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Presentation 4.3 Use of FOI acts
- 1. Session 4.3 Freedom of Information Laws and other ways to collect, share and access information Training workshop 3-4 Nov 2010 Strengthening transparency, integrity and accountability: preventing corruption in water IRC International Water and Sanitation Centre
- 2. Use of FOI laws: Session Outline • Information is KEY • What can FOI do for me? – Background – Core principles – Where are there FOI laws? – Making FOI work – FOI in practice – Where there is no FOI • Taking control • What can I do for FOI? • What can we do without FOI?
- 3. INTEGRITY Accountability Participation Information Information is KEY: a means to an end
- 4. FOI: Background Why FOI? For public • Right to know is human right • Hold government accountable • Informed participation in decision making • Government information is public good For government • Obligation to support public interest • Openness and transparency improves trust • Better info management improves efficiency
- 5. FOI: Background “Freedom of information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated.” — United Nations’ General Assembly, 1946 “The free flow of information and ideas lies at the heart of the very notion of democracy and is crucial to effective respect for human rights…Central to the guarantee in practice of a free flow of information and ideas is the principle that public bodies hold information not for themselves but on behalf of the public.” – Abdul Waheed Khan. Assistant Director-General for Communication and Information, UNESCO
- 6. FOI: Background “Information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, log books, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.” -FOI act of India
- 7. FOI: Background International/UN • Article 19, Universal Declaration of Human Rights (1948) • Article 13, United Nations Convention Against Corruption (UNCAC) (2003) Regional • Declaration of Principles on Freedom of Expression in Africa: Part IV (2002) [not binding] • Article 32(1), Arab Charter on Human Rights (2004) [not ratified] • Article 10, European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) + Aarhus Convention (1998) Convention on Access to Official Documents (2008) • Inter-American Declaration of Principles on Freedom of Expression (2000) WASH • Right to water and sanitation legislation • WHO Water Quality Guidelines • Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1972)
- 8. FOIs around the world
- 9. FOIs around the world: ACRA countries • Not a pretty picture • Ecuador – Some nice principles – Some glaring problems – Slow implementation – Lack of awareness
- 10. FOIs around the world: ACRA countries • Burkina Faso: ‘culture of secrecy’ • Bolivia: Decree on Freedom of Information (2004) • Senegal: highly unrestricted media! • The Access Initiative (TIA) includes: Tanzania, Cameroon, Bolivia, Ecuador, Honduras, El Salvador, Nicaragua
- 11. What’s in an FOI?
- 12. FOI core principles 1. maximum disclosure 2. obligation to publish 3. promotion of open government 4. limited scope of exceptions 5. processes to facilitate access 6. costs 7. open meetings 8. disclosure takes precedence 9. protection for whistleblowers
- 13. FOI core principles • Basic information (Who’s who, access guide, complaints procedure) • Response time limits, fair costs • Information Officer (organisation level) • Independent national Information Commissioner • Capacity building and awareness (organisational level) • Public awareness • Resources for improving accessibility, capacity building and awareness raising • Non-compliance sanctions • Whistleblower protection • Often partnered with an ombudsperson
- 14. FOI: Shortcomings The World Health Organization’s Guidelines on Drinking Water Quality recommends: • “the publication of information on public health aspects of drinking-water supplies, water quality and performance of service providers. • “publication of such information can encourage service providers to follow good practices, mobilize public opinion and response, and reduce the need for regulatory enforcement, which should be an option of last resort.” However: • “in many communities, the simple right of access to information will not ensure that individuals are aware of the quality or safety of the water supplied to them. The agencies responsible for surveillance should develop strategies for disseminating and explaining the significance of results obtained”.
