Governance WorkinG paper series 56598 Access to Information Program Proactive Transparency: The future of the right to information? Helen Darbishire Working PaPer Proactive Transparency: The future of the right to information? A review of standards, challenges, and opportunities. Helen Darbishire* * Helen Darbishire is Executive Director of Access Info Europe, a Madrid-based NGO which promotes the right of access to information in Europe and engages in standard-setting internationally. Previously she worked with Article 19 (London and Paris) and the Open Society Institute (Budapest and New York) providing expertise and support to civil society, governments, and inter-governmental organizations (Council of Europe, OSCE, European Union,World Bank) engaged in the adoption and implementation of access to information laws. She has worked extensively in Eu- rope (including central and eastern Europe) and Latin America, as well as in Africa and the Middle East. Helen Dar- bishire is current Chair of the FOI Advocates Network. The findings, interpretations, and conclusions expressed in this volume do not necessarily reflect the views of the Executive Directors of The World Bank or the governments they represent. The World Bank does not guarantee the accuracy of the data included in this work. This paper has been commissioned by the Access to Information Program at the World Bank Insti- tute (WBI) and supported financially by the Communication for Governance and Accountability Program (CommGAP). The WBi access to information Program seeks to connect key ATI stakeholders to jointly identify, prioritize and implement actions for effective ATI adoption and implementation. The pro- gram aims to improve in-country capacity for the formulation, implementation, use and enforcement of ATI legislation through regional knowledge exchange and networking, and by fostering the ca- pacity of multi-stakeholder coalitions to undertake effective ATI reforms. CommgaP, a global program at the World Bank, promotes the use of communication in gover- nance reform programs and supports the building of democratic public spheres. By applying inno- vative communication approaches that improve the quality of the public sphere--amplifying citizen voice; promoting free, independent, and plural media systems; helping government institutions com- municate better with their citizens; and promoting an environment that enables and gives all actors rights, duties, and opportunities--the program aims to demonstrate the power of communication principles, processes, and structures in building effective states, promoting good and accountable gov- ernance, and hence achieving better development results. Contents acknowledgements .....................................................................................v executive Summary ....................................................................................1 1. introduction...........................................................................................3 1.1 The Benefits of Proactive Disclosure .................................................................... 3 1.2 Standard-setting on Proactive Disclosure .............................................................. 4 1.3 Proactive Disclosure as the Future of the Right to Know ...................................... 6 2. The Drivers of Proactive Transparency ......................................................9 2.1 Proactive Transparency and the Rule of Law......................................................... 9 2.2 Proactive Transparency and Accountability ...........................................................10 2.3 Proactive Transparency and Participation..............................................................12 2.4 Proactive Transparency, Government Services and e-Government ..........................13 3. access to information Laws and Proactive Transparency ........................... 15 3.1 Incorporating Proactive Disclosure into Access to Information Laws .....................15 3.2 User-driven Proactive Transparency .....................................................................17 4. international and Comparative Standards for Proactive Disclosure ............ 19 4.1 International Standard Setting on Proactive Disclosure .........................................19 4.2 Proactive Disclosure in International Treaties .......................................................20 4.3 An Emerging Minimum Standard for Proactive Disclosure ....................................21 5. Proactive Transparency in Practice ......................................................... 23 5.1 Multiple Channels for Pushing Out Information ..................................................23 iii iv Proactive Transparency: The Future of the Right to Information? 5.2 Access Points for Proactively Disclosed Information .............................................24 5.3 Making Information Relevant.............................................................................27 5.4 Comprehensible Information ..............................................................................28 5.5 Charges for Proactively Disclosed Information .....................................................29 5.6 Information Management for Timely and Complete Disclosure ............................29 5.7 Proactive Disclosure Principles ............................................................................31 6. Funding, Promoting, Monitoring and enforcing Proactive Disclosure ........................................................................................... 33 6.1 Funds to Get Information Flowing ......................................................................33 6.2 Progressive Implementation ................................................................................33 6.3 Training Officials and Raising Public Awareness ...................................................34 6.4 Monitoring Levels of Proactive Disclosure ...........................................................34 6.5 Enforcing Proactive Disclosure ............................................................................34 6.6 Recommendations for Implementation of Proactive Disclosure Regimes ...............35 7. Conclusions and recommendations for Future research.......................... 37 annex a: Classes information Comparative................................................. 39 annex B: Summary of the Proactive Disclosure Features of the aarhus Convention .............................................................................. 43 endnotes ................................................................................................. 45 Acknowledgements I would like to thank the following people for Roberts, Santosh Sigdel, Shekhar Singh, Gra- responses to my requests for information while ham Smith, Richard Smith, Rick Snell, Ivan researching this paper, and for proactively sharing Szekely, Roger Vleugels, and John Wonderlich. useful information and ideas: Jerzy Celichows- My gratitude also to my colleagues at Access In- ki, Charles Davis, Andrew Ecclestone, Greg Elin, fo Europe, to the many contributors to the FOI Andrea Figari, Ádám Földes, David Goldberg, Advocates Network, and to Marcos Mendiburu, Jonathan Gray, Kristina Kotnik Sumah, Norah Luis Esquivel, Aranzazu Guillan-Montero, Ro- Mallaney, José Luis Marzal Ruíz, Toby Mendel, sario Soraide and the team at the WBI Access to Venkatesh Nayak, Natasa Pirc Musar, Neman- Information Program. Errors and views are sole- ja Nenadi, Mateja Presern, Suzanne Piotrows- ly the author's and do not necessarily reflect the ki, Miguel Pulido, André Rebentisch, Alasdair official position of the World Bank. v Executive Summary This paper identifies four primary drivers of pro- al bodies (Section 4). These international pro- active disclosure throughout history (Section 2). visions make clear that, in addition to having The first is the need to inform the public about numerous benefits for public bodies and for laws and decisions and the public's right to be members of the public, proactive disclosure is informed, to know their rights and obligations. an obligation that is part of the right of access to The second is the public's demand for the infor- information. From comparing the national and mation needed to hold governments account- international provisions it is possible to identi- able both at and between elections. The third is fy a set of 14 core-minimum of classes of infor- the demand for information in order to partic- mation for proactive disclosure (detailed in Sec- ipate actively in decision-making. The fourth is tion 4.3). the provision to the public of information need- The lessons learned from the practical expe- ed to access government services, which has ex- riences of implementing proactive disclosure re- panded significantly in the past decade with gimes indicate that due consideration should be growth of electronic access to services or "e- given to how information will be structured, or- government." ganized, edited, and when and where it will be These drivers led to progressive develop- disclosed (Section 5). ment of laws and practices for proactive disclo- Also essential in setting up proactive dis- sure. They have been given further impetus by closure regimes is the need to allocate neces- the large-scale disclosure potential of the Inter- sary resources, to consider rolling out proactive net. Also advancing proactive disclosure has re- disclosure programs progressively, and to estab- sulted from the development of the right of ac- lish effective enforcement mechanisms to en- cess to information, as enshrined in access to sure compliance. These considerations lead to a information laws, which increasingly contain number of recommendations including that in- specific proactive provisions. The recently ad- formation should be organized and published opted legal frameworks which include proac- so that it is: available, findable, relevant, compre- tive disclosure regimes (Section 3) point to an hensible, free or low cost, and up-to-date. When emerging standard on the classes of information setting up or improving proactive disclosure which should be made available at the core of schemes, public bodies should ensure that they any national proactive disclosure regime. are well-resourced, progressive, promoted (with- The national standards are reiterated and in government and to the public), comprehen- complemented by provisions by internation- sively monitored, and properly enforced. 1 1 Introduction There are two main ways by which information pate in policy- and decision-making. Dissem- held by public bodies1 can be accessed by the ination by public bodies of information about public.2 The first is when individual members of how they function helps the public access gov- the public file requests for and receive informa- ernment services. These benefits are among the tion (reactive disclosure). The second is when in- main drivers of increased proactive disclosure in formation is made public at the initiative of the recent years, as examined in Section 2 of this public body, without a request being filed. This paper. The rise of the Internet has furthered is known as proactive disclosure3 and the result is transparency by making large-scale publication proactive transparency which can be achieved of government data possible at low cost. using a multiplicity of means ranging from pub- A further benefit of proactive disclosure is lications and official gazettes, to publicly acces- that it encourages better information manage- sible notice boards, to radio and television an- ment, improves a public authority's internal in- nouncements, to posting on the Internet via a formation flows, and thereby contributes to in- public institution's website.4 This paper reviews creased efficiency. In countries with access to the development of, and the emerging standards information regimes, proactive disclosure has for, proactive disclosure. another benefit, which is to reduce the burden on public administration of having to process requests for information that may be filed under 1.1 The Benefits of an access to information law. Proactive Disclosure From the perspective of members of the public, the automatic availability of information For public authorities, numerous benefits ac- ensures timely access to information and helps crue from taking the initiative to publish the in- to ensure that there is equality of access for all formation they hold. Proactive disclosure en- members of society without the need to file re- sures that members of the public are informed quests. A significant advantage of proactive dis- about the laws and decisions that affect them closure, particularly when this becomes automat- and contributes to the rule of law. It facilitates ic and close to real-time, is that it becomes harder more accountable spending of public funds and for public officials to subsequently deny the exis- promotes integrity in government. Disclosure tence of, or to manipulate, the information.5 of data and policy documents ensures that the Another important benefit of proactive dis- public has the information needed to partici- closure in countries emerging from authoritarian 3 4 Proactive Transparency: The Future of the Right to Information? regimes is that it gives some protection to ap- of campaigns by civil society movements pro- plicants from weaker segments of society for moting proactive disclosure. whom it is often a hazardous activity to actual- At least four groups of civil society activism ly request information that could expose pow- on proactive disclosure can be identified: erful vested interests. If such information is pro- actively available, then it can be downloaded or 1. national level, sectoral campaigns: For accessed anonymously.6 This also helps avoid a example around the rural land rights move- common situation in corruption-prone coun- ment in India, agricultural subsidies in tries where public officials are more likely to at- Mexico, or activism to promote citizen par- tend to those who are sufficiently empowered ticipation in budget processes in Brazil and to file requests for information needed to de- Peru. fend their rights.7 2. national/international access to in- Taking the initiative to push out informa- formation campaigns: The movements tion will contribute to public use of it, perhaps to promote the inclusion of proactive dis- by combining it with other data in a way that closure provisions in the access to informa- adds value to the information, giving it great- tion laws of India and Mexico studied in er relevance for other members of the public this paper; the campaign for stronger pro- or making it more useful in public policy de- active disclosure provisions in the Council bates. As will be examined in Section 3, the cre- of Europe Convention on Access to Offi- ative use of information by the public is inspir- cial Documents. ing greater proactive disclosure. 3. Sectoral/regional campaigns: The ac- cess to environmental information move- ment (resulting in the Aarhus Convention); 1.2 Standard-setting on campaigns for openness to combat corrup- Proactive Disclosure tion (leading to, inter alia, the UN Con- vention against Corruption); transparen- As this paper will show (Section 2), the numer- cy around natural resource extraction (the ous benefits of proactive disclosure have been Publish What You Pay campaign, leading to driving forces resulting in significant quanti- the Extractive Industries Transparency Ini- ties of public information being disclosed. This tiative); and the aid transparency movement information includes core data on the main (where organizations such as Publish What functions of government (budgets, annual re- You Fund and aidinfo are working to in- ports, major policy decisions, etc.) and sector- clude proactive publication standards in- specific information that is produced for and to the International Aid Transparency Ini- disseminated to affected members of the pop- tiative). ulation (such as information about primary 4. Supranational initiatives: The efforts to schools, health care for the elderly, business de- promote transparency of international fi- velopment opportunities, or support for immi- nancial institutions lead by the Global Trans- grants). parency Initiative coalition, and the work of Standard-setting on what information the One World Trust in evaluating account- should be disclosed, where, when, how, and to ability of intergovernmental bodies (along whom, has also been advanced by initiatives with multinational corporations and inter- coming from government bodies and as a result national non-governmental organizations). Introduction 5 These movements have secured proactive uments contain only rather general references to disclosure provisions in national legal frame- proactive disclosure obligations. works, treaties, and standard-setting documents. Clearly to publish all information held by While some of these provisions are sector-spe- public bodies is a huge task and can only be an cific, others are cross-cutting and apply to all aspiration at this stage (although as signaled in public institutions. As the standards for proactive Section 3.2, there are now some interesting ini- disclosure evolve, they are increasingly includ- tiatives in that direction). The questions there- ed in national access to information laws, tak- fore remain: which information should be pub- ing their place alongside the right to request and lished, and when and how? receive information as part of the right to in- This paper attempts to advance the debate formation. Section 3 examines proactive disclo- around that question by analyzing the multiple sure provisions of national access to information proactive disclosure provisions in national law laws, while Section 4 examines how these are and international treaties in order to identify the reflected in international standards on the right emerging global consensus on the classes of in- of access to information. formation which should be included in a proac- It is now well established that there is a hu- tive disclosure regime (Section 4). man right of access to information held by pub- The paper examines the practical challenges lic bodies. The right is enshrined in at least 50 related to the implementation of proactive dis- national constitutions and international courts closure regimes and some of the lessons learned have read it into the freedom of expression and from which principles for making proactive dis- information provisions of human rights treaties.8 closure work in practice can be derived (Sec- If the only channel for access to information tion 5). It concludes by identifying some future were via requests filed by individuals, huge in- challenges and areas where additional research is formation inequalities would rapidly arise with needed (Sections 6). different people knowing different things about The methodology for the research includ- the functioning