that requests for information received more responses in countries where CSOs were involved in promoting and ensuring AIL implementation than in countries where CSOs were not as involved.21 Public education and awareness about AIL is essential for people to understand and exercise their rights, as well as to perform an oversight function.

Experience from various countries shows that CSOs can play a number of important roles in the design and implementation of AILs.22 For example, CSOs can: mobilize support to demand formulation and eventual passage of AILs; be a source of independent expertise or legal assistance; and be advocates

and raise awareness among the general public and specific segments (youth, public servants, businesses). CSOs can also, once the AIL is passed (and even before), build capacity, both within government (to help implement the law) and with citizens and citizens groups, for use and monitoring.

21

Open Society Justice Initiative (2006). Transparency in Silence: A Survey of Access to Information Law in 14 Countries. New York: Open Society Foundation.

22 Puddephatt, Andrew (2009). Exploring the Role of Civil Society in the Formulation and Adoption of Access to Information Laws. Washington D.C.: The World Bank Institute.

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Although each country presents unique socioeconomic and political contexts, a number of elements need to be kept in mind about CSO work, support and potential (see Box 13, a sample of selected CSO experiences in Latin America and Eastern Europe). For example:23 Box 13: Civil Society Networks, the Experience of Latin America and Eastern Europe México Grupo Oaxaca: Formed in 2001 by Mexican journalists, CSO members and academics working on the right to information, they drafted a LAI and promoted public debate on the need to adopt it. The network’s advocacy activities were fundamental for getting the Mexican Federal LAI enacted in 2002.

Uruguay Grupo Archivos y Acceso a la Información Pública (Archives and Access to Public Information Group – GAIP): Formed in 2005 by CSOs, the organization wrote a draft LAI that was presented to the Parliament by ten senators. Thanks in part to GAIP’s lobbying, in 2008, Parliament approved the country’s LAI, as well as a National Archives Law and Personal Data Protection Law. El Salvador Grupo Promotor de la Ley de Transparencia y Acceso a la Información Pública (Promoting Group for the Transparency and Access to Public Information Law): This network was key in supporting the approval of El Salvador’s AIL. Since then, it has actively monitored compliance with the law.

Source: Ella (2011). http://ella.practicalaction.org/sites/default/files/120424_GOV_TraAccInf_GUIDE.pdf Bulgaria The campaign for the right to information in Bulgaria was boosted by the work of the Access to Information Programme (AIP), a not-for-profit organization with 11 founding members, all with different academic backgrounds, expertise.

Source: World Bank, 2009 http://siteresources.worldbank.org/EXTGOVACC/Resources/atICivSocietyFinalWeb.pdf Montenegro The Network for the Promotion of Nongovernmental Sector (MANS) has been monitoring the implementation of the Access Information Law, under the project “You have the right to know” supported by the European Union.

Source: http://www.mans.co.me/en/

23

Ibid.

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 CSOs are diverse, work differently in independently and/or coalitions, and often have competing interests and approaches;  CSOs can be engaged in all phases of the process of AILs, from design, to implementation and monitoring, but depending on context they may have different entry points, capacity and opportunities for engagement;  CSOs are the most important actor on the “demand” side for AILs, in particular for raising awareness, defending the right, and monitoring for compliance;  CSOs have a variety of approaches and strategies to engage with donors and international and/or regional partners; and  Although the media in some countries could be considered a key stakeholder within the CSO sphere, in others the relationship is much more complex. Understanding the dynamics be a strategic input for engagement.

In addition to civil society, a range of other actors can and should play a role. The private sector is a key stakeholder, as they are one of the key beneficiaries of AILs, particularly with relation to information about procurement opportunities. The media is very significant user of AILs, and can play an important role in testing the effectiveness of the law. But if, despite the AIL, the media is restrained, faces legal penalties and/or persecution for news reports that are critical of government, it will not have an incentive to use the law.

In short, an AIL is unlikely to be used extensively unless stakeholders have some degree of influence over and confidence in the policymaking and administrative processes of government. In Table 2 there is a description of the roles various actors have in the process of access to information and the areas in which the government should be prepared to respond to the demand side of the equation.