- 15. -Beyond FOI • The Right to Know • Access to Justice • Freedom of the press • Freedom of expression "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers." —— Article 19, Universal Declaration of Human Rights (1948):Article 19, Universal Declaration of Human Rights (1948):
- 16. Where there is no (effective) FOI • Alternative legislation (constitution, regional, international) • Civil society, national / international support groups (TI, WIN) • Media (incl. community radio & citizen journalism) • ‘Pacts’
- 17. Where there is no (effective) FOI • OTHER FORMS OF ACCESS TO INFORMATION: – Data collection / surveys / monitoring – Public reporting – Learning through sharing / partnerships / knowledge platforms – Technology (open-source databases, satellite imagery, mobile phones, etc.) – Voice: demanding participation / recognition
- 18. FOI in practice (1) Cases from GCR2008: • Madya Pradesh, Keolari villagers exploit RTI Act to prevent politician from hoarding a village well. • Delhi and Rajasthan NGOs use Act to check status of complaints, conduct financial monitoring. When they meet refusal: satyagrah • Clearing muddied waters: groups in India fight corruption with information (GCR, 2008)
- 19. FOI in practice (2) • 1.3 million manual latrine scavengers remain in India • Forbidden by law since 1993 • 2008: Delhi denies existence of scavengers • NGO files RTI request; accesses survey identifying 1,085 scavengers • Supreme Court sends notice to Delhi govt
- 20. When there is cooperation WIN Case Information Sheets • Cochabamba, Bolivia – “Citizen Directors” can access water utility’s official documents • Colombia – Regulator institutes “Unique System of Information”
Editor's Notes
- The right of access to information held by public bodies is a fundamental democratic right that is now enshrined in the constitutions or legislation of most countries. The public can use freedom of information laws to guard against abuses, mismanagement and corruption and for informed participation in decision making. Governments have the responsibility of supporting the public interest by making it easy to access that information. This can also help governments: more openness and transparency in the decision-making process can improve the trust of citizens.
- UNCAC - states must ensure that: “the public has effective access to information” and must undertake: “public information activities that contribute to non-tolerance of corruption, as well as public education programmes” Declaration of Principles on FoE Africa Everyone has the right to access information held by public bodies. Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right. Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts. Public bodies shall be required, even in the absence of a request, to actively publish important information of significant public interest. No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or information which would disclose a serious threat to health, safety or the environment. Secrecy laws shall be amended as necessary to comply with freedom of information principles. Inter-American Declaration: “access to information held by the state is a fundamental right of every individual". Arhus Convention : The right to know, the right to participate and the right of access to justice are the three pillars of Arhus Convention which proponents claim to be the world’s foremost international instrument promoting environmental rights. Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1972) – Section on Public Information 6.2 Water quality and environmental health data Users have a fundamental right to information on the safety of the water supplied to them for domestic purposes, and to information on environmental health. General Comment No 15 refers to the World Health Organisation’s Guidelines on Drinking Water Quality15 that recommend: “the publication of information on public health aspects of drinking-water supplies, water quality and performance of service providers. Publication of such information can encourage service providers to follow good practices, mobilize public opinion and response, reduce the need for regulatory enforcement, which should be an option of last resort.16” The WHO Guidelines recognise, however, that: “in many communities, the simple right of access to information will not ensure that individuals are aware of the quality or safety of the water supplied to them. The agencies responsible for surveillance should develop strategies for disseminating and explaining the significance of results obtained.17 Such interaction can occur through consumer associations or community based organisations, such as women’s groups, religious groups and schools. Appropriately trained and informed, they can carry out surveillance where government authorities are not in a position to do so.18