of government, with large sec- ed a review of reports about the national law tions of the population remaining ill informed, and practice on proactive disclosure and relat- to the detriment of society as a whole. Such a ed issues in a number of countries including system would also place an intolerable burden Chile, Estonia, France, Hungary, India, Mace- on public officials who would have to strive to donia, Mexico, Peru, Slovenia, the UK, and the answer huge volumes of requests from informa- United States. International declarations, juris- tion-hungry citizens. Proactive disclosure there- prudence, and treaties containing transparency fore levels the playing field for access to govern- provisions were also reviewed, as was academic ment-held information. literature. This review was supplemented by in- At the same time as recognizing that access terviews with civil society practitioners, staff of to information is an integral part of the right information commissioners' offices, and govern- to information, national legislators and inter- ment officials. national human rights bodies have been some- Four countries whose access to informa- what cautious in defining the precise nature and tion laws include proactive disclosure provisions scope of the proactive disclosure dimension of were examined in more depth for the standard- the right. Hence (as will be examined in Section setting analysis: India (Right to Information Act 4) even new instruments such as the Council of of 2005), Mexico (Law on Transparency and Ac- Europe Convention on Access to Official Doc- cess to Public Information of 2002), Hungary 6 Proactive Transparency: The Future of the Right to Information? (e-FOIA, 2005), and the UK (Freedom of Infor- al and proactive disclosure in particular. Some of mation Act adopted in 2000, entered into force the highlights are: in 2005). While specific legislation is likely to give a much greater level of detail than the gen- · January 1, 2009: Mandatory minimum eral provisions of an access to information law standard proactive disclosure rules come in- (take, for example, specific legislation on pub- to force in the UK under the Information lic procurement in many countries), these re- Commissioner's Model Publication Scheme cent and high profile access to information laws (Section 3.1). point to emerging minimum standards for pro- · January 21, 2009: President Barack Obama active disclosure regimes. on his first day in office issued a memoran- The research for this paper identified a lack dum on the Freedom of Information Act of comparative mapping of proactive disclo- which shifted the U.S. Administration from sure in national law and practice. This can be a presumption of secrecy to one of disclo- accounted for by the multiplicity of legal pro- sure in response to FOI requests, and went visions requiring proactive disclosure at the na- one step further to urge proactive disclo- tional level, combined with significant disclosure sure: of information as a matter of good practice. New initiatives to release entire datasets proactively are "The presumption of disclosure also means adding to the complexity of the picture. that agencies should take affirmative steps to There has been some comparative mapping make information public. They should not by sector. Perhaps the most comprehensive is wait for specific requests from the public. All the work of the International Budget Partner- agencies should use modern technology to in- ship which produces a global ranking of budget form citizens about what is known and done transparency in 85 countries, the Open Budget by their Government. Disclosure should be Index, every two years.9 Similarly the Global In- timely."11 tegrity Initiative's annual Integrity Index checks for levels of transparency in a number of areas of · april 14, 2009: European Court of Hu- public life including elections, public procure- man Rights confirms for the first time that ment, privatization, and business licensing in 92 there is a fundamental right of access to in- countries. 10 More such surveys are needed to formation linked to the right to freedom arrive at an accurate picture of the volume and of expression and necessary for civil soci- nature of government information that is cur- ety to hold government bodies account- rently disclosed and to be able to identify where able and to create forums for public debate attention to increasing transparency is needed. (Section 4). · april 30, 2009: European Union rules re- 1.3 Proactive Disclosure quiring member states to proactively dis- close data on agricultural subsidies come in- as the Future of the to force (Section 3.2).This is the largest ever Right to Know proactive disclosure initiative to apply across the 27-member Union. This paper was elaborated during 2009, a year · May 21, 2009: U.S. Government launch- which saw a series of significant developments es Data.gov whose purpose is to give direct for the right of access to information in gener- public access to machine-readable datasets Introduction 7 generated by the Executive Branch of the · July 8, 2009: Indian government announced U.S. Federal Government. An initial 47 da- that it will be broadening the rules for proac- tasets are on line, of the thousands planned tive disclosure contained in the Right to In- for release. Openness advocates hail this formation Act (2005) to increase disclosure as an "enormous change in attitude about in "non-strategic areas" beyond the 18 core what `public' means"12 (Section 3.2). disclosure provisions of the act. Civil society · June 10, 2009: UK government announc- groups point out that there is flexibility in es that Tim Berners-Lee, one of the inven- the existing provisions and urge better com- tors of the World Wide Web, is working pliance with these.13 (Section 3.1). with to create a single online point of ac- cess for government-held public data and This paper will consider some of these de- how to use the Internet to improve gov- velopments in more depth as it examines the ernment consultation processes. Data.gov.uk proactive disclosure of information, which some was subsequently launched on January 21, experts are characterizing as "the future of the 2010 (Section 3.2). right to information." The first section, howev- · June 18, 2009: World's first treaty on ac- er, will begin with the historical development of cess to information, the Council of Europe proactive disclosure of public information and Convention on Access to Official Docu- examine some of the driving forces that have ments opens for signature; it contains a pro- lead to the development of this half of the right vision on proactive disclosure (Section 4.2). of access to information. 2 The Drivers of Proactive Transparency Four main driving forces have shaped the devel- 2.1 Proactive opment of proactive transparency through his- tory. The first is the government's need to in- Transparency and form the public of laws and decisions--and the the Rule of Law public's right to be informed. The second is the demand for information to hold governments Governments have always had pragmatic rea- accountable at and between elections. The third sons for making information available so that is the evolution of public participation in de- citizens could know and obey the laws of the cision-making, which depends on information land, something essential for a rule-of-law state being available. The fourth is ensuring that the to function effectively. The earliest forms of public is informed about how to access govern- proactive disclosure were the "criers" or "bell- ment services. men" in ancient Greece, who went through Further impetus comes from the Internet, the streets announcing news such as victories which makes possible rapid and inexpensive pro- in battles. In medieval Europe, people would active disclosure.The Internet has given us e-gov- be hired to walk through the streets ringing a ernment, large-scale public consultations, and bell, banging a drum, or blowing a horn to call direct participation in decision-making (e-de- for people's attention, and would then read out mocracy).14 Other communication technologies important news such as royal proclamations, lo- such as mobile phones provide platforms for pub- cal bylaws, warnings of danger or information lic bodies to disseminate information to wider about market days; they also played a role in audiences; in some developing countries there is passing news from village to village.16 Although greater mobile phone use than Internet access.15 in many parts of the world the town crier's role In many ways, the existence of information and has been replaced by newspapers, radio, tele- communication technologies (ICTs) is in itself vision, and now the Internet, they still exist a driving force for greater access to information in parts of the developing world transmitting and can be seen as a fifth driver of proactive trans- news from loudspeakers, sometimes mounted parency, albeit a cross-cutting one. on moving vehicles.17 9 10 Proactive Transparency: The Future of the Right to Information? With the rise of the mass media, the need Promoting public knowledge of laws and for town criers and notices hung in public plac- policies and informing citizens of their rights es decreased but public authorities around the was historically at the origin of proactive trans- world have preserved this tradition of proac- parency. The rule of law basis for proactive dis- tively disseminating information. This is partic- closure still preserves its fundamental impor- ularly the case with respect to information that tance when defining proactive disclosure rules. impacts directly on people in a limited geo- graphic area: it is common around the world 2.2 Proactive to see notices pinned to fences, gates, or trees announcing, for example, that a minor con- Transparency and struction project is planned in that locality and Accountability informing the public of the opportunities to present objections to the local authority. A second driver for proactive transparency has The need to inform the public about legis- been the public's demand for information in or- lation, policies and decisions so that they can be der to hold governments accountable for their obeyed and enforced still underpins much pro- actions and how they spend public funds. This active disclosure by government. The principle demand led both to rules requiring proactive of the rule of law requires that laws be known.18 disclosure and, more recently, to access to infor- Hence, legal regulations can only enter into mation laws. force once published in an official journal, and As concepts of democracy evolved, the rule- administrative decisions are only applicable once of-law motive for proactive transparency was received by those concerned.19 From a human joined by demands for government accountabili- rights perspective, a law must be published in a ty. In the 18th century the word "transparency" to way that facilitates public knowledge: the prin- describe open government was used in the works ciple that "ignorance of the law is no excuse" al- of political philosophers such as Jean-Jacques so places responsibilities on government to dis- Rousseau (1712­1778), who promoted trans- seminate the law. parency in his plans for the government of Po- A typical example of modern democratic land in 1772, proposing that all public officehold- practice is France, which has an extensive sys- ers should operate "in the eyes of the public" and tem for publishing all legislation, norms and even wear a uniform so that they could never be regulations. In addition to the traditional Offi- anonymous.23 Similarly, political philosopher Jere- cial Journal,20 the main 21st century vehicle is my Bentham (1748­1832) argued that "the more the "Legifrance" website,21 which holds French, closely we are watched, the better we behave."24 European and International law, has electronic In spite of this recognition of the link be- versions of France's Official Journal, latest news tween transparency and honesty or "integrity" about laws adopted, and links to the Senate and in public life, the bureaucratic model of "dis- Congress websites (See Figure 1 for a screen- creteness and secrecy"25 prevailed, with isolat- shot). In line with this, France's 1978 law, one of ed exceptions such as Sweden's long tradition the first to have some proactive disclosure pro- of open government.26 Only in the latter part visions, required publication of orders, instruc- of the 20th century did civil society demands for tions, decisions and interpretations of the law greater accountability to prevent corruption-- (See also Section 3.1).22 combined with the democratic transitions at the The Drivers of Proactive Transparency 11 Figure 1: Access to Legislative Information in France end of the Cold War--create increased pressures The OECD-EU paper then defines the for proactive disclosure of information. classes of information to be published proac- As affirmed in a 1999 joint paper from tively: the Organisation for Economic Cooperation and Development (OECD) and the European Public registers have to be made accessible Union (EU), openness and transparency serve to the general public. The agents of authori- two purposes: ty usually have to identify themselves to the public. Civil servants must accept certain re- On the one hand, they protect the public in- strictions to earnings from private activities, terest as they reduce the likelihood of mal- which have to be disclosed and authorised administration and corruption. On the other beforehand in any event. Particularly impor- hand, they are essential for protecting indi- tant to the application of openness is the ob- vidual rights, as they provide the reasons for ligation of public authorities to provide rea- the administrative decision.27 sons for their decisions.28 12 Proactive Transparency: The Future of the Right to Information? An example translating this approach in- watchdog" role and that states have an obliga- to law comes from Canada, where a series of tion to eliminate barriers to access information laws mandate proactive disclosure. In 2003, where "such barriers exist solely because of an infor- publication of travel and hospitality expens- mation monopoly held by the authorities."35 Proac- es was required for senior government officials. tive disclosure therefore plays a crucial role in In 2004, publication of all contracts worth over making social oversight of ongoing governmen- CA$10,000 (US$9,358) was required, as was in- tal activities possible, thereby strengthening ac- formation on the reclassification of public ser- countability to the public. vice positions. In 2005, proactive disclosure of all grants and contributions over CA$25,000 2.3 Proactive (US$23,395) was introduced as part of the gov- ernment's "management improvement agen- Transparency and da". Reporting is quarterly and can be accessed Participation through a simple Internet portal on the website of the Treasury Board of Canada Secretariat.29 The third driver of proactive transparency is in- Creating a level playing field for compe- creased citizen participation in decision-mak- tition in the market has been another driving ing. The decisions can range from the local lev- force towards proactive disclosure of financial el (how to make best use of a piece of wasteland, information in post-authoritarian countries. For for example) to affecting an entire nation (such example, in Chile, achieving probity (honesty) as how to develop a country's poverty reduc- in government in the post-Pinochet transition tion strategy). was seen as important not only for democratiza- Public participation can change the way tion of the state, but also as a key factor in eco- public policies are developed, reducing capture nomic growth,30 and lead to adoption of a series by special interest groups, and ensuring that de- of laws with transparency provisions.31 Great- cisions take into account the views and needs er transparency of state spending was achieved of affected communities. Although information with the "ChileCompra" electronic public pro- alone is not sufficient--additional mechanisms curement system, established in 2003.32 Finan- are necessary for receiving input from the pub- cial transparency was expanded in 2006 when lic, reviewing it, and providing feedback on how Chile's President Bachelet ordered every public this input was taken into consideration--mean- body to publish details of the spending of public ingful participation exercises are contingent on funds, contracts, and staff information; the de- the public having timely access to the same da- cree required that each body link the disclosure ta as the officials making the decision. Partici- of financial data to the ChileCompra system.33 pation cannot be effective or equal if individu- Making financial information public will als have to file requests and wait for an answer. not in itself root out corruption but does facil- In countries with high levels of Internet itate review by members of the public, civil so- penetration, holding online consultations low- ciety organizations, and journalists.34 The right ers the barriers to participation. For example, the to have access to information to hold govern- UK's Department of Health held a consultation ment accountable was confirmed in an April which was framed as follows: 2009 ruling from the European Court of Hu- man Rights, which said that access to informa- The Government has launched a consultation to tion is essential for civil society to play its "social find out what you think of plans to help improve The Drivers of Proactive Transparency 13 everyone's mental well-being and the services that 2.4 Proactive provide mental health care.36 Transparency, The consultation notice is accompanied by Government Services relevant background documents opening up for and e-Government public debate an important area of health care. In other countries, information for consul- tations can be disseminated in fliers, on notice The fourth driver for proactive transparency is boards, and by holding public meetings. These the need to inform the public about govern- approaches have been used in Latin Amer- ment services. This is a corollary of informing ica for informing the public about participa- the public about the legal rights and obligations, tory budgeting exercises. Direct consultations and has been a traditional basis for proactive dis- on budget spending priorities originated in the closure. Services may be general or for a specif- Brazilian city of Porto Alegre in the late 1980s37 ic section of the public (for example, students, and in the 1990s spread to other countries in- businesses, or parents) cluding Peru, which is the only country in the Proactive disclosure about public services world to have a national law requiring partici- has been given new impetus in the past decade patory budgeting.38 That law, adopted in 2003, by ICTs, which turn slow bureaucratic proce- has transparency