80702 World Bank Institute GOVERNANCE WORKING PAPER SERIES Access to Information Program Amending Access to Information Legislation: Legal and Political Issues Toby Mendel Canadian International Agence canadienne The World Bank Development Agency developpment international WORKING PAPER Amending Access to Information Legislation: Legal and Political Issues Toby Mendel* * Toby Mendel is the executive director of the Centre for Law and Democracy, a Canada-based international human rights nongovernmental organization (NGO) that provides legal expertise on foundational rights for democracy. Prior to that, he served for more than 12 years as senior director of LAW at ARTICLE 19, an NGO that focuses on freedom of expression. He has advised on freedom of expression and the right to information for a wide range of actors, including the World Bank, various United Nations and other intergovernmental bodies, and numerous governments and NGOs in countries all over the world. In these various roles, Mendel often has played a leading role in drafting legislation con- cerning the right to information and media regulation. He has also published widely in his various areas of expertise. © 2011 The International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org E-mail: feedback@worldbank.org All rights reserved The findings, interpretations, and conclusions expressed in this volume do not necessarily reflect the views of the Canadian International Development Agency, the government of Canada, ex- ecutive directors of the World Bank, or the governments those directors represent. The World Bank does not guarantee the accuracy of the data included in this work. This report has been commissioned by the Access to Information (ATI) Program at the World Bank Institute (WBI) and supported financially by the CIDA-WBI Governance Program. 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 program aims to improve in-country capacity for formulation, implementation, use, and enforce- ment of ATI legislation through regional knowledge exchange and networking and by fostering the capacity of multistakeholder coalitions to undertake effective ATI reforms. Contents Acknowledgments ..........................................................................................v Acronyms and Abbreviations .........................................................................vii Executive Summary........................................................................................1 1. Introduction: Reforming Access to Information Regimes .............................3 2. Amending Access to Information Legislation: Legal Issues ............................5 2.1 Law Reform............................................................................................................5 2.2 Constitutional Reform ..........................................................................................14 2.3 Secondary Rules....................................................................................................17 3. Amending Access to Information Legislation: Political Context ...................19 3.1 Actors and Stakeholders.........................................................................................21 3.2 “Objective” Factors ...............................................................................................25 3.3 Wider Political Factors...........................................................................................25 4. Conclusion..............................................................................................29 Appendix 1: List of Laws and Their Associatd Web Sites ...................................31 Appendix 2: Table of Amendments to ATI Laws ..............................................35 Endnotes......................................................................................................39 References ...................................................................................................43 iii Acknowledgments The author is extremely grateful for the useful director, Access Info Europe, Spain; Charles comments provided by reviewers in two Davis, associate professor, Missouri School of rounds of assessment. Initial comments were Journalism, United States; Shushan Doydoyan, provided by World Bank Institute staff Marcos director, Freedom of Information Center of Mendiburu, Aranzazu Guillan-Montero, and Armenia; Maeve McDonagh, associate profes- Luis Esquivel. A second round of peer-review sor, University College Cork, Ireland; Ádám comments was provided by Mukelani Dimba, Földes, legal officer,Transparency Internation- deputy executive director, Open Democracy al, Hungary; David Goldberg, information Advice Centre, South Africa; Roberto Saba, rights campaigner, Scotland; Katherine Gun- dean, faculty of law, Palermo University, Ar- dersen, research officer, Campaign for Free- gentina; and Darian Pavli, legal officer, Open dom of Information, United Kingdom;Tamar Society Justice Initiative. These comments Gurchiani,Young Lawyers’ Association, Geor- were invaluable in improving and honing the gia; Ross Hodgins, senior advisor, Office of report. Errors, omissions, and interpretations the Information Commissioner of Canada; are the responsibility of the author.The views Sarah Holsen, research associate, Swiss Grad- expressed in this study do not necessarily re- uate School of Public Administration; Laura flect the position of the World Bank Institute. Kennedy, programme specialist, United Na- The author would also like to extend tions Educational, Scientific, and Cultural Or- thanks to the numerous country and other ganization, Kazakhstan; Maria Marván Labor- experts who provided information that was de, commissioner, Federal Institute for Access used in the report: Zahid Abdullah, lawyer, to Public Information, Mexico; Venkatesh Pakistan;Tereza Alexova, legal team, Access to Nayak, programme coordinator, Common- Information Programme, Bulgaria; Linda Aus- wealth Human Rights Initiative, India; Peter tere, researcher, Centre for Public Policy, Noorlander, legal director, Media Legal De- Latvia; Christoph Bruch, head, Open Access fence Initiative, United Kingdom; Roy Peled, Unit, Max Planck Digital Library, Germany; director, Movement for Freedom of Informa- Javier Casas, president, Suma Ciudadana, Peru; tion in Israel; Nata?a Pirc, information com- Josée Coallier, senior analyst, Office of the In- missioner, Slovenia; Issa Luna Pla, professor, formation Commissioner of Canada; Ricardo National Autonomous University of Mexico; Corcuera, director, Observatorio de la Vigilan- Macarena Rodríguez Atero, director, Legal cia Social, Peru; Helen Darbishire, executive Clinic, Alberto Hurtado University, Chile; v vi Amending Access to Information Legislation: Legal and Political Issues Shekhar Singh, member, National Campaign mental Affairs Office, American Bar Associa- for People’s Right to Information, India; Rick tion; and Stanley Tromp, freedom of informa- Snell, associate professor, University of Tasma- tion caucus coordinator, Canadian Association nia, Australia; Tom Susman, director, Govern- of Journalists. Acronyms and Abbreviations ATI access to information MP member of parliament NGO nongovernmental organization OIC Office of the Information Commissioner vii Executive Summary This paper is about efforts to amend the legal ically sensitive) should be limited.The second framework for the right to information, with area is the extent of coverage of the law in a particular focus on access to information terms of public authorities.There is a trend to (ATI) laws. It looks at the main substantive is- extend coverage to include private bodies that sues such reform attempts have targeted and are funded or controlled by government. what legal forms they may take. It also exam- A number of factors appear to support ines the role different actors—civil society, the positive reform efforts and to limit negative media, oversight bodies, parliaments, and po- ones. Strong civil society campaigns, spear- litical leaders—can play in helping support the headed by leading organizations or coalitions, adoption of reforms that promote openness can have a very significant effect on the re- and defeat those that erect barriers. form process. The support of senior political The paper is an initial attempt to examine figures (including legislators) and such key ac- this issue, based on the growing body of expe- tors as information commissioners and the rience globally in this area. As an initial at- media can significantly bolster wider civil so- tempt, its conclusions are tentative, with the ciety efforts. exception of one: there is a need for more There appears to be a correlation between empirical study and research in this area. At clear international standards on a particular the same time, its conclusions, hopefully, will substantive issue (which tend to be strongly provide guidance to openness campaigners supportive of openness) and the ability of and direction to researchers studying trans- campaigners to secure positive reform results parency issues. in relation to that issue. Perhaps it is surprising, Understandably, the range of issues targeted given this link, that there has been relatively by reform efforts in different countries is wide. little use of constitutional litigation as a means Two areas, however, have attracted the most re- of achieving ATI law reform—although there formist attention. The first area is changes to would appear to be significant potential for the regime of exceptions to the right to infor- this. More generally, the wider political con- mation, which can be seen as the mechanism text seems to have an important bearing on for defining the scope of an ATI law in terms the success of positive reform outcomes. of information covered.A particularly contest- The positive trend in favor of openness, ed issue has been the extent to which access to however, is not cause for complacency. On the deliberative information (which is often polit- contrary, the evidence clearly demonstrates 1 2 Amending Access to Information Legislation: Legal and Political Issues that if positive reform efforts have won out constant vigilance and effort that civil society more often than not, there is never any lack of and other pro-openness advocates can main- attempts—usually by government or by politi- tain and expand respect for the right to infor- cians—to try to roll back openness through mation. negative reforms of ATI laws. It is only through 1 Introduction: Reforming Access to Information Regimes Contestation over the content of the human The rapid growth in the number of ATI right to access information held by public au- laws globally means that, at any given time, a thorities—over its scope, exceptions, proce- significant number of serious attempts to se- dural rules, and so on—normally starts long cure amendments are in progress. And we before an access to information (ATI) law is now have an important track record of such first adopted. It continues, with varying de- attempts and their outcomes. The present re- grees of intensity, more or less ever after. An port is an initial effort to examine this issue. It important part of this contestation takes the charts some emerging trends and draws some form of attempts—by civil society, by govern- preliminary conclusions on the experiences to ment, by political leaders, by the bureaucra- date. In doing so, it is hoped that useful guid- cy—to secure changes to the legal framework ance about key focus areas and potential for the right to information. This paper is strategies will be provided to those people about these attempts: what they focused on, who are promoting the right to information. who has motivated them, what the results When an ATI law has been adopted, a have been, and what the trends are. number of different actions affect the exercise The issue of amending the legal framework of the right to information.These actions in- for the right to information is an important clude pure implementation efforts—such as and topical one—and one that, so far, has not training public officials, appointing informa- received much attention in the literature. In tion officers, and setting up internal systems many instances, proposed and adopted amend- for managing requests—as well as the adop- ments have a significant impact on openness, tion of guidelines, recommendations, and/or whether of a positive or negative nature. practice notes (for example, by oversight bod- Seemingly minor changes, such as increasing ies such as information commissions and de- the fees for making access requests, can very cisions by courts). Other actions affecting the negatively impact openness, and tweaking ex- right include the adoption of formally bind- ceptions—for example, by adding a public in- ing regulations (for example, by a minister), terest override—can significantly enhance the amendment of the ATI legislation, and provision of information on matters of public amendment (or authoritative interpretation) importance. of constitutional rules recognizing the right of 3 4 Amending Access to Information Legislation: Legal and Political Issues access.This paper is concerned only with for- needed. Legislation giving effect to the right mal changes to the legal framework for the to access information held by public authori- right to information—namely, the last three ties goes by many different names. Some of types of actions listed above: constitutional re- the more common terms are “right to infor- form, legislative reform, and adoption of bind- mation,” “freedom of information,” and ing secondary legal rules.1 “ATI laws.” In this paper, the term “AIT law” This paper is divided into two main parts. is used to refer to this genre of laws,2 and the The first part provides an overview of some of term “the right to information” is used to re- the reform initiatives that have been achieved fer to the underlying right that gives effect to or attempted in countries around the world— these laws. law reform, constitutional reform, and reform Throughout this paper, reference is made of secondary legislation—and with an analysis to “positive” and “negative” amendments to of their key thematic focuses and some legal ATI laws. These terms are used primarily to process issues. The second part of the paper iindicate whether a particular amendment provides an assessment of the role of different brings the law into greater alignment with in- players in these reform initiatives—players ternational standards on transparency or such as civil society, oversight bodies, parlia- moves it away from these standards.3 For the ments, and political champions—with a par- most part, the relevant international standards ticular focus on factors that promote the suc- are strong statements in favor of openness. cess of positive reforms. The second part also Thus, in general, an amendment that enhances analyzes some of the wider political factors transparency is described as a positive amend- that seem to be associated with positive re- ment, and an amendment that increases secre- form efforts. cy or creates obstacles to access is described as To ensure a uniform understanding among a negative amendment. readers, some clarifications of terminology are 2 Amending Access to Information Legislation: Legal Issues This part of the paper focuses on the more For the most part, these efforts have sought technical legal aspects of efforts to reform the to change the rules of the game, either to ex- legal framework for the right to information. tend or to limit access. In a few cases, by con- The primary focus is on reform of access to trast, amendments could better be described information (ATI) laws, given that the law in simply as attempts to modernize access regimes most countries provides the main framework to take into account developments that have for practical implementation of the right.This occurred since the law was first passed (for ex- part also looks at constitutional reform, given ample, developments of a technological nature that constitutional guarantees sit at the pinna- or changes in the existing public authorities). cle of the legal system; and, where they guar- The relative paucity of amendments falling into antee the right to information, they set out the latter category could be partly a result of the overriding values of society relative to this the fact that many ATI laws are relatively new. right. Finally, some comments are directed to It could also be partly caused by the flexible na- the issue of reform of secondary regulations ture of many ATI laws that makes it possible for governing the right to information, given that them to accommodate changes. For example, they may establish important