- Sweden Freedom of the Press Act 1766 Colombia 1888 Code of Political and Municipal Organization, 1955 Anti-Corruption Act USA Freedom of Information Act 1967 “Waves of democracy” Eastern Europe and Latin America Flood of FOIs in the past couple of decades, now over 70 countries, “but only effective in about a dozen” Ineffective FOI laws: China and Zimbabwe (main focus media restrictions) FOI Laws Bangladesh – 2008, based loosely on Indian FOI law Canada – 1983 + separate laws for each province and territory (Fallen behind, long delays in response to requests) Colombia – 1888, 1955 anti-corruption act (make contracts and purchases public), 1985 (Law 57, RTI) Finland – 1951, revised 1999 to include public utilities Germany – 2005 + separate laws for 9 of 16 Bundesländer (high costs for answering requests) Ghana – draft RTI Law since 2003, may pass end 2009 Honduras – RTI Law 2008 India – RTI Act 2005 Mali - none Netherlands – 1978, replaced by WOB 1991 Nigeria – FOI Bill 2006, still not adopted Rwanda – draft Access to Information law South Africa - Promotion of Access to Information Act 2000 Sudan - none UK – FOI Act 2001 Zimbabwe - Access to Information and Privacy Act 2001 (oversee print and electronic media)
- Ecuador Article 81 of the Political Constitution states: The state shall guarantee the right, in particular for journalists and social commentators, to obtain access to sources of information; and to seek, receive, examine, and disseminate objective, accurate, pluralistic, and timely information, without prior censorship, on matters of general interest, consistent with community values. HOWEVER, some rigid and restrictive measures include the criminalization of whistle blowers. The law went into effect in May 2004 but implementation has been slow. Public bodies have not appointed officials. “Ignorance exists regarding the Law of Transparency and Access to Public Information throughout all levels of local government (municipalities, provincial councils, etc.). There is also a lack of knowledge within civil society about the Law and the citizen’s right to public information”. -(Access Initiative) DETAILS: Gives citizens the right to demand public information in any format from public bodies and organizations that provide state services or are publicly owned. The request must be in writing, and bodies must respond in ten days but that can be extended another five days. There is no obligation to create information, conduct evaluations or analysis, or to produce summaries, statistical information, or indices if the information is widely dispersed. • There are exemptions for personal information, national security, national defence including military plans, intelligence, and other information protected specially by other laws. • The regulations note that this includes commercial or financial information including information given in confidence; protected commercial, banking industrial or technical secrets, information related to the administration of justice; information on state decision making; if it would cause harm; and information given to the Tax Administration. • Information can be secret for a maximum of 15 years but the duration can be extended if there is continued justification for it. Information currently held as secret that is over 15 years old should be made public. The National Security Council is responsible for the classification and declassification of national security-related information. Congress can also declassify information in special session. • Information cannot be classified following a request. • Push model features: Public bodies are required to make information available about their activities on web sites including their structures and legal basis, internal regulations, goals and objectives, directories of personnel, monthly remunerations, services, contracts including a list of those who have failed to fulfil previous ones, budgets, results of audits, procurements, credits, and travel allowances of officials. Courts and other bodies are required to publish the full texts of decisions. The Congress is required to publish weekly on its web site all texts of projects of laws. The Electoral Supreme Court is required to publish the amounts received and spent by political campaigns. Political parties are required to publish annual reports on their expenditures. • Public bodies are required to appoint an official to receive and answer requests, and must create registries of documents. They must also make an index of classified information. They are required to adopt programs to improve awareness of the law and citizen participation. University and other educational bodies are also required to include information on the rights in the law in their education programmes. • Public employees who unlawfully withhold, alter or falsify information can be fined one month’s salary or be suspended without salary for that period.
- Burkina Faso: In a report released in July 2002, Article 19 condemned the 'culture of secrecy' in Burkina Faso. The report argued that civil society and the media are routinely denied access to official information and called for freedom of information legislation conforming to international norms. Bolivia: Bolivian Decree on Freedom of Information 2004 30/01/2004 Decreto Supremo Nº 27329 on Transparency and Access to Government Information Senegal: The constitutions of African countries nearly all include the right to information, but very few have successfully implemented FOI law. But Senegal enjoys one of the most unrestricted media climates in the region. The constitution guarantees freedom of the news media and the independent media frequently criticize the government. The Audiovisual Supreme Council (Haut Conseil de l’Audiovisuel - HCA) is an independent authority created in 1998 to control all audiovisual media and guarantee the independence and freedom of information and communication media.
