Above: Illustration by eabff/Depositphotos.

Originally published by Rishi Maharaj on September 28, 2020, to mark the International Day of Universal Access to Information 2020. Reproduced with the permission of the author.

One of my most favourite FOI quotes is from Aruna Roy, the Indian social activist and a leading force behind the Indian Right to Information law. Quite simple she states, “The Right to Know is The Right to Live”.

Today the world celebrates International Day of Universal Access to Information 2020 and the slogan of this year’s commemoration is “Access of Information – Saving lives, Building Trust, Bringing Hope!”.

Access to information plays a key role in enabling citizens and Civil Society Organisations to exercise their voice, to effectively monitor and hold governments to account, and to enter informed dialogue about decisions which affect their lives. It is seen as vital for empowering all citizens, including vulnerable and excluded people, to claim their broader rights and entitlements.

However, the potential contribution to good governance of access to information lies in both the willingness of government to be transparent, as well as the ability of citizens to demand and use information.

Proper access to meaningful information is critical in empowering citizens to exercise a degree of control over resources and institutions.

The right to know is the basis for stakeholder involvement in decision-making processes that affect their lives, their community and the development and security of their country. As Kofi Annan, the former Secretary-General of the United Nations, observed: “The great democratising power of information has given us all the chance to effect change and alleviate poverty in ways we cannot even imagine today”.

By opening governments up to public scrutiny and increasing transparency the potential for corruption, mismanagement and error is reduced. Providing people with access to quality information generates citizens’ trust in government actions, promotes active participation in development and reduces the likelihood of contentious unsustainable decisions.

As we celebrate this day here is some useful information that I share with participants at my FOIA Master Class on the key principles and International Initiatives that promote Access to Information.

Why Freedom of Information

• The right of access to information held by public bodies is essential to the democratic functioning of societies and the well-being of each individual. It enables the strengthening of citizen participation and the exercise of socioeconomic and political rights, fosters development, economic performance and makes national authorities accountable for their actions and management of public finances and public services.

• Access to information is a fundamental human right with two parts:

• Proactive – The duty of public bodies to provide, publish, and disseminate information about their main activities, budgets, policies and plans. so that the public can know what they are doing, can participate in public matters and can control how public authorities are behaving.

• Reactive – The right of all persons to seek information from public bodies about what they are doing and any documents they hold and the right to receive an answer.

Existing multistakeholder initiatives to inspire FOI monitoring…

The Open Government Partnership (OGP)

• Transparency is referred to in the Declaration in these terms: “Governments collect and hold information on behalf of people, and citizens have a right to seek information about governmental activities. We commit to promoting increased access to information and disclosure about governmental activities at every level of government.

• We commit to increasing our efforts to systematically collect and publish data on government spending and performance for essential public services and activities. We commit to pro-actively provide high-value information, including raw data, in a timely manner, in formats that the public can easily locate, understand and use, and in formats that facilitate reuse…”.

Open Contracting

• The OCP undertakes advocacy to challenge vested interests and change global norms in public contracting from closed to open, by supporting a network of partners to implement open contracting projects and adopt the OCDS.

• Open contracting is about publishing and using open, accessible and timely information on government contracting to engage citizens and businesses in identifying and fixing problems. It aims to deliver better deals for governments, provide a level playing field for the private sector, and high-quality goods and services for citizens.

The Constructions Sector Transparency Initiative (CoST)

• CoST promotes transparency by disclosing data from public infrastructure investment. This helps to inform and empower citizens, enabling them to hold decisionmakers to account.

• Informed citizens and responsive public institutions can lead to the introduction of reforms that will reduce mismanagement, inefficiency, corruption and the risks posed to the public from poor infrastructure.

The Extractive Industries Transparency Initiative (EITI)

• The Extractive Industries Transparency Initiative is a global standard to promote open and accountable management of natural resources. It seeks to strengthen government and company systems, inform public debate, and enhance trust.

• The EITI maintains the EITI Standard, which requires countries to ensure the full disclosure of taxes and other payments made by oil, gas and mining companies to governments. These payments are disclosed in an annual EITI Report which allows citizens to see for themselves how much their government is receiving from their country’s natural resources, and provides them with information to monitor these resources and the impact of their exploitation on the local population.

