'Breathing Life into Freedom of Information Laws: The Challenges of Implementation in the Democratizing World' [
PDF] by Craig L. LaMay, Robert J. Freeman, and Richard N. Winfield under the auspices of the Center for International Media Assistance is
intended to be a practical, useful guide for stakeholders in national and local governments, the
media, civil society, and business to making freedom of information laws work. The authors’ particular emphasis
is on the role public officials and journalists must play in effectively breathing life into these laws, giving
meaning to their democratic intent and legal guarantees.
Most of the world’s 90-plus freedom of information (FOI) laws are recent, enacted in the last two decades, and
many are exemplary on paper. But many are also poorly implemented. Surprisingly but commonly, citizens,
national and local public officials, and journalists are often unaware that such laws even exist, much less how
they work. Non-governmental organizations and businesses typically make more requests than journalists or
citizens, but frequently the total number of requests is far below what might be expected given the scope of
FOI laws, which in some developing countries apply not only to government agencies but also to private entities
that receive government funds. In countries transitioning from authoritarian pasts, governments retain the habit
of working in secrecy, which hobbles democracy and promotes corruption.
Often when people seek information under FOI laws and are refused, they are denied on grounds that have
no basis in law, or, if denied under a statutory exemption, without explanation of why the exemption applies.
Sometimes requesters are denied for reasons that amount to official inconvenience, told that the request is too
time- or resource-consuming to fulfill, or that the records they want do not exist. Requesters are asked to justify
their requests, or officials simply ignore them, thus saving themselves the trouble of providing any explanation.
The requester’s opportunity to contest an agency’s denial or failure to respond is typically inadequate: Internal
appeals are often met with cursory review and the same result. Ombudsmen or other oversight bodies
responsible for monitoring the law rarely have the authority to compel compliance when a request has been
improperly denied, and pursuing redress in courts is time-consuming and expensive. Where citizens lack faith in
their judicial system, the problem is compounded.
This paper begins with a review of the theory and practice of FOI laws, which are universally recognized as
critical components of a modern system of free expression. It follows with discussion of the obstacles to effective
implementation, including in an appendix several interviews with stakeholders in six countries in which FOI laws
have been introduced recently: Albania, Armenia, Indonesia, Jamaica, South Africa, and Ukraine. The paper then
makes several recommendations, which can be summarized thusly:
Officials of national and local governments who are responsible for responding to citizens’ requests for
information must be properly organized, trained, funded, and protected. Those officials should be prepared to
take effective measures to make FOI laws work. Leaders of the media, civil society, and business should persuade
government officials to develop the political will to act promptly and effectively to make FOI laws work.
Because government touches everything, an FOI law should touch everything. Every aspect of
governmental functioning has been the subject of inquiries under various FOI laws. There is no end to the
potential utility of an access to information law, and that should be clearly expressed to and by officials
responsible for its implementation.
It should be recognized that an FOI law is most important to average citizens at the local government level. This
is true for the same reason that local news is what citizens most value: It’s what actually matters to them, affecting
how they raise their families, where they live, how they make their livelihoods. People are most likely to actively
participate in politics and civic life at the local level. They need to be able to hold their local leaders accountable.
Many FOI laws are based on a presumption of access, stating that government records are accessible with
certain exceptions; the exceptions should be based on the likelihood of harm that could arise as a result
of disclosure. An FOI law should in essence state that everything is available unless disclosure would hurt an
individual via an unwarranted invasion of privacy, the government in terms of its ability to do its job well on
behalf of the public, or perhaps a private company vis-a-vis its competition. Embarrassment is not grounds for
denial of access.
The law should not require that government officers, employees, or agencies go to unreasonable lengths to
accommodate applicants. The law should not compel the government to search through the haystack for the
needle, even if it is known that the needle is there, somewhere. Rather, the government should be required to
respond when records can be found, generated, or extracted with reasonable effort, which is often related to
the nature of the agency’s filing, record-keeping or retrieval systems.
It must be recognized that public officials and government employees are more accountable than the
public generally and that they enjoy less privacy than others. For instance, it is typical that salaries of public
employees are accessible, and that ethics/financial disclosure requirements are often imposed on them. There
are numerous situations in which certain disclosures as they pertain to private citizens would constitute an unwarranted invasion of personal privacy but where disclosure of the same information about public officials
and employees would result in a permissible invasion of their privacy, for example, records indicating attendance
or misconduct.
Harness the power of information technology. Missing from most older FOI laws is proactive disclosure. It
should be required that governments post material on their websites when it is significant, clearly public, and
frequently requested or used by the public. The government should also now promote “smart data,” also known
as “open data,” platforms that enable users to merge and analyze machine-readable data. Government should
also develop its electronic information systems in a manner in which it can segregate data items that are public
from those that can justifiably be withheld. This promotes maximum access, consistent with the intent of the
law, while concurrently protecting privacy or the disclosure of information that is clearly exempt.
Public officials must recognize that records management and archiving are critical to sustaining the utility
of an access law and, in general, the proper functioning of government. In many nations, there has been little
or no policy or law concerning the management of records, and inclusion of records retention and archiving
requirements in an FOI law serves as a positive element in governmental operations.
Ensure that the ombudsperson or compliance person or body is a true believer and a champion of FOI
and empower that person or entity to act on behalf of the public. If providing guidance or determining
rights of access is merely a job, the function will likely fail. If that person or body is passionate about FOI and is
independent, even a weak law will function more effectively, and a strong law will become stronger.
Officials must regularly review the operation of the FOI law to determine its strengths and weaknesses and
to recommend changes in the law to correct its deficiencies. At the very least, laws that conflict with the FOI
law must be amended or repealed.