7. Monitoring Implementation The OECD has developed a framework to measure open government focusing on implementation, use and enforcement of AILs. Table 3 shows some examples of implementation elements that must be incorporated by public bodies, as well as for the use of information by public, private, media organizations.24

24

OECD (2010). Beyond Statistic Measures.

53

Table 3: How Key Actors Enable Access to Information and AIL Implementation Government CSOs

Private Sector

Media

International Organizations

Reform and Design of AIL

X

X

X

X

X

Adopting the AIL

X

X

X

X

X

Strengthening/Creating Institutions to implement AIL Monitoring Implementation and future reforms Providing funding for CSOs

X

Training for demand

X

X

X

Disseminate information

X

X

X

Provide legal aid

X

X

Provide judicial representation/appeals Enabling participation

X

X

X

X

Training public officials to supply

X

X

Drafting standards and guidance to facilitate access Drafting and implementing transparency and accountability policies

X

X

X

X

X

X X

X

X

X

X X X

X

X X

X

X

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Table 4: Examples and Measurements for Access to Information Laws Framework component

Measures/Elements

Law on Access to  Information and   Documents.      

Central coordinating body devoted to the implementation of the law.

Training and guidance provided to officials.

Publication of subsidiary legislation and/or regulations required to implement law.

Proactive publication of documents.

Provisions for regular reporting on implementation and performance.

Funding to support additional burden of publication and responding to requests.

Incentives to encourage compliance with the law.

Sanctions against poor performers or non-compliance (departments or officials).

Independent and confidential system for citizens to complain about unfulfilled requests.

55

56

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IV. Programmatic and Policy Options to Support AILs The menu of programmatic options and illustrative activities presented in this section should help practitioners and donors to establish programmatic and funding priorities; identify coordination mechanisms; and find appropriate entry points to support AIL activities. One of the most important activities or options is the need to identify appropriate methodologies to assess and measure quantitatively and qualitatively the nature and extent of AILs, as well as the impact of technical assistance and support. As with any other assistance program, the definition of indicators to track and monitor success of implementation of AIL is important (see a brief sample from the OECD in Annex 8).

The choice of indicators will depend on the type of program activity being supported. Nonetheless, indicators should serve as benchmarks and base lines of the impact the assistance will provide.

Illustrative areas (not an exhaustive list) that can be measured with indicators might include: 

Procedures for facilitating access to information (number of procedures and/or steps or friendliness of the process).



Request/respond rate.



Compliance with time/deadlines for requests (number of days).



Quantity and quality of training in access to information procedures and regulations.



Quantity and quality of requests processed by public institutions.



Analysis of proactive disclosure in websites and other dissemination means, including annual reports.



Use and application of software to process, track and archive requests for public information.



Impact of public awareness campaigns.



Analysis of internal processes, including internal controls in public institutions.



Experience by CSOs and media in requesting public information.

Development practitioners and donors can design a range of programmatic and policy options to strengthen implementation of AIL. Programming and policy options cannot be a blueprint, but rather a set of rolling recommendations which recognize that the implementation of AILs is highly contingent on changing political situations, emerging opportunities, and the strength and specific characteristics of the stakeholders involved. These options can be divided into four broader categories that follow the AIL processes, from design, to adoption and to implementation.

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1. Reform and design of AILs Providing expert advice to ensure that the AIL legislation is in line with basic principles and is complying with major anti-corruption convention requirements; 

Experts can engage in a strategic review of concept papers and legislative drafts while furnishing comparative law materials to national law specialists in key areas, such as coverage, definitions, exemptions, classification of information, compatibility with existing secrecy laws; and



Supporting policy dialogue with stakeholders, to ensure that adequate public consultation occurs and that the drafting process links with citizen and bureaucratic concerns.

2. Adoption of AILs 

Technical assistance to design normative frameworks for the implementation of AILs, as well as to develop a strategic implementation plan;



Technical assistance to design and implement a monitoring & evaluation system and a set of performance and impact indicators;



While pre and post adoption discussions and negotiations are underway, assistance can also be provided to adopt a Voluntary Access to Information Strategy in key public entities and encourage proactive disclosure of information;



Public awareness campaigns directed to civil servants, citizens, lawyers, businesspeople, and media to help spur practical use and understanding of the AIL, as well as its appeal mechanism;



Technical assistance to draft manuals/guidebooks for government officials and for citizens; and



Initial training programs targeting key stakeholders, such as civil servants, information officers, CSOs, private sector and the media.