rules relating to many laws include a descriptive definition of issues such as fees, requesting procedures, and which public authorities are covered under the record management, among other things. law, rather than a fixed list.This means that the law remainas relevant even when new author- ities are created and others are terminated.As a 2.1 Law Reform result, the law does not need to be amended to respond to the creation of new public author- There have been numerous successful at- ities.4 Even the advent of the era of electronic tempts to amend ATI laws—both positive and communications and records often has not ne- negative in nature—in countries around the cessitated changes in (older) ATI laws.5 world.There have also been a number of cases This section of the paper looks at amend- where relatively sustained or intense efforts to ments to ATI laws through various lenses— secure amendments—efforts by civil society namely, the issues those amendments focus on actors as well as by governments—have not and the approach to amendments (whether been successful. more systematic, piecemeal, or indirect, such as 5 6 Amending Access to Information Legislation: Legal and Political Issues through the amendment of other laws). It then existing exceptions. For example, the Indian provides a thematic analysis of the various government sought to amend the law in amendments canvassed, assessing why some 2006, almost immediately after it had been types of reform appear easier to achieve than adopted, to add “file notings”7 to the list of others. Finally, this section highlights a number exceptions, to expand the exception in favor of procedural issues that distinguish amend- of cabinet documents, and to add a new ex- ments from the adoption of a new ATI law. ception to protect examination and evaluation processes. This attempt was unsuccessful as a Key Amendment Issues result of massive civil society advocacy efforts. Two key issues have been dominant among However, there are ongoing attempts in India the various efforts at ATI law reform reviewed to achieve essentially the same result by here.The first issue is the scope of the excep- amending the law to provide protection for tions to the right of access, which is central to internal deliberative processes (now apparently the overall question of the scope of the law. renamed “information about discussions and The second issue is the range of public au- consultations of officers”).8 thorities to whom the law applies—again an There are also examples of the govern- issue relating to scope. ment (sometimes with the support of other vested interests) successfully expanding the Exceptions scope of exceptions.Thus, 2003 amendments Changes to the regime of exceptions have to the Irish law significantly expanded the been a dominant theme for amendments to scope of exceptions—particularly in relation ATI laws in countries around the world. In an to cabinet documents and deliberative process ATI law, the regime of exceptions describes documents, but also regarding a number of the public and private interests deemed im- other issues.9 These are, of course, more polit- portant enough (subject to certain conditions) ically sensitive types of documents, similar to to override the right of access—interests such the Indian “file notings.” Amendments to the as national security and privacy. Almost by United States law in 1986 significantly ex- definition, changes to the regime of excep- panded protection for law enforcement doc- tions are game changers rather than mere uments.Amendments in the United Kingdom adaptations or modernizations.This is because in 2010 expanded the scope of protection for the approach to governance in most countries communications with the royal family by re- has not changed significantly enough to war- moving the possibility of a public interest rant the addition of new exceptions or the override for communications with the heir subtraction of existing ones (that is, public au- and second in line to the throne (the monarch thorities are not undertaking new tasks that herself had already been so protected).10 It require new exceptions). As a result, changes may be noted that earlier versions of the 2010 to the regime of exceptions usually have the proposals in the United Kingdom sought to effect of extending or reducing the effective impose a blanket ban on access to cabinet scope of secrecy.6 documents, again along the lines of the Irish Attempts to amend the regime of excep- and attempted Indian amendments, although tions can take many forms. In some countries, these proposals were later dropped.11 governments or politicians have sought un- At the same time, there are numerous ex- successfully to add new exceptions or broaden amples of amendments being introduced to Amending Access to Information Legislation: Legal Issues 7 limit the scope of exceptions. Some examples partment, and government-controlled corpo- include the following: ration. Amendments in Canada in 2006 ex- panded the scope of coverage of public com- • Amendments to the U.S. law in 1974 lim- panies. Israel’s 2008 amendments extended ited exceptions by requiring the release of coverage for the first time to government- reasonably severable material. owned corporations, including security indus- • Amendments in Slovenia in 2005 intro- tries. And the 2003 amendments in Peru duced a public interest override for excep- brought defense agencies within the ambit of tions the first time since the law’s incep- the law. Consultations are ongoing in Scotland tion in 2003.12 regarding the extension of the scope of the • Amendments in Bulgaria in 2008 also in- law to a much wider range of authorities— troduced a public interest override. particularly, private bodies (mostly contrac- • Regulations in the United Kingdom in tors) who build and maintain public sector fa- 2004 abrogated or limited various preex- cilities, such as hospitals, roads, prisons, and isting statutory exceptions. schools.13 A similar discussion is ongoing in • The 2010 amendments in the United the United Kingdom, although concrete pro- Kingdom reduced the timelines for release posals for extensions remain modest.14 of much historical material from 30 years In the United Kingdom, repeated attempts to 20 years. to limit the scope of the law as it pertains to • In 2010, the Scottish government similarly parliament and members of parliament (MPs) made a commitment to reduce historical began almost as soon as it came into force in protection from 30 years to 15 years. 2005. Starting in 2006, there was an attempt • Reasonably comprehensive reforms in through a private members’ bill to amend the Peru in 2003 significantly clarified the law by removing both houses of parliament scope of the previously quite vague excep- from the ambit of the law and creating a new tions; in practice, this resulted in a narrow- exception in favor of MPs’ correspondence ing of the scope of exceptions. with public authorities. The primary goal of the amendments appears to have been to pre- vent the mandatory disclosure of MPs’ ex- Public Authorities Covered penses. A combination of civil society and A second law reform issue that has attracted media advocacy, as well as a lack of support attention is the scope of the law in terms of from the House of Lords, defeated the at- the public authorities covered by it. ATI laws tempt.Almost incredibly, in January 2009—af- normally definewhich authorities are bound ter losing battles before the information com- by obligations of openness. Good practice missioner, the Information Tribunal, and the suggests that this definition should be wide, High Court—the government again tried to including not only executive bodies but also introduce legislation to block detailed disclo- the legislature and judiciary, state enterprises, sure of MPs’ expenses. This attempt failed and other bodies controlled or funded by the when Conservative Party support for the state or serving public functions. measure was withdrawn.15 The 1974 amendments in the United Detailed information on MPs’ expenses States expanded the definition of an “agency” was finally leaked to the Daily Telegraph news- to include any executive agency, military de- paper, which started to publish it on May 8, 8 Amending Access to Information Legislation: Legal and Political Issues 2009 (nearly two months before it was due to Canadian law. Or they simply may be part of be formally released by the House of Com- a general effort to overhaul the right to infor- mons on July 1, 2009).The information pro- mation regime—as with current efforts to vided a clue as to why MPs had fought so hard amend the laws in Armenia, Israel, and Slove- to keep it confidential.There were numerous nia; and with the amendments in Ireland in cases of scandalous expenditures, and many 2003, in Slovenia in 2005, and in Bulgaria in more examples of inappropriate claims.16 2007 and 2008. Dozens of MPs announced that they would On occasions, omnibus reform efforts in- not seek reelection as a result of the exposure clude measures that both enhance and limit of inappropriate expense claims, and Speaker access as a result of a political compromise. of the House Michael Martin was forced to Thus, the 1986 amendments in the United step down after blocking reforms—the only States—a result of political negotiations—both time this has happened in the 300 years the extended the exception relating to law en- institution of the speaker has existed.17 forcement and introduced fee rules that low- Perhaps it is no coincidence that the two ered the costs of access for the media and civil issues that appear to be most prominent in ef- society. forts to reform ATI—the regime of excep- In some cases, more wide-ranging reforms tions and the range of public authorities cov- have simply limited access. A notable example ered by the law—relate to the key issue of the is the reform of the Irish law in 2003 which, scope of the law. The exceptions define the as noted above, significantly expanded the line between openness and secrecy, and there- scope of the exceptions in a number of areas by define the scope of the law in terms of in- and added provisions to address the “prob- formation covered; defining the public au- lem” of “serial” or frequent requesters and to thorities subject to the law defines its scope in impose hefty new fees.18 A report by Emily terms of bodies covered.The scope of the law O’Reilly, the Irish information commissioner, is, rather obviously, a key issue for both open- noted that the impact of the amendments had ness advocates and for those who wish to limit been to reduce the rate of requests by 50 per- transparency. cent, to decrease requests (other than those for personal information) by 75 percent, and to Reform Approaches cause a drop of 83 percent in requests by the Approaches toward reform of ATI laws can media—all within one year (Office of the In- take different forms. In many cases, reform is formation Commissioner, Ireland 2004). wide ranging in nature, representing an at- The Canadian experience might also be tempt to address a number of problems with counted here, albeit as an instance of a failure the ATI system at one time. In other cases, re- to pass much-needed reforms. Despite the form is more piecemeal in nature, focusing on agreement of almost everyone—including the just one or two issues. media, civil society, the information commis- Most wide-ranging reform efforts may ei- sioner, and even the parliamentary standing ther be triggered by a sense that the regime is committee that examined the issue19 that not working well and needs to be reformed— wide-ranging reform is urgently needed, the such as with the 1974 U.S. amendments after government has refused to amend the law.The the impeachment of President Richard standing committee made 12 concrete rec- Nixon and with current efforts to amend the ommendations for reform, including to ex- Amending Access to Information Legislation: Legal Issues 9 tend the right of access to everyone (instead of provision of partial access mandatory were in- simply to citizens); to give the information troduced the next year (2008). commissioner binding order-making powers In contrast, a number of amendments have (instead of only the power to make recom- addressed issues in a more or less piecemeal mendations); to expand the mandate of the fashion.Thus, amendments to the U.S. law in commissioner to include public education, re- 2002 sought to limit the ability of foreign search and, the provision of advice; to extend agents to access information, proposed amend- coverage of the law to the administration of ments in the United Kingdom in 2006 would parliament and the courts; and to require the have increased the applicable fees for access, approval of the information commissioner for and 2009 amendments in Bosnia and Herze- extensions beyond 60 days. govina added sanctions for public authorities In most of the cases studied, however, the who failed to fulfill their obligations under the more wide-ranging sets of reforms have large- law. In Canada, amendments in 1999 similarly ly been directed at enhancing the regime of added sanctions for obstruction of access, access.The 2005 amendments in Slovenia, for amendments in Israel in 2006 enhanced proac- example, resulted in the addition of a public tive publication obligations, and amendments interest override to exceptions, greater clarity in 2006 in South Africa introduced sanctions on fees, and the right of applicants to chal- for failing to produce certain mandatory pub- lenge the classification of documents. Current lications. proposed reforms there would allow re- Reform of Other Laws questers to challenge fee claims, would en- hance implementation of the decisions of the ATI laws do not exist in a vacuum. Rather, commissioner, and would limit the ability to they are part of an often complex patchwork lodge administrative law appeals relating to of rules that either support or limit openness. ATI primarily to requesters. Many countries have both dedicated legisla- The 2007 Bulgarian amendments were es- tion on secrecy and secrecy provisions in nu- pecially interesting in this regard. Proposals to merous other laws. Similarly, openness provi- limit access introduced by a group of MPs in- sions are often found in different sectoral laws. cluded measures like requiring proof of an in- Thus, an ATI law may implicitly be amended terest in the information, substantially increas- or changed through the adoption of other ing fees and timelines for responding to laws that affect the right to information. requests, and doing away with the provisions Good practice is for ATI laws to establish on severability. All the proposals were rejected. minimum standards of openness that other In their place, a set of positive amendments— laws may extend, but not restrict. In line with including a requirement for both national and this, ATI laws aligned with good practice local public authorities to appoint informa- override secrecy laws to the extent of any in- tion officials and to establish proper reading consistency, although most do not. Even rooms for purposes of granting ATI—were where the access law does provide for such an adopted. A further set of positive amendments override, it is not clear how this will be inter- bringing new public authorities within the preted in light of the later adoption of a law ambit of the law, introducing proactive publi- containing an explicit provision on secrecy. cation obligations for the first time, limiting Rules of legislative interpretation in most the definition of a trade secret, and making the countries give priority to subsequent laws, 10 Amending Access to Information Legislation: Legal and Political Issues presuming that the legislature had intended to promote positive amendments and prevent amend the earlier law, even if it did not state negative ones. this explicitly. Such a correlation would not be entirely In some cases, the ATI law is somehow de- surprising, and two factors may help explain pendent on secrecy legislation. For example, it. First, the growth in the number of ATI laws the Bulgarian ATI law does not include its over the last 20 years has been accompanied own regime of exceptions to the right of ac- by strong normative developments at the in- cess, referring instead to other laws for this ternational level—for example, in the form of purpose. Thus, the adoption of the Classified binding decisions by international courts; sets Information Protection Act in 200220 had a of principles by leading international non- very significant effect on the right to informa- governmental organizations (NGOs) and in- tion. Similarly, an act on the protection of clas- ternational organizations; and, more