International Experiencesin Freedom of InformationPresentation at the FOI Retreat

Cayman Islands

By Sohini Paul

Commonwealth Human Rights Initiative

July 2008

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Spread of Freedom of Information Laws

Historic Pioneers: countries that passed laws before the world wide wave of democratization of the 1980s Sweden (1766), Finland, Denmark, Norway, Canada, Australia, New Zealand, USA, France, Columbia

FOI laws as part of process of democratic transition and/or drafting of a new ConstitutionPhilippines, Spain, Portugal, S. Africa, Mexico, Nepal, 22 countries that had been a part of the Soviet Union

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Spread of FOI lawsCountries with long democratic histories Austria, Italy, Netherlands, Belgium, Iceland, Ireland, Israel, Japan, Greece, UK, Switzerland, Germany

Countries that have not experienced recent democratic transitions India, Pakistan, Jamaica, Belize, Antigua & Barbuda, Trinidad & Tobago, Peru, Panama, Dominican Republic, Cayman Islands, Angola, Zimbabwe, Uganda, Turkey

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International Experiences : a Universal Right

Right to Information a UN-mandated universal human right.

UN General Assembly, 1946: “Freedom of Information is a fundamental human right and is the touchstone of all other rights to which the UN is consecrated”

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Global Spread of FOI Laws

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International Experiences: Best practice principles

Maximum disclosure

Minimum exemptions subject to public interest test

Simple, quick and cheap access procedures

Effective enforcement: Independent appeals mechanisms and penalties

Monitoring and promotion of open governance

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Implementation of Right to Information (RTI) Act in India

Central Government took lead to implement it-States were slow-particularly where different political alliance was in power;

Nodal agency made responsible in every Government for ensuring implementation;

Public Information Officers (PIOs) and appellate authorities have been designated; and

Proactive disclosure is a non starter at district, block and village level where most people have info. needs.

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Implementation of RTI Act in India

No implementation guidelines yet especially at the state level despite the passage of two and a half years;Requestor’s troubles start at the application stage itself-reasons are asked;PIO is not at his seat; payment of fees is at times cumbersome;First appellate authority is not effective in giving satisfactory decisions- tendency to agree with PIOInformation Commissions are piling up huge backlog; andICs are mostly headed by retired bureaucrats- erodes people’s faith.

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Implementation of RTI Act in India

Deliberate delays means – information is not available in real time

Brighter side-

People in faraway village and towns are using this law to unearth corruption, poor decision-making;

CSOs have taken RTI on board- training of govt, NGOs, citizens, lawyers, media, public education, policy advocacy, monitoring of implementation, research;

Business community and serving/retired govt. employees are using the Act more; and

Bureaucrats are thinking twice before taking decisions arbitrarily.

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Issues re implementation of FOI lawsPassing a FOI law is fundamental but insufficient. Implementation of regime is crucial: necessary to develop broad based public support

A good access to information regime requires civil society engagementGovt. responsible for implementation: strong political will and leadership within govt., establish strong and independent oversight body, train officials in RTI procedures

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Issues re implementation of FOI lawsLook deeper into ATI laws: track and learn from experiences- workability of laws. Users must have knowledge of the law, procedures involved; should be persistent; govt. must invest in administrative capabilities and staff training

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Best Practices: Promotion of access to information

By Government in Mexico: Federal law on Transparency and ATI, 2002; Established an Information Commission (IFAI) with a

budget of USD 22 million; 5 commissioners; IFAI works with govt. officials & civil society to activate

Mexico’s legislation; and Developed a one stop web portal for filing information

requests with federal bodies and track the status of request– SISI.

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Best practices: Promotion of access to information

By civil society in Bulgaria: by Access to Information Programme since 1996

Conducts training workshops (200-300 civil servants) each year;

Publishes handbooks/annual reports; Assists administration in elaborating internal rules &

systems for transparency; Makes policy recommendations; and Public interest litigations and challenging refusals.

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Case Studies on the use of FOI laws

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Information exposes gender bias in the BBC

The Issue The legal entitlement of equal pay for equal work for women

has been slow to become a practical reality (Equal Pay Act 1970);

Statistics in 2004 pointed to huge inequalities and in some areas the gap was still growing in the UK (24% less);

A virtual ‘glass ceiling’ for women managers; and BBC comes under scrutiny.