3. Strengthening/Creating Institutions to Implement AILs 

Support capacity building activities at the independent/specialized/coordination access to information entity, as well as in a selected group of public entities that will have to implement the AIL in areas such as: drafting of manuals, operation procedures, definition of roles for new people assigned to access to information issues;

59



   



Specialized training programs for civil servants, information officer, archivists (record management personnel), and public affairs officers, particularly when the goal is to produce a cadre of national training specialist that can replicate capacity building workshops; Support introduction of IT systems to create databases, filing and classification structures, and communication methods; Special training and record management technical assistance could also be given to parliament and justice sector personnel, as well as sub-national levels of government (municipalities); Technical assistance on internal processes and systems to facilitate requests and appeals, as well as ensure internal controls and transparency; Strengthening other complementary institutions critical to the effective implementation of AILs, including courts, ombudsman offices, legislation/parliaments, and other entities responsible for coordinating policies and investigations related to access to information; and Technical assistance to produce and implement an awareness campaign directed to citizens/users, on key AILs issues.

4. Civil Society Strengthening; Support to Media and Business Organizations 

During all phases of the process of AILs, promote an open and constructive policy dialogue with key stakeholders, which can take the form of discussions about the AIL process;



Technical assistance to civil society, media and business organizations, as well as to lawmakers, on AIL issues and international best practices, to facilitate access to international networks and unblock dialogue with potential veto players at critical stages of the process. This assistance could enable key stakeholders to provide inputs and help create consensus around key issues;



Support civil society, media business organization involvement in the AIL through a small grants program;



Sustained assistance to civil society and key stakeholders can also be considered during the adoption and implementation phases through a combination of instruments/initiatives: national dialogues and workshops; policy dialogue around key issues of AILs; study tours to countries with model AILs; training workshops to make sure that the AIL and its implications are fully understood; capacity building to design and implement a monitoring strategy and performance indicators;



Technical assistance can also focus on developing tools to use and monitor AILs. NGOs and civil society generally can also play a key role, not just in public education and awareness, but also in other key areas related to a AILs, including monitoring, using the legislation, appealing refusals of access before the administrative body and the courts, providing advice to citizens wishing to use the law, and advocacy for the legislation. For example, CSOs can train citizens on how to make requests and how to appeal requests that have been denied. They can be given support

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to design a citizens’ manual or guidelines to access information. CSOs can also be given support to build their advocacy and litigation capacity; 

Support to design and implement a CSO/NGO run website, exclusively dedicated to AIL issues;



Creating an information center for gathering and organizing disclosed information;



Technical assistance to make proposals and conduct studies on the quality of information disclosed; problems related to disclosure and other issues of implementation; and



Support innovative ways to promote awareness, such as street theatre and mobile film units and mainstreaming access to information into civic education classes at schools and universities.

61

62

63

Annexes Annex 1

Region

Countries with AILs & Decrees

Countries Processing AILs & Decrees until December 2012

Angola (2002), South Africa (2000), Uganda (2005), Zimbabwe (2002), Ethiopia (2008), Liberia (2010), Nigeria (2011), Tunisia (2011), Guinea- Conakry (2010)), Niger (2011), Kenya (2010).

Ghana, Malawi, Mozambique, Tanzania, Botswana, Lesotho, Namibia, Sierra Leone, Zambia, Senegal, Rwanda, Mali.

Sri Lanka, Cambodia, Kazakhstan.

Asia

Armenia (2003), Hong Kong* (1995), India (2002) Japan (1999), Pakistan* (2002), Philippines* (1987), South Korea (1996), Tajikistan (2002), Thailand (1997), Turkey (2003), Uzbekistan (1997), Bangladesh (2008), Cook Islands (2008), Indonesia (2008), Mongolia (2011), Nepal (2007), Taiwan (2005), Tajikistan (2002).

Kyrgyz Republic (2007), Uzbekistan (1997), China (2007), Philippines (1987).