Features of an FOI Regime (ARTICLE 19)

PRINCIPLE 1. MAXIMUM DISCLOSURE

• The principle of maximum disclosure holds that all information held by public bodies should presumptively be accessible, and that this presumption may be overcome only in very limited circumstances.

• An important aspect of this principle, widely reflected in national laws, is that the body seeking to deny access to information bears the burden of proving that it may legitimately be withheld.

PRINCIPLE 2. OBLIGATION TO PUBLISH

• Public bodies should be under an obligation to publish key information. ”Freedom of information implies not only that public bodies should accede to requests for information, but also that they should publish and disseminate widely documents of significant public interest.

• Otherwise, such information would be available only to those specifically requesting it, when it is of importance to everyone. Moreover, publishing information will often be more economical than responding to multiple requests for the same information.

PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT

• “Public bodies must actively promote open government.”

• Informing the public of their rights and promoting a culture of openness within government are essential if the goals of freedom of information legislation are to be realised. In most countries, particularly those which have not yet or have just recently adopted freedom of information laws, there is a deep-rooted culture of secrecy within government, based on long-standing practices and attitudes.

• Ultimately, the success of a freedom of information law depends on changing this culture since it is virtually impossible to force openness, even with the most progressive legislation.

PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS

• Exceptions to the right to access information should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests.”

• The regime of exceptions is one of the most difficult issues facing those drafting a freedom of information law and one of the most problematic parts of many existing laws. It is obviously important that all legitimate secrecy interests are adequately catered to in the law, otherwise public bodies will legally be required to disclose information even though this may cause unwarranted harm.

• The presumption in favour of disclosure means that the onus should be on the public body seeking to deny access to certain information to show that it may legitimately be withheld.

PRINCIPLE 5. PROCESSES TO FACILITATE ACCESS

• Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available.

• Effective access to information requires both that the law stipulate clear processes for deciding upon requests by public bodies, as well as a system for independent review of their decisions.

• The law should set out clear timelines for responding to requests, which should be reasonably short.

• The response to a request should take the form of a written notice stating any fee and, where access to all or part of the information is denied, reasons for that denial along with information about any right of appeal.

PRINCIPLE 6. COSTS

• “Individuals should not be deterred from making requests for information by excessive costs.” Fees are a controversial issue in freedom of information laws. It is widely accepted that fees should not be so high as to deter requests, but practically every law does allow for some charges for access.

• Different laws take different approaches to fees. Regardless of the approach, it is desirable for fee structures and schedules to be set by some central authority, rather than be each public body separately, to ensure consistency and accessibility.

PRINCIPLE 7. OPEN MEETINGS

• “Meetings of public bodies should be open to the public.” The ARTICLE 19 Principles include the idea of open meetings, although in practice it is extremely rare for this to be dealt with in a freedom of information law. Some countries have separate laws on this.

• The reason it was included in the Principles is that the underlying rationale for freedom of information applies not only to information in documentary form, but also to meetings of public bodies.

PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE

• “Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed.”

• Most countries have a range of secrecy laws on their books, many of which are not legitimate or which include illegitimate provisions which are inconsistent with the access to information law. If the principle of maximum disclosure is to be respected, the access to information law must take precedence over these laws.

• A good freedom of information law will include a comprehensive set of exceptions which ensure that information will not be disclosed if doing so would cause unjustifiable harm; so there should be no need for this to be extended by secrecy laws.

PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS

• “Individuals who release information on wrongdoing – whistleblowers – must be protected.”

• A freedom of information law should protect individuals against any legal, administrative or employment related sanctions for releasing information on wrongdoing. Protection of so-called whistleblowers provides an important information safety valve, ensuring that key information does indeed reach the public.

• Such protection should apply even where disclosure would otherwise be in breach of a legal or employment requirement. In some countries, this protection is set out in a separate law rather than being included in the freedom of information law.

The EquiGov Institute firmly believes that access to information must be recognized as a norm in sustainable development, and as a prerequisite for countries to respect, promote and protect human rights for all. As we rebuild and readapt our societies to the “new normal”, the right to information must be at the center of efforts to ensure a more informed and resilient tomorrow.