recently, sified documents was adopted in Hungary in the first international treaty on the right to in- 2009, with important implications for the formation,23 which collectively set out in right to information. There are currently de- some detail standards for ATI laws.These stan- bates in South Africa around a protection of dards, in turn, are likely to have some effect on information bill that might seriously affect the legislative reform efforts. ATI law.21 Second, there is an international network As noted above, other laws can also en- of right to information activists that regularly hance openness. Laws extending proactive shares information about good practices and publication obligations in different sectoral ar- successful approaches.24 Thus, campaigners of- eas (such as health, food safety, the environ- ten look to the experience of other countries ment, and governance) are in place in many when seeking to reform their legislation, or countries. In Nepal, for example, section 212 they rely on support from other actors when of the Local Self-Governance Act places ex- seeking to fend off negative amendments. tensive proactive publication obligations on Where international standards are clear local government bodies.22 and well defined, there seems to be more re- Developing sector-specific rules on open- sponsiveness to them in reform efforts. Thus, ness is an important way of going beyond the for example, the need for rules on severability minimum rules applicable to all public au- and sanctions for obstruction of access are set thorities established by an ATI law, particularly out strongly and clearly in international stan- in the area of proactive disclosure. Such rules dards. These rules are reflected in national are often not limited to public authorities (are laws; and some of the less controversial the focus of ATI laws) and place proactive dis- amendments have also been in these areas, closure obligations on private actors—for ex- such as the addition of rules on severability to ample, the labeling rules for food that apply in the U.S. and Bulgarian laws and the addition most countries. of rules providing sanctions for obstructing the right of access to the laws in Bosnia and The Role of International Standards Herzegovina and in Canada. Evidence seems to suggest some sort of con- Broadly speaking, the same is true of the nection between the international standards need for a public interest override (amend- and comparative practice in relation to a cer- ments in Bulgaria and Slovenia added a public tain issue and the ability of campaigners to interest override to the law); the need for Amending Access to Information Legislation: Legal Issues 11 broad proactive publication rules (note the ad- for lodging requests, some argue that these dition and extension of such rules, respective- improve the quality of requests and create a ly, in Bulgaria and Israel); and the idea that sense of ownership on the part of requesters. overall time limits for the release of historical The question of charging fees for ATI has documents should be as short as possible also been relatively contentious in the amend- (timelines were shortened in Scotland and the ments reviewed here. Proposals to increase United Kingdom). Another example is the at- fees were defeated in Bulgaria and the United tempt to introduce a requirement that re- Kingdom, and fee hikes in Ireland have been questers demonstrate an interest in the infor- blamed for significantly undermining ATI (see mation they are seeking—a requirement that McDonagh [2003] and Office of the Infor- is clearly contrary to international standards mation Commissioner, Ireland [2004]). On and that was comprehensively defeated in the other hand, more progressive fee rules Bulgaria. were introduced in Slovenia and the United International standards also make it quite States.The literature suggests that the fee hikes clear that private bodies owned, controlled or in Ireland might have been motivated by a de- funded by the state, including state corpora- sire to undermine what until then had been a tions, should be subject to openness obliga- flourishing right to information regime, and tions. In quite a few countries—including this perhaps also played a role in the Bulgaria Bulgaria, Canada, Israel, Peru, and Scotland— and United Kingdom proposals. the scope of the law in terms of public com- The most contentious reform issue may be panies or private bodies working on public attempts to limit the scope of the ATI law in contracts has either been extended or is being relation to politically sensitive information. considered for extension.That is partly the re- Into this category fall the attempts to exclude sult of the growing perception of a need to file notings and a greater range of cabinet impose openness obligations on these actors, documents in India and the successful expan- as reflected in international standards and sion of exceptions relating to internal deliber- based on factors such as their growing impor- ations and cabinet documents in the Irish law. tance in public life25 and expanding attitudes The unsuccessful attempt, in the United toward the role of the right to information in Kingdom to exclude parliament and MPs society. from the scope of the law can be included International standards and practices be- here. come increasingly less clear, however, as we Perhaps it should not be much of a surprise start to look at the issue of fees, where inter- that such an important focus of attempts to national standards provide guidance but not amend ATI laws is on exceptions and, in par- clear rules. Thus, it is established that fees for ticular, exceptions relating to politically sensi- access should not be excessive and should not tive information.26 But it is significant that in- exert a chilling effect on the right to informa- ternational standards and comparative practice tion. But at what point this starts to happen in are relatively unclear on the question of a particular society depends on local economic whether and, if so, how to protect internal de- considerations. Even the question of whether liberations. There are convincing reasons for fees should be charged simply for lodging a re- protecting a “space to think” within govern- quest is not settled. Although most openness ment and the free and frank provision of ad- advocates are strongly opposed to fees simply vice.At the same time, there is no question that 12 Amending Access to Information Legislation: Legal and Political Issues the internal deliberations exception is subject wish to participate in the process. Amend- to serious abuse in many countries. Most ments may be, or may seem to be, too minor countries do provide some sort of protection in nature to justify a lengthy and costly process for internal deliberations, although the scope of consultation. However, they may have a of these exceptions varies considerably. The greater impact than at first seems to be the ongoing contestation over attempts in India to case; and there is a strong argument for con- introduce a file notings exception reflects the sultation on any measures that affect basic hu- lack of international consensus on the issue. It man rights. may be that some sort of compromise that is In democracies, laws are adopted by the broadly acceptable to many stakeholders will legislature, and the process for this should al- be reached in India—for example, through the ways be open. However, there is a great differ- crafting of a narrower exception, perhaps with ence between openness, which requires the some safeguards against abuse. But it remains legislature to inform the public about the laws the case that international standards and com- it is proposing to debate and to make available parative practice do not provide clear guidance drafts of these laws, and going through a con- on this issue. sultative process that involves creating spaces and forums through which the public may air Processes for Amending Laws its views on draft legislation. When ATI legislation is originally adopted, it Even where a legislative process is fully normally goes through a fairly robust process open, it may be difficult for all but the most of consultation and public debate. Indeed, civil specialized NGOs to make their views known. society actors often provide a key impetus for In the absence of any formal process of consul- the adoption of the law in the first place.The tation, getting one’s views on the table often process often involves the publication of and involves an understanding of the (sometimes consultation around a policy paper, which complex) legislative process. It may also require then leads to the development of actual legis- knowledge of who the key players are in terms lation. For example, in 1997, the U.K. govern- of debating the legislation (whether in the ment published a policy paper (known as a governing party or the opposition), as well as “white paper”) titled “Your Right to Know: how to maintain their attention. The Government’s Proposals for a Freedom The further along a draft law is in the leg- of Information Act” (Cm 3818). That paper islative process, the more difficult it normally was followed by a period of formal public is to engage. As a draft law goes into the final consultation before an actual draft law was stages of adoption, it may no longer be possi- produced. Public consultation around an ATI ble for outside parties (that is, those who are law is appropriate, given its importance and not elected representatives) to intervene. direct public impact. Indeed, because these Changes may even be made in the legislature laws are designed to give effect to a human as the draft law is actually being debated. right, one might argue that extensive public In some cases, a conscious effort may be consultation is required. made to limit consultative opportunities.This Amendments to ATI legislation, however, appears to have been the case with the 2003 are often the subject of far less consultation; amendments in Ireland. These were prepared and civil society groups and others may need by a high-level review group. That group did to keep a close watch on developments if they not engage in public consultations before Amending Access to Information Legislation: Legal Issues 13 making its report, which was then translated politically more difficult for the government directly into a bill and placed before the legis- to adopt the amendments. lature—again without the benefit of public Governments introducing positive re- consultation or even consultation with the in- forms, on the other hand, may wish to bask in formation commissioner. The parliamentary the strong public support they may expect for committee overseeing the legislation did hold these efforts. Failure to consult can often at- public consultations and made wide-ranging tract strong criticism,29 which they would recommendations to change the proposed wish to avoid. Furthermore, the type of polit- amendments; but the bill was ultimately ical will that makes positive reforms possible is rushed into law without any changes, just over almost naturally oriented toward gaining pub- a month after it had first been tabled. It is per- lic input. In many cases, government will have haps not by chance that the lack of consulta- worked with civil society to develop the pro- tion on the Irish amendments coincided with posals in the first place. a law reform that was widely seen as seriously An example of more fulsome consultations undermining the right of ATI.27 on ATI law reform is a recent exercise in Similarly, when the Indian government Canada, where proposals for reform of the sought to amend its law in 2006, the process ATI law were put forward in June 2009 by the was characterized by extensive secrecy. Draft Parliamentary Standing Committee on Access amendments to the law were never officially to Information Privacy and Ethics.30 Before released to the public, although campaigners preparing its report, the committee held open managed to obtain a copy through a leak.The public hearings at which members of the Commonwealth Human Rights Initiative, public were invited to give their comments. which was involved in the campaign, noted The proceedings were streamed live and tran- scripts were available online. The committee recommended wide-ranging positive reform The secrecy that surrounded this process of the law. Unfortunately, its recommenda- contrasted with the openness and civil soci- tions were rejected by the government.31 ety participation that characterized the ex- In some cases, amendments (either explicit ercise of drafting the RTI Bill in 2005.28 or implicit) may be triggered by “external” events, such as the ratification of an interna- In this case, the amendments were never for- tional treaty. Thus, Hungary amended its law mally tabled in parliament, at which time they after ratification of the Council of Europe’s would presumably have been made public. Additional Protocol to the Convention for This limited number of experiences seems the Protection of Individuals with Regard to to suggest that governments aiming to intro- Automatic Processing of Personal Data.32 It is duce negative amendments to ATI laws may even more difficult for civil society and other wish to do so with a minimum of consulta- stakeholders outside of government to engage tion. The reasons for this are not hard to dis- in the process of treaty negotiation, given its cern. It may be assumed that, in general, the international dimensions. public (and particularly the media communi- The introduction of amendments to ATI ty) will not look favorably on attempts to roll laws can have a profound impact on their ef- back openness. Engaging in extensive consul- fectiveness and reach. Given that these laws re- tation will simply expose this fact and make it late to a human right, wide public consultation 14 Amending Access to Information Legislation: Legal and Political Issues should be conducted before they are amended. International courts have held that general However, this is not always done. Civil society guarantees of freedom of expression include groups interested in openness may have to the right to information, and courts in some carefully monitor legislative reform efforts in countries also have come to the same conclu- this area if they wish to ensure that they have sion for national constitutions.35 One might an opportunity to provide input. also seek to locate a right to information in constitutional guarantees of democracy and the right to vote and/or participate, on the ba- 2.2 Constitutional Reform sis that the genuine exercise of these rights is impossible if this right is not respected. The constitution sits at the pinnacle of the le- In recent years, specific protection for the gal system, and reform of constitutional pro- right to information has often been included visions on the right to information is poten- when new constitutions were adopted. Thus, tially the most important type of reform in many of the new constitutions adopted in terms of impact on the exercise of the right. Eastern and Central Europe after the demise In most countries, legislation may be chal- of the Soviet Union included right to infor- lenged on the basis that it does not conform mation provisions, as did many of the new to the standards set out in the constitution, constitutions adopted by African countries and thus a strong constitutional guarantee around the same time.36 However, there have provides a basis for indirectly reforming na- also been a few cases where constitutional re- tional legislation. By the same token, amend- forms have been adopted to add an explicit ment of the constitution is the most difficult right to information clause to preexisting bills type of reform to achieve, from a legal and po- or charters of rights from which they had litical perspective. hitherto been absent. Legally, the process for achieving constitu- These added guarantees are mostly fairly tional reform depends on the rules set out in generic in nature. An example is article 100 of the constitution itself.33 In some countries, the Norwegian constitution, which guaran- constitutional reforms may be passed by a tees freedom of expression. Reforms adopted simple majority or super-majority of the na- in 2004 added the following clause to that ar- tional legislature or parliament. In federal ticle, which had not previously included ex- countries, constitutional reform often requires plicit reference to the right to information: some sort of approval by both (or all) levels of government. In Mexico, for example, consti- Everyone has a right of access to the docu- tutional reform requires both a two-thirds ments of the State and of the municipal ad- vote