Belarus

Europe

Albania (1999), Armenia (2003), Azerbaijan (2005) Austria(1987), Belgium (1994), Bosnia & Herzegovina (2000), Bulgaria (2000), Croatia (2003/2013), Czech Republic (1999), Denmark (1970), Estonia (2000), Finland (1951), France (1978), Germany (2005), Georgia (1999), Greece (1986), Hungary (1992), Iceland (1969), Ireland (1997), Italy (1990), Kosovo (2003), Latvia (1998), Liechtenstein (1999), Lithuania (1996), Macedonia (2006) , Malta (2008), Moldova (2000), Montenegro (2005), the Netherlands (1978), Norway (1970), Poland (2001), Portugal (1993), Romania (2001), Russia (2009), Scotland (2002), Serbia (2003), Slovakia (2000), Slovenia (2003), Spain (1992), Sweden (1766), Switzerland (2004), Ukraine (1992), United Kingdom (2000), Turkey (2003).

Barbados, Bermuda, British Virgin Islands, Cayman Islands, Guyana, Paraguay.

Americas & Caribbean

Antigua & Barbuda (2004), Argentina* (2004), Belize (1994), Bolivia* (2004), Brazil (2011), Canada (1982), Chile (2008), Colombia (1888), the Dominican Republic (2004), Dutch Antilles [Bonaire, Curacao, Saba, St. Eustatius and Saint Maarten] (1999), Ecuador (2004), Guatemala (2008), Honduras (2006), Jamaica (2002), Mexico (2002), Nicaragua (2007) Panama (2002), Peru (2002), Trinidad & Tobago (1999), United States (1966) Uruguay (2008), El Salvador (2011), St. Vincent and the Grenadines (2003), Costa Rica (2002).

Africa

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Region

Countries with AILs & Decrees

Countries Processing AILs & Decrees until December 2012

Middle East

Israel (1998) Jordan (2007) Yemen (2011)

Kuwait, West Bank Gaza, Morocco.

Oceania

Australia (1982), New Zealand (1982)

Fiji, Papua New Guinea.

*Executive Decrees and/or Ordinances Source: Until 2006 based on David Banisar. Freedom of Information around the World 2006; a global Survey of Access to Information Laws. London: Privacy International, 2006. From 2006-2012, compiled by the UNDP Regional Service Centre for Latin America and the Caribbean based on the Open Society Justice Initiative, and www.freedominfo.org

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Annex 2: A Sample of How AILs Address Scope, Principles and Exemptions

Country and Law Mexico; Federal Law on Transparency and access to Public Government Information (2002)

Principle of Publicity

Classification of Information

Obligatory Publication

Exemptions & Reserved Information

There is an explicit reference to coverage and also the principle of publicity.

Provides general definition.

Yes, it is mentioned, with exceptions specified.

The law provides a definition and list of Reserved Information and exemptions, as well as definition of Confidential Information.

There is not specific allusion to the principle of publicity, but the law addresses it as part of a general scope.

There is a specific definition of Public Information.

Yes, it is mentioned, with exceptions specified.

The Law provides a definition and list of Reserved Information and exemptions, as well as a definition of Confidential Information.

There is not specific allusion to the principle, but the law addresses it as part of a general scope.

There is a specific definition of Public Information.

Yes, it is mentioned, with exceptions specified.

The Law provides a definition and list of Reserved Information and exemptions, as well as a definition of Confidential Information.

Ecuador: Transparency and Access to Information Law (2004)

There is an explicit reference to coverage and also the principle of publicity.

There is a specific definition of Public Information.

Yes, it is mentioned, with exceptions specified.

The Law provides a definition and list of Reserved Information and exemptions, as well as a definition of Confidential Information.

Peru: Law of Transparency and Access to Public Information (2002)

There is an explicit reference to coverage and also the principle of publicity.

There is a specific definition of Public Information.

Yes, it is mentioned, with exceptions specified.

The Law provides a definition and list of Reserved Information and exemptions, as well as a definition of Confidential Information.

Canada; Access to Information Act (1983)

United States; Freedom of information Act (1966)

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Country and Law

South Africa: Promotion of Access to Information Act (2000)

Bulgaria; Access to Public Information Act (2000) Japan: Access to Information Law (1999)

Classification of Information

Obligatory Publication

Exemptions & Reserved Information

There is an explicit reference to coverage (including private entities and independent contractors) also the principle of publicity.

There is a specific definition of Public Information.

Yes, it is mentioned, with exceptions specified.

