13 Dec 2017 18:19 pm

The Right to Information and Citizenship

5 Feb 2013 15:47 pm - Asep Saefullah
The Right to Information and Citizenship

Toby Mendel
Executive Director
Centre for Law and Democracy
March 2011

 

The right to access information held by public authorities, known variously as the right to information (RTI), freedom of information or access to information, has now come of age. Whereas some 20 years ago, only 13 countries had laws giving effect to this right, the number now stands at over 85 and is increasing year-by-year. What was once considered to be a governance reform – a measure to make government more accountable to the people – is now widely, if not universally, recognised as a fundamental human right.[1]

This virtual revolution in recognition of the right to information has occurred for a number of reasons. At a very general level, it can be seen as part of the process of democratisation which has now touched every corner of the globe. It is significant, for example, that civil society demands in both Tunisia and Egypt have already highlighted the need for greater transparency, and discussions are ongoing about the possible adoption of RTI laws in both countries.[2]

New technologies, which have transformed our relationship with information at every level, have no doubt also played a role. They have impacted on both our attitudes towards information – we now expect to be able to access information, rather than