by the national legislature (the Congress) ministration and a right to be present at sit- and the approval of at least one half of all state tings of the courts and elected assemblies. legislatures (article 135). In Canada, constitu- The law may prescribe limitations to this tional reform requires (within a three-year pe- right in regard of the right to privacy or oth- riod) the approval of the national legislature er weighty considerations.37 and an affirmative vote by at least two thirds of the provincial legislatures (that is, 7 of the The most recent development in this re- 10), representing at least 50 percent of the cit- gard is Amendment XVIII of the Constitu- izenry.34 tion of Pakistan, passed by the National As- Amending Access to Information Legislation: Legal Issues 15 sembly of Pakistan on April 8, 2010. As in the sary to protect certain overriding interests— Norwegian case, this amendment added a namely, the rights and reputations of others, right to information in a new article 19A, just national security, public order, and public following the preexisting general guarantee of health or morals.39 freedom of expression, as follows: There is a tendency in many constitution- al amendments to provide for a far less rigor- 19A. Right to information: Every citizen ous test for restrictions on the right to infor- shall have the right to have access to infor- mation than on the wider right to freedom of mation in all matters of public importance expression. The Norwegian constitution, for subject to regulation and reasonable restric- example, only permits restrictions on free- tion imposed by the law. dom of expression where “this can be justi- fied in relation to the grounds for freedom of A notable exception to more generic con- expression, which are the seeking of truth, the stitutional amendments on the right to infor- promotion of democracy and the individual’s mation are the very detailed constitutional freedom to form opinions.” This is a strong amendments adopted in 2007 in Mexico.The test, linked to the very rationale for protecting 1917 Constitution of Mexico did not provide the right in the first place. In contrast, the for a specific right to information, although constitution allows apparently any legal limi- article 6 guaranteed the right to freedom of tations on the right to information (as op- expression. Constitutional amendments in posed only to “justifiable” ones), where these 1977 added a very general guarantee of the relate to privacy or other “weighty consider- right to information, although this was vague ations”—a much more permissive test. and was not made effective through imple- Similarly, the core right to freedom of ex- menting legislation. Amendments adopted in pression in Pakistan may be limited only by 2007 introduced a second part to article 6, “reasonable restrictions imposed by law” to containing seven detailed provisions on the protect the interests listed in article 19 of the right to information.These provisions include, constitution.The right to information may be among other things, establishment of the right subject to reasonable restriction to protect any in accordance with the principle of maximum interest. Furthermore, the right only extends disclosure, free of charge and through expedi- to information on “matters of public impor- tious mechanisms. The article also requires tance,” a significant and unfortunate limita- public authorities to maintain their records in tion because it is so vague. good condition and calls for independent spe- The relative weakness of many constitu- cialized oversight bodies.38 So far, no other tional amendments on the right to informa- country has introduced constitutional reforms tion is difficult to explain, although the pool of this breadth on the right to information. of cases is small and the Mexican case is an ex- ception to the trend. This trend (of allowing Constitutionally Permitted wider restrictions) is not so apparent in the Limitations newer constitutions that have incorporated a The right to information, like the wider right guarantee of the right to information from the to freedom of expression, is not absolute. Un- beginning. In South Africa, for example, the der international law, restrictions on these right to information is subject to the same rights may be imposed by law where neces- regime of limitations as all other rights.40 16 Amending Access to Information Legislation: Legal and Political Issues One reason could be that the right to in- in a constitutional challenge does, however, de- formation is still not seen as a “real” right, un- pend on having the requisite resources—both like freedom of expression and other more es- financial and human—to mount a legal case in tablished rights. Another reason may be that it the appropriate forum (possibly a dedicated might genuinely be difficult to accommodate constitutional court or the supreme court). all of the accepted limitations on the right to In practice, there has been relatively little information within the traditional framework constitutional litigation aimed at amending or of restrictions on freedom of expression. For clarifying the scope of ATI laws in countries example, most countries have a deliberative around the world.41 This is surprising, given process exception. The only ground for re- the large number of countries where this right stricting freedom of expression that might be is constitutionally recognized either explicitly able to accommodate this limitation would be or implicitly and the potentially high impact public order, but that ground would require a of constitutional litigation as a strategy. Even wider interpretation of this notion than courts in Mexico, which has a very extensive consti- normally have given. A similar problem arises tutional guarantee of the right to information, regarding “ability to manage the economy,” there has been little to no constitutional liti- another common exception in ATI laws. gation. In South Africa, there have only been two Constitutional Challenges constitutional challenges since the ATI law At least in theory, many countries’ constitu- was first adopted in 2000. One challenge was tional guarantees of the right to information effectively dropped; in the other, the Consti- provide the basis for challenging ATI legisla- tutional Court ruled that the 30-day limit to tion and thus, potentially, amending it.The na- bring a case to the court following a refusal by ture of such challenges is limited only by the a public authority to provide information was scope of the constitutional guarantee. One unconstitutional, extending it to 180 days.42 area that would appear ripe for challenge in One reason for the small number of chal- many countries is the regime of exceptions, lenges, at least in South Africa, may be that which arguably is often overly broad.ATI laws when a player with the resources to engage in that fail to provide for a right of appeal to an constitutional litigation (for example, an independent administrative body might also NGO) gets involved in a case, the issue is of- be open to challenge on the grounds that the ten resolved in favor of openness without re- law fails to provide an effective remedy against course to the courts. Even when a matter does denials of the right. go to court, the case is often decided in favor Constitutional challenges are potentially an of openness without the need to refer to the important alternative route for amending ATI constitution. laws and may be relatively accessible to certain Similarly, in India—despite an enormous civil society actors.They are not or should not groundswell of support for and engagement be dependent on political will, although their on the ATI law—there have been very few, if success may depend on a certain degree of ju- any, constitutional challenges. The relatively dicial engagement or even activism.They also recent vintage of the law (2005) and its pro- do not depend on one’s ability to reach out to gressive nature may militate against constitu- the wider public or to count on the support of tional challenges. In essence, campaigners and important social players.The ability to engage activists in India are winning many of their Amending Access to Information Legislation: Legal Issues 17 battles without the need to go to court, let lation and, most commonly, ministers hold the alone to mount a constitutional challenge. It power to adopt them. In most cases, secondary may also be that society is still exploring the rules, once adopted, must be published offi- contours of the existing law and that more cially—for example, in the official gazette. constitutional challenges will come later. Most countries also grant the legislature the The situation may be different in Canada, power to consider (and potentially reject) pro- where the Supreme Court recently held that posed secondary rules.49 existing constitutional guarantees of freedom In some countries, the administrative over- of expression include a limited right to infor- sight body has the power to adopt binding mation.43 In that case, the Court held that rules. For example, the Mexican oversight there was no need to amend the underlying body (the Instituto Federal de Acceso a la In- legislation because it conformed to the con- formación Pública [Federal Institute for Ac- stitutional guarantee. However, the Court did cess to Public Information]) has the power to prefer an interpretation of the law that could adopt rules (lineamientos) that are binding, al- be understood as an implicit amendment.44 though they have a status below that of sec- Furthermore, it may be that, armed with this ondary rules adopted by a minister.50 new constitutional recognition, more chal- Secondary rules are normally used either lengers will emerge.This may result in courts where flexibility is needed (because they can effectively “amending” laws. be amended much more easily than primary Challenges under international law—par- legislation) or where the level of detail re- ticularly human rights challenges—are anoth- quired is such that it is more efficient to leave er way of amending ATI laws, analogous in the matter to be elaborated by a minister many respects to constitutional litigation. A rather than by the whole legislature. dramatic example of this was the challenge to Despite their technically inferior status, the Chilean rules on ATI before the Inter- secondary rules can contain important provi- American Court of Human Rights, which sions.Thus, many ATI laws give ministers the not only led to the first clear international case power to set rules and rates for fees. Although recognizing a right of access, but also resulted this may be justified (to allow for adjustments in the wholesale reform of Chilean law in this to keep up with inflation and various eco- area.45 However, as with constitutional litiga- nomic changes, among other things), it is an tion to reform ATI laws, there has been rela- important power because increasing fees can tively little international litigation to this exert a chilling effect on making requests.51 end.46 The standards for record management, where flexibility is again required (for example, to keep up with changing technologies), are also 2.3 Secondary Rules normally contained in secondary legislation. Once again, this is an issue that directly affects Secondary legislation and regulations47 have a ATI in practice because poor records manage- status that is inferior to statutes or primary ment means that public authorities will strug- legislation, but they are still legally binding gle to provide information to requesters. rules.The process for adopting such secondary More detailed procedural matters, such as the rules varies considerably,48 but amendments processing of requests and notice require- normally are authorized by the primary legis- ments as well as what must be included in the 18 Amending Access to Information Legislation: Legal and Political Issues annual reports of public authorities, are often and not delegating to ministers excessive left to secondary legislation. powers over the implementation of the law. In some countries, secondary rules are Regardless of the process, the adoption of considered so important that the law cannot secondary rules almost always is a far-lower- come into force without them.This can have profile action than is the adoption of primary very serious consequences. The failure of the legislation.Their adoption is also far less likely Ugandan government to adopt implementing to be the subject of formal consultations or regulations, for example, has meant that the gathering of public feedback, making it more ATI law has remained a dead letter since the challenging for civil society and other stake- time it was written. holders to provide input.To do so will proba- The question of what matters are left to be bly require active monitoring of develop- decided by secondary rules, as well as the ac- ments, along with knowledge about how to tual content of those rules, is thus quite im- provide input into the process and how to portant.A balance needs to be struck between publicize issues. achieving the necessary degree of flexibility 3 Amending Access to Information Legislation: Political Context Assessing the political context in which “knowledge is power,” has been replaced by amendments to the legal framework for the the idea that “information is ours” (and for right to information take place is complex. A free). large number of players, and an even larger Second, the right to information is of number of factors, potentially impact these practical benefit to a wide range of social ac- processes. Often, the underlying motivations tors, at least in a democratic setting.There are of different players are not explicit, and the the obvious candidates—the media, political power structures to which they are respond- parties, human rights nongovernmental or- ing may not be evident. ganizations (NGOs)—and the less obvious A few broad generalizations can be made ones—members of parliament (MPs),53 busi- about the wider political context for law re- nesses,54 socially oriented NGOs,55 and po- form in this area. First, the right to informa- tentially even civil servants.56 Campaigns in tion is a “motherhood and apple pie” notion52 many countries, whether seeking to have an that almost inherently invites wide public sup- ATI law passed in the first place or promoting port, whereas secrecy seems almost inherently positive amendments to an existing law, have wrong. Thus, this famous remark by U.S. been able to attract wide support from these Supreme Court Justice Louis Brandeis appeals groups.57 The right is also an important tool to to our innate sense that secrecy is dirty, a car- empower individuals seeking to assert claims rier of disease: “A little sunlight is the best dis- against the state. infectant” (Brandeis 1914, p. 92). This belief Third, although governments are often lends strong support to those campaigning for broadly hostile to greater openness, they are greater openness and is partly the reason for not monolithic in nature; openness champi- the tremendous achievements in this area that ons can often be found among the political have occurred in the last 15–20 years.The ad- elite and senior bureaucrats.These individuals vent of new information technologies has fur- can play a crucial role in shepherding amend- ther strengthened popular support for the right ments through the required formal processes to information. Generations now growing up (such as tabling a law in the legislature or with access to the Internet have a sense of en- making sure it proceeds through committee titlement to information that earlier genera- stage) and in breaking down internal govern- tions lacked. Francis Bacon’s famous phrase, ment opposition. 