The Law provides a definition and list of Reserved Information and exemptions, as well as a definition of Confidential Information.

There is an explicit reference to coverage and also the principle of publicity.

Somewhat general definition of Public Information.

Yes, it is mentioned, with exceptions specified.

The Law provides a definition and list of Reserved Information and exemptions, as well as a definition of Confidential Information.

Does not provide an obligation to publish certain types of information.

Provides general definition.

No

The law provides a list of reserved information.

Principle of Publicity

Source: Based in part on Maria Adilia Serrano. A Comparative Study on Implementing Bodies to Comply with Access to Information. Managua, Nicaragua: Fundaci贸n Violeta Barrios de Chamorro/USAID, 2006. Toby Mendel. Freedom of Information: A Comparative Legal Survey. UNESCO, 2008.

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Annex 3: Who can Request Information?

Country FOI laws define who has the right to information in different ways, but ideally it should be as encompassing as possible. For example: 

The Bulgarian Access to Public Information Act defines requesters in the following way: Any citizen of the republic of Bulgaria is entitled to access public information; foreign citizens and individuals with no citizenship shall enjoy the right; Legal entities shall enjoy the right.



The Albanian Freedom of Information Law states that “every person physical, juridical, native or foreigner” has the right of access to information.



The Mexican Federal Law on Transparency and Access to Public Government Information states, “Any person, or his/her representative may file, before the Liaison Unit, a request for access to information.”



The South African Promotion to Access to Information Act states that “Any person can demand records from government bodies without showing a reason.”

It is important to ensure that all requesters be treated equally without any discrimination based on age, gender, ethnic and/or religious grounds, political or economic status or position, and/or whether the request is individual or as part of an organization. Similarly, access to information should not depend on any formal requirements (for example citizenship of the country). The media should not have privileged access to information over ordinary people.

Source: Based on information found at www.freedominfo.org

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Annex 4: Trends in Appeals and Enforcement AILs around the world have created a variety of mechanisms for appeals and oversight, including administrative/internal reviews, court reviews and enforcement by independent bodies. The effectiveness of these different approaches varies greatly. It is generally held by experts that independent commissions are the most effective system of oversight.

The first level of appeal in nearly all countries is an internal review. This typically involves asking a higher level entity in the body where the request was made to review the case. This approach can be an inexpensive and quick way to review decisions. However, the experience in many countries is that the internal system tends to uphold the denials and results in more delays rather than enhanced access.

Once the internal appeals have been completed, the next stage is to an external body. In many countries, the equivalent of an independent Ombudsman office can be asked to review cases. However, Ombudsmen generally do not have powers to issue binding decisions. In Ireland, the Information Commissioner is also the general Ombudsman.

The independent Information Commission is another approach. The commissions can be part of the Parliament, an independent part of another government body or the Prime Minister’s Office (such as in Thailand) or a completely independent body. Many countries, such as the United Kingdom, Germany, Switzerland and Slovenia, combined the Information Commissions with Data Protection Commission.

The powers and functions of the Commissions are varied. In some countries such as Canada and France, the Commission has powers similar to an Ombudsman. In Slovenia, Serbia and Ireland Commissions can issue binding decisions, subject to limited appeals or overrides by Ministers in special cases. In Antigua and Barbuda, the Commissioner can also receive information from whistleblowers.

A few countries have created special tribunals to review decisions. These panels act more informally than a court and function better for appeals. In Australia, the Administrative Appeals Tribunal hears hundreds of appeals each year. In Japan, the external Information Disclosure Review Board hears appeals of initial decisions by agencies.

The final level of review in almost all countries is an appeal to the national courts. The courts typically can review the most records and make binding decisions. In some countries with Information Commissions, the courts’ jurisdiction is limited to issues of law. A less efficient system is where the courts serve as the only external point of review, such as in the United States and Bulgaria. This effectively prevents many users from enforcing their rights because of the costs and significant delays involved in bringing cases. The courts are also generally deferential to agencies, especially in matters of national security related information.

Source: David Banisar. Freedom of Information around the World 2006; a global Survey of Access to Information Laws. London: Privacy International, 2006

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Annex 5: Public/Civil Servants Guidelines to Respond to Requests

1. Meet requesters with politeness: meet every person who requests information with the principle 2.

3.