as one of its key pillars39 and dures involving lots of paperwork into simple requires the publication of key budget infor- transactions with documents and guidance ac- mation. cessed at the click of a mouse. This is known The combination of the requirements un- as "e-government" and according to the World der Peru's participatory budget law and its access Bank it has "the ability to transform relations to information law40 has lead to measurable in- with citizens, businesses, and other arms of gov- creases in proactive disclosure of information. A ernment."43 June 2009 study found that half the authorities One country that has achieved significant monitored had published at least 70% of legal- advances in e-government is Estonia, which ad- ly mandated information on their websites, with opted its first "Information Society Strategy" in the highest score being 91 percent.41 1998, just nine years after emerging from the The role of transparency in facilitating par- Soviet bloc.44 Since then there has been a steady ticipation has been confirmed by internation- increase in facilitating electronic access to gov- al human rights bodies. In the Americas, the ernment services, whether it be for paying tax- Heads of State of the Organization of American es, applying for parking permits, or commenting States declared in 2004 that: "Access to informa- on draft legislation. Electronic ID cards, now in tion held by the State, subject to constitutional the possession of the majority of citizens, can be and legal norms, including those on privacy and used to interact with the government through a confidentiality, is an indispensable condition for computer or mobile phone. The Citizens' Por- citizen participation and promotes effective re- tal, a virtual representation of the state on the spect for human rights."42 The right to participate Internet, gives the public direct access to 20 is contingent on the right of access to informa- main registers of the state without leaving their tion, and that participation can only be satisfacto- homes.45 The Estonian Informatics Centre re- rily achieved through proactive disclosure of in- ports that in 2007 these services were used a to- formation. tal of 43 million times.46 14 Proactive Transparency: The Future of the Right to Information? Another advantage of ICTs is the speed This section has reviewed the main driv- with which newly created data can reach mem- ing forces for proactive transparency--the rule bers of the public. In Estonia, Cabinet meetings of law, accountability, public participation, and have been run live on the Internet and Estonian access to services. These drivers resulted in pro- citizens get to know about policy decisions as active transparency both prior to and separate- little as 30 seconds after they have been made.47 ly from the adoption of access to information E-government should not, however, replace laws. As a result, the right to request and receive existing disclosure modes in countries with low information was introduced in an environment Internet penetration. Conventional channels-- where considerable volumes of public informa- notice boards, informative leaflets, radio, tele- tion were already available. As the next section vision, and public meetings--or use of mo- will show, there is now a convergence between bile phone where relevant, permit the public proactive and reactive disclosure, with the pub- to learn about services and subventions in areas lic's right to ask for information having an im- such as health, education, employment, agricul- pact in defining which information is disclosed ture, and business, thereby contributing to hu- proactively. man and economic development. 3 Access to Information Laws and Proactive Transparency Access to information laws primarily regulate also includes a general provision on proactive the mechanisms by which the public can re- disclosure, requiring that: quest information from public institutions.48 They usually confirm the right to information The administrative authority directly con- along with a presumption in favor of granting cerned shall provide, of its own accord, infor- access--what is sometimes referred to as the mation on its policy and the preparation and principle of maximum disclosure.49 They also estab- implementation thereof, whenever the provi- lish the exceptions to access, such as protection sion of such information is in the interests of of privacy, commercial secrecy, and national se- effective, democratic governance.50 curity. Increasingly, as reviewed in this section, these laws incorporate provisions on proactive This provision is not, however, the main disclosure, clearly establishing a legal obligation source of proactive disclosure obligations in the on public authorities not only to respond to re- Netherlands; there are hundreds of informa- quests but also to "push out" information. This tion-disclosure norms. For example, a recent section also examines the impact of information review of the proactive disclosure of the sala- requests on decisions about what should be dis- ries of public officials and senior staff in state- closed proactively. owned companies revealed over one hundred rules concerning the disclosure of salaries, extra payments, bonuses, and so on.51 3.1 Incorporating In 1989 when the Berlin Wall fell there were Proactive Disclosure just 12 "access to information" or "freedom of in- into Access to formation" laws in the world, to be found mainly in longer-established democracies, and the pro- Information Laws active provisions of these laws remained limited. There are now 80 access to information laws,52 The world's earliest access to information laws reflecting efforts by civil society to redress pow- had only minimal proactive disclosure pro- er balances in formerly authoritarian regimes by visions. For example, in the Netherlands, the empowering citizens with the right to request "WOB" (Act on public access to government and receive particular pieces of information. information, 1978) establishes the mechanisms Including stronger proactive disclosure pro- for filing requests and receiving information. It visions has been part of this expansion of the 15 16 Proactive Transparency: The Future of the Right to Information? right to information. There seem to be three of Information Act (e-FOIA).57 The e-FOIA re- main reasons for this trend. The first is to es- quires proactive disclosure by electronic means tablish minimum standards for proactive disclo- of core information held by public bodies.58 sure applicable to all public bodies. The second Hungary's e-FOIA--drafted after input is to ease the burden of a new openness regime from civil society and academics--sets out the by anticipating public demand and meeting it legal requirements in significant detail. For ex- through proactive disclosure. The third is the ample, it breaks down "organizational and staff- growing recognition that proactive disclosure is ing information" into ten classes, and within an integral part of the right of access to infor- each class it lists the types of information to be mation, ensuring that core information is avail- published.There are another 18 classes for infor- able in a timely fashion: as the European Court mation on operation and activities, and a further of Human Rights has noted, information "is a six classes for financial information.59 perishable commodity and to delay its publica- Setting an obligatory minimum standard tion even for a short period may well deprive it for proactive disclosure can also be beneficial of all value and interest."53 in countries with longer democratic traditions The Mexican Law on Transparency and Ac- where levels of proactive disclosure are vari- cess to Public Information (2002)54 specifies able because practices have evolved but have not 17 classes of information for proactive disclo- been codified in law. In the UK, for example, sure.55 A strong civil society campaign behind the Freedom of Information Act initially left it the Mexican law helped shape these provisions, up to each of the over 100,000 bodies covered as it did in India where right to information ad- by the act60 to define their proactive disclosure vocates were always clear that the right places schemes, based on what these bodies had tradi- an obligation on government to publish infor- tionally made available. As a result, standards for mation proactively as well as to respond to re- proactive disclosure varied enormously across quests. The Indian Right to Information (RTI) government and between central and local level. Act (2005)56 identifies 18 classes of information For this reason, in 2008 the Information Com- that should be made public proactively without missioner's Office (ICO) used its powers under the need for requests. the act to develop and mandate a minimum set India's RTI Act laid a set of obligations over of standards for the publication scheme.61 Prior pre-existing proactive disclosure requirements in to doing this, the ICO established a multi-stake- other laws. This trend to use access to informa- holder steering group which, over 18 months, tion laws to harmonize proactive disclosure has held consultations with public authorities at all lead countries to amend their legislation with levels of government and around the country, supplementary acts, defining across-the-board and ran workshops which members of the pub- proactive disclosure for all public bodies. For ex- lic were also able to attend. ample, Hungary, whose 1992 access to informa- The classes of information that have been tion law was the first in central and eastern Eu- incorporated into the proactive disclosure re- rope, lacked strong proactive provisions. In 2005, quirements of the Hungarian, Indian, Mexi- in response to the experience of implementing can, and UK laws are summarized in Annex A, the law, concerned at the burden that requests along with the requirements of international place on both requesters and public officials, and law. By comparing these provisions it is possible responding to opportunities created by the Inter- to identify a minimum standard for information net, Hungary introduced its Electronic Freedom to be disclosed under a modern democratic pro- Access to Information Laws and Proactive Transparency 17 active disclosure regime (Section 4.3). It is im- active disclosure. A large-scale example is the portant to note that in the four countries stud- project to make European Union farm subsidies ied, consultations with the potential users of the transparent. In Europe, a network of journalists information was given due consideration in de- used access to information requests to compile fining the proactive disclosure provisions. information on exactly who receives every eu- rocent of the 55 billion of agricultural subsi- dies spent annually in the EU. The first coun- 3.2 User-driven Proactive try to release the data was Denmark in 2004, Transparency followed by the UK in 2005. This informa- tion was posted on the website Farmsubsidy.org.66 Another way the public is shaping proactive dis- The resulting stories (and in some cases scan- closure policies is through requests for informa- dals) about who was getting what money gen- tion, which provide public authorities with an erated a lot of media coverage and put pressure indicator of what the public wants to know. If on the less transparent countries of the EU to a particular document is requested frequently, it open up their files. Eventually an EU directive makes good bureaucratic sense to publish it so was adopted requiring disclosure by 30 April that future information-seekers do not have to 2009, resulting in disclosure of a wealth of addi- file a request, saving time for both officials and tional information, making it possible to identi- requestors. fy the major recipients of European farm subsi- Some laws--including those of Mexico, dies, whether they be small landholders or large Slovenia, and the United States--establish that multi-national companies.67 frequent requests should result in proactive dis- Another example of positive feedback closure. For example, the Mexican Federal Law comes from the field of budget transparency, on Transparency and Access to Public Informa- where civil society groups have taken state bud- tion (2002)62 requires public bodies to publish gets and edited the information in order to pres- "relevant and useful information," and specifies ent it in a user-friendly format. When civil soci- that one way to determine this category is that ety in Croatia prepared a citizen version of the it "corresponds to the most frequent questions budget, the Ministry of Finance adopted this made by the public."The sophisticated electron- guide as its own, thereby changing the way in ic request-tracking system developed in Mexi- which the government presents information.68 co helps to capture data on frequent requests.63 Innovative, value-added uses of public data- A similar provision in the U.S. e-FOIA bases can impact positively on proactive disclo- (1996)64 requires creation of an index, and pub- sure policies. For example, in 2007, the UK gov- lication of, frequently requested records. Spe- ernment released data about locations of bicycle cifically the act requires that all agencies "make accidents. Members of the public linked this in- available for public inspection and copying ... all re- formation to maps, making it possible for cy- cords ... [which] have become or are likely to become clists to plan safer journeys avoiding the black the subject of subsequent requests for substantially the spots. The British government has been moved same records."65 As a result of this provision, feder- by such examples to launch new initiatives to al websites in the U.S. include a page with links release ever-larger volumes of government da- to frequently requested documents. ta proactively.69 The use of information obtained under ac- In the U.S., the demand for greater access to cess to information laws can also promote pro- entire datasets so that the public can add value to 18 Proactive Transparency: The Future of the Right to Information? the data has resulted in the May 2009 launch of tralia.gov.au website encourages users to "make the web portal Data.gov, whose goal is "to im- government information even more useful by prove access to Federal data and expand creative mashing-up the data to create something new use of those data beyond the walls of govern- and exciting!"73--and in New Zealand with da- ment by encouraging innovative ideas (e.g., web ta.govt.nz. Across the European Union numer- applications). ... The openness derived from Da- ous government departments have launched ta.gov will strengthen our Nation's democracy similar direct access to raw datasets. In Denmark, and promote efficiency and effectiveness in Gov- for example, the Danish National IT and Tele- ernment."70 These are bold claims but indepen- com Agency has created a meta-portal to link dent analysts agree that this is an unprecedented users to the available data.74 initiative, based on a sophisticated understand- This section has looked at proactive disclo- ing of the added value potential when the pub- sure in national access to information laws, the lic uses these datasets to "build applications, con- impact of user feedback for proactive disclosure, duct analyses, and perform research"71 which is and how new initiatives are likely to reshape at- also referred to as "collaborative transparency."72 titudes to, and rules for, proactive transparency. The UK followed in January 2010 with the The next section looks at how international ef- launch of Data.gov.uk. Similar initiatives have forts are contributing to defining government's also been launched in Australia--the data.aus- proactive disclosure obligations. 4 International and Comparative Standards for Proactive Disclosure In spite of the increasing consistency in stan- means that they are interpretations of interna- dards for proactive disclosure contained in na- tional and constitutional guarantees;75 by devel- tional access to information laws (Section 3), the oping and explaining these standards, they point international standards are not yet significantly to good practices that governments are encour- developed. There are, however, useful references aged to adopt and implement. in declarations from intergovernmental organi- At the European level, the Special Represen- zations and in international treaties, which indi- tative on Freedom of the Media of the Organi- cate that the obligation to disclose information sation for Security and Cooperation in Europe proactively is an integral part of the right of ac- (OSCE) has noted that there is currently a "Co- cess to information. pernican revolution" taking place in the devel- This section will review these internation- opment of the public's right to know.76 Proac- al provisions, identify the classes of information tive disclosure is posited as an integral part of that whose proactive disclosure they mandate and, shift to a new paradigm for government transpar- by bringing these together with the leading na- ency. The Special Representative recommends: tional standards on proactive disclosure, map out the main classes of information that constitute Government bodies should be required emerging proactive disclosure standards. by law affirmatively to publish informa- tion about their structures, personnel, activ- 4.1 International ities, rules, guidance, decisions, procurement, and other information of public interest on a standard Setting on regular basis in formats including the use of Proactive Disclosure ICTs and in public reading rooms or librar- ies to ensure easy and widespread access.77 Many texts adopted by international bodies refer to "transparency" as a positive feature of In the Americas, standard setting has been good, democratic administration, as noted in lead by the Organization of American States' In- Section 2. In addition, a number of internation- ter-American Juridical Committee,78 which in al human rights bodies have recently made spe- 2008 developed a set of Principles on the Right cific recommendations on proactive disclosure. of Access to Information. Included at Principle These recommendations are "soft law," which 4 is guidance on proactive disclosure: 19 20 Proactive Transparency: The Future of the Right to Information? Public bodies should disseminate informa- aged."81 Examples of the classes of information tion about their functions and activities--in- that should be published proactively include: cluding, but not limited to, their policies, op- portunities for consultation, activities which [I]nformation about their structures, staff, affect members of the public, their budget, budget, activities, rules, policies, decisions, del- and subsidies, benefits and contracts--on a egation of authority, information about the routine and proactive basis, even in the ab- right of access and how to request official doc- sence of a specific request, and in a manner