19 20 Amending Access to Information Legislation: Legal and Political Issues Fourth, the context for amending an ATI extent to which these players may have a pos- law includes the fact that the law already ex- itive impact on reform efforts. ists. Outside of extreme cases of radically bad Civil Society or unimplemented laws, this means that soci- ety has already recognized the imperative of There is no doubt that where civil society is providing ATI at least to some extent. It also well organized and resourced, it can have an means that the various players involved al- important impact on reform processes by pro- ready have a sense of the impact of openness. moting positive reforms or by preventing neg- For opponents, experience with implement- ative ones. Thus, in a number of countries ing the law often mitigates their concerns and with well-organized civil society advocacy fears, which can be exaggerated prior to actual campaigns—such as Bulgaria, India, Israel, and experience with openness. Finally, it gives the United Kingdom—attempts to introduce proponents a clearer sense of what reforms negative amendments have been successfully they wish to prioritize, based on their experi- fought off and/or positive amendments have ences so far. been introduced.The scope of actions by such At the same time, one should not underes- civil society organizations is limited only by timate the extent of opposition to greater the imaginations of those involved.This paper transparency within government and the bu- does not describe these actions in detail, but reaucracy. Even maintaining consistent levels does outline a few key strategies. of openness has proved to be a continuous Key Strategies struggle in countries with a longer track record of implementing ATI laws, such as One important indicia of successful civil soci- Australia, Canada, and the United States. In ety efforts is the presence of a central NGO or most countries, openness proponents have to network of NGOs that leads and coordinates work hard and imaginatively to secure proper civil society efforts, often with the support of implementation of the law, let alone to bring the media. For example, there is the Access to about positive amendments. Information Programme58 in Bulgaria, the It is beyond the scope of this paper to en- Movement for Freedom of Information59 in gage in a country-by-country analysis of po- Israel, the Open Democracy Advice Centre in litical factors behind reforms of the legal South Africa,60 and the Campaign for Free- framework for ATI. Instead, it focuses on the dom of Information61 in the United King- different roles played by different actors, along dom. In India, a united front in the form of with an assessment of wider contextual factors. the National Campaign for People’s Right to Information62 brought together representa- tives from leading advocacy groups to provide 3.1 Actors and central direction. Stakeholders On the other hand, in countries like Cana- da and Ireland where civil society is not uni- This section of the paper looks at the roles of fied or strong, the reverse is true; and attempts different kinds of stakeholders in the process to introduce positive amendments and to pre- of amending ATI legislation. It assesses the vent negative amendments, respectively, have contexts in which such stakeholders play an failed. It is not possible to draw a precise causal important part in this process, as well as the link between these developments and the lack Amending Access to Information Legislation: Political Context 21 of a strong civil society movement, but it is Archive conducted a series of governmen- reasonable to postulate that they are related.63 twide audits that demonstrated clearly that Several actors have noted the need to there were major problems with the system— bring on board as wide a range of players as most particularly, serious and systemic delays.70 possible in amendment efforts.64 Businesses In some cases, civil society groups have should not be forgotten because they can play managed to work directly with officials to an important role in pushing for reform and amend ATI legislation. For example, the Free- can sometimes exert influence in places civil dom of Information Centre of Armenia society groups cannot easily reach.65 worked with officials to draft proposed amend- In many cases, civil society actors have ments to their country’s ATI law, and those used litigation to support their advocacy ef- amendments are currently before the legisla- forts. In Israel, for example, campaigners have ture.71 Where possible, this clearly is a very di- used litigation to force the government to im- rect route of influence. plement amendments to ATI legislation that It is also important for civil society to be had already been adopted. They also believe prepared to work over the longer term.Thus, that their ability to use litigation has enhanced in Canada, the need for reform of the ATI law their overall status and influence.66 When pro- has been recognized by at least some actors moting reforms to address the serious prob- since 2002.72 Significant reforms have still not lem of delay in the ATI system in the United been adopted, and the need for a strong cam- States, the National Security Archive made paign is as great as ever. extensive use of litigation.67 Litigation has Finally, civil society campaigns need to be been valuable not only in the specific case at adapted to the particular circumstances of the hand, but also in terms of building credible country. In India, when the government tried evidence that the system is flawed and in need to introduce amendments to the law shortly of wider reform. In Peru, litigation was com- after it was adopted, civil society groups start- bined with other types of advocacy (including ed a “Save the RTI Campaign.” This involved a media strategy and civil society advocacy) to a range of campaign tactics, including sending push through reforms.68 signed postcards, circulating petitions, holding In general, there is a need for solid evi- demonstrations, conducting impromptu bal- dence to provide support for reform meas- lots on street corners and holding a dharna (a ures. Building campaigns on a solid evidential sit-down protest). A detailed critique of the platform can substantially boost the chances of proposed amendments and their potential im- success. Similarly, providing concrete and pact was produced.The campaign also mobi- practical ssolutions to the problems identified lized the media and undertook direct lobby- (including in the form of draft amendments to ing of influential individuals and political legislation) is an effective strategy. parties (see Singh [2010]).73 In due course, A number of surveys have been conducted both of the communist parties, that support in India, including one by civil society, look- the government (that is, the Communist Party ing at implementation after a period of two or of India [Marxist] and the Communist Party three years.69 These surveys provide invaluable of India) and the main opposition party an- information about what is working, what is nounced publicly that they were opposing the not working, areas for improvement, and so amendments, and the government eventually on. In the United States, the National Security withdrew its proposals. 22 Amending Access to Information Legislation: Legal and Political Issues Media the media reacted strongly; most national me- dia published critical editorials. The Press Particular note should be made here of the Gazette initiated a “Don’t Kill FOI” campaign role of the media.The media have an impor- that led to a petition signed by 1,200 editors tant agenda-setting role in relation to all pub- and journalists and sent to the prime minister lic issues. But they can be particularly essential (Gundersen 2008, pp. 236–37).75 in supporting campaigns to open up govern- The media publicizes ATI issues in at least ment.This is an issue that the media are gen- two different ways. First, outlets report on erally prone to support because it directly en- them as they would any other issue of public hances their ability to do their work. In many interest, as a matter of news and current affairs. countries, journalists—in particular, investiga- Thus, a proposal to amend ATI legislation— tive journalists—are a significant user group whether proposed by government or by civil for ATI legislation. society—should be covered in the same way At the same time, the media in some coun- as a proposal to amend environmental legisla- tries initially has been reluctant to support tion. Equally important, through their report- general openness campaigns for two reasons.74 ing the media can demonstrate directly the First, they have sometimes feared that a formal importance of the right to information. This system for providing ATI held by public au- can be done, for example, by indicating that thorities will undercut the informal systems the law has been used as a source for a story, they traditionally rely on to obtain informa- when that is appropriate.76 In some countries, tion, perhaps introducing rigidities and delays there are journalists with dedicated ATI or se- that they do not currently face. Second, jour- crecy beats who produce regular columns or nalists have sometimes feared that, with open shows based on these themes. access, their special role as purveyors of infor- mation will be undermined. If everyone can Oversight Bodies (Information access information freely, what is their role? Commissions) Neither of these concerns is borne out in practice. Traditional media sources are rarely In many countries, information commis- affected by the addition of a new means of sion(er)s have been quite involved in efforts obtaining information; and, indeed, most to reform ATI laws. In some places, these journalists continue to get most of their infor- bodies have played leading roles in advocating mation from traditional sources. Distilling and for reforms. In other cases, they have been just presenting the news in focused media prod- one of many players. Regardless, they have a ucts continues to be an important media value certain authority on this issue because of their added, even if individuals have greater access formal mandate and the experience they nec- to public information through direct means. essarily gain from it. Most civil society campaigns involve at least Slovenia presents an interesting example of some media element; and, in many cases, the reform processes being driven forward by the media are credited with leading the campaign. information commissioner. The 2005 amend- For example, in the United Kingdom, when ments were motivated largely by the commis- regulations to increase fees and give officials sioner, although they were formally introduced wider powers to reject requests were proposed, by the minister for public administration.This Amending Access to Information Legislation: Political Context 23 was the case even though an important ele- In some cases, the governing party domi- ment of the amendments was to merge over- nates the legislature.This was the case, for ex- sight functions for information and privacy ample, when the amendments to the Irish law into one body (in other words, even though were adopted in 2003.82 In other cases, the the amendments directly changed the role of biggest party relies on support from other par- the information commissioner).The commis- ties to govern. This opens up interesting pos- sioner again has been the impetus behind cur- sibilities for advocacy. rent discussions of amendments. In Israel, for example, government is always In Canada, the Office of the Information run by complex coalitions involving a number Commissioner (OIC) has also been active in of parties, each promoting different interests. promoting reform of the law. Discussions Amendments to the law to expand proactive about reform have been going on since at least environmental disclosures in 2005 were intro- 2002, when the government-appointed Access duced by a parliamentarian belonging to a to Information Review Task Force published small left-wing party, although they passed by its report, “Access to Information: Making It a strong majority; and amendments in 2008 to Work for Canadians.”77 The OIC provided an bring publicly owned corporations within the official response to the report, focusing on the ambit of the law were introduced by a mem- need for legislative reform.78 In October 2005, ber from a right-wing party.This suggests that the OIC presented a draft open government the right to information as an issue has appeal bill to parliament, proposing comprehensive across the political spectrum.83 In some coun- overhaul of the Canadian legislation.79 tries, it also may also point to the strength of There have been low-level discussions openness as a public concern, so that larger about reform since that time. When the Par- parties feel some pressure to support amend- liamentary Standing Committee on Access to ments when those amendments have been Information, Privacy and Ethics reviewed the tabled in the legislature. ATI law in 2009, the OIC submitted a report, In Canada, since 2004, no government has “Strengthening the Access to Information Act held a majority of the seats in parliament; and to Meet Today’s Imperatives,” containing a list successive governments have ruled from a mi- of 12 recommendations for immediate re- nority position, rather than seeking to form a form. The recommendations were drawn coalition to command a majority of the votes from the wider reforms it had proposed earli- in parliament. This means that the govern- er.80 The committee’s report largely mirrored ment does not control parliamentary commit- the OIC’s recommendations.81 tees; and, until recently, the committee respon- sible for oversight of the ATI law (the Parliament Standing Committee on Access to Informa- The role of the legislature in adopting amend- tion, Privacy and Ethics) was chaired by a ments to ATI legislation is obviously crucial. member of the opposition Liberal Party.84 Af- At the end of the day, amendments that ter a process of public consultation, the com- change primary legislation have to be passed mittee released a report, “The Access to Infor- by the legislature, and it might also play a role mation Act: First Steps Towards Renewal,”85 in accepting or rejecting secondary rules. which largely supported all 12 of the recom- 24 Amending Access to Information Legislation: Legal and Political Issues mendations for reform made by the informa- moted the bill consistently from as early as tion commissioner.86 Despite this, the govern- 2003, even though the political climate at the ment rejected the idea of amending the law at time was not necessarily conducive to right to that time,87 suggesting instead that the focus information reform. needed to be on training and enhancing in- The role of political champions has been ternal guidelines. The other parties did not highlighted in other countries as well. In Is- make a major issue out of it, and it largely died rael, the minister in charge of the public serv- there. ice has been a strong supporter. Even though This may be contrasted with the situation he formally has no role in this issue, he has in the United States in 1974, when wide- been promoting reforms proposed by civil so- ranging reforms to the law were adopted, cre- ciety to establish some sort of oversight body ating a far more positive climate for openness. and has used his political connections and in- President Gerald Ford, who less than three fluence to that end.89 months earlier had taken over as president fol- In India, much has been made of the appar- lowing Richard Nixon’s forced resignation, ent rift between Prime Minister Manmohan vetoed the amendments. The veto was over- Singh and Congress Party President Sonia ridden convincingly by a 371-to-3 vote in the Gandhi over the right to information.90 Gand- House of Representatives and a 65-to-27 vote hi wrote to the prime minister in November in the Senate,88 with legislators making a clear 2009, stating her view that no amendments to statement that this reform was not going to be the law were necessary. A response by the stopped by the executive. prime minister in December claimed that In the United Kingdom, the upper cham- amendments were necessary, for example, to ber of the legislature, the House of Lords, has address cabinet documents and internal dis- played a role in defeating negative amend- cussion, the independence of the judiciary, and ments to the ATI law. A bill increasing secrecy various matters relating to the central infor- for MPs was passed by the House of Com- mation commission.91 As noted earlier in this mons in May 2007; but no member of the report, the first issue has been very controver- House of Lords would sponsor the bill in that sial in India. chamber, so it was not passed (Gundersen Although treated separately above, syner- 2008). gies between different sets of stakeholders— civil society, oversight bodies, parliament, and Political Champions political champions—are often key to ensur- The role of political champions in promoting ing the success of positive reforms or the de- ATI law reform is important. For example, the feat of negative ones. Indeed, almost all of the 2007 adoption of amendments to the law in examples cited above involved collaborations the United States—amendments that focused between two or more different players. Thus, significantly on measures to reduce delays in in India, civil society activists were able to take responding to requests, enhanced reporting advantage of Sonia Gandhi’s position to mo- requirements, and introduced systems to