4.

5.

6.

7.

in mind of serving the public.

Advise and assist them when making their request: Take into consideration that the requester may not know what information exactly to look for, where to look for it, or how to file a request.

Provision should be made to ensure full access to information for certain groups, for example those who cannot read or write, those who do not speak the language of the record, or those who suffer from disabilities.

User-friendly systems have been established in Denmark and the Netherlands where applications can be made verbally. The Belgian legislation gives requesters the right to have documents explained to them.

Direct them to where the information can be found: If the information requested is already publicly available, for example on an internet site, in information bulletins or in an annual report.

If information the requester is looking for is not found in the institution being requested, direct them to the correct person or body where the information can be found.

Process requests rapidly and fairly: Within the time limits prescribed by law. The reasons for any refusal of information should be given to the requester with a comprehensive written explanation.

Inform requesters of their rights: In case you decide not to disclose the requested information, information should be giving to the requester regarding how to appeal the decision.

Refusal of frivolous requests: In some cases, it may be legitimate to refuse frivolous requests.

Provide feedback on the progress of the request: (How long will it take?)

Source: Article 19. “Freedom of Information Training Manual for Public Officials.� London: Article 19, 2007

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Annex 6: Proactive Disclosure in Selected Government Portals Countries are handling proactive disclosure divergently. Some are strictly following the parameters set in the AILs, while others go beyond what is mandated by the law and/or publish routinely without a law. In this selected sample of official government Web site portals one can observe how information is managed and organized, the type of information that is routinely published and in which format, the user friendly element, as well as the audience that is being targeted.

Ireland, http://www.gov.ie/ Main governmental portal. General Budget Information, General legislative information, External Reviews of Irish Policy (for example, OECD), national development plan, procurement and job information. Links to all state organizations (National, local, independent, parliament, and courts), Governmental departments (Executive Branch), citizen information (OASIS), business information (BASIS). Information provided in Gaeilge and English.

Thailand, http://www.thaigov.go.th/index.php?lang=en Royal Thai Government Web Site. Links to all Ministries, office of Prime Minister and independent agencies. Standard format ministry web sites.

Information provided in Thai and English.

Chile, http://www.gobiernodechile.cl/. Main governmental portal. With links to state agencies, regional governments, business organizations, financial services. Information provided in Spanish and English.

Slovenia, https://www.ip-rs.si/?id=195 Portal of the Information Commissioner with diverse information on the right to access, how to request, pending cases, decisions and opinions and news and publications.

South Africa, http://www.info.gov.za/aboutgovt/dept.htm Main governmental portal, with National Development Plan, budget, vacancies, election processes and government programs. Links to all Executive Branch ministries and departments, parliament, justice system, provincial governments, traditional leadership, links to government leaders and their bios, contact information for media, complete government directory.

Kenya, https://opendata.go.ke/. The website is a user-friendly platform that allows citizens to obtain key government information. The first release of information in 2011 has been the 2009 census, national and regional expenditure, and the provision of public services in Kenya.

Baimiao township/Bazhou district of Bazhong in Sichuan Province/Peoples Republic of China. www.bzbmx.gov.cn With the backing of leading government officials, since 2010 Baimiao publishes its monthly expenditures on the Internet. It is reported, that in great part thanks to this initiative, officials have become more self-disciplined, and the government has been able to save between 30,000 and 40,000 yuan a year.25

25

See http://www.chinadaily.com.cn/cndy/2012-07/21/content_15604873.htm

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Annex 7: Use of Information and Communication Technology for Record Management and to Facilitate Access to Information In many countries with AILs, ministries and other public entities have been very active in using ICTs to make information available, including encouraging users to submit requests and obtain status updates about their requests online. For example in Mexico, the IFAI runs INFOMEX, a tool that facilitate electronic filing of requests for federal bodies, which the States are gradually signing agreement to allow them to use the system for their respective requests. In Poland, the Public Information Bulletin/Biuletyn Informacji Publicznej is a government Web site dedicated exclusively to broaden access to public information. www.bip.gov.pl Electronic systems also present enormous opportunities, not only in terms of storage capacity but also in terms of moving information around, including filing it. It can save time in transferring files; it can help information to be available 24/7 via the Internet; and can provide information instantly. In Brazil, for example, in 2003 a forum for the right to access to information was launched to bring together different CSO´s to exchange information and coordinate efforts to promote the right to access public information in Brazil. They accompanied all the debate about the adoption of the AIL in Brazil and currently their website gathers information about transparency and access to information at the national, regional and global level. The website offers important data on the current situation of access to information in Brazil, laws and bills related to access to information, as well as a model for requesting information. http://www.informacaopublica.org.br/ Mobile phones applications can also play a significant role to facilitate access to information. Transparency International, Macedonia and the Center for International Relations developed a project together that allows citizens in Macedonia to report cases of corruption via ONE (Mobile Operator) by sending texts from their mobile phones, an email, or using the web form, or by reporting by phone through this application.