uments, as well as any other information of which ensures that the information is accessi- public interest.82 ble and understandable.79 The proposed mechanism is that disclosure As the next sub-section shows, these rec- be "done on a regular basis and in formats in- ommendations are now being complemented cluding the use of new information technolo- by the "hard law" of binding treaties. gies (for example web pages accessible to the public) and in reading rooms or public librar- 4.2 Proactive Disclosure ies, in order to ensure easy, widespread access."83 The Explanatory Memorandum also sug- in International gests frequency of requests as a criterion for de- Treaties termining which documents should be published proactively.84 As noted in Section 3, frequency of At present, the strongest general provision in in- requests can be an effective mechanism for en- ternational law that refers directly to proactive suring that proactive disclosure policies match disclosure is contained in the world's first bind- public interest in, and demand for, information. ing treaty on access to information, the Council In addition to the Convention on Access to of Europe Convention on Access to Official Docu- Official Documents, there are two sector-spe- ments, adopted on 18 June 2009. Article 10 re- cific treaties that contain more detail. These are quires that: the United Nations Convention Against Corruption (UNCAC)85 and the 1998 Aarhus Convention on At its own initiative and where appropriate, Access to Information, Public Participation in Decision- a public authority shall take the necessary making and Access to Justice in Environmental Mat- measures to make public official documents ters (Aarhus Convention),86 both of which define which it holds in the interest of promoting specific classes of information which ratifying the transparency and efficiency of public ad- states should take the initiative to make public. ministration and to encourage informed par- UNCAC, the first legally binding interna- ticipation by the public in matters of gener- tional anti-corruption instrument, includes pro- al interest.80 active disclosure in the chapter on preventing corruption. UNCAC obliges 142 countries to The Explanatory Memorandum to the Con- publish information about matters that include: vention elaborates on this, stating that citizens recruitment, promotion and retirement of civ- need information "to form an opinion on the il servants; funding of candidatures and political authorities that govern them and to become in- parties; and public procurement systems. UN- volved in the decision-making process. National CAC also requires transparency of anti-corrup- rules on proactive publication are thus encour- tion policies and the publication of periodic re- International and Comparative Standards for Proactive Disclosure 21 ports on the risks of corruption in the public tent with international law. In practice, legisla- administration.87 tors and public officials will need to prioritize. The most detailed provisions, however, are The driving forces for proactive transparency re- to be found in the Aarhus Convention (a UN viewed in Section 2--rule of law, accountability, regional treaty with 44 European states par- public participation, and the smooth function- ty), which regulates the mechanisms by which ing of e-Government--contribute to defining members of the public can access information which information should be made available. about the environment, particularly when that Comparing national legislation (Section 3) information is needed for participation in deci- with the international provisions reviewed in sion-making or to defend environmental rights. this section, sufficient common features can be The main elements of the Aarhus proactive dis- identified to suggest an emerging standard for closure requirements are given in Annex B. The the classes of information that should be dis- Aarhus Convention has four features that make closed as part of the proactive dimension of the it a useful model for national regimes on proac- right of access to information: tive disclosure of information: · institutional information: Legal basis of · Detailed definition of the information which the institution, internal regulations, func- must be collected by public authorities; tions and powers. · Requirement that registers of information · organizational information: Organiza- held be kept and made available to the pub- tional structure including information on lic, thereby facilitating the search for infor- personnel, and the names and contact infor- mation; mation of public officials. · Detailed list of core classes of information · operational information: Strategy and to be made available proactively; and plans, policies, activities, procedures, reports, · Granted the public direct access to databases and evaluations--including the facts and containing environmental information. other documents and data being used as a basis for formulating them. The Aarhus model also makes clear that fu- · Decisions and acts: Decisions and formal ture standard-setting initiatives on proactive dis- acts, particularly those that directly affect closure should consider both the requirement to the public--including the data and docu- collect information and specifics on the level of ments used as the basis for these decisions detail to be released. and acts. · Public services information: Descrip- tions of services offered to the public, guid- 4.3 An Emerging ance, booklets and leaflets, copies of forms, Minimum Standard information on fees and deadlines. for Proactive · Budget information: Projected budget, actual income and expenditure (including Disclosure salary information) and other financial in- formation and audit reports. In principle, all information held by public bod- · open meetings information: Informa- ies could be proactively disclosed, subject only tion on meetings, including which are open to the application of exceptions that are consis- meetings and how to attend these meetings. 22 Proactive Transparency: The Future of the Right to Information? · Decision-making & public partici- publications are free of charge or the price pation: Information on decision-mak- if they must be purchased. ing procedures including mechanisms for · information about the right to infor- consultations and public participation in de- mation: Information on the right of access cision-making.88 to information and how to request infor- · Subsidies information: Information on mation, including contact information for the beneficiaries of subsidies, the objectives, the responsible person in each public body. amounts, and implementation. · Public procurement information: De- One open question about this proposed tailed information on public procurement "standard" is whether it can be seen as a min- processes, criteria, and outcomes of decision- imum, which places immediate obligations on making on tender applications; copies of con- public institutions, or whether it is a goal to- tracts, and reports on completion of contracts. wards which public bodies should build pro- · Lists, registers, databases: Information gressively, levering up levels of transparency and on the lists, registers, and databases held by meeting targets for increased disclosure over the public body. Information about whether time (for more on progressive implementation these lists, registers, and databases are avail- see Section 5.7). In the meantime, it is clear that able online and/or for on-site access by there is a growing international consensus on members of the public. the classes of information for proactive disclo- · information about information held: sure, which this should be of value to legisla- An index or register of documents/infor- tors considering new access to information laws, mation held including details of informa- as well as to civil society advocates aiming to tion held in databases. promote a core of proactive disclosure in their · Publications information: Information countries. on publications issued, including whether 5 Proactive Transparency in Practice This section examines the practical consider- 5.1 Multiple Channels ations related to the implementation of proac- tive disclosure that may be of relevance for those for Pushing Out developing proactive disclosure schemes. The Information section is based on examination of four country experiences, namely those of India, Mexico, Slo- The important role of the Internet in making venia and the UK, along with references to oth- large-scale proactive disclosure possible (Section er pertinent national examples.89 2) has resulted in an emphasis on use of govern- Six issues related to the mechanisms of dis- ment websites for publishing information, both closing information have been identified: in laws and in practice. For public authorities, organizing information for publication on a sin- · How to ensure that proactively disclosed in- gle website helps internal information manage- formation reaches members of the public; ment. For many users, particularly those working · How to put information where it will be in civil society, business, or educational establish- found; ments with good Internet access, the website of · How to organize information in ways that each public authority is a convenient place to make it relevant to users; search for information. On the other hand, there · How to ensure that in addition to disclos- is a risk that the information will not reach oth- ing complete information, core information er users who do not have good Internet access. is presented in a way so that it can be easi- This concern is reflected in the Indian RTI ly understood; Act, which refers to "various means of commu- · Whether proactively disclosed information nications, including Internet, so that the pub- should be free of charge; and lic have minimum resort to the use of this Act · How to ensure timely disclosure, taking into to obtain information."90 The Act goes on to consideration the need to apply exceptions. require that "every information shall be dis- seminated widely and in such form and man- Consideration of each of these issues is fol- ner which is easily accessible to the public" and lowed at Section 5.7 by recommendations. notes that "all materials shall be disseminated 23 24 Proactive Transparency: The Future of the Right to Information? taking into consideration the cost effectiveness, ily be found by users. The most common solu- local language and the most effective method tions are either to publish information on the of communication in that local area." The ex- websites of each government body or to gather planatory note states that "disseminated" means it in a central transparency portal. "making known or communicated the informa- The first solution makes sense for bod- tion to the public through notice boards, news- ies with pre-existing websites. In the UK, for papers, public announcements, media broad- example, most public bodies now have a front casts, the Internet or any other means, including page button marked "freedom of information" inspection of offices of any public authority." or "access to information" which takes users to These provisions make sense in a coun- a dedicated section on how to request informa- try where Internet penetration is just 7.1 per- tion, as well as details of the proactive "publi- cent,91 and are necessary to ensure equality of ac- cation scheme." An example is the UK Minis- cess to proactively disclosed information.92 The try of Defence website97 (see Figure 2), whose OSCE--whose 56-member states stretch from good-practice features include: clear access from Canada, with 84% Internet penetration, to Tajiki- the front page to the "Freedom of Information" stan, with 6.7 percent93--recommends that infor- section; a well-laid out page on how to request mation should be published "in formats includ- information; a disclosure log containing answers ing the use of information and communication to requests previously received; a section on the technologies and in public reading rooms or li- "Top Choices" items being requested and/or braries to ensure easy and widespread access."94 downloaded from the Ministry; and a button by Low levels of Internet access for public au- which members of the public can rate the web- thorities themselves, particularly at the local or site (at time of writing the rating was 3 out of 5 municipal level, can pose a problem. This was stars, based on 2,480 votes). anticipated in Macedonia's 2006 Law on Free The second solution is a central portal, Access to Public Information,95 which gives the which has the benefit of providing the pub- local authorities alternative means of disclosure lic with a one-stop shop for accessing all infor- including notice and bulletin boards--some- mation whose proactive disclosure is required thing that can be preferable in rural areas with by law. Central portals overcome the problem low levels of Internet penetration.96 of some bodies not having websites, provide a Sometimes publishing is not enough and ef- powerful incentive for public bodies to upload forts should be made to ensure that proactively their information (since any gaps are more vis- disclosed information reaches user communities ible), and make it easier for oversight bodies to and affected stakeholders, such as through radio, verify compliance with legal requirements. television, and public meetings. Perhaps the most ambitious such portal is the Mexican "Transparency Obligations Portal" 5.2 Access Points for (Portal de Obligaciones de Transparencia, hereinafter Transparency Portal),98 run by the Information Proactively Disclosed Commissioners' Office (Federal Institute of Ac- Information cess to Information, IFAI by its Spanish acronym), to ensure compliance with the proactive disclo- In countries where the Internet is a primary ve- sure rules of the Federal Law on Transparency and hicle for proactive disclosure, the challenge is Access to Information (2002) and to provide the how to organize it so that information can eas- public with direct access to that information. Proactive Transparency in Practice 25 Figure 2: UK Ministry of Defence Freedom of Information Homepage The Transparency Portal is organized ac- the position of an official with the salaries sec- cording to the provisions of Article 7 of the law, tion of the portal reveals that the net month- as shown in Figure 3. Users can select whether ly salary for the position of President is 146,830 to search by information category or by institu- Mexican Pesos (US$10,639) and that of a library tion, and then enter a more detailed search en- sub-director (level NA1) is 21,092 Mexican pe- gine. A quick search in the Directory of Public sos (US$1,528). Officials for a common name picked at random, The Transparency Portal results from a Juan Gomez, returned 37 federal public employ- commitment to invest in technological solutions ees in a range of positions, including a deputy to make proactive transparency work in prac- director of a library and a specialist in hydrau- tice and to help the public find the informa- lics; contact information such as phone numbers tion disclosed. The portal was not foreseen in and e-mails is given. The name of the President, the 2002 law, but in response to mixed compli- Felipe Calderon, returned only one result with ance, the IFAI decided to invest the equivalent no phone number but with his work e-mail ad- of US$300,000 in building it, following a posi- dress. Cross-referencing the information about tive experience with the System of Information 26 Proactive Transparency: The Future of the Right to Information? Figure 3: Mexico's Transparency Portal Requests (or SiSi by its Spanish acronym), a ample, budget information and contracts, and al- portal for filing requests.99 low more sophisticated searches (for example, to Launched in early 2007, the Transparen- enable a search for all the contracts issued by a cy Portal now holds millions of registers (in- particular official across all public bodies he or cluding 1.3 million contracts and 1.6 million she may have worked in). entries in the register for concessions, permis- Sitting somewhere between the Mexican sions, and authorizations). In 2008 there were centralized portal and the UK's decentralized almost 14 million consultations.100 The most approach, is Hungary's hybrid model: searches popular information is the directory of public can be made on the central portal which then servants, the details of the salaries of public ser- directs the user through to the government vants, the register of concessions and the regis- body which has published the information; in- ter of contracts. formation is not actually stored on the portal. For the IFAI, one key to the success of the This model relies on each body updating their Transparency Portal has been to require data websites (which has been a problem in prac- submission in a standard format, thereby ensur- tice), but has advantages for users looking for ing consistency when searching and cross-ref- information by giving them both the depart- erencing. Planned reforms include making the mental websites and the central portal's search portal more user-friendly and increasing ac- function. cess to historical information.101 Future changes Whether publishing information via the In- should result in stronger links between, for ex- ternet or using other communication channels, Proactive Transparency in Practice 27 due attention should be given to ensuring that it is currently being developed for "social" or "cit- is located in places where members of the public izen" portals to complement the Mexico City will have few problems in finding it. transparency portal where core financial infor- mation is available to the public.103 The citizen- oriented portals are organized by themes such as 5.3 Making Information environment, security, or political programs.104 Relevant In Slovenia, an initiative to link the proac- tive disclosure requirements in the 2003 access The public reaction to central portals has been to information act with the 2001 e-government mixed. For civil society and anti-corruption ac- and e-democracy strategy, resulted in the "e- tivists, such portals are exciting since they give Uprava" (e-government) which aims to provide access to detailed financial information at the a one-stop access to services organized around click of a mouse. For the ordinary citizen, how- "life events" such as the birth of a child, selling a ever, once initial curiosity about the salaries of car, or starting a business.105 the President and their civil servant neighbor To date 71 percent of services are accessible has been satisfied, much of the information in online, putting Slovenia into second place in the central portals is out of context and not relevant EU on an indicator of sophistication and avail- to daily life. For this reason, Mexican activists re- ability of e-services.106 At the same time, each port that the Transparency Portal