facil- bilize support against the reform proposals. In itate the resolution of disputes—benefited Israel, similarly, civil society groups using the from leadership and support from Senator media, litigation, and various other tools li- John Cornyn, ranking Republican on the aised with supportive political leaders to Senate Judiciary Committee. Cornyn pro- achieve positive reforms. Amending Access to Information Legislation: Political Context 25 3.2 “Objective” Factors openness, this does not necessarily mean that there is always a strong evidentiary basis for the Objective factors—such as whether the law is specific reform efforts. Often, reform efforts actually working to ensure ATI while protect- are spearheaded by actors—whether informa- ing necessary confidentiality interests—should tion commissioners or civil society groups— play an important role in driving ATI law re- that are deeply involved in transparency work. form. Because this is a basic human right that They therefore propose changes based on their (at least under international law) states are specific experiences, despite a relative paucity legally obliged to give effect to, objective as- of academic research to provide a wider sessments of whether the system is working grounding. should be acted on.92 There is no question that the identification of problems with an existing regime has 3.3 Wider Political played an important role in many reform ef- Factors forts. Thus, as noted, the 1974 reforms in the United States were largely a response to the It is often difficult to separate the roles of par- failure of the 1966 law to deliver on its objec- ticular players from a wider analysis of political tives, and this was also an important motiva- and other factors.To understand these factors tion for the 2007 U.S. reforms.93 As a general- properly in any given context requires a thor- ization, it may be claimed that most of the ough analysis of that context. At the same reforms promoted by information commis- time, some general observations may be made. sioners, NGOs, and other civil society actors Underlying social belief in the importance are based on at least a perception of a need for of the right to information seems to be these changes to be adopted to realize open- stronger in countries with more recent histo- ness goals. ries of excessive secrecy and the harm that it This is also often true of amendments that engenders. Thus, there is a good overall cli- would limit access. At the same time in at least mate for positive openness reform in some of some cases, these seem to be driven more by the more democratic countries of Central and political interests than a desire to improve the Eastern Europe—even if implementation is right to information system.This seems a fair sometimes a challenge.The author is unaware characterization of attempts by MPs in the of any studies specifically on this issue, but it United Kingdom—and particularly their last- seems reasonable to posit at least some link ditch efforts in January 2009—to exempt between the relatively widespread support for themselves from the ambit of the law. Inas- openness and the secrecy that was pervasive much as openness is almost inherently incon- during communist rule and widely blamed venient to government and is often politically for contributing to the abuses of that period. embarrassing, it is fair to postulate that these In a number of these countries, civil soci- factors often color government-led amend- ety actors or other stakeholders have been able ment efforts. to convince the government or the legislature Even where attempts to amend ATI laws to support openness reforms.The case of Bul- are motivated by a concern to promote greater garia in 2007, where an attempt to introduce 26 Amending Access to Information Legislation: Legal and Political Issues negative amendments was not only defeated Canada, where almost no major changes have but actually turned into an opportunity to in- been introduced since the law was first passed troduce pro-openness reforms, is a good ex- in 1982,98 makes this even more surprising. In ample of this.94 In Armenia, as well, there ap- these cases, it may be that the lack of active en- pears to be wide-ranging support for current gagement on this issue—among civil society, positive reform efforts, reportedly including parliamentarians, and the general public—re- support from the prime minister.95 Similarly, sults in part from the fact that secrecy is not in Mexico, the successful heralding in of the seen as a serious threat to democracy. right to information in both law and practice, In a number of cases, positive reforms can with strong support from the political leader- be linked to what might be termed “special ship, was surely affected by negative recent ex- political moments.” A good example of this periences with secretive government during was the 1974 amendments in the United the long period of one-party rule by the In- States. Problems with the law that had first stitutional Revolutionary Party (see Sobel et been passed in 1966 had long been acknowl- al. [2006]). edged by most stakeholders, including such The situation in India is arguably similar in abuses as charging requesters as much as $7 a terms of powerful and recent examples of page of photocopying, mixing exempt infor- harm from secrecy, albeit in the context of an mation with nonconfidential information so established multiparty democracy. In India, as to “contaminate” a whole document, and successful socialization of the right to infor- extensive delays in processing requests. mation is linked to the rejection of an over- Various reform efforts had been under way bearing, paternalistic, and corrupt civil service. for some time, trying to address these prob- Powerful examples of using ATI to expose lems. But the adoption of the 1974 amend- abusive practices by officials who denied the ments, including the dramatic attempt by poorest of the poor the wages they needed to President Ford to veto the legislation and the survive propelled the right to information to convincing override by congress, took place political stardom, linked it to a strong grass- in the dark shadow of the Watergate scandal roots narrative, and drew the connection be- and was clearly heavily influenced by it. Al- tween ATI and basic livelihoods—indeed, the though even a strong ATI law probably would very right to life.96 not have prevented the events that led to Wa- These experiences may be contrasted with tergate, the facts that Nixon was obsessively the political environment of more established and abusively secretive and that the specific democracies, including those with longer- abuses that ultimately forced him to resign standing right to information regimes (such as were grounded in secrecy placed in stark relief Canada and Ireland). In both of those coun- the imperative for strong right to information tries, civil society has mounted what can only reform (see National Security Archive 2004). be described as lukewarm efforts to promote A similar political moment presented itself positive law reform (or counter negative re- in India, albeit on the occasion of the adop- forms).The opposition in both countries, too, tion of the law, not its amendment. As Singh has failed to put forward a concerted attempt points out, to make an issue out of what might otherwise be considered low-hanging fruit in the pollit- In India, the change of government, the re- ical sense.97 The convincing need for reform in fusal of Mrs. Sonia Gandhi to become the Amending Access to Information Legislation: Political Context 27 Prime Minister and the consequent acqui- (PRI) rule. Again, his administration delivered sition of moral authority, the setting up of on this promise, adopting an ATI law in 2002. the National Advisory Council under her One reason these parties made such strong leadership, the unfamiliarity of the system commitments to the right to information was with this first-of-its-kind council and its no doubt because of its populist appeal. How- functions and powers, the hesitation to op- ever, it is undoubtedly much easier for a party pose proposals from this council, all led to a that has not been in power recently to make window of opportunity which allowed the such commitments because, among other RTI Act to “slip through” (Singh 2010, things, it has no official secrets of its own to p. 21). hide (see Mendel [forthcoming]). Although these examples refer to adoption Another wider political factor that seems of legislation in the first place rather than to to have an impact on openness reform is reform of legislation, it seems reasonable to change of government either after a period of posit that similar political forces might have an one-party rule or a long time in opposition. impact on amendments as well. The adoption of an ATI law in South Africa It may also be that such special political mo- was part of a package of reforms that were a ments can open the door to negative amend- direct consequence of the end of apartheid ments to ATI laws, although the evidence for and the ushering in of democratic rule. In the this seems to be relatively weak. One example United Kingdom, the Labour Party had been was U.S. Attorney General John Ashcroft’s in opposition for nearly 18 years when it fi- adoption of a Memorandum on the Freedom nally gained power in 1997. Adoption of an of Information Act on October 12, 2001.99 ATI law had been a feature of every Labour The memorandum effectively encouraged of- Party manifesto since 1974, and the party did ficials to use all available exceptions to deny deliver on this promise after it came to pow- access, and it was widely seen as an important er—albeit somewhat reluctantly (see Gunder- rollback in terms of openness. There can be son [2008]). Similarly, openness in Mexico was little doubt that timing of this memorandum, a key reform platform of the Vicente Fox gov- just one month after the terrorist attacks of ernment, which came to power in 2000 after September 11, was not mere coincidence. 65 years of Institutional Revolutionary Party 4 Conclusion What motivates efforts to reform the legal • Is there a widespread pattern of difference framework for the right to information, and between constitutionally authorized limi- who are the key players? Answers to these tations to the right to information, on one questions vary considerably from country to hand,and to freedom of expression, on the country, making comparisons and conclusions other hand? If so, what are the reasons for difficult. A few tentative conclusions may be this? drawn from this initial survey of reform ef- • How would a rigorous constitutional and forts. However, there is a need for more em- international law analysis assess accepted pirical evidence and study before firm conclu- ATI law standards (that is, to what extent sions may be put forward.100 have we come to accept rules in these laws Some of the questions raised and areas for that would not pass constitutional muster)? further research on amending ATI legislation include the following: The evidence reveals a strong pattern, al- beit certainly not a uniform one, of positive • What is the nature of the relationship be- amendments dominating negative ones or tween a strong central civil society cam- stalemates leading to inaction. This seems to paign and the ability to secure positive refute the idea expressed by some campaign- amendments to ATI legislation? ers that it is better to hold out for the best pos- • Under what conditions are strong central sible law at the point of first adoption, on the civil society campaigns likely to emerge? basis that it will be difficult to secure positive • What sorts of causal relationships exist be- amendments later (although this may be true tween the clarity of international standards in some countries and contexts). and the ability to secure positive ATI The positive trend seems to be based, at amendments? least in part, on the “motherhood and apple • How important is evidence of right to in- pie” quality of the right to information as a formation shortcomings in promoting key democratic right and on the appeal that positive amendments? the right to information can garner across a • What are good-practice approaches to wide range of stakeholders. It may also reflect consultations around ATI law reform, in- the fact that amendments normally come after cluding in the adoption of secondary rules? some track record of implementation of the 29 30 Amending Access to Information Legislation: Legal and Political Issues law, which may help reduce the sometimes ir- broad alliances that can lend political weight rational fears held by officials and others about to a campaign even if not all members play an the impact of opening up. active role. Some of the main outliers from this posi- The evidence also suggests that where tive trend are established democracies like there is a central reference point for civil soci- Canada and Ireland. The reasons for this are ety efforts—whether this takes the form of a complex, but a lack of strong recent experi- leading nongovernmental organization or a ence with the harm that secrecy can engender coalition of groups—positive rather than neg- and weak civil society campaigns (perhaps ative reforms are more likely to be adopted. along with a certain political culture of com- More study is needed to determine the con- placency) seem to be factors distinguishing ditions likely to give rise to such reference these countries.They may be contrasted with points, but the willingness of a wide range of countries like Armenia, Bulgaria, India, and groups to support pro-openness campaigns Mexico, for example, where the threat of suggests that this is an area that is often favor- harm from secrecy is far more poignant. able for civil society development attention. In general, it is easier to secure reforms Relatively little use has been made of con- where the existing law is out of line with clear stitutional litigation as a strategy to reform the international standards and comparative prac- legal framework for the right to information, tice. However, where international standards so this deserves more attention. Amendments and comparative practice are less clear, there is to ATI laws—particularly where they take the likely to be more contestation around reform form of secondary legislation-are likely to at- efforts. The clarity—particularly of compara- tract less public attention than will adoption tive practice—tends to decline in relation to of the law in the first place.As a result, civil so- more politically sensitive ATI issues, which is ciety actors and others wishing to engage in also where ensuring pro-openness results has these processes may need to monitor them proved most difficult. It is unclear whether the carefully. high degree of political sensitivity has prevent- The overall picture that emerges is of the ed the emergence of international rules, or right to information as an active area of social whether this sensitivity is caused by some oth- engagement, where a wide range of players er factor but results in difficulties in promoting exert themselves over time to put forward an openness. impressive flow of proposed amendments to Campaigners should be ready to take ad- the ATI law, both positive and negative. Al- vantage of any auspicious political moments though the former have tended to dominate because these moments appear to present ma- in most countries, constant vigilance on the jor opportunities for positive reform.This of- part of civil society and others who support ten requires advance preparation for such mo- the right to information is needed to ensure ments, however, including through building that this positive momentum continues. Appendix 1: List of Laws and Their Associated Web Sites All links included here are to English versions Chile of the laws, except where otherwise noted; Law on Access to Public Information; http and all were accessed on December 22, 2010. ://www.leychile.cl/Navegar?idNorma=276 363&tipoVersion=0 (in Spanish) Armenia Georgia Law on Freedom of Information, 2003; General Administrative Code, Chapter III, http://www.foi.am/en/content/53/ 2000; http://unpan1.un.org/intradoc/group Bosnia and Herzegovina s/public/documents/UNTC/UNPAN0040 30.pdf Freedom of Access to Information Act, 2001; http://www.ohr.int/ohr-dept/media-d/med- Hungary recon/freedom/default.asp?content_id=7269 Act on the Protection of Personal Data and Bulgaria Public Access to Data of Public Interest, 1992; http://abiweb.obh.hu/dpc/index.php?menu= Access to Public Information Act, 2000; http gyoker/relevant/national/1992_LXIII ://www.aip-bg.org/library/laws/apia.htm Classification Action, 2009; http://www.com Classified