The cases of corruption identified are checked afterwards by the TI-Macedonia team, then validated, and published online at www.prijavikorupcija.org. Users can also view reported cases, categorized by case type, and by geographic area. http://www.prijavikorupcija.org/?l=en_US

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Annex 8: What Indicators would best Demonstrate Success of AILs? The OECD suggests more concrete indicators to measure the degree of openness of a government in terms of law on access to information.

Indicator Sub-indicator The scope of the law covers all organizations  Are all branches and institutions of and institutions delivering services to the government covered by the law? public.  Are all private and NGO´s delivering public services covered by the law?

The law presumes proactive publication of Are official obliged to publish information information. proactively?

Central government provides resources to  Is support and training available to support implementation of the law. help public officials in handling access to information requests?  Is there a central body responsible for the implementation of the law?

The implementation of the law meets  How often are exceptions used? citizen´s demands for information.  How often are requests for information refused?

The law ensures equal access to information  Is there a fee for making requests? and documents for all citizens  In how many of the following ways can request by made?  In person  Phone/fax  Online  By email  By mail Complaints/appeals mechanisms meet the  How many appeals are made? needs of citizens.  Are public interest tests used to override exemptions?

Source: OECD, 2010. Open Government: Beyond Statistics Measures.

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Annex 9: International Initiatives that can Complement Work on Access to Information at the National Level The International Aid Transparency Initiative (IATI) www.aidtransparency.net/ is a voluntary, multistakeholder initiative that seeks to improve the transparency of aid in order to increase its effectiveness in tackling poverty. IATI brings together donor and developing countries, civil society organizations and other experts in aid information who share the aspirations of the original IATI Accra Statement and are committed to working together to increase the transparency of aid.

Publish What You Fund www.publishwhatyoufund.org/ advocates for more and better information about aid. The campaign was launched at the 2008 Accra High Level Forum on Aid Effectiveness by a coalition of governance, aid effectiveness and access to information organizations. It works to shine a light on donor governments to see what other donors are spending or planning to spend, and encouraging not to duplicate efforts. It also targets recipient governments so they know how much aid is invested in their country, and make the most effective use of those resources. Last but not least, this initiative also targets civil society organizations, NGOs, legislators and citizens, in both donor and recipient countries for them to know flows of aid coming and going, and how taxpayers’ money is being spent. Knowing what is being spent where, by whom, and with what results is the basic premise of this initiative.

The Extractive Industries Transparency Initiative (EITI) www.eiti.org was launched on the global stage in September 2002 by UK Prime Minister Tony Blair at the World Summit on Sustainable Development in Johannesburg. It is a global platform to counter the lack of transparency around the vast investment made by companies and the vast government revenues from natural resources. The EITI has a robust yet flexible methodology, known as the EITI Standard that ensures that a global standard is maintained throughout the different implementing countries. Companies publish what they pay and governments what they receive.

In 2002, Publish What You Pay www.publishwhatyoupay.org/ was launched as a specific campaign, calling for extractive companies to publish what they paid to governments. After a decade of activism the coalition expanded their work along the value chain as the importance of other extractives transparency issues emerged. It became clear that it was impossible to ensure the proper management of natural resource wealth by looking exclusively at revenues. To reflect that reality, the campaign widened its objectives to cover transparency and accountability at all points in the value chain. Broadly these can be divided around three pillars: 1) Publish Why You Pay and How You Extract; 2) Publish What You Pay; and Publish What You Earn and How You Spend.

