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Using the Right to Information As an Anti-Corruption Tool USING the RIGHT to INFORMATION AS an ANTI-CORRUPTION TOOL

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Using the Right to Information As an Anti-Corruption Tool USING the RIGHT to INFORMATION AS an ANTI-CORRUPTION TOOL TRANSPARENCY INTERNATIONAL Using the Right to Information as an Anti-Corruption Tool USING THE RIGHT TO INFORMATION AS AN ANTI-CORRUPTION TOOL www.transparency.org Your gateway to the fi ght against corruption Using the Right to Information as an Anti-Corruption Tool Published by Transparency International Edited by Nurhan Kocaoglu and Andrea Figari (TI-S), Helen Darbishire (Executive Director of Access Info) Designed by Georg Neumann Photo cover: Courtesy of Corbis, Inc. ISBN: 3-935711-20-4 Acknowledgements Many different people have been involved in helping produce this publica- tion. Transparency International thanks them all: Issa Luna Pla from the Freedom of Information Network – Mexico; Javier Casas from the Press and Society Institute in Peru; Aleksandra Martinovic, Executive Director of TI Bosnia & Herzegovina; Nemanja Nenadic, Execu- tive Director of TI Serbia; Violeta Liovic, Executive Director of TI Croatia and Catherine Woollard, Georg Neumann, Gillian Dell, Jennifer Williams, JoAnna Pollonais and Kate Sturgess from the Transparency International Secretariat in Berlin. Full support for this publication was provided by the OPEN SOCIETY INSTITUTE. TRANSPARENCY INTERNATIONAL 2006 3 USING THE RIGHT TO INFORMATION AS AN ANTI-CORRUPTION TOOL PREFACE Training of Public Officials A common assumption when a request for information is A crucial question for anti-corruption activists is whether not answered is that this results from deliberate secrecy by the rash of new access to information laws – over 50 laws public officials. Such a conclusion is not surprising in coun- adopted since 1990 bringing the total to over 65 laws globally1 tries that until recently were repressive dictatorships. Even in – will serve as tools for obtaining information of use in fight- more developed democracies the paternalistic and secretive ing corruption. Or will these new transparency laws at least attitudes of public administrations give good cause to doubt narrow the range of opportunities for the mismanagement the political will to openness. and diversion of public funds by permitting public scrutiny of the budgets and administrative decision-making? As the reports in this publication show, however, a number of factors other than political will can block openness. These The question cannot yet be fully answered, but the lessons factors include lack of training of public officials when a learned by Transparency International Chapters and other new law comes into force (Bosnia), non-appointment of civil society organizations in South East Europe and around information officers (Croatia), and poor information man- the globe provide helpful pointers as to how to ensure that agement leading to problems responding within timeframes the fine provisions of a new access to information law are (Serbia). Traditional civil society strategies of condemning translated from the pages of the statute books to meaningful failures of government can have an impact on political atti- information in the hands of members of the public. tudes but may not address these underlying problems. It may seem self-evident that there needs to be a demand for An alternative strategy is to work with government depart- information if a new access to information law is to func- ments to train information officers and help improve in- tion, but in a number of countries it has taken time to realize formation management systems. TI Bosnia has conducted quite how crucial this is. In countries where the law is good trainings for public officials as has the Access to Informa- on paper but has been introduced as part of a top-down tion Office (OACI) of the organization IPYS in Peru. OACI government reform plan (Albania), international initiative has also worked with public officials to carry out internal (Bosnia2), or lobbyinglobbying from a civilcivil society elite (Peru)(Peru) imple- diagnostics of information flows and to make recommenda- mentation has proved slow. tions for improving information management, in order to be able to respond to requests within the seven days allocated By contrast in counties such as Romania and Bulgaria, under Peruvian law. These projects have had a positive im- where broad-based coalitions pressed for access laws, the pact, resulting in a quantitative increase in information made less-than-perfect statutes were then hungrily used by civil available. society, journalists, and members of the general public alike. Monitoring in Bulgaria and Romania show that over 50% As described in this publication, OACI provided techni- of requests filed receive the information sought3, which, for cal assistance