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Reluctance to Release Information

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Rationale for Change:                                                

For the general public obtaining information from governments in the developing world is usually difficult. Those who try confront a bureaucratic culture of reluctance to release information. Although the principle of a citizen’s right to information may be enshrined in the constitution and reinforced in international conventions the country has signed, in practice this right is heavily circumscribed by national laws on the press, internal security, and the civil service. Official secrets laws, often dating back to colonial times, criminalize unauthorized disclosure, placing the onus on the civil servant to prove that disclosure has not harmed national interests. Civil service rules make improper disclosure of information a disciplinary offence. And even where civil servants have discretion to release information, the incentive is to deny access. In some countries civil servants may require an “unofficial” payment before information, which should routinely be available, is provided. When information reaches the media through informal channels, official secrets laws may be used to sanction newspapers, closing offices or imposing heavy fines intentionally causing bankruptcy. Independent comment is stifled on the grounds that the press cannot write about information it is not entitled to receive.

Yet information is vital for accountability, and informed public debate makes for better policies. Information access policy needs to be part of the design of public service reform programs if beneficiaries of government services are to be empowered to demand better performance. More profoundly, information deepens citizens’ electoral choices, and underpins democratic governance. Making government more open could in theory be done by changing bureaucratic procedures from within. But this is unlikely to be sufficient or sustainable without a fundamental change in the law which gives the general public a right to information held by government. .

Global Spread of Access to Information Laws:              

Sweden in the eighteenth century was the first country in the world to legislate more open government through its Freedom of the Press Act in 1766. The present wave of access to information laws began three and a half decades ago, with the passage of the Freedom of Information Act in the United States in 1966. This was followed by Denmark and Norway, Australia, Canada and New Zealand. More recently, some middle income countries (eg. South Africa and many of the transition countries in Eastern Europe) have passed access to information laws, and in India laws are being passed at the state as well as the national level. As many as 45 countries have now passed legislation, and a growing number of these are low income developing countries, which are making access to information laws part of their broader public sector reform programs. .

Such legislation (referred to as access or right to or freedom of information laws) confer the right of citizens to obtain information, including reasons for decisions, from their governments. These laws replace a blanket restriction against disclosing information with the principle that all information held by governments shall be available upon request, except for a limited number of exempted categories. Typically, these include: commercially sensitive information, international relations, security and military matters, cases under investigation by law enforcement and judicial bodies, personal information on individuals, and deliberations of government. And even these restrictions may in some countries be set aside if overriding public interest can be demonstrated.

These laws replace discretion of officials with a right of the public to information without having to justify the application. The burden of proof is reversed. An official contemplating whether to disclose information no longer has to demonstrate to superiors that the public interest has not suffered. Rather officials must accede to a request for information unless it falls into a limited number of exempted categories. Citizens also have the right to check personal information held by government bodies and have inaccuracies corrected. Typically such laws impose a time limit on public bodies to respond to requests from the general public, and specify appeals mechanisms, such as an information ombudsman and recourse to the courts if public bodies are unresponsive.

Costs and benefits:                                               

Laws usually have a schedule of fees that citizens must pay for each request for information. This is usually set so as to deter frivolous requests whilst ensuring that information can be made available to all citizens. Laws typically require public bodies to publish the categories of information that they keep, to facilitate citizen access, and the government may be required to report annually on the number of information requests received and how departments have responded to them. In some countries, ministries are actually the subject of a report card by civil society organizations, and receive a grading of their performance in implementing the law.

Although in developing countries few individual citizens may initially avail themselves of access to information rights, immediate beneficiaries are the press, researchers and civil society groups. The burden of prosecution under an official secrets law is lifted (other than from exempted categories). If the press bases a story on correct but unreleased information, it is less likely to be threatened by prosecution. Civil society is better informed on public policy issues to make an impact. And if departmental staff have been making money out of informally releasing documents, a source of illegal rent is abolished.

Implementing an access to information law is not costless. Passing a law without budgetting for its implementation will doom it to failure. Sufficient funds must be made available for publicity campaigns, training of staff, responding to requests, reporting on the law’s implementation, and processing appeals. The benefits should outweigh the costs since they include greater scrutiny of government actions and curbing corruption. In addition to fees to cover reasonable search and reproduction costs, some countries include “gateway” clauses in their laws to disqualify “vexatious” requests or those that might disrupt the operations of an agency. The determination of what constitutes a vexatious request is best left to an independent information commissioner to minimize abuse of gateway provisions.

Improving records management is a critical accompaniment of an access to information law in developing countries, where records management systems may have broken down, and, as a consequence, records have been lost. Some governments may be unable to provide even the most basic information in a timely way. Weak records management systems, though, should not be an excuse for delaying in introducing an access to information law, since it could be a stimulus for reform. But they would be prudent to prepare, in parallel with drafting a law, fund and implement a records management rehabilitation and modernization strategy.

Access to information laws are intended to change bureaucratic habits. In some countries this has led to risk averse behaviour on the part of officials, to the detriment of effective government. Decisions may be made verbally and reasons not recorded. On the other hand, officials may be more likely to record objections to a minister’s ill-considered scheme if there’s a chance of an information request. Some countries require officials to note information or explain the reasons for a decision even when it was not recorded on file. Most countries, however, recognize the need to protect the process of reaching a decision in government.

Once an access to information law has been passed and implementation has begun, countries may consider passing a “whistleblower’s protection” law to protect an official who spontaneously discloses information on grounds of public interest, from being penalized.

Key Features:                                                   

Implementing an access to information law requires careful preparation, and countries considering taking this step should compare the laws of different countries and how they have been implemented. Best practice suggests the following are key requirements:

  • Prior to and during drafting, a process of consultation takes place with media and civil society bodies.
  • Exempted categories are clearly defined and limited in number
  • Classes of information held by public bodies are published
  • Official secrets and other restrictive laws are repealed, and civil service rules adjusted
  • Funds are budgeted for implementation and staff in public bodies are trained in their new obligations
  • The general public is made aware of the law and how it can be used
  • Complementary measures are taken to assess and improve records management
  • Appeals mechanisms are put in place, and an information ombudsman appointed
  • A unit in government is made responsible for monitoring the implementation of the access to information policy, and reports annually on progress.

The biggest challenge, of course, is changing decades old political and bureaucratic cultures of secrecy and unresponsiveness to the general public. New access to information laws should thus be introduced with an information, education and communications program to ensure it is understood by all parties concerned – the public, users, third parties, and, of course, politicians and the public service itself.

Further Information:                                          

To encourage the wider spread of access to information policies in developing countries, the World Bank, in association with the International Records Management Trust, the Westminster Foundation for Democracy, Transparency International and the Danish Trust Fund for Governance held workshops on Information for Accountability in Tanzania and Ghana in March and August 2000. The report of these workshops together with a specially developed Sourcebook of materials and Workbook for those interested in organizing similar country workshops can be found on the IRMT’s own web site at: www.irmt.org.

Other useful websites are: http://www.cfoi.org.uk/pdf/amsterdam.pdf and http://www.freedominfo.org for a valuable summary of current laws worldwide.

 

This Note has been written by Mike Stevens, with the help of comments from Nick Manning, Jack Titsworth and Vikram Chand of the World Bank and Anne Thurstonof IRMT. It draws on the Bank’s experience and also has benefitted from the websites cited above.


 




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