Information Protection Act, 2002; plex.hu/jr/gen/hjegy_doc.cgi?docid=A09001 http://www.dksi.bg/NR/rdonlyres/070CA5 55.TV (in Hungarian) 5F-EAD3-425D-BE41-A01AC62A005D/0 /CLASSIFIEDINFORMATIONPROTEC India TIONACT.doc Right to Information Act, 2005; http://right Canada toinformation.gov.in/rti-act.pdf Access to Information Act, 1982; http://la Ireland ws.justice.gc.ca/en/A-1/ Freedom of Information Acts, 1997 and 2003; Constitution of Canada; http://laws.justice http://foi.gov.ie/wp/files/2010/09/gd-final- .gc.ca/en/const/index.html reworked-sept-for-printers.pdf 31 32 Amending Access to Information Legislation: Legal and Political Issues Israel Freedom of Information Ordinance, 2002; http://www.privacyinternational.org/count Freedom of Information Law, 1998; http:// ries/pakistan/pk-foia-1002.html www.freedominfo.org/documents/Israel—F OIL1998.pdf Scotland Latvia Freedom of Information (Scotland) Act, 2002; http://www.legislation.gov.uk/asp/2002/13/ Law on Information Accessibility, 1998; http: contents //www.humanrights.lv/doc/latlik/info.htm Slovenia Mexico Access to Public Information Act, 2003; http Constitution of Mexico; http://www.oas.org ://www.ip-rs.si/index.php?id=324 /juridico/MLA/en/mex/en_mex-int-text-co nst.pdf South Africa Federal Transparency and Access to Public Constitution of the Republic of South Africa; Government Information Law, 2002; http:// http://www.servat.unibe.ch/icl/sf00000_.html www.gwu.edu/~nsarchiv/NSAEBB/NSAEB Promotion of Access to Information Act, B68/laweng.pdf 2000; http://www.dfa.gov.za/department/acc Nepal essinfo_act.pdf Right to Information Act, 2007; http://www. Uganda nic.gov.np/download/rti_act_eng_official.pdf Access to Information Act, 2005; http://ww Norway w.freedominfo.org/documents/uganda_ati_ac t_2005.pdf Constitution of Norway; http://www.storti nget.no/en/In-English/About-the-Storting United Kingdom /The-Constitution/The-Constitution/ Freedom of Information Act, 2005; http://w Freedom of Information Act, 2006; http://w ww.legislation.gov.uk/ukpga/2000/36/cont ww.ub.uio.no/ujur/ulovdata/lov-20060519- ents 016-eng.pdf United States Pakistan Freedom of Information Act, 1966; http://w Constitution of the Islamic Republic of Pak- ww.justice.gov/oip/amended-foia-redlined- istan; http://www.pakistani.org/pakistan/con 2010.pdf stitution/ Appendix 2: Table of Amendments to ATI Laws a. Amendments Adopted Country Year Main Features Bosnia and 2009 • Added sanctions for public authorities who failed to Herzegovina • respect their obligations Bulgaria 2007 • Required both national and local public authorities to ap- point information officials • Required both national and local public authorities to es- tablish reading rooms • Enhanced the provisions on sanctions against officials ob- structing access 2008 • Added a public interest override • Expanded coverage of public authorities to include re- gional branches of public authorities, bodies receiving Eu- ropean Union funding and companies controlled or fund- ed by the state • Introduced rule on proactive publication • Limited the definition of a trade secret • Made provision of partial access mandatory (instead of discretionary) Canada 1999 • Added sanctions for obstruction of access 2006 • Extended coverage to include public companies • Made duty to assist requesters explicit 2010 • Recognized constitutional protection for the right to in- formation (by court decision) continued 33 34 Amending Access to Information Legislation: Legal and Political Issues Country Year Main Features Georgia 2001 • Clarified the scope of coverage of private bodies receiving public funding • Amended the rule limiting classification of information to five years for different types of information (for example, professional information may be secret forever) • Clarified rules on entering data regarding documents into the public register • Added types of information to be included in annual reporting 2005 • Added a requirement that public authorities seek written consent for release of information relating to a third party from that party 2007 • Added a requirement that requesters appeal to the over- sight body before going to the courts Ireland 2003 • Expanded exceptions, including in relation to cabinet documents, the power of secretaries general to issue bind- ing certificates to the effect that information is related to the deliberative process, the removal of the requirement of harm from the defense and security exception, and the addition of an exception to protect life and safety • Added rule to address “serial” requests • Increased fees significantly Israel 2006 • Enhanced proactive publication obligations (especially in relation to environmental information) 2008 • Extended coverage to state-owned companies, including security industries Latvia 2009 • Eliminated oversight role of the Data State Inspectorate Mexico 2007 • Elaborated and significantly strengthened constitutional protection for the right to information Norway 2004 • Introduced explicit constitutional guarantee of the right to information Pakistan 2010 • Introduced explicit constitutional guarantee of the right to information Peru 2003 • Clarified exceptions that had been very vague • Extended coverage to include defense agencies and na- tional police directly Appendix 2: Table of Amendments to ATI Laws 35 Country Year Main Features Slovenia 2005 • Added a public interest override • Prohibited charging fees where the information relates to the expenditure of public funds or execution of a public function • Allowed requesters to challenge the classification of docu- ments • Merged into one body the responsibility for oversight in relation to privacy and information South Africa 2006 • Introduced sanctions for failing to produce certain mandatory publications (that is, reports) 2009 • Extended the 30-day limit to appeal refusals to provide access before the courts to 180 days (by constitutional decision) United Kingdom 2004 • Abrogated or limited various exceptions (by regulation) 2010 • Removed the public interest override for communica- tions with heir and second in line to the throne • Reduced the timeline for historical disclosure from 30 years to 20 years United States 1974 • Added a severability clause • Expanded the scope of public authorities covered • Limited the scope of exceptions • Required the production of annual reports by public au- thorities • Allowed agencies to reduce fees in the public interest • Ensured the availability of de novo review in court ap- peals and the awarding of legal fees and costs if the re- quester substantially prevails in court • Allowed courts to impose sanctions on officials who wrongly withhold information • Introduced stricter time limits 1986 • Expanded exception for law enforcement • Introduced fee rules taht lowered costs for media and civil society 1996 • Extended the access rules to electronic documents 2002 • Limited the ability of foreign agents to make requests continued 36 Amending Access to Information Legislation: Legal and Political Issues Country Year Main Features 2007 • Introduced measures to reduce delays, including limiting the power to extend deadlines and waiving fees in some cases of delay • requiring public authorities to appoint Public Liaisons and FOIA Requester Service Centers to assist requesters • Added a requirement that public bodies set up request tracking systems • Enhanced reporting requirements, including with respect to delays in processing requests • Added an ombudsman function, with the power to medi- ate disputes and make recommendations for reform b. Amendments Attempted, But Not Adopted Year Country (approx.) Main Features Armenia Ongoing • Clarify the main principles underlying the law • Enhance the rules on proactive publication • Add an exception for rare and valuable documents • Add a prohibition on refusing access where the person to whom private information relates has given his or her consent for release • Clarify the rules on procedure for payment of fees • Require free provision of information when the informa- tion relates to the requester or relates to rights • Clarify the fees that may be charged Bulgaria 2007 • Require proof of interest in the information sought • Increase fees • Increase time limits • Do away with the severability rule Canada Ongoing • Give the commissioner binding order power • Expand the mandate of the commissioner to include public education, research, and the provision of advice • Extend coverage to parliament and the courts • Require the approval of the commissioner for time ex- tensions beyond 60 days Appendix 2: Table of Amendments to ATI Laws 37 Year Country (approx.) Main Features India 2006 • Add file notings • Expand the exception for cabinet documents • Add exception for examination and evaluation processes Ongoing • Add an exception for “discussions and consultations of officers” (internal deliberative process) Israel Ongoing • Add an oversight body • Expand coverage of public authorities • Limit fees • Reduce time limits Latvia 2008 • Limit the impact of exceptions on the internal exchange of information (that is, among government departments) Scotland Ongoing • Reduce the timeline for historical disclosure from 30 years to 15 years • Extend coverage to include a wide range of private cor- porations undertaking public functions Slovenia Ongoing • Allow requesters to challenge fee assessments • Enhance implementation of the commissioner’s decisions • Limit the ability to lodge administrative court appeals mainly to requesters South Africa Ongoing • Introduce a secrecy law that is likely to significantly im- pact the ATI law United Kingdom 2006–07 • Remove parliament from the ambit of the law • Add an exception for the correspondence of members of parliament with public authorities • Increase the scope for refusing requests on the basis that they are too costly 2009 • Block detailed disclosure of the expenses of members of parliament 2010 • Impose a blanket ban on access to cabinet documents Ongoing • Extend coverage to include private corporations under- taking public functions Source: Author’s compilation. Endnotes 1 The negotiation and ratification of international treaties on the inclusion in U.S. law of an exception relating to geolog- the right to information could be included here because it ic and geographic information concerning wells—added also has general and legally binding impact in many coun- because of lobbying by the oil industry—that is not even tries. However, the dynamics around this differ considerably subject to a harm test. 7 from the other actions. Furthermore, there are very few “File notings” are the written remarks containing the ob- treaties that directly address the right to information, with servations, recommendations, and opinions of civil service the notable exception of the Council of Europe’s Conven- officers in India. The notes are attached to a file as it is cir- tion on Access to Official Documents, adopted on Novem- culated both horizontally and vertically within government. 8 ber 27, 2008. E-mail correspondence from Venkatesh Nayak, pro- 2 In this working paper, the term “access to information gramme coordinator, Access to Information Programme, law” is used to refer to laws that provide general guarantees Commonwealth Human Rights Initiative, India, April 13, of the right to information, rather than to laws that may 2010. 9 provide for access to certain kinds of information (such as A summary of the impact of the amendments, as described environmental or health information). by the Department of Finance, is available at http://www.fi 3 These standards are encapsulated in a number of principles nance.gov.ie/viewdoc.asp?fn=/documents/news/feb03/mc on the Right of Access to Information documents, includ- c1127.htm (accessed December 22, 2010). 10 ing decisions by international courts on the right to infor- See http://foia.blogspot.com/2010/03/constitutional-re mation and statements by authoritative bodies on this issue. form-and-governance.html (accessed December 22, 2010). An example of such a statement is the Principles on the There has been some speculation that this is to prevent fur- Right of Access to Information, adopted by the Inter- ther embarrassing allegations of political interference by American Juridical Committee at its 73rd regular session Prince Charles. There was, in particular, concern about the held in Rio de Janeiro, Brazil, on August 7, 2008 fact that the prince had written to various government (OAS/Ser.Q, CJI/RES.147 [LXXIII-O/08]). ministers regarding matters of public policy, something 4 The United Kingdom law, in contrast, does have a fixed many commentators feel that, as heir to the throne, he list, along with a vested power in the responsible minister to should not do. See http://www.guardian.co.uk/uk/2009/d extend the scope of authorities covered.This has resulted in ec/16/prince-charles-letters-to-ministers (accessed Decem- a need for periodic extensions to the authorities covered. ber 22, 2010). 11 See, for example, Orders 2002 No. 2623, 2005 No. 3593, See http://www.cfoi.org.uk/foi250210pr.html (accessed and 2008 No. 1271 adding new public authorities; and Or- December 22, 2010). 12 ders 2003 No. 1883 and 2005 No. 3594 removing authori- The public interest override is a key element of a progres- ties. A list has the virtue of being clear and unequivocal, but sive regime of exceptions. It allows (or requires) the release the disadvantages of being potentially less comprehensive of information even when the release will harm an interest and needing to be updated over time. protected by an exception if the release is in the overall pub- 5 It could be argued, for example, that the Electronic Free- lic interest (that is, where the benefits of disclosure outweigh dom of Information Act Amendments of 1996 in the Unit- the harm to the protected interest). 13 ed States simply clarified rights that were already inherent A formal period of consultation on this extension was in the earlier law. held between July 28 and November 2, 2010. The consul- 6 Of course, laws may initially contain exceptions that were tation document is available at http://www.scotland.gov.uk the result of a political negotiation and subsequently prove /Publications/2010/07/20123725/0 (accessed December unnecessary. Perhaps the most obvious example of this was 22, 2010). 39 40 Amending Access to Information Legislation: Legal and Political Issues 14 32 See http://www.cfoi.org.uk/foi160709pr.html (accessed ETS No. 108, January 28, 1981, http://convention December 22, 2010). s.coe.int/treaty/EN/Treaties/Html/108.htm (accessed De- 15 See http://www.cfoi.org.uk/mpsexpenses.html (accessed cember 22, 2010). 33 December 22, 2010). Potentially, a constitution might not elaborate on the 16 A full list of the claims investigated by the Daily Telegraph manner in which it may be amended.This would be a seri- is available at http://www.telegraph.co.uk/news/new ous failing that lawmakers would have to resolve by refer- stopics/mps-expenses/5297606/MPs-expenses-Full-list-of- ence to some other set of social norms (for example, en- MPs-investigated-by-the-Telegraph.html (accessed Decem- trenched traditions). 34 ber 22, 2010). Articles 38 and 39 of the Constitution Act 1982.This for- 17 See http://news.bbc.co.uk/2/hi/uk_news/politics/80 mula has set such a high barrier that none of the several at- 57203.stm (accessed December 22, 2010). tempts to amend the constitution since it was repatriated 18 For an assessment of the harmful potential impact of these from the United Kingdom in 1982 (which is when the for- amendments, see McDonagh (2003). mula was added) have been successful. 19 35 To read the 2009 report “The Access to Information Act: See, for example, a 1969 decision by the Supreme Court First Steps Towards Renewal,” visit http://www2.parl.gc.ca of Japan, outlined in Repeta (1999, p. 3), and the Indian /content/hoc/Committee/402/ETHI/Reports/RP39995 Supreme Court decision, S. P. Gupta v. President of India 93/ethirp11/ethirp11-e.pdf (accessed December 22, 2010). [1982] AIR (SC) 149, p. 232. See also the Canadian case on 20 Official Gazette No. 45/30.04.2002. this issue, Ontario (Public Safety and Security) v. Criminal 21 The text of this bill is available at http://www.iss.co.za/ Lawyers’ Association, June 17, 2010, 2010 SCC 23. 36 uploads/POIBILL.PDF (accessed December 22, 2010). See, for example, article 32 of the 1996 Constitution of 22 The act was adopted in 1999, before the ATI law; but the South Africa (http://www.constitutionalcourt.org.za/site/t point is that numerous other pieces of legislation may affect heconstitution/thetext.htm) and article 37 of the 1994 proactive publication. Constitution of Malawi (http://unpan1.un.org/intradoc/g 23 The Council of Europe Convention on Access to Official roups/public/documents/cafrad/unpan004840.pdf). 