is well inten- government body is required to maintain web- tioned but "cold and technical." sites which are "at all times accessible, available, Responding to such concerns, while retain- rational and user-friendly,"107 and must publish ing the benefits of centralized portals as, literal- on these all the information mandated under ly, doors by which citizens can "enter govern- the 2003 Access to Public Information Act108 ment,"102 a new approach is being taken at the and its implementing regulation.109 This latter Mexico City level to identify the public's infor- includes information on services, also organized mation needs. This initiative by the Information by the logic of "life events, business events, em- Commission (InfoDF), civil society (including ployee events, events for bodies and public sec- the NGO Fundar) and government working tor organizations."110 The Slovenian Ministry of together, has identified four indicators: 1) the Public Administration reports that having this number of requests for particular information; information as part of the proactive disclosure 2) the number of clicks on specific government requirement as well as the e-government initia- web pages; 3) feedback from round tables with tive ensures that it exists in digital format and is civil society and the public; and 4) information available to the public via the maximum possi- associated with the exercise of a right, such as ble number of channels (hard copies should be the right to water, unemployment benefit, secu- available to those without Internet access). rity, or a healthy environment. Another approach is to have a number of In these consultations, one key problem portals organized by theme or sector. In Can- identified was that the public does not always ada, information relating to a particular sec- know precisely which government body deals tor of government activity is collected in one with which services. For example, in the criminal place, such as the Canadian Treasury Board por- justice system, what are the precise roles of police, tal for proactive disclosure referred to in Section prosecutors, judges and penitentiaries and who 2.2. Sectoral portals offer a solution to ensuring has which information? As a result, a structure transparency of a particular class of information 28 Proactive Transparency: The Future of the Right to Information? Figure 4: Slovenia's e-government portal (English home page) and place a smaller demand on resources than ficial documents (the Ministry of Defence web- the panopticon of a single central web portal. site referred to in Section 3.1 carries the cam- paign's crystal mark award for clarity).112 Holding public consultations (See examples 5.4 Comprehensible of Mexico above and the UK) and evaluating the Information uses made of information (Section 3.2) contribute to defining which information should be priori- Another challenge is to ensure that information tized for disclosure in user-friendly formats. is also "accessible" in the sense of being clear and Making information more easily digestible comprehensible by the majority of the popula- for the public should not, however, replace hav- tion.111 As noted in Section 4.1, the Organiza- ing it available in the original format, as this is tion of American States recommends that infor- essential for there to be real transparency. A cre- mation be "understandable." ative solution to combining both raw data and As of yet, proactive disclosure provisions in user-friendly presentation is the use of informa- national law do not incorporate this require- tion design techniques such as mapping. This ment although it is possible to identify good has been done to good effect by the Govern- practices. Examples include the citizen budgets ment of the District of Columbia in the Unit- mentioned in Section 3.2 and voluntary com- ed States, which has a website dedicated to live pliance by public institutions in the UK with data feeds of government information, thereby the "Plain English Campaign," first launched in giving direct access to complete datasets.113 To 1979, with the aim of removing jargon from of- make the information more meaningful for the Proactive Transparency in Practice 29 public, some data sets are mapped onto Google age of information that falls under a publication maps, for example the information about issu- scheme.117 In India, on the other hand, decisions ance of construction permits shown in Figure 5. by the Central Information Commission have This system also gives the references that can be established that for information which by law used to search for additional information.114 should be proactively disclosed, it is sufficient With respect to translation into multiple for requestors who do not have Internet access languages, none of the countries surveyed had to make an oral request (that is, there is no need formal requirements for information to be in to file a request in writing) and the informa- languages other than the official languages of tion should be provided immediately without the country or of the local administrative ar- charging any fee.118 Similarly, the Macedonian ea.115 This should, however, be a consideration Law on Free Access to Public Information establish- in countries where more than one language is es the principle of free access to proactively dis- spoken and where not all the population uses closed information, irrespective of the format or the main language of the administration. For ex- volume of that information, or whether it is ac- ample, in India the vast majority of federal gov- cessed by the Internet or by other means.119 ernment information is in English whereas at A useful consideration here is that publicly the state level information is almost always in held information has been created with taxpay- the official languages of the state; for those who ers' money, so it is appropriate to release it with- do not speak English, accessing the federal level out further charges. In some countries, however, information is a problem.116 there is a long tradition of charging for certain For information to be of optimum public information collected by government agen- value, it should be published in the languages of cies, such as geographic information, statisti- user-communities and presented in an accessible cal data, and even consolidated laws. Although way. This should be a priority when planning-- this is seen as a legitimate opportunity to gener- and allocating resources to--any proactive dis- ate additional revenue for the administration, it closure scheme. is questionable in the right-to-information era. One country which has solved this problem is 5.5 Charges for Slovenia, where the Information Commissioner has ruled that access to public databases shall al- Proactively Disclosed ways be free of charge when the use to be made Information of the information is in the public interest, a rul- ing which should encourage proactive disclo- Charges for information can prove an obstacle sure of databases.120 to access for members of the public less able to pay.The great benefit of disclosure via the Inter- net is that, if information is published on a web- 5.6 Information site as an html page to which no password ac- Management cess is required, it is free of charge to those who for Timely and visit the website. This then raises a question of whether information published proactively in Complete Disclosure other formats should also be free of charge. In the UK, public authorities are permit- In order to ensure that information for pro- ted to charge for the photocopying and post- active disclosure is released in a complete and 30 Proactive Transparency: The Future of the Right to Information? Figure 5: Construction Permits in Washington DC timely fashion, a public authority needs to have The UK Information Commissioner's good information management systems and guidance for a Model Publication Scheme rec- needs to plan ahead for proactive disclosure, for ommends that public bodies should "review example by planning how any legitimate ex- and update [information] on a regular ba- ceptions will be applied to documents and da- sis."122 A good practice example is that of the tasets so that information can be released as rap- UK Ministry of Defence website (Section 5.2): idly as possible. many of the articles and reports on the site car- One of the most common complaints that ry a date indicating when the information was arise when reviewing compliance with proac- uploaded. tive disclosure is that information is not regu- Indicating when information will "expire" larly updated, thus undermining public confi- is important if it is only valid for a fixed peri- dence and potentially causing problems for users od of time (for example, when a public consul- who might be relying on information that is not tation will close, or when an opportunity to ap- accurate. The Hungarian e-FOIA, with its pen- ply for subsidies will end), so that people do not chant for detail, specifies when each class of in- lose opportunities or act based on outdated in- formation should be updated. So for example, formation. information about tenders has to be continu- Information can be compiled in ways that ously updated, whereas other data, such as per- facilitate rapid disclosure. The Washington DC formance indicators, should be updated quarter- contracts database in this section is an example ly.121 In practice however, not all bodies regularly of this: when new information is added to the update their information, which, reports say, un- database, it comes online automatically. Hence dermines confidence in the central portal. the database has disclosure "designed in." Proactive Transparency in Practice 31 A potential obstacle to timely disclosure is of information to assure rapid release while at the need to apply exceptions to documents or the same time guaranteeing that any important datasets before releasing them. Given the im- interests to be protected by exceptions are not portance of some of the core classes of infor- negatively affected. mation to be released under proactive disclosure regimes, legislators may choose to exclude cer- tain classes of information from the scope of the 5.7 Proactive Disclosure exceptions regime or define precisely the limits Principles of the exceptions. For example, requiring con- tracts to be published with a certain level of de- The issues reviewed in this section lead to a tail, or ordering the proactive disclosure of the number of guiding principles for the design and expenses claims of public officials, even where implementation of proactive disclosure regimes previously some of this information might have so that information is: been exempted on "commercial confidentiality" or "privacy" grounds will prevent doubts about 1. available: Public information should be the exceptions delaying or blocking proactive proactively disclosed through multiple com- disclosure of the information by all public in- munication channels to ensure that it reach- stitutions. es relevant sectors of the population. Hence, On the other hand, where exceptions might proactive disclosure should make full use of, apply, the information will have to be redact- but not be limited to, the Internet. Infor- ed prior to proactive disclosure. For example, mation should also be actively disseminat- France's access to administrative documents ed by other means, including notice boards, law anticipates the severing of proactively dis- leaflets, public libraries, mobile phones, ra- closed information, requiring that "unless other- dio, and TV, and at public meetings where wise specified by law, administrative documents appropriate. ... may not be made public until they have been 2. Findable: Information proactively dis- subject to a process by which it becomes im- closed on the Internet, or using other for- possible to identify the names of individual per- mats and communications channels, should sons or in general to access personal data. When be organized so that it is easy to find. Us- information is stored electronically, it is possi- er's information needs should be a prima- ble to anticipate disclosure when building data- ry consideration when determining where bases. For example, if a register of information to publish information, including whether containing the names of private individuals is to to opt for departmental, central, or sectoral be made public, one solution is to build the da- web portals. tabase in a way that permits officials to see the 3. relevant: Relevance has two dimensions: names while members of the public can see the that the information itself is of value (the remainder of the information but not identify classes of information) and that it is orga- the individuals, thereby respecting personal data nized in ways meaningful to the end user protection rules.123 (logic of presentation). Consultations with As proactive disclosure becomes an increas- stakeholders--including civil society, busi- ingly important aspect of the right to infor- nesses, and members of the public--are rec- mation, more thought and resources should be ommended to arrive at solutions which make dedicated to the management and structuring sense to potential users, such as organization 32 Proactive Transparency: The Future of the Right to Information? by type of service, by policy issue, by life should never be charged for even if provid- events, or by thematic areas.The goal should ed in hard copy or other formats (for exam- be that citizens can quickly and easily locate ple, in Braille). Charges for copies or postage the information that corresponds to their for other proactively disclosed information needs. may be levied but must be reasonable and 4. Comprehensible: Core information from according to pre-established fees. public bodies should be disclosed in full, 6. Up to date: Information is of little value and information of particular public inter- if it is not timely and correct. Proactively est should be made available in a way which disclosed information should be regular- is comprehensible for members of the gen- ly updated and all electronic or hard cop- eral public. This principle requires that in- ies should make clear when the informa- formation be presented clearly in the major tion was released or updated. Information languages of user communities. At a min- should be created and stored in ways that imum, information should be available in anticipates disclosure and therefore the de- all the official languages of the state or re- sign of information platforms should take gion; where there are significant numbers into account the need to sever information of speakers of other languages, information that can be subject to legitimate exceptions. should also be prepared and disclosed in those languages. This section looked at the considerations 5. Low cost or free: Proactively disclosed in- that impact on the accessibility and quality of formation should be available free of charge information released under proactive disclosure. if made available electronically, and core The next section focuses on the structural con- classes of information (laws, the budget, an- siderations for public authorities setting up or nual reports, forms for accessing services) strengthening a proactive disclosure regime. 6 Funding, Promoting, Monitoring and Enforcing Proactive Disclosure The human and financial resources that lie be- documents over five to ten years old for exam- hind a proactive disclosure system are essential ple). The cost of this can be weighed against the to its effective functioning. This section exam- increased internal benefits of better information ines issues of resources, training, and oversight. management, as internal filing systems are or- dered and digitized, and from the increased abil- ity to share information not only with members 6.1 Funds to Get of the public but also with other public bodies, Information Flowing as well as the reduced burden of responding to requests from the public. Typically proactive disclosure regimes have high start-up costs but, over time, having such systems in place is likely to save money.124 Linking pro- 6.2 Progressive active disclosure to e-government (services) and Implementation e-democracy (participation), rather than having them run in parallel, can reduce costs while en- It may also be appropriate to roll out proac- suring that the information disclosed responds tive disclosure over time. This was done in Pe- to the needs of the public. Even where individ- ru, where central government bodies were re- ual information requests received via e-mail or quired to establish websites within one year of through the post still have to be processed, it be- the adoption of the law, but other regional and comes much easier for officials to respond when local bodies were given up to two years from the the information is already on the web or in a next regional or municipal elections.125 Another manual. Proactive disclosure thereby supports approach would be to start with the obligation effective record management. to ensure disclosure of core information that is For countries planning to use the Internet as not subject to any exceptions and can be pub- the primary vehicle for disclosing information, lished immediately. Subsequently, as capacity information will need to be in digital format. grows, access can be provided to more complex Resources may therefore be needed for digitiz- datasets or those that may contain some sensitive ing slightly older information (the scanning of information that needs to be severed. 33 34 Proactive Transparency: The Future of the Right to Information? 6.3 Training Officials In Mexico, monitoring by the IFAI of lev- els of compliance with the proactive disclosure and Raising Public obligations showed high levels of compliance by Awareness the federal administration rising from 80.6% in 2004 to 95.5% in 2007.126 The introduction of For a proactive disclosure regime to be effective, the Transparency Portal (Section 5.2) in 2007 public officials need to be trained and the pub- lead to a more sophisticated indicator and com- lic needs to know about the availability and lo- pliance dropped to 82.2%.127 cation of the proactively disclosed information. Other oversight bodies do not report similar The responsibility for these tasks can be assigned statistics. Nevertheless, a number of civil society to the information commission or commission- and private sector monitoring studies in India er where such a body exists, or another relevant have found very poor levels of compliance with public institution. the proactive disclosure provisions of the Indian The main tasks which need to be carried RTI Act, being as low as 30%, with information out, particularly in the early years of an expanded out of date where it is published. This is attrib- proactive disclosure regime, are supporting pub- uted to poor records management, lack of train- lic bodies as they prepare information for dis- ing, and low awareness of obligations under the closure, training public officials, giving guidance, RTI Act. One survey found that 43% of Public disseminating lessons learned and best practic- Information Officers were not aware of the pro- es, and educating members of the public so that active disclosure requirements at all.128 they know where to look for information. 