Intervention An anonymous application is submitted for information under

UK’s FOI Act in 2006.

Impact Information was released and it confirmed a huge difference

between male and female news reporters’ salaries.

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Information exposes gender bias in the BBC

Discovery BBC paid female correspondents an average of 6,500

pounds a year less than their male colleagues;

Action taken Women and Work Commission’s report Shaping a Fairer

Future in February 2006 ; Government made recommendations for all public bodies to

implement a two-year plan- closing gender pay gap; 45% of all large organizations are required to undertake pay

reviews by 2008; and BBC announced it will undertake a thorough pay review to

identify any discrepancies within the organization.

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Clearing muddied water: Groups in India fight corruption with info.

The Issue Elected member of local govt. while building his house erects a wall

around a well which was donated by his father to the village; Local people ask the member not to cut off their access to water; They file complaints with village chiefs and higher levels of govt.

Intervention Regional transparency group along with CHRI provides help to citizens

for obtaining information under the law; RTI application filed with the group’s help; and Locals followed up the earlier complaints.

Action taken Revenue officials inspect disputed property, confirm encroachment and

allow demolition of wall.

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Disclosure force government to improve care standards for Jamaica’s children

The Problem Proportion of children and young people living in poverty in

Jamaica is one of the highest in the world; Govt. set up children’s homes for providing care and

protection to children in need; and There is no way to know if the children are protected in the

state run homes.

Civil Society Intervention Access to Information Act enacted in 2002; Civil Society groups make formal requests to Child

Development Agency (CDA) AND Ministry of Health; and File monthly requests to CDA for reports monitoring state of

homes- moderated by Jamaicans for Justice (JFJ).

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Disclosure force government to improve care standards for Jamaica’s children

Impact and Action taken CDA released information which formed the basis of JFJ report,

The situation of children under the care of Jamaican state Report generated intense public pressure on the govt. to improve

the state of children’s homes; It forced the government to commission an official review which

became The Keating Report: A review of children’s homes and places of safety in Jamaica, made public in 2004;

Report makes it clear that govt. is accountable for the child abuses and owed the children a duty of care;

In Oct 2006, JFJ presents their report to the Inter-American Court of Human Rights- resulted in a meeting of the Jamaican authorities with members of the Office of the Chidren’s Advocate (OCA) IN Nov 2006;

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Challenges for the futureChanging paradigms around the concept of information: transition to digitised information

Tendency towards backlash by govt. and politicians against strong FOI laws only a few years after they are passed: Eg: reforms introduced to the Irish FOI Act 1997 in 2003- increase user fees, add new exemptions; In India in 2006- remove file notings, increase exemptions

Increasing concerns with national security esp. after Sept.11. Terrorism seems to make just about any area of govt. crucial for national security. Eg. Under pressure from NATO wave of new FOI laws in central and Eastern Europe have been accompanied by simultaneous “State Secrets Laws”.

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Suggestions for implementing FOI

Entrenching a culture of openness Keeping political will strong - developing a plan of action with

implementation tasks, agencies responsible, strict timelines. Nodal agencies/implementation units Harnessing government-community partnerships-using NGOs as

training resources

Crafting a supportive legislative regime Overriding inconsistent legislation Old official secrets acts undermine openness Civil service rules can inhibit bureaucrats All other laws need to be consistent Enacting supporting laws which promote openness Effective subordinate rules

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Suggestions for implementing FOI

Putting in place good systems Developing guidance resources for officials. Eg. In Jamaica

the ATI unit produced a step-by-step manual for public officers; In UK ICs guidance series explaining exemptions, dealing with appeals etc.

Producing templates: implementing proactive disclosure duties

Designing systems which promote compliance- use of govt. websites, intranet. In Canada federal govt. collects details of all applications submitted to all agencies, makes one document and publishes on-line

Improving records management Meeting the challenge of information delivery

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Thank you

CHRI Contact Details

Ph: 91+11+ 2652-8152, 2685-0523

Fax: 91+11+ 2686-4688

Email: chriall@nda.vsnl.net.in or

sohini@humanrightsinitiative.org

Website: www.humanrightsinitiative.org