16 September 2013

CIMA and FOI in the 'Democratising World'

'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.