Fuente: Basada en informaciĂłn encontrada en www.Freedominfo.org

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Web Resources Access to Information Program (AIP) Foundation was established on October 23, 1996 in Sofia, Bulgaria by journalists, lawyers, sociologists, and economists who work in the area of human rights. They joined efforts to promote the right to information and initiate a public debate on related issues. http://www.aip-bg.org/index_eng.htm An international electronic network for freedom of information. http://www.foiadvocates.net/ International Freedom of Expression Exchange (IFEX) is a dynamic network that monitors, promotes and defends freedom of expression worldwide. It plays a key role in addressing threats to free expression by exposing violations and raising awareness of the dangers faced by individuals in many countries who report the news. IFEX works to help build the foundations of healthy democracies by protecting the rights of journalists, free expression advocates and promoting accountability. http://www.ifex.org/en/content/view/full/263 All about the Freedom of Information Act of the United Kingdom. http://www.freedomofinformation.co.uk/ Common Wealth Human´s Rights Initiative has a right to information website which is designed to provide legislators, advocates and the public with resources on international and Commonwealth principles and standards on the right to information. The site also provides a unique and comprehensive collection of national right to information resources for all 53 countries of the Commonwealth, including legislation, papers and links to other useful websites. http://humanrightsinitiative.org/ Freedom House is widely recognized as pertinent source on the state of freedom around the globe. www.freedomhouse.org ELLA is a knowledge sharing and learning platform on selected economic, environmental and governance issues, funded by the UK Department for International Development. http://ella.practicalaction.org/ This site is a one-stop portal that describes best practices, consolidates lessons learned, explains campaign strategies and tactics, and links the efforts of freedom of information advocates around the world. It includes AILs and complementary legislation. www.freedominfo.org The Office of the Information Commissioner of Canada http://www.oic-ci.gc.ca/eng/

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Office of the Information Commissioner/Western Australia http://www.foi.wa.gov.au/ Government Information home page of the Hong Kong Special Administrative Region of the People’s Republic of China http://www.access.gov.hk/en/index.htm EPIC is a public interest research center in the United States. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values. http://epic.org/open_gov/ The National Freedom of information Coalition is an alliance in the United States of citizen-driven nonprofit freedom of Information organizations, academic and First Amendment centers, journalistic societies and attorneys. They work towards ensuring everyone’s right to information. They run a virtual FOI Center. http://www.nfoic.org/foi-center The National Campaign for People's Right to Information (NCPRI) in India is a movement of committed individuals working towards making the government and society more transparent and accountable. http://www.righttoinformation.info/ The Access to Information Unit (A. T. I. U.) in Jamaica has been established to spearhead and guide the implementation and administration of the Access to Information Act, which was passed in June 2002.

The Unit falls under the Archives and Records Department in the Office of the Prime Minister. http://www.jis.gov.jm/special_sections/ATI/default.html The Federal Institute of Access to Public Information (IFAI) in Mexico. The AIL created the IFAI as an independent organization with the necessary autonomy and authority to enforce the Law, review those cases in which the authorities deny access to information and determine whether the requested information is public, privileged or confidential. http://inicio.ifai.org.mx/_catalogs/masterpage/ifai.aspx The Right to Info provides relevant materials concerning the current state of the public's right to information held by public bodies and entities that perform public functions or operate with public funds. With a focus on good law and practice, this website brings together international and domestic law, case examples and related resources from international and regional bodies. http://right2info.org/

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RTI Rating Website is an initiative from the Access Info Europe (AIE) and the Centre for Law and Democracy (CLD). The website contains updated results on all 93 countries with national right to information laws, searchable on various parameters, including total score and score in each category of the RTI Rating. http://www.rti-rating.org/ Article 19 is a London-based NGO that monitors, lobbies and litigates on behalf of freedom of expression. It also campaigns for the right to access information held by governments, public authorities and private bodies and companies. Article 19 has posted a model AIL. http://www.article19.org/ Access Info Europe is a human rights organization dedicated to promoting the right of access to information in Europe and contributing to the development of this right globally. http://www.access-info.org/ Open Society Justice Initiative, Freedom of Information Initiative http://www.justiceinitiative.org/activities/foifoe

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Regional Centre for Latin America and the Caribbean, Panama Regional Bureau for Latin America and the Caribbean Democratic Governance Practice Area