6.5 Enforcing Proactive 6.4 Monitoring Levels of Disclosure Proactive Disclosure For a proactive disclosure regime to be effective, Monitoring will provide feedback on how well there need to be mechanisms by which it's en- the implementation of proactive disclosure is ad- forced and non-compliance sanctioned. A num- vancing. It makes sense that information com- ber of information commissioners or commis- missioners or similar bodies have responsibili- sions, including those in the UK, Mexico and ty for monitoring proactive disclosure. External India have oversight of the provisions on proac- experts can also undertake research and moni- tive disclosure. toring of levels of disclosure. From the countries In India, for example, members of the pub- considered in this paper, there are limited exam- lic can take complaints to the national--or ples of monitoring of proactive disclosure by of- state-level information commissions as relevant ficial or oversight bodies: for violations of their right to information un- In the UK, monitoring of levels of proactive der India's RTI Act, including where there is a disclosure by the Information Commissioner's failure to publish information proactively. The Office led it to make the decision to move from information commissions can in turn order that a voluntary to a mandatory minimum standard public authorities take appropriate measures. when it was found that the quality of proactive One such measure is publishing and disseminat- disclosure was uneven across government. ing "detailed, complete and unambiguous infor- Funding, Promoting, Monitoring and Enforcing Proactive Disclosure 35 mation" within a fixed time (for example, the 1. Well-resourced: Sufficient resourc- Indian Embassy in Washington DC was ordered es should be dedicated to setting up or ex- in December 2008 to update its website with- panding proactive disclosure regimes. It is in 30 days).129 Another measure is the conver- important that the short-term demand on sion of records to electronic form, suitably cat- time and money does not prove an obstacle alogued and indexed, in order to ensure ready that undermines the long-term benefits of availability on the Internet. The Commission proactive disclosure. can order that particular classes of information 2. Progressive: New proactive disclosure re- should be published if these are deemed to fall gimes should aim to build on an initial base within the provisions of the RTI Act, and can of core classes of information that meets impose sanctions on public bodies if it believes pressing public information needs, gradual- that failures were deliberate.130 ly increasing the volume and scope of ma- The oversight by information commissions terial released. is more complex when proactive disclosure pro- 3. Promoted: Public officials should be visions are spread across a number of laws. This trained on how to comply with proactive situation is solved in France by giving the Com- disclosure rules, how to prepare informa- mission on Access to Administrative Documents tion for release, how to apply exceptions, oversight of the relevant provisions of 23 laws and how to make most effective use of both apart from the Law on Access to Administrative ICTs and traditional dissemination chan- Documents.131 nels. Public education campaigns should Ensuring that information commission- sensitize people to the existence and loca- ers or commissions have oversight over compli- tion of information so that it can be found ance with all proactive disclosure provisions in and used. all laws is recommended to ensure that all public 4. Monitored: Data should be collected on bodies comply with proactive disclosure obliga- the levels of proactive disclosure in order tions, and also to permit members of the pub- to identify which bodies have been suc- lic to raise concerns about failures to disclose in- cessful in rolling out proactive disclosure formation proactively--even if they are not sure schemes, which are facing problems, and to under which law the information should have try to identify the underlying reasons be- been published. hind lack of compliance and how to over- come them. 5. enforced: Oversight bodies should have 6.6 Recommendations the power to review compliance with pro- for Implementation active disclosure, should receive regular re- of Proactive ports, should undertake ex officio investi- gations and receive complaints from the Disclosure Regimes public, and should be empowered to order appropriate action to ensure compliance. The systems for introducing or expanding pro- active disclosure regimes need to be: 7 Conclusions and Recommendations for Future Research The history, law, and practice reviewed in this From surveying proactive disclosure in paper demonstrate that proactive disclosure is practice, it is possible to identify the principles integral to the transparency that underpins good that should govern implementation. Further re- government, and in that sense has always been search is needed on the experience of imple- part of the right to information, even preceding menting proactive disclosure regimes, including the more recent development of access to infor- study at the departmental level of best practices mation laws. and lessons learned. Information commissioners The precise standards for what information or other oversight bodies need to gather more should be proactively disclosed are still being detailed empirical data on levels of compliance defined, but it is possible to identify common with proactive disclosure rules. classes of information which should form the Research is also needed into the start-up minimum of any national access to information and maintenance costs for proactive disclo- regime. Further comparative mapping is needed sure regimes, and how to best allocate limited to map out core classes of proactive disclosure in resources to scale up proactive transparency. A a larger number of jurisdictions in order to re- deeper understanding of the impacts of proac- fine this standard. tive disclosure on reducing the burden of re- Further research and standard-setting work quests (or possibly of stimulating yet more re- is also needed to refine the level of detail of quests!) could be studied in order to plan for what must be disclosed as mandated by proac- the resources needed to achieve transparency tive disclosure rule. This could perhaps be best through proactive disclosure. achieved by looking at standards in particular In order for disclosure to be "designed in" sectors. For example, taking public procurement to government data as it is compiled and as doc- contracts or assets declarations and establishing uments and databases are created, due consider- agreed minimum standards for what should be ation needs to be given to how exceptions will contained in the published version of these doc- be applied so that information can be released uments.The work done on the Aarhus Conven- as rapidly and easily as possible, on a large scale, tion and current initiatives to define levels of without the need for extensive review by public detail for classes of information for aid transpar- officials. Further research is needed into the cur- ency are examples of how this is of value in spe- rent best practice solutions for how to do this cific sectors. from both a legal and a technical perspective. 37 38 Proactive Transparency: The Future of the Right to Information? The collection of comparative and empir- into account data on the public use of and de- ical data recommended here will significantly mand for information, as well as the needs and contribute to the standard-setting work on pro- interests of all sectors of society. If done effec- active disclosure that awaits governments, inter- tively, the result will be greater and more equal national bodies, information commissioners, and access to information whose use and reuse will civil society. Future standard setting should take be of benefit to society as a whole. Annex A: Classes Information Comparative Council Classes of Types of of Information Information Europe OSCE OAS Hungary India Mexico UK Institutional Legal basis of the ü ü ü ü ü ü ü Information institution, internal regulations, func- tions and powers Organizational · Organizational ü ü ü ü ü ü ü Information structure includ- ü ü ü some ing information on personnel, names and contact infor- mation of public officials · Salary information Operational Strategy and plans, ü ü ü ü ü ü ü Information policies, activities, procedures Decisions and Decisions and for- ü ü ü ü ü ü ü Acts mal acts, particularly those that directly affect the public Public Services Descriptions of ser- ü ü ü ü ü ü ü Information vices offered to the public, guidance, booklets and leaf- lets, copies of forms, information on fees and deadlines Budget Projected budget, ü ü ü ü ü ü ü Information actual income and expenditure and other financial information, audit reports and evalu- ations (continued on next page) 39 40 Proactive Transparency: The Future of the Right to Information? Council Classes of Types of of Information Information Europe OSCE OAS Hungary India Mexico UK Subsidies Information on the See bud- See ü ü ü ü See Information beneficiaries of get info budget budget subsidies, the objec- info info tives, amounts and implementation Public Detailed information ü ü ü ü ü ü ü Procurement on public procure- information ment processes, cri- teria and outcomes of decision-making on tender applica- tions; copies of contracts, reports on contracts and other spending of public funds Decision- Information ü ü ü ü ü ü ü Making decision-making & Public Par- procedures ticipation Information on mechanisms for consultations and/or public participation in decision-making Open meet- Information on ü ü ings informa- meetings includ- tion ing which are open meetings and how to attend these meetings Lists, Regis- Information on the ü ü ü ü ters, Data- lists, registers, and bases databases held by the public body. Information about whether these lists and registers and databases are avail- able on-line and/ or for on-site access by members of the public. Information on the databases accessible on line Publications Information on ü ü Information publications issued, including whether publications are free of charge or the price if must be purchased (continued on next page) Annex A Classes Information Comparative 41 Council Classes of Types of of Information Information Europe OSCE OAS Hungary India Mexico UK Information An index or register ü ü ü ü ü about Informa- of documents/infor- tion Held mation held; details of information held in databases Information Information on the ü ü ü ü ü about the right of access to Right to Infor- information and how mation to request infor- mation, including contact information for the responsible person in each pub- lic body Annex B: Summary of the Proactive Disclosure Features of the Aarhus Convention The Aarhus Convention has four features that · Facts and analyses of facts which it consid- make it particularly unusual and a positive mod- ers relevant and important in framing major el for national regimes on proactive disclosure environmental policy proposals. of information. · Explanatory material on environmental ac- First, the Aarhus Convention mandates tivities. the collection of specific classes of information · Information on the performance of public about the environment. These classes of infor- functions or the provision of public servic- mation include information on the state of the es relating to the environment by govern- environment (including the state of the air, wa- ment at all levels. ter, and soil), information about factors which · Information which enables consumers to might affect the environment (substances, en- make informed environmental choices. ergy, noise, radiation), information about plans · Legislation and policy documents such as which might affect the environment (policies, documents on strategies, policies, programs legislation, programs) and information about and action plans relating to the environ- the state of human health and living conditions ment, and progress reports on their imple- (including buildings and cultural sites) which mentation, prepared at various levels of gov- might be affected.132 Public authorities are re- ernment. quired to keep this information up to date.133 · International treaties, conventions and Second, the Aarhus Convention requires agreements on environmental issues. public bodies to inform the public of the in- · Other significant international documents formation that they hold and how it may be on environmental issues, as appropriate.136 accessed.134 This should be done, inter alia, by maintaining lists, registers and files on the infor- In addition, under an additional protocol mation held and making the information con- adopted in 2003, parties are required to establish tained in these lists and registers available free of and make publicly accessible national "pollut- charge.135 ant release and transfer registers" which are in- Third, parties to the Aarhus Convention ventories of pollution from industrial sites and should ensure that certain information is made other sources. According to the Aarhus Conven- public including: tion Secretariat, the goal is that by "regulating 43 44 Proactive Transparency: The Future of the Right to Information? information on pollution, rather than pollution At a minimum the information to be made directly, the Protocol is expected to exert a sig- electronically accessible should include: nificant downward pressure on levels of pollu- tion, as no company will want to be identified · Reports on the state of the environment as among the biggest polluters."137 to be published regularly and at least every Fourth, parties to the Aarhus Convention four years; are required progressively to make environmen- · Texts of legislation on or relating to the en- tal information available through electronic da- vironment; tabases "which are easily accessible to the public · Policies, plans and programs on or relat- through the public telecommunications net- ing to the environment, and environmental work,"138 a forward looking provision adopted agreements; and in 1998 anticipated the ever-increasing spread · Other information, to the extent that the of the internet and its value as a tool for rap- availability of such information in this form idly and cheaply delivering information to the would facilitate the application of national public. law implementing this Convention. Endnotes 1 This paper considers access to information held by all 2INFO.org, page on Constitutional Provisions, last accessed government branches, including the executive/administra- on 27 March 2010. This website contains sections on the tion, the judicial, and legislative branches, as well as private access to information provisions of national constitutions, bodies performing public functions or operating with pub- details of national laws, and relevant comparative analysis lic funds; these are referred to as public bodies or sometimes about the right to information. 9 public institutions or public authorities. The International Budget Partnership's Open Budget 2 It could be considered that there are other ways that in- Index, page on Open Budget Index 2008 Rankings, at: formation enters the public domain, such as classified in- http://openbudgetindex.org/files/Rankings2008-Revised.pdf, formation which is leaked to the media, but this paper last accessed on 27 March 2010. Interestingly, some newer considers the two main mechanisms which are regulated democracies emerge as leaders, with countries such as Bra- by law and/or defined by good practice, such as in access to zil, Slovenia, Poland, Peru, South Korea, the Czech Repub- information or freedom of information laws. Paid advertis- lic and Sri Lanka, all scoring higher than Germany for the ing by government bodies in order to communicate with indicators which measure the quantity and quality of bud- the public, for example to announce open tenders, is con- get information that is proactively disclosed. 10 sidered to be part of proactive disclosure although it is not Global Integrity Initiative, Global Integrity Report: specifically examined in this paper. 2009, www.globalintegrity.org, last accessed on 27 March 3 Proactive disclosure is also known as active disclosure (this 2010. The surveys also assess accountability of each of the term is used in the United States for example) and as suo executive, legislative, and judicial branches through indica- moto disclosure, from the Latin for "upon its own initiative" tors such as disclosure of assets declarations. 11 (this term is used in India). The White House, President Barack Obama's Memoran- 4 Proactive disclosure by public bodies is distinct from the dum for Heads of Executive Departments and Agencies, http:// obligations that government places on private bodies to www.whitehouse.gov/the_press_office/FreedomofInformatio- disclose information, such as nutritional labeling on food, nAct/, last accessed on 27 March 2010. A second, com- warning notices with medicines, financial reporting by plementary memo on "Transparency and Open Gov- companies to shareholders, or car safety ratings. These are ernment", also issued on 21 January 2009, expanded this referred to as "targeted transparency" requirements by re- commitment: "My Administration will take appropriate searchers Archon Fung, Mary Graham, and David Weil at action, consistent with law and policy, to disclose infor- the Harvard Kennedy School of Government. See www. mation rapidly in forms that the public can readily find transparencypolicy.net. and use. Executive departments and agencies should har- 5 An example of this has been the public disclosure of land ness new technologies to put information about their op- ownership records in rural areas of India. Interview by e- erations and decisions online and readily available to the mail with Shekhar Singh, January 2010. public. Executive departments and agencies should also so- 6 In some countries, such as Mexico, information request- licit public feedback to identify information of greatest use ers have the option of filing requests anonymously, but this to the public." See http://www.whitehouse.gov/the_press_of- is an unusual option. It was argued that in India anony- fice/TransparencyandOpenGovernment/, last accessed on 27 mous requests would detract from the incentive to mobi- March 2010. 12 lize people against corruption and to confront the corrupt. Ellen Miller, Executive Director of the Sunlight Foun- 7 Examples would be public officials who should provide dation, cited in Wired Magazine, http://www.wired.com/ information on tenders to companies that ask for them or wiredscience/2009/05/datagov-launches-to-mixed-reviews/. 