- PRINCIPLE 1. MAXIMUM DISCLOSURE Freedom of information legislation should by guided by the principle of maximum disclosure PRINCIPLE 2. OBLIGATION TO PUBLISH Public bodies should be under an obligation to publish key Information PRINCIPLE 3. PROMOTION OF OPEN GOVERNMENT Public bodies must actively promote open government PRINCIPLE 4. LIMITED SCOPE OF EXCEPTIONS Exceptions should be clearly and narrowly drawn and subject to strict “harm” and “public interest” tests The three-part test 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 PRINCIPLE 6. COSTS Individuals should not be deterred from making requests for information by excessive costs PRINCIPLE 7. OPEN MEETINGS Meetings of public bodies should be open to the public PRINCIPLE 8. DISCLOSURE TAKES PRECEDENCE Laws which are inconsistent with the principle of maximum disclosure should be amended or repealed PRINCIPLE 9. PROTECTION FOR WHISTLEBLOWERS Individuals who release information on wrongdoing - whistleblowers - must be protected
- Clearing muddied waters: groups in India fight corruption with information Venkatesh Nayak Throughout India, citizens are using the power of public information not only to fight corruption, but to enhance their stake in the political system. In the small village of Keolari in the central state of Madhya Pradesh, citizens used India’s new transparency law, the Right to Information Act (RTI Act) of 2005, to prevent a local politician from claiming a public water well for his own personal use. The man, an elected Pancha (member) of the local government, was building a home in December 2006 when he erected a wall around a well that his father had donated to the community nine years earlier. The well is one of only two sources of potable water available to the village’s 2,500 residents. Local citizens asked the Pancha not to cut off their access to the well, but he refused. They then filed complaints with the village chief and higher levels of government, to no avail. Not even getting local newspapers to write about the problem was enough to move officials to action. A few weeks later, while attending an awareness camp organised by a regional transparency group, one of the citizens learned about India’s new Right to Information Act. The group, Madhya Pradesh Suchana Adhikar Abhiyan (MPSAA), along with the Commonwealth Human Rights Initiative, provides free help to citizens trying to obtain public information under the law. With the group’s help, citizens requested copies of the gift deed for the well signed by the Pancha’s father, as well as information on any public money spent to maintain the well. Within two days citizens obtained documents confirming the gift and showing that the local government had spent Rs11,608 (US$293) to strengthen its platform and walls. Residents then wanted to use the RTI Act to find out what had happened to their original complaint. But, when they went to the local government office, they were told the information was exempt from the law, so there was no point filing the request. When an MPSAA representative returned and asked for the refusal in writing, he was told the matter would be investigated. As for the well, when residents went there in February 2007 they saw revenue officials inspecting the disputed property and measuring the Pancha’s encroachment. They confirmed that the Pancha’s wall was illegal and ordered him to demolish it within a week. Today the wall is gone, and villagers once again are able to draw water from the well.2 This is not an isolated case. Freedom of information legislation is also being used as a way to fight for greater transparency by many other groups in India. In Delhi, a transparency group called Parivartan is using the power of information and employing Gandhian tactics to fight corruption in local public works projects. Parivartan uses the RTI Act to obtain documents on water, sanitation, electricity, road, waste management and other projects – from work orders to sketches to completion certificates. Then they hold street-corner meetings to tell residents how much money has been spent on local projects and they inspect the projects to see if the money went toward its intended purpose. Finally, Parivartan holds public hearings (jan sunwai), at which government officials have the opportunity to explain where the money went. In several cases, they had trouble coming up with an explanation. When residents of Patparganj fell ill from drinking sewage-fouled water, Parivartan asked for the status of residents’ complaints and the names of responsible officials. Repairs were made two days later and water testing was conducted throughout the area. Parivartan obtained similar results in the case of a leaking water pipe, which was fixed three days after the group filed an information request. When the government refuses to release information, Parivartan members engage in satyagraha – a form of passive resistance developed by Gandhi. Citizens wait at government offices as long as necessary, until officials give them the information they want. A similar organisation that pioneered this strategy has long been active in the state of Rajasthan. There, Mazdoor Kisan Shakti Sangathan – or Workers and Farmers Grass Roots Power Organisation – exposes fraud by obtaining balance sheets, tenders, bills, employment records and other government records. The group discovered, for example, that local officials were overbilling the central government for work on a water project in a drought-prone area. They also found out that people listed as labourers on public works projects never got paid, and that large payments were made for construction projects that were never built. *** A more detailed version of this story may be accessed on the website of the Central Information Commission of India; see cic.gov.in/Best%20Practices/rti_restores_peoples_right.htm.
- The Supreme Court has asked the Delhi government to explain its failure to implement a central law against manual scavenging that provides for elimination of dry latrines and rehabilitation of scavengers. Earlier, the court had also sent to district magistrates the details of over 2,000 dry latrine owners in over 25 districts in the states of Punjab, Haryana and Rajasthan seeking their explanation for their failure in demolishing the latrines and prosecuting the owners. The notices were sent after the Safai Karmachari Andolan (SKA) (Sanitary Workers’ Movement) had provided evidence that the practice of manual scavenging still existed, 16 years after the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act was passed by the Union Government in 1993. Under the provision of the Right to Information (RTI) Act, SKA had obtained the results of a Delhi University survey that had identified 1,085 scavengers still working in Delhi, In March 2008, the Delhi government had “categorically denied existence” of manual scavenging [their interpretation of scavenging was that nightsoil is carried on scavengers on their heads whereas in Delhi they used wheelbarrows].. SKA has been campaigning to eliminate manual scavenging since 2003
- See Case Information Sheets