to the Ministry of Health while still litigating countries that relatively recently were closed and repressive against it to challenge refusals to release information. The communist systems and where maladministration and cor- Ministry was made fully aware of this and actually welcomed ruptions are still serious problems, is a very significant level the dual approach as being necessary to the reform process. of disclosure. Not all government bodies would be so receptive to such a strategy – the appropriate mix of collaboration and confron- The lesson is that a culture of openness information needs tation has to be selected on a case-by-case basis – but it is to learned, and this only happens when public bodies receive clear that a range of approaches are available to those work- large numbers or requests and are challenged when informa- ing on implementing access to information laws. tion is not released. This lesson has been taken to heart by groups in countries such as Serbia, Croatia, and Macedonia, Where to turn when information is denied? who started testing and monitoring as soon as the new laws The right to appeal an administrative decision is guaranteed came into force. in many counties; it is usually established in administrative law and reiterated in most access to information laws. The Monitoring studies have confirmed another self-evident role of the courts has been key: from the phenomenal body truth: it is easier to obtain more routine information than of jurisprudence developed since the US FOIA was adopted to get answers to complex or sensitive requests4. The strat- in 1966, to the 140 plus cases brought in Bulgaria by the Ac- egy for anti-corruption activists aiming to erode the walls of cess to Information Program since 2000 that have resulted government secrecy must be to file requests for non-contro- in release of information subsequently passed to the pros- versial data in order gradually to build the edifice of trans- ecutor because it indicated government wrongdoing. parent government. Suing the government is a controversial strategy for many TRANSPARENCY INTERNATIONAL 2006 3 USING THE RIGHT TO INFORMATION AS AN ANTI-CORRUPTION TOOL USING THE RIGHT TO INFORMATION AS AN ANTI-CORRUPTION TOOL CSOs unused to engaging in lengthy battles on one particu- Other international supervision mechanisms can be used to lar case. As discussed in this publication, some groups prefer encourage full implementation of access laws. As outlined in to bring in specialist litigators. Sometimes this necessitates this publication, the monitoring mechanisms of the United resubmitting a request so that a new plaintiff can initiate le- Nations Convention Against Corruption and the Council of gal action. This has been done in Peru by IPYS, one of the Europe’s GRECO (Group of States Against Corruption) constituent members of Proética (the Peruvian TI chapter), mechanism provide such opportunities. Indeed, although the who took up the court action when government ministers Inter-American Convention Against Corruption does not refused to disclose their assets declarations. Other groups specifically mention the right to information, government with strong litigation experience, such as the Access to In- transparency is nevertheless one of the elements reviewed formation Programme in Bulgaria and the Romanian Hel- by its monitoring mechanism (MESICIC) that has called on sinki Committee, have developed multi-faceted strategies, states to adopt laws where they do not exist (Argentina, Uru- encouraging others to file more winnable access to informa- guay) or to improve implementation (Peru, Panama)7. tion suits but taking the tougher cases themselves: if they win, they ensure that the jurisprudence is publicized; if they Such mechanisms are limited but at least they do exist. The lose, they can react with a new strategy (media releases, new onus is on civil society to exploit the myriad of tools for requests, more litigation) to minimize damage to the right to ensuring that the access to information laws on the statute- information. books become living and functioning tools in the hands of those working against corruption and for human rights. A preferable option, where it exists, is to turn to Informa- tion Commissioners or Ombudsperson institutions. Infor- by Helen Darbishire, Executive Director, Access Info Europe mation Commissioners provide a sort of “litigation light”: less controversial than traditional law suits, the option is of- 1 For more information on the content of these laws see, for example, ten faster, cheaper and easier (usually no lawyer is needed). www.freedominfo.org where the Global SurSurveyvey byby DavidDavid Banisar of Pri- Unfortunately, only about 25-30% of access to information vacy International is presented country-by-country along with additional laws worldwide establish such a body. Those that do, have links and data. proved to be worth
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