13 provide subsidies to farmers, but who withhold informa- Communiqué of Commonwealth Human Rights Ini- tion in order to control the allocation of resources. tiative, 8 July 2009, on file with the author. 14 8 Right2INFO.org, Good Law and Practice, edited by An example of electronic democracy is the holding of Sandra Coliver, Open Society Justice Initiative, www.Right- elections over the Internet. On 4 March 2007, Estonia held 45 46 Proactive Transparency: The Future of the Right to Information? the world's first national general elections with an Internet the notion of open government in the sense of public ac- voting option. A total of 30,275 citizens used this option cess to government documents. 24 to vote for candidates to the Estonian Parliament. In Swit- Ibid. 25 zerland, e-voting has been used in canton-level referenda. Organisation for Economic Cooperation and De- Hence, not only is information delivered to the public by velopment, European Principles For Public Administration, the Internet, but it is the channel by which the public re- OECD and the European Union, 1999, Sigma Papers: sponds to that information. No. 27, Paris, page 12, http://www.sigmaweb.org/datao- 15 In Africa one third of the population has a mobile ecd/26/30/36972467.pdf, last accessed 27 March 2010. 26 phone. The Guardian newspaper, Africa calling: mobile Sweden was the first country in the world to establish in phone usage sees record rise after huge investment, 22 Oc- law the right of access to information, as part of the 1766 tober 2009, http://www.guardian.co.uk/technology/2009/ Freedom of the Press Act, which has constitutional status oct/22/africa-mobile-phones-usage-rise, last accessed 27 March and preceded most countries' access to information laws 2010. by over 200 years. 16 27 See Wikipedia, Town Crier, http://en.wikipedia.org/wiki/ Organisation for Economic Cooperation and Devel- Town_crier, last accessed 27 March 2010. opment, European Principles For Public Administration, supra 17 See Wikipedia, Crieur public (in French), http:// note 25, page 11. 28 fr.wikipedia.org/wiki/Crieur_public, last accessed 27 March Ibid page 12. 29 2010. Treasury Board of Canada Secretariat http://www.tbs-sct. 18 In Europe this principle was recently affirmed by the gc.ca/pd-dp/gr-rg/index-eng.asp, last accessed on 27 March European Court of Justice which struck down a secret 2010. 30 regulation adopted by the European Union about what For a useful overview, in Spanish, see Transparencia y Ac- passengers may and may not carry onto aircraft.The Court ceso a Información Pública en Chile: Evolución y Relevancia del stated that "the principle of legal certainty requires that ... Consejo Para La Transparencia, by Felipe del Solar, Execu- rules enable those concerned to know precisely the ex- tive Secretary of the Chilean Government Commission tent of the obligations which are imposed on them. In- for Probity and Transparency, http://www.probidadytrans- dividuals must be able to ascertain unequivocally what parencia.gob.cl/, last accessed 27 March 2010. In January their rights and obligations are and take steps according- 2010, Chile became the second Latin American coun- ly." Case C-345/06 Gottfried Heinrich, Reference for a try after Mexico to join the OECD as reported by the preliminary ruling from the Unabhängiger Verwaltungs- BBC World Service, Chile joints the OECD's economic club, senat im Land Niederösterreich, 10 March 2009. Avail- 13 January 2010, http://www.bbc.co.uk/worldservice/busi- able at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? ness/2010/01/100112_chile_oecd_biz.shtml, last accessed uri=CELEX:62006J0345:EN:HTML, last accessed on 27 27 March 2010. 31 March 2010. Chile's Probity Law (Ley de Probidad, 19.653), in Span- 19 Organisation for Economic Cooperation and De- ish, http://www.leychile.cl/Navegar?idNorma=149264, last velopment, European Principles For Public Administration, accessed 28 March 2010, and the Chilean Administrative OECD and the European Union, 1999, Sigma Papers: Procedures (Ley 19.880 Orgánica Constitucional de Bases de No. 27, Paris, page 12, http://www.sigmaweb.org/datao- los Procedimientos Administrativos de los Órganos de la Adminis- ecd/26/30/36972467.pdf, last accessed 27 March 2010. tración del Estado), in Spanish, at: http://transparencia.minagri. 20 The French Official Journal, Les Journaux Officiels, gob.cl/descargas/marco_normativo/LEY_19880_Procedimien- http://www.journal-officiel.gouv.fr/, last accessed 27 March to_administrativo.pdf, last accessed 27 March 2010, Article 2010. 13 of which establishes the principle of transparency and 21 The French government legal database Legifrance can publicity of administrative acts. 32 be found at http://www.legifrance.gouv.fr/, last accessed 27 ChileCompra, http://www.chilecompra.cl/english/wha- March 2010. The key laws of the French state (codes) are tischilecompra.html, last accessed 27 March 2010. This web- also published in English and Spanish. site reports that, by 2008, 900 public agencies were trading 22 It is relevant to note that France's 1978 law on access to more than USD 5 billion and conducting almost half mil- administrative documents does not apply to the legislative lion tendering processes over the internet each year, gen- branch of government. erating more than 1.6 million purchase orders. The system 23 Hood, Christopher (2007) `What happens when has become a model for other countries in Latin America transparency meets blame-avoidance?', Public Manage- (see for example the Mexican "Compranet" system http:// ment Review, 9:2,191­210, to be found at: http://dx.doi. www.compranet.gob.mx) and won acclaim for promoting org/10.1080/14719030701340275, page 193­194. Hood transparency and e-government (ChileCompra was a 2008 cites Rousseau (1772/1985: 72) and notes that philoso- finalist in the prestigious Stockholm Challenge which re- phers Jeremy Bentham, Immanuel Kant, and earlier Baruch wards public interest applications of information technol- de Spinoza put forward similar ideas. It should be noted ogies, see www.stockholmchallenge.org) as well as praise from that these pre-twentieth century concepts of transparency civil society for ensuring inclusion of micro-entrepreneurs also include the notion of government according to stable and environmental criteria in its systems. 33 and known rules, and the notion of maximum social open- ChileCompra review "Informa", No. 38, 2006, first article, ness (everyone under scrutiny by everyone else), as well as http://foros.chilecompra.cl/mail/informativo/1/n38/index.html, Endnotes 47 last accessed 28 March 2010. Monitoring by civil soci- 2009,http://www.participaperu.org.pe/apc-aa/archivos-aa/3c6b ety shows that implementation is not perfect: a 2007 study b51ada688b58c57cb18308d59d73/BoletinGPCPortal- found that no public body had published all the required esTransparencia9na.pdf, both pages last accessed 27 March information with scores ranging from 38% to 80%. See the 2010. 42 NGO Corporación Participa, http://www.participa.cl/wp- Organisation of American States, Heads of State Dec- content/uploads/2007/10/transparencia-activa.JPG, last ac- laration of Nueva León, http://www.summit-americas.org/Spe- cessed 27 March 2010. cialSummit/Declarations/Declaration%20of%20Nuevo%20 34 Sometimes proactively published information does re- Leon%20-%20final.pdf, last accessed 27 March 2010. This veal problems. In Serbia in January 2010 civil society groups declaration was also cited by the Inter-American Court spotted that a large public enterprise involved in activities of Human Rights in the case Claude-Reyes et al. v. Chile. such as coal mining had announced tenders via the obliga- Merits, Reparations and Costs. Judgment of September 19, tory public procurement portal for a range of luxury goods 2006. Series C No. 151, paragraph 80, as part of the court's including brandy, ties, handkerchiefs, and "leather business argument that information is essential for participation, gallantry", with purchase prices ranging from 3,000 to http://www.corteidh.or.cr/casos.cfm?idCaso=245&CFID=700 30,000. Information from Transparency Serbia, www.trans- 01&CFTOKEN=76351320, last accessed 27 March 2010. 43 parentnost.org.rs, last accessed 27 March 2010,; screenshots World Bank e-government portal, Welcome page, of the 22 January 2010 announcements (in Serbian) on file http://go.worldbank.org/6WT3UPVG80, last accessed 27 with the author. March 2010. 35 44 European Court of Human Rights decision of 14 April European Union, e-Government in Estonia, e-Gov- 2009 in case of Társaság a Szabadságjogokért v. Hunga- ernment factsheets, October 2008, http://www.epractice.eu/ ry, no. 37374/05, paragraph 36, http://cmiskp.echr.coe.int/ files/media/media731.pdf, p. 7, last accessed 27 March 2010. tkp197/view.asp?action=html&documentId=849278&portal= Estonia's "Information Society Strategy" made universal hbkm&source=externalbydocnumber&table=F69A27FD8FB8 internet access a priority and established the "Principles of 6142BF01C1166DEA398649. the Estonian Information Policy", along with a comple- 36 UK Department of Health, http://www.dh.gov.uk/en/ mentary action plan. 45 Consultations/Liveconsultations/DH_103144, last accessed Government of the Republic of Estonia, e-Estonia page, on 27 March 2010. http://www.valitsus.ee/?id=5450, last accessed 27 March 37 A useful overview and history can be found at the Partic- 2010. See the English language presentation about the por- ipatory Budget Unit website: http://www.participatorybudget- tal to be found at the http://www.ria.ee/xroad/presentation/, ing.org.uk/faqs, last accessed on 27 March 2010. Usually only last accessed 27 March 2010. 46 a portion of the budget will be allocated to the participato- Estonian Informatics Centre, Data Exchange Layer ry process in order to permit public input but also to ensure X-Road page, http://www.ria.ee/27309, last accessed 27 that core services are not affected. For example, the maxi- March 2010. 47 mum percentage allocated by cities in Brazil has been 18 per BBC World Service, Estonia Opens Politics to the Web, 7 cent of the investment budget.Typically the range is between May 2004, http://news.bbc.co.uk/2/hi/technology/3690661. 2 and 10 percent of a city's overall budget. See also, UN Hab- stm, last accessed 28 March 2010. According to an Estonian itat, 72 Frequently Asked Questions About Participatory Budget- government advisor, the use of ICTs reduced the time of ing, Urban Government Toolkit Series, http://www.unhabitat. Cabinet meetings significantly, from as much as 10 hours to org/documents/faqqPP.pdf, last accessed 27 March 2010. as little as 45 minutes. 38 48 A scanned copy of the law can be found, in Spanish, on Typically, access to information laws establish rules on the website of the Peruvian congress: http://www.congreso. where and how to file requests, the timeframes for receiv- gob.pe/ntley/Imagenes/Leyes/28056.pdf and a machine read- ing answers, costs for copies, the grounds on which pub- able copy can be found at: http://www.transparencia.org.pe/ lic authorities may refuse to disclose information (excep- documentos/ley_marco_del_presupuesto_participativo_28056. tions), as well as oversight bodies and appeals mechanisms. pdf, both last accessed 27 March 2010. For examples of access to information laws from around 39 The other pillars of the law are participation, equality, the world see www.Right2INFO.org, supra note 8. 49 tolerance, efficiency and effectiveness, equity, competitive- "The principle of maximum disclosure establishes a pre- ness, and respect for agreements. sumption that all information held by public bodies should 40 These obligations are mandated under Peru's 2002 be subject to disclosure and that this presumption may be Law on Transparency and Access to Information, Article overcome only where there is an overriding risk of harm 5, which requires each public body to have a website with to a legitimate interest." Toby Mendel, 2008. Freedom of In- basic information including in particular budget informa- formation: A Comparative Legal Survey, p. 25, published by tion. The Law, in Spanish can be found at: http://www.pcm. Unesco, at: http://portal.unesco.org/ci/en/file_download.php/ gob.pe/transparencia/Ley_de_Transparencia_y_Acceso_a_la_In- fa422efc11c9f9b15f9374a5eac31c7efreedom_info_laws.pdf, last formacionPublica.pdf, last accessed 27 March 2010. accessed 27 March 2010. Mendel argues that internation- 41 See reports by the organisation Propuesta Ciudadana, Pub- al law on freedom of expression and information requires lications page, in Spanish, http://www.propuestaciudadana.org. that ATI laws enshrine the principle of maximum disclo- pe/n-publicaciones.shtml. The results are taken from the June sure. 2009 report Boletín de Vigilancia de los Portales de Transparencia 48 Proactive Transparency: The Future of the Right to Information? 50 Government of the Netherlands, Ministry of Interior evant, in addition to information based on statistical da- and Kingdom, English language version of the Dutch Act ta, and that answers the public's most frequently asked on Public Access to Information (1991, text valid as of 20 questions. 56 May 2008), http://www.minbzk.nl/bzk2006uk/subjects/con- India's Right to Information Act, 21 June 2005, No. 22 stitution-and/publications/4327/act-on-public-access, Section 8, of 2005, Section 4, http://righttoinformation.gov.in/rti-act.pdf, last accessed 28 March 2010. last accessed 28 March 2008. 51 57 As reported by Dutch freedom of information expert Hungary's Act XC of 2005 on the Freedom of Infor- Roger Vleugels to the FOI Advocates Network on 10 mation by Electronic Means http://abiweb.obh.hu/dpc/in- April 2009. dex.php?menu=gyoker/relevant/national/2005_XC, last ac- 52 Details can be found on the resource sites www.free- cessed 28 March 2010. 58 dominfo.org and www.right2Info.org. Although the name is similar, the Hungarian e-FOIA's 53 European Court of Human Rights cited in the Par- differs from the United States' e-FOIA of 1996, as the lat- liamentary Assembly of the Council of Europe's Opin- ter was updated in the 1966 FOIA to permit information ion on the future Convention on Access to Official Doc- to be accessed in electronic format. The U.S. e-FOIA did, uments, prepared by Committee on Legal Affairs and however, also require that all agencies publish (1) an in- Human Rights appointed Rapporteur: Mr Klaas de Vr- dex of all major information systems of the agency; (2) a ies, paragraph A.6, available at http://assembly.coe.int/Main. description of major information and record locator sys- asp?link=/Documents/WorkingDocs/Doc08/EDOC11698. tems maintained by the agency; and (3) a handbook for ob- htm, last accessed 28 March 2010. taining various types and categories of public information 54 Mexico's Federal Transparency and Access to Public In- from the agency. For a description and the law see http:// formation Act, adopted 11 June 2002 and last amended 6 www.gwu.edu/~nsarchiv/nsa/efoiacom.html, last accessed 28 June 2006, in Spanish, http://www.ifai.org.mx/transparencia/ March 2010. 59 LFTAIPG.pdf, last accessed 28 March 2010. An example of the level of detail required by the Hun- 55 Ibid, Article 7. As per Article 7, the information to be garian e-FOIA is that each public authority must publish made available and kept up to date by the subjects com- and update quarterly information including the "Name pelled by the Law includes: I. Their organizational struc- (type) and subject matter of contracts pertaining to the ture; II. The powers of each administrative unit; III. A di- procurement of goods, construction investment projects, rectory of their public servants, from the level of the head ordering services, sale of assets, utilisation of assets, transfer of department or equivalent and below; IV. Monthly sal- of assets or rights and titles as well as concessions of a value ary per position, including the bonus system; V. The liai- specified in separate legal regulation, affecting using pub- son unit's address, as well as the electronic address where lic funds or linked to the management of assets belonging all requests for access to information can be received;VI. to public finances, the names of the contracting parties, the The goals and objectives of the administrative units, as value of the contract, in the event of contracts concluded per their operational programs;VII. The services they of- for specific periods, the periods of the contract." This in- fer; VIII. Their procedures, requirements and forms; IX. formation must be kept in the archive for at least one year Information on budgetary allotments, as well as the cor- after updating. 60 responding fiscal reports. In the case of the Executive "The [UK FOI] Act applies to over 100,000 public au- Branch, this information is to be made available for each thorities. These include central government departments, agency and entity by the Secretariat of the Treasury and local authorities, schools, colleges and universities, the Public Credit, which should also inform the public about health service, the police and a range of other public bod- the economic situation, public finance and the public ies." UK Ministry of Justice, 2009. The fourth annual report debt in the terms established by the budget; X. The find- on the operation of the Freedom of Information Act in central gov- ings of budget audits for all departments and entities, and ernment, p.1, http://www.justice.gov.uk/publications/docs/free- the corresponding explanations, if applicable; XI.The de- dom-of-information-annual-report-2008.pdf, last accessed 28 sign, execution, amounts granted and access criteria to March 2010. 61 subsidy programs, as well as the list of beneficiaries of so- UK Information Commissioner, Model Publication cial programs; XII. All licenses, permits or authorizations Scheme page, http://www.ico.gov.uk/Home/what_we_cover/ granted, with their recipients specified; XIII. All contracts freedom_of_information/publication_schemes.aspx, last accessed signed, detailing for each: a) The public works, goods ac- 28 March 2010. 62 quired or leased, and the contracted service; in the case Mexico's Federal Law on Transparency and Access to of studies or research, the specific subject must be indi- Public Information, supra note 54, at Article 7.XVII. 63 cated; b) The amount; c) The name of the provider, con- At time of writing, the answers to 437,189 requests tractor or the individual or entity to whom the contract could be accessed via the website of the Mexican Informa- has been granted, and d) The term to complete the con- tion Commission, www.ifai.org.mx, last accessed 28 March tract; XIV. The regulatory framework applicable to each 2010. 