Public Access to Information for Development: A Guide to the Effective Implementation of Right to Information Laws

CHAPTER 1

Introduction to the Guide

Laws giving individuals a legal right to access information held by public bodies, commonly referred to as the right to information (RTI), but also known as freedom of information (FOI) or access to information (ATI) laws, are now in place in more than 100 countries globally (see map B1.1.1 in box 1.1).¹ RTI was formally acknowledged by the United Nations in 2011, as part of Article 19 of the Universal Declaration of Human Rights, but the phenomenon of RTI laws began in earnest at the national level well before that time.² The movement to secure rights to information from government sources has its origins in mid-20th-century battles for political and civil rights demanded by national-level actors. Today RTI is a key part of the overall global trend toward more transparent and open government, which includes other elements such as protection of whistleblowers, providing access to data in open formats (open data), and requiring senior officials to make asset declarations.³

Box 1.1 Tracking the Global Spread and Quality of RTI Laws

The Global Right to Information Rating map (map B1.1.1) provides RTI advocates, reformers, legislators, and others with information about RTI laws by country and a rating of the strengths and weaknesses of the legal framework. Countries shaded the darkest have laws that are rated among the best in the world. Countries with no shading still have no RTI law in place.

Map B1.1.1 Global Right to Information Rating Map

Source: Access Info Europe and the Centre for Law and Democracy.

Note: For current ratings and to explore an interactive map of RTI laws by country go to http://www.rti-rating.org/index.php.

RTI Laws and Their Provisions

An RTI law aims at improving the efficiency of the government and increasing the transparency of its functioning by

• Regularly and reliably providing government documents to the public

• Educating the public on the significance of transparent government

• Facilitating appropriate and relevant use of information in people’s lives (World Bank 2013).

According to the World Bank’s Public Accountability Mechanisms Initiative, for an RTI law to be an effective and functioning mechanism for transparency, seven factors are key: scope of coverage of disclosures, procedures for accessing information, exemptions to disclosure requirements, enforcement mechanisms, specified deadlines for release of requested information, sanctions for noncompliance, and proactive disclosure (World Bank 2013).

Outcomes of RTI Laws

With the advent of laws specifically establishing RTI, evidence is growing that people around the world have been able to access public information to expose and prevent corruption, to enhance their ability to participate in public affairs, to protect other human rights, to hold governments to account, to improve service delivery, to facilitate their businesses and to further their own personal goals (FOIAnet 2013; see also Calland and Bentley 2013).⁴

RTI has been linked to improved accountability, better service delivery, and greater investor confidence. Moreover, people increasingly expect to be able to access information held by public bodies and private entities performing public functions as part of a demand for more transparent, accountable, and inclusive governance. By providing a means for individuals to request information from public authorities, RTI laws reduce the likelihood that public authorities will be able to abuse their control of government information.⁵ Access to information also is said to be a key enabler of accountability mechanisms because, by reducing information asymmetry,⁶ it provides principals (that is, citizens) with the information they need to hold agents (that is, government officials) to account.⁷ Without accountability mechanisms, officials may start to operate in their own interests exclusively, rather than on behalf of the citizens they represent. An example of this would be a kleptocracy, where corrupt government officials steal public resources, leaving citizens impoverished.

Lack of transparency may also affect service delivery because it can hide corruption and prevent accountability and because members of the public may remain unaware of information about services and how to access them. Inclusive governance means that government operates for the benefit of all members of society, not just a few. Effectively implemented RTI regimes provide marginalized members of society with access to government services and information and the means to demand information in support of their entitlement to legal and human rights, thus helping them to make their voices heard. Effective RTI laws, by institutionalizing rules and procedures for access, also enable other open government mechanisms (for example, open data) to function effectively.⁸ Finally, they bind future governments to maintaining RTI.

Progress and Challenges in Implementation

Measuring the level of implementation of RTI laws, and their long-term impact, poses many methodological challenges. A reasonable body of anecdotal evidence exists, along with some systematic empirical research, that demonstrates the value of RTI as a support for transparency, accountability, and inclusive governance. Agreement on the positive impact of RTI is not universal, however. This is, in part, because researchers have not looked much beyond the greater transparency afforded by RTI laws to questions of long-term societal transformation.⁹ Some of this evidence is presented in chapter 5.

Regardless of the challenges of measuring impact, it is fair to say that only once RTI laws have been effectively implemented can they truly achieve their full promise. In many countries, unfortunately, overwhelming evidence suggests that effective implementation of the laws continues to present serious challenges and that full realization of the anticipated benefits associated with access to information remains elusive. To be clear, we are not suggesting that effective implementation equates to full implementation of the law. Even partial implementation of an RTI law can lead to positive actions in some contexts. For example, in Pakistan, where a relatively weak law has been implemented, its existence has led to greater transparency through posting of individuals’ tax information online. Nevertheless, our focus here is on effective implementation, which emphasizes implementation of those—even partial—elements of an RTI law, in additional to broader societal and governmental conditions, that matter most when the goal is to use the law to increase public access to information and make use of the information gained in service to positive social and economic change.