37 Documents, adopted November 27, 2008, https://wcd.c Norwegian Constitution, available at http://www.stor oe.int/ViewDoc.jsp?id=1377737&Site=CM (accessed De- tinget.no/en/In-English/About-the-Storting/The-Cons cember 22, 2010). titution/The-Constitution/ (accessed December 22, 2010). 24 38 It is known as the Freedom of Information Advocates The English translation of the new constitutional provi- Network, http://www.foiadvocates.net/ (accessed Decem- sions is taken from Gómez Gallardo (2007), available at ber 22, 2010). http://www.juridicas.unam.mx/publica/librev/rev/coml 25 For example, as formerly public functions are increasingly awj/cont/10/lay/lay6.pdf (accessed December 22, 2010). 39 privatized, governments rely more and more heavily on cor- See article 19 of the International Covenant on Civil and porate public authorities to conduct their business. Political Rights. 26 40 Attempts by government to suppress politically sensitive The regime for limitations is set out in article 36. Even in information have been well documented. For example, see South Africa, however, the constitution allows legislation Roberts (2002). giving effect to this right to “provide for reasonable meas- 27 Irish Ombudsman and Information Commissioner Emily ures to alleviate the administrative and financial burden on O’Reilly described the amendments as “pulling back on ac- the state.” See article 32(2). 41 cess to Government records. . . . ” The report “Freedom of One exception is Hungary, where there has been a flow Information in Ireland—A Progress Report (09.10.2003)” of constitutional cases on this issue—one of which led to is available at http://www.oic.gov.ie/en/MediaandSpeec the breakthrough decision on access to information by the hes/Speeches/2003/Name,422,en.htm (accessed December European Court of Human Rights, Társaság A Szabadságjo- 22, 2010). gokért v. Hungary, April 14, 2009, Application No. 37374/05. 28 42 E-mail correspondence from Venkatesh Nayak, April 13, See Brümmer v. Minister for Social Development and Others 2010. (CCT 25/09) 2009 (6) SA 323 (CC) (August 13, 2009). 29 43 There was considerable criticism of the Irish reform Ontario (Public Safety and Security) v. Criminal Lawyers’ As- process for this reason. See McDonagh (2003). sociation, June 17, 2010, 2010 SCC 23. 30 44 See the committee’s report, “The Access to Information Basically, the Supreme Court said that the exercise of dis- Act: First Steps Towards Renewal” at http://www2.parl.g cretion by a public authority over whether to release a doc- c.ca/content/hoc/Committee/402/ETHI/Reports/RP39 ument, introduced by the term “may” in an exception (as 99593/ethirp11/ethirp11-e.pdf (accessed December 22, in “a public authority may refuse to release informa- 2010). tion . . .”) required the public authority to consider the 31 See note 87 and the surrounding text of this report. overall public interest in disclosure before refusing to release Endnotes 41 57 the information. For an analysis of the case, see “Supreme This has often been recommended as a strategy. See, for Court Upholds a Constitutional Right to Information,” example, Mendel (2009, p. 853). Also see Fuchs (2008). 58 available at http://www.law-democracy.org/wp-conten See its Web site: http://www.aip-bg.org/index_eng.htm t/uploads/2010/07/10.06.Winston.SCC-FOI-Decision.p (accessed December 22, 2010). 59 df (accessed December 22, 2010). See its Web site: http://www.meida.org.il/ (accessed De- 45 Claude Reyes and Others v. Chile, September 19, 2006, Se- cember 22, 2010). 60 ries C No. 151. See its Web site: http://www.opendemocracy.org.za/ (ac- 46 Once again, Hungary should be mentioned as an excep- cessed December 22, 2010). 61 tion to this. See note 41. See its Web site: http://www.cfoi.org.uk/ (accessed De- 47 These go by different names in different countries: “statu- cember 22, 2010). 62 tory instruments,” “regulations,” “orders,” and so on. See its Web site: http://www.righttoinformation.info/ 48 In Canada, for example, the Statutory Instruments Act, (accessed December 22, 2010). 63 R.S.C. 1985, c. S-22, governs the adoption of secondary rules. Expressed in e-mail correspondence on April 21, 2010, 49 Thus, regulations pursuant to section 82(2) of the U.K. ac- for example, this was the view of Maeve McDonagh, an as- cess to information law must be positively approved by both sociate professor at the College of Business and Law, Uni- houses of parliament, whereas regulations pursuant to sec- versity College Cork, and an expert in the Irish right to in- tion 82(3) must be placed before both houses of parliament, formation. 64 either of which may annul them. The positive approval See, for example, Fuchs (2008) and Mendel (2009); also process covers such regulatory powers as adding authorities see Gundersen (2008). 65 that undertake public functions, extending the timelines for According to an e-mail received by the author on Febru- responding to requests, and repealing legal provisions on se- ary 19, 2010, from Tom Susman, director of the Govern- crecy; negative approval covers everything else. mental Affairs Office of the American Bar Association, busi- 50 See articles 15,16, and 37(III), (IV), and (IX) of the Mex- nesses played an important role in initiating the reform ican access to information law.The rules adopted by the In- process in the United States in 1980. 66 stituto Federal de Acceso a la Información Pública (along E-mail correspondence from Roy Peled, director, Move- with other legal rules relevant to the right to information) ment for Freedom of Information in Israel, February 19, may be found (in Spanish) at http://portaltransparencia.gob April 12, and April 20, 2010. 67 .mx/pot/marcoNormativo/buscar.do?method=buscar&_id See http://www.gwu.edu/~nsarchiv/index.html (ac- Dependencia=06738 (accessed December 22, 2010). cessed December 22, 2010). 51 68 An attempt in October 2006 to increase fees in the Unit- E-mail correspondence from Ricardo Corcuera, director, ed Kingdom through regulation, including the power of Observatorio de la Vigilancia Social, Peru, April 21, 2010. 69 public authorities to refuse to process requests deemed to be See PriceWaterhouseCoopers (2009) and RaaG/NCPRI too costly, was very controversial. A report assessing the im- (2009). 70 pact of the proposed changes is available at http://www.ar They are still conducting these audits, with the most re- ticle19.org/pdfs/analysis/uk-foi-costs-07.pdf (accessed De- cent one published on March 15, 2010.They are available at cember 22, 2010). http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB308/ 52 That means it is inherently natural and positive. index.htm (accessed December 22, 2010). 53 71 Access to information rules can increase the power of E-mail correspondence from Shushan Doydoyan, direc- MPs relative to the bureaucracy because the latter holds far tor, Freedom of Information Center of Armenia, February more information. 20, February 22, and April 14, 2010. 54 72 Businesses are a very important user group in many of the In 2002, a government-appointed access to information more established access to information systems. A right of review task force published its report, “Access to Informa- access creates information synergies between the public sec- tion: Making It Work for Canadians.” 73 tor and businesses as it promotes government’s dissemina- E-mail correspondence from Venkatesh Nayak, April 13, tion of the information that businesses need. 2010. 55 74 Such NGOs range from environmental and consumer Thus, in the early days, the media was reluctant to push for groups, to women’s groups, to development groups, and so on. a right to information law in the Philippines, although they 56 Over time, openness can improve relations between the were eventually brought into the campaign. This has been public sector and the general public. It can also serve to pro- observed in Paraguay. 75 tect honest civil servants against being blamed for things that The Press Gazette is a British media trade magazine dedi- are not their fault.Thus, civil servants unions supported the cated to journalism and the press. 76 campaign for an access to information law in the United In Mexico, for example, there is a real sense that the law Kingdom. works because stories are published in the media every 42 Amending Access to Information Legislation: Legal and Political Issues 90 week about releases that actually affect people. See Mendel See, for example, http://timesofindia.indiatimes.com/in (forthcoming). dia/PM-Manmohan-Singh-Sonia-differ-on-amendments- 77 Available at http://www.atirtf-geai.gc.ca/report2002- to-RTI-Act/articleshow/5645732.cms (accessed December e.html (accessed December 22, 2010). 22, 2010). 78 91 “Response to the Report of the Access to Information Copies of the letters exchanged are on file with the au- Review Task Force—A Special Report to Parliament,” thor of this report. 92 http://dsp-psd.pwgsc.gc.ca/Collection/IP4-1-2002E.pdf It may be noted that recognition of this right has been (accessed December 22, 2010). particularly strong within the inter-American system of hu- 79 See http://www2.parl.gc.ca/Content/LOP/Research man rights, so this effect may be expected to be stronger Publications/prb0555-e.htm#a10 (accessed December 22, there. 93 2010). In February 2008, Meredith Fuchs stated that the Nation- 80 Available at http://www.infocom.gc.ca/eng/pa-ap-atia al Security Archives had found the “US FOIA system to be _reform_2009-march_2009-strengthening_the_access_to in disarray” (Fuchs 2008, p. 2). A major factor identified by _information_act_to_meet_todays_imperatives.aspx (ac- the National Security Archives was the massive delays in ob- cessed December 22, 2010). taining access, and the 2007 amendments focused heavily on 81 The committee recommended that the minister giver addressing this problem. 94 further consideration to one recommendation. E-mail correspondence from Tereza Alexova, member of 82 In the 2002 elections, the Fianna Fáil party took 81 of 166 the legal team, Access to Information Programme, Bulgaria, seats (an increase of 8 seats), with 41.5 percent of the pop- March 2 and May 11, 2010. 95 ular vote. E-mail correspondence from Shushan Doydoyan, Febru- 83 It may be noted, however, that the tendency in the United ary 20, February 22, and April 14, 2010. 96 States has been for the Democratic Party to support greater The Mazdoor Kisan Shakti Sangathan in Rajasthan, India, openness and the Republican Party greater secrecy. played a leading role in this process. See some sample stories 84 The committee’s Web site address is http://www2.par on its Web site: http://www.mkssindia.org/right-to- l.gc.ca/committeebusiness/CommitteeHome.aspx?Cmte= information/. See also Singh (2010). 97 ETHI&Language=E&Mode=1&Parl=38&Ses=1 (accessed See McDonagh (2003) on Ireland, and notes 80–82 and December 22, 2010). the surrounding text on Canada in this working paper. 85 98 Available at http://www2.parl.gc.ca/HousePublicatio Two significant amendments were adding in sanctions for ns/Publication.aspx?DocId=3999593&Language=E&Mod obstructing access (1999) and expanding the scope of cov- e=1&Parl=40&Ses=2 (accessed December 22, 2010). erage of public companies (2005). 86 99 There was a partial exception to one recommendation on Available at http://www.justice.gov/archive/oip/foia opening up cabinet confidences: the committee recommend- post/2001foiapost19.htm (accessed December 22, 2010). 100 ed further consideration by the minister. One weakness in the methodology applied here is that it 87 The government’s response is available at http://ww assesses only attempts to amend legislation, whether success- w2.parl.gc.ca/HousePublications/Publication.aspx?DocId= ful or not. It does not look at cases where there have been 4139070&Language=E&Mode=1&Parl=40&Ses=2 (ac- no attempts to amend even weak legislation on access to in- cessed December 22, 2010). formation. 88 In the Senate, a 60 percent majority was required. 89 E-mail correspondence from Roy Peled, February 19, April 12, and April 20, 2010. References Brandeis, Louis D. 1914. Other People’s Mon- ———. 2009. “Corruption, Access to Infor- ey, and How the Bankers Use It. New York: mation and Human Development.” In Frederick A. Stokes. Perspectives on Corruption and Human Devel- Fuchs, Meredith. 2008. “The State of Access opment, ed.Anuradha Rajivan and Ramesh to Information in the World: Challenges Gampat. New Delhi, India: Macmillan. and Successes—The United States.” Pa- National Security Archive. 2004. “Veto Battle per presented at the International Con- 30 Years Ago Set Freedom of Information ference on the Right to Public Informa- Norms.” Electronic Briefing Book No. tion, Atlanta, Georgia, February 27. 142. http://www.gwu.edu/~nsarchiv/ Gómez Gallardo, Perla. 2007. “Scope of the NSAEBB/NSAEBB142/index.htm (ac- Reform to Constitutional Article 6 with cessed December 22, 2010). Regard to Oversight Bodies. ” Compara- Office of the Information Commissioner, tive Media Law Journal 10: 115–26. Ireland. 2004. “Review of the Operation Gundersen, Katherine. 2008. “Freedom of of the Freedom of Information (Amend- Information.” In Unlocking Democracy: 20 ment) Act 2003.” Dublin. http://ww Years of Charter 88, ed. Peter Facey, Bethan w.oic.gov.ie/en/Publications/SpecialRe Rigby, and Alexandra Runswick. London: ports/InvestigationsComplianceReports Politicos. Section36/File,571,en.pdf (accessed De- McDonagh, Maeve. 2003. “The Potential of cember 22, 2010). the FOI (Amendment) Act 2003.” Paper PriceWaterhouseCoopers. 2009. “Final Re- presented at the Trinity College Dublin port: Understanding the ‘Key Issues and Law School Conference: Freedom of In- Constraints’ in Implementing the RTI formation—Implications for Manage- Act.” http://rtiworkshop.pbworks.com/ ment of the New Developments in the f/2009-00-IN-Executive-Summary-Key- Law, Dublin, Ireland, September 12. Issues-and-Constraints-in-Implementi Mendel, Toby. Forthcoming. “Implementa- ng-the-RTI-Act-PwC.pdf. tion of the Right to Information: Ideas RaaG/NCPRI (RTI Assessment and Analy- for India from Canada, Mexico, and sis Group/National Campaign for Peo- South Africa.” In PublicService Delivery in ple’s Right to Information). 2009. “Safe- India, ed. Vikram Chand. Oxford, UK: guarding the Right to Information: Oxford University Press. Report of the People’s RTI Assessment 43 44 Amending Access to Information Legislation: Legal and Political Issues 2008. Revised Executive Summary and entation at the regional workshop To- Draft Agenda for Action.” http://rtiw wards More Open and Transparent Gov- orkshop.pbworks.com/f/2009-10-IN-E ernance in South Asia, New Delhi, India, xecutive-Summary-Safeguarding-RTI-P April 27–29. http://rtiworkshop.pbw eoples-RTI-Assessment-RaaG.pdf. orks.com/f/2010-04-IN-Country-Pape Repeta, Lawrence. 1999. “Local Govern- r-Shekhar-Singh.pdf (accessed Decem- ment Disclosure Systems in Japan.” Pa- ber 22, 2010). per 16, National Bureau of Asian Re- Sobel, David, Bethany Noll, Benjamin Boga- search, Seattle, WA. do, TCC Group, and Monroe Price. Roberts, Alasdair S. 2002. “Administrative 2006. “The Federal Institute for Access Discretion and the Access to Information to Information in Mexico and a Culture Act: An ‘Internal Law’ on Open Gov- of Transparency.” Annenberg School for ernment?” Canadian Public Administration Communications, University of Pennsyl- 45 (2): 175–94. vania. http://www.global.asc.upenn.ed Singh, Shekhar. 2010. “Country Paper: India. u/docs/mex_report_fiai06_english.pdf The Genesis and Evolution of the Right (accessed December 22, 2010). to Information Regime in India.” Pres- About the World Bank Institute’s Governance Practice Governance is one of seven priority themes in the World Bank Institute’s recently launched renewal strate- gy—a strategy that responds to client demand for peer-to-peer learning by grounding WBI’s work in the dis- tillation and dissemination of practitioner experiences. The Institute is committed to building knowledge and capacity on the “how to” of governance reforms, with emphasis on supporting and sustaining multistake- holder engagement in bringing about such reforms. WBI’s Governance Practice works with partners, including networks of country and regional institutions, to develop and replicate customized learning programs. Its programmatic approach aims at building multistake- holder coalitions and in creating collaborative platforms and peer networks for knowledge exchange. For further information: WBI The World Bank 1818 H Street, NW Washington, DC 20433 Fax: 202-522-1492 Visit us on the web at: http://wbi.worldbank.org/wbi/topic/governance Photo Credit: (Front Cover) iphotostock.com.