64 subject compelled by the Law; XV. The reports that each United States of America, Electronic Freedom of In- subject must generate, according to the Law; XVI. Mech- formation Act Amendments, e-FOIA 1996, Pub- anisms for citizen participation, if applicable; XVII. Any lic Law 104­231--Oct 2, 1996, http://frwebgate. other information that may be useful or considered rel- access.gpo.gov/cgi-bin/getdoc.cgi?dbname=104_cong_public_ Endnotes 49 laws&docid=f:publ231.104.pdf, last accessed 28 March 2010. versity of Chicago, Public Law and Legal Theory Work- This law, which amends the U.S. Freedom of Information ing Paper No. 213. Available at SSRN: http://ssrn.com/ab- Act, aims to "use new technology to enhance public access stract=1113537, last accessed 28 March 2010. 76 to agency records and information." Organization for Security and Cooperation in Europe, 65 See The Freedom of Information Act 5 U.S.C. § 552, Access to information by the media in the OSCE region: trends As Amended By Public Law No. 104­231, 110 Stat. 3048, and recommendations, 30 April 2007, page 1, http://www.osce. at § 552.a.2.D, http://www.usdoj.gov/oip/foia_updates/Vol_ org/documents/rfm/2007/05/24250_en.pdf, last accessed 28 XVII_4/page2.htm, last accessed 28 March 2010. March 2010. 66 77 See Farmsubsidy.org at http://www.farmsubsidy.org/ Ibid., p. 4. 78 about/. Organization of American States, Inter-American Ju- 67 Ibid. A good summary can also be found in The Guard- ridical Committee, http://www.oas.org/cji/eng/inter_amer- ian, Press forces EU Subsidies issue, 7 February 2007, http:// ican_juridical_committee.htm, last accessed 28 March 2010. www.guardian.co.uk/media/2007/feb/07/pressandpublishing. These principles were developed following consultations newmedia1, last accessed 28 March 2010. This information with civil society organisations to which Access Info Eu- in turn makes it possible for the public to engage in a gen- rope contributed. 79 uine debate about the common agricultural policy in a OAS Inter-American Juridical Committee, Principles way that was not possible before because the information on the Right of Access to Information, http://www.oas.org/ was not available. Similar initiatives are now being devel- cji/eng/CJI-RES_147_LXXIII-O-08_eng.pdf, last accessed oped at the national level in a number of countries, such 28 March 2010. 80 as the "Subsidios al Campo" project in Mexico, which al- Council of Europe, Convention on Access to Official so uses access to information requests to track spending on Documents, 18 June 2009, http://conventions.coe.int/Treaty/ agricultural subsidies. See http://www.subsidiosalcampo.org. EN/Treaties/Html/205.htm, last accessed 28 March 2010. mx/, last accessed 28 March 2010. Opened for signature on 18 June 2009, to date the Con- 68 International Budget Partnership, Open Budget Survey vention has been signed by 12 states out of the 47 mem- 2008, Full Report, p. 31, http://www.openbudgetindex.org/in- bers of the Council of Europe, of which two--Norway dex.cfm?fa=fullReport, last accessed 28 March 2010. and Hungary--had ratified by 31 January 2010. 69 81 In June 2009, the UK's Cabinet Office commissioned Explanatory Report to the draft Council of Europe one of the inventors of the World Wide Web, Tim Berners- Convention on Access to Official Documents, paragraph Lee, to explore how to create a single online point of access 71, http://conventions.coe.int/Treaty/EN/Reports/Html/205. for government-held public data and how to use the inter- htm, last accessed 28 March 2010. It will be noted that the net to improve government consultation processes. See the recommendation from the OSCE Representative on Free- UK government press release, 10 June 2009, at http://www. dom of the Media which was submitted to the drafters of cabinetoffice.gov.uk/newsroom/news_releases/2009/090610_ the Convention has been taken into consideration in de- web.aspx, last accessed 28 March 2010. fining the classes of information. 70 82 United States Government, Data.gov, About page, Ibid., Paragraph 72. 83 http://www.data.gov/about, last accessed 28 March 2010. Ibid., Paragraph 71. 71 84 Ibid. Ibid., Paragraph 73. 72 85 See the Sunshine Review's Collaborative Transparen- United National Convention against Corruption, ad- cy wiki at http://sunshinereview.org/index.php/Collaborative_ opted by UN General Assembly Resolution, 58/4 of 31 transparency_projects, last accessed 28 March 2010. October 2003, http://www.unodc.org/documents/treaties/ 73 Australian Government, data.gov.au, beta version, UNCAC/Publications/Convention/08­50026_E.pdf, last ac- http://data.australia.gov.au/, last accessed 28 March 2010. cessed 28 March 2010. 86 Examples of recently released datasets include a list of arts Aarhus Convention on Access to Information, Public organizations receiving public funding in 2009, and the Participation in Decision-making and Access to Justice in National Public Toilet Map which shows the location of Environmental Matters, Adopted at Aarhus, Denmark, 25 more than 14,000 public and private public toilet facili- June 1998, http://www.unece.org/env/pp/documents/ ties with data such as opening hours, availability of baby cep43e.pdf, last accessed 28 March 2010. 87 change rooms, and accessibility for people with disabilities. The requirements of the UNCAC's Chapter II on Pre- 74 Danish Government, Digatilisér.dk, English about page, ventive Measures include transparency of: anti-corruption http://digitaliser.dk/resource/432461, last accessed 28 March policies (Article 5.1); recruitment, hiring, retention, pro- 2010. The website explains that the literal translation is motion and retirement of civil servants and, where ap- Digitise.dk and that it is a social network and tool for de- propriate, other non-elected public officials (Article 7.1); velopment, knowledge sharing and a forum for the digiti- funding of candidatures for elected public office and, sation of Denmark. where applicable, the funding of political parties (Article 75 "Soft law consists of rules issued by law-making bod- 7.4); systems to prevent conflicts of interest (Article 7.3); ies that do not comply with procedural formalities neces- procurement systems (Article 9.1); management of public sary to give the rules legal status yet nonetheless may influ- finances (Article 9.2); organisation, functioning and deci- ence the behavior of other law-making bodies and of the sion-making processes of public administration (Article 10 public." Jacob E. Gersen and Eric A. Posner, Soft Law, Uni- and 10.a); decisions and legal acts that concern members of 50 Proactive Transparency: The Future of the Right to Information? 100 the public (Article 10.b); periodic reports on the risks of The IFAI counts actual consultations where files are corruption in its public administration (Article 10.c); and opened, not just hits to the website. The total for 2008 was decision-making processes (Article 13). 13,978,771 and for the first half of 2009 5,344,070. The 88 Public participation opportunities differ from open data was provided to the author by the IFAI in the docu- meetings information. Although open meetings allow the mentation "Total de consultas por fracción" provided to the au- public to follow what is happening in government, for ex- thor on 23 July 2009. 101 ample by sitting in during the sessions of an elected as- Interview with José Luis Marzal Ruiz, Director Gen- sembly, they do not automatically provide opportunities to eral de Coordinación y Vigilancia de la Administración contribute to the discussions. Pública, IFAI, 23 July 2009. 89 102 These countries were chosen because they have con- See InfoDF's criteria for evaluation of websites of pub- ducted some innovative standard-setting on access to in- lic bodies, at the document, in Spanish entitled Criterios formation in recent years, and because they represent a mix de evaluación de la información pública de oficio publicada en los of countries from different continents with a range of po- portales de internet de los Entes Públicos del DF, 2008, page litical histories. 4, http://www.infodf.org.mx/web/index2.php?option=com_ 90 India's Right to Information Act (2005), supra note 56, docman&task=doc_view&gid=109&Itemid=293, last accessed Article 2.5. 28 March 2010. 91 103 Internet World Stats at http://www.internetworldstats.com/ Mexico City government, "Ventanilla Unica" or "sin- asia.htm#in. gle window", http://www.transparencia2008.df.gob.mx/in- 92 At the same time, requiring Internet publication can al- dex.jsp, last accessed 28 March 2010. 104 so be a useful incentive for advancing digitization of the See Mexico City government website "Useful environ- administration and stimulating the internal organization of mental information within your reach" http://www.trans- information. Hence in numerous countries there is a re- parenciamedioambiente.df.gob.mx/. 105 quirement to digitize information. Such is the case in India Slovenia's e-Government, or e-Uprava, portal is avail- where Section 4.1 of the Right to Information Act which able in Slovenian, English, Hungarian and Italian (Slovenia requires that records be computerized and, subject to re- has Hungarian and Italian minorities), http://e-uprava.gov. sources, connected to the digital networks to permit infor- si/e-uprava/en/portal.euprava, last accessed 28 March 2010. mation sharing. Monitoring by civil society (the NGO the We note that the title for the link "work and employment" Commonwealth Human Rights Initiative) has found that is duplicated in the English version but seems not to be in some bodies have achieved this but others have failed to al- the Slovenian, Italian and Hungarian versions. 106 locate the necessary budget provisions to improve their re- European Commission, The User Challenge: Benchmark- cords management. An example of a body which has made ing The Supply Of Online Public Services", September 2007, good progress with scanning documents so that they are prepared by consulting firm Gapgemini, page 5, http:// available as part of the proactively disclosed materials re- ec.europa.eu/information_society/eeurope/i2010/docs/bench- gard is the Police, which also has a database for all stand- marking/egov_benchmark_2007.pdf, last accessed 28 March ing orders that can be accessed in each police station and 2010. 107 by the public. Report from CHRI "Auditing Compliance Slovenia's Decree on Provision and Re-use of Informa- of Delhi Police with their Proactive Disclosure Obligations tion, Official Gazette RS, No. 76/05 of 12 August 2005, ar- under Section 4(1)(b) of the Right to Information Act, ticle 14.1, at http://www.mju.gov.si/en/freedom_of_public_in- 2005" on file with the author. formation, last accessed 28 March 2010. 93 108 Internet World Stats http://www.internetworldstats.com. Slovenian Access to Public Information Act (2003), con- 94 The OSCE Office of the Representative on Freedom solidated version, Official Gazette RS, No. 51/06 of 18 May of the Media (OSCE RFOM), http://www.osce.org/fom/. 2006, in English at http://www.ip-rs.si/index.php?id=324, Comments on the Draft European Convention on Access last accessed 28 March 2010. The information categories to Official Documents of the Council Of Europe, 11 Sep- are similar to those of the laws analyzed in Section 3. 109 tember 2007, document on file with the author. Decree on Provision and Re-use of Information, supra 95 Macedonia's Law on Free Access to Public Information note 107, articles 2­6 and 8­11. 110 at http://www.sinf.gov.mk/english/default.htm. Ibid. article 11(3). 96 111 Overall Macedonia has a reasonably high level of 44 In this regard, Christopher Hood cites jurist Lon Full- percent Internet penetration. See Internet World Stats, data er: "in his classic The Morality of Law [Fuller] discuss- for Europe updated on 31 March 2009 at http://www.inter- es the tension between accessibility and reliability in the networldstats.com/stats4.htm#europe, last accessed 28 March law--two different dimensions of transparency. Accessibil- 2010. ity means making law accessible to the public at large by 97 UK Ministry of Defence at http://www.mod.uk/Defen- writing it in everyday language that is readily intelligible to ceinternet/FreedomOfInformation. laypersons, while reliability means writing it in precise and 98 The Mexican Transparency Portal, in Spanish, can be technical language such that judges and law courts inter- found at http://portaltransparencia.gob.mx/pot/. pret it in consistent ways, even if such language means lit- 99 The SiSi system (2003­2009) is now called INFO- tle to the general reader. Increasing accessibility will tend to MEX, and can be found at https://www.infomex.org.mx/go- reduce reliability and vice-versa." Hood (2007) `What hap- biernofederal/home.action, last accessed 28 March 2010. pens when transparency meets blame-avoidance?', Public Endnotes 51 Management Review,9: 2,191­210, to be found at: http:// databases can be constructed in order to ensure that key dx.doi.org/10.1080/14719030701340275, page 194. fields of data such as personal data are not disclosed even 112 See the Plain English Campaign http://www.plaineng- when the public is given direct access to the remainder of lish.co.uk/, last accessed 28 March 2010. Their stated goal is the database. 124 "campaigning against gobbledygook, jargon and mislead- For an analysis of the role of budgeting in achieving ing public information. We have helped many government transparency policy goals, see Alfonso Hernández-Valdez, departments and other official organisations with their Budgeting Implications for ATI: The Mexican Case, published documents, reports and publications. We believe that ev- by the World Bank Institute, 2009, http://siteresources.world- eryone should have access to clear and concise informa- bank.org/EXTGOVACC/Resources/budgetingImplicationsfo- tion." Today the Campaign's crystal mark award for clarity rATILegislation.pdf, last accessed 28 March 2010. It is noted appears on over 17,500 documents worldwide. Public bod- that for signatories to the UN Convention against Corrup- ies which produce complex or confusing documents risk tion, technical assistance funds are available, which could be getting a "Golden Bull" award. used for implementing the proactive disclosure provisions 113 District of Colombia Data Catalog, http://data.octo. of the Convention. 125 dc.gov/, last accessed 28 March 2010. Peru's Law on Transparency and Access to Public In- 114 The DC Data Catalog map at: http://maps.google. formation, supra note 38, Article 6. For local government com/?q=http://data.octo.dc.gov/Gateway_2009061423595. bodies this obligation had to be complied with only pro- ashx?name=http://data.octo.dc.gov/feeds/dcra_building_permits/ vided that technological and budget means were available. 126 dcra_building_permits_current.kml, last accessed 28 March 2010. In Mexico, at the Mexico City level, the Information 115 These requirements are usually contained in other laws Commission has developed a series of indicators for mea- than the access to information law. suring the proactive disclosure requirements, see the re- 116 In India the opposite can also be true: a recent survey port Results of the first evaluation of the public information that found that for the many states which have one or more public bodies should automatically present in their internet por- languages other than Hindi and English, researchers had tals (in Spanish), July 2009, http://www.infodf.org.mx/nueva_ difficulty getting information in either of these national ley/22/6/2009/evaluacion_portales2009.pdf, last accessed 28 languages. March 2010. 117 127 UK Information Commissioner's Office Model Publi- Accountability Initiative, 2009. RTI Brief, Proactive Dis- cation Scheme, supra note 61. closure--Best Practices from Mexico, available at: http://www. 118 India's Central Information Commission Deci- accountabilityindia.org/pdf/AIRTIBriefVol1.pdf, last accessed sion of 9.4.2009 in case of complaint F. No. CIC/ 12 May 2010. 128 WB/C/2008/00115/LS and others. Alasdair Roberts, A Great and Revolutionary Law? The 119 Macedonian Law on Free Access to Public Information First Four Years of India's Right to Information Act, 9 Jan- supra note 95, Article 10. uary 2010. Public Administration Review; Suffolk Univer- 120 The case that raised this issue in Slovenia followed a sity Law School Research Paper No. 10­02, http://papers. request by the Slovenian Speleological Society to topo- ssrn.com/sol3/papers.cfm?abstract_id=1527858, last accessed graphic maps produced by the Slovenian Mapping Agen- 28 March 2010. 129 cy. The commissioner ruled that the information should Central Information Commission, File No. RC/ be provided free of charge in order that the Speleolog- UG/35826mpu dated 21.12.2008 (Chanderkant J Karira ical Society could produce the world's first online caves Vs Indian Embassy, Washington). 130 registry which includes 9262 caves and links to anoth- See for example ruling in Central Information Com- er 4293 documents. Most other countries in the Euro- mission in case of File No. CIC/WB/C/2008/00115/LS, pean Union allow public bodies to charge even for non- Ms. Parminder Kaur and others (joined cases) at http://cic. commercial reuse of public sector information, but in gov.in/CIC-Orders/LS-09042009­10.pdf, last accessed 28 Slovenia this is now clearly prohibited. The decision, in March 2010. 131 Slovenian only, can be found at http://www.ip-rs.si/infor- France's Commission on Access to Administrative Doc- macije-javnega-znacaja/iskalnik-po-odlocbah/odlocbe-informaci- uments (CADA), website page listing the legal texts which je-javnega-znacaja/?tx_jzdecisions_pi1[showUid]=229&tx_ relate to the CADA's work, in French, http://www.cada.fr/ j z d e c i s i o n s _ p i 1 [ h i g h l i g h t Wo rd ] = ra z i s k o va n j e % 2 0 fr/texte/frame.htm, last accessed 28 March 2010. 132 jam&cHash=5b26f278d5, last accessed 28 March 2010. Aarhus Convention Article 2.3 133 Links to the maps can be found at the Ljubljana Caving Aarhus Convention Article 5.1.a 134 Society (Drustvo za raziskovanje jam Ljubljana) at http:// Aarhus Convention Article 5.2.a 135 dzrjl.speleo.net/, last accessed 28 March 2010. Aarhus Convention Article 5.2.b/5.2.c 121 136 Hungary's Act XC of 2005 on the Freedom of Infor- Aarhus Convention Article 5.5 and 5.7 137 mation by Electronic Means, supra note 57, Articles 5, 8 See information on Kiev Protocol on Pollutant Re- and General Publication Scheme annexed to the law. lease and Transfer Registers at http://www.unece.org/env/ 122 UK Information Commissioner's Office Model Publi- pp/prtr.htm. 138 cation Scheme, supra note 61. Aarhus Convention Article 5.3 123 This paper does not examine this issue in detail but the author notes that there are now technical means by which About the World Bank Institute's Governance Practice Governance is one of seven priority themes in the World Bank Institute's recently launched renewal strat- egy--a strategy that responds to client demand for peer-to-peer learning by grounding WBI's work in the distillation and dissemination of practitioner experiences. 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