The following discussion attempts to capture general strengths and weaknesses of RTI systems in the 12 case studies that underpin the research presented in this guide. It should be considered a general description that highlights prominent characteristics in each system, rather than a comprehensive objective assessment, and it is meant to orient readers who may not be entirely familiar with each country system presented in the guide. For more detailed information about the RTI systems in each of the case study countries, readers should refer to the companion volume to this guide, Right to Information: Case Studies on Implementation (Trapnell 2014).

In reviewing progress on implementation, RTI systems in India, Mexico, the United Kingdom, and the United States are considered robust but still facing challenges. India has a vibrant civil society that engages with the RTI system regularly and at all levels and sectors of implementation, yet it still struggles with low levels of capacity within the public sector and with many other implementation challenges.¹⁰ Mexico is considered a model RTI system because of its independent and well-funded information commission, which succeeds in enforcing disclosure obligations on public bodies using a variety of methods, but it has recently experienced, but overcome, some threats to the robustness of its RTI regime (Freedominofo.org 2015). The RTI system in the United Kingdom has succeeded in implementing RTI throughout public bodies by means of its professionalized civil service and the monitoring and enforcement capabilities of an independent information commission against a backdrop of growing opposition to RTI from politicians (Cobain 2011).¹¹ Even though it lacks an information commission, the United States has been implementing RTI for nearly five decades, and its RTI system is considered functional, yet characterized by delays in appeals processing.¹² All this is to say, that even the most effective RTI regimes face challenges or will experience setbacks at some point.

On the other side of the spectrum are new and struggling RTI systems, where implementation is either slow in taking hold or has suffered setbacks. Jordan is still in the early phases of implementing RTI within the public sector, and many agencies have yet even to develop forms or procedures for requesting access. Uganda faces general challenges with levels of staff capacity and resources within the civil service, while the implementation of Moldova’s RTI system has not been supported by any nodal authority or monitoring body (that is, a body that sits within the executive branch of government and is charged with overseeing implementation of the RTI law). Public officials in Thailand operate with unclear policies on the kinds of information that can be released and are subject to severe sanctions for release of classified information.

In the middle of the spectrum are countries that have implemented RTI with varying degrees of progress but still face various challenges. Albania’s RTI system is characterized by informal personal networks within the public sector that substitute for formalized practices, but this makes obtaining information through RTI procedures problematic for ordinary citizens. Peru and Romania have engaged civil societies, yet grapple with training, enforcement, and monitoring. South Africa has an active human rights commission that conducts regular evaluations and training for civil servants but lacks enforcement authority and faces the challenge of low capacity within the civil service.¹³

Measuring Outcomes to Determine Implementation Effectiveness

All countries face implementation challenges, underscoring the importance of gaining a clearer picture of what drives effective implementation and how it can be achieved and sustained. This guide aims to make a contribution to filling that knowledge gap. A good place to start the discussion is with an explanation of the definition of effective implementation used in this guide. Effectiveness generally means the degree to which something is successful in achieving a desired outcome. The problem of identifying whether the legal RTI has achieved desired outcomes is not trivial.

As outlined above, RTI laws can have many outcomes. At a very basic level, the goal of RTI laws is to allow for the disclosure of information, labeled first degree outcomes. At this stage, effectiveness means that RTI rules and procedures, as set forth in RTI laws of generally good initial quality, have been implemented and routinized and support fairness in decision making about disclosure of information, and information is generally disclosed unless there is good reason to withhold it. First-degree outcomes, however, tell us nothing about whether the disclosure of information has led to improved governance or service delivery, or even whether it has supported individual goals. These accountability outcomes, second degree outcomes, are more difficult to trace, though we do have evidence. Finally, in the context of development, whether RTI laws contribute to broad socioeconomic change and the goals of poverty reduction or shared prosperity, third degree outcomes,¹⁴ is even more difficult to determine, even though these outcomes are often cited as the basis for reform efforts. Figure 1.1 summarizes the different degrees of outcomes in RTI implementation.

Figure 1.1 Projected Degree Outcomes in RTI Implementation

Source: Trapnell and Lemieux 2014.

Note: RTI = right to information.

From the disclosure of information using an RTI law to development outcomes, the results chain is long and attenuated. For this reason, this guide defines RTI effectiveness as the capacity of the RTI regime to disclose information as intended by the RTI law in a particular country. In essence, this is a first degree outcome and the least difficult outcome to measure. It is also the foundation for being able to measure the other outcomes.

That said, it is still not easy to measure even first degree outcomes. There is no quantifiable, reliable measurement of effective RTI implementation, defined as first degree outcomes, yet available. Measures of whether a law exists or is of good quality tell us little about how well it has been implemented. Country data on the operation of an RTI law, such as the number of requests, responses, appeals, and proactively disclosed documents, provide a general picture of the volume of requests being processed and information released by administrative systems and may even capture data on timeliness (Worker with Excell 2014). But this type of data offers little information on the quality of responses, relevance of proactively released information to demand, or satisfaction of users. These latter factors are arguably more important to understanding the nature of disclosure than figures on volume and timeliness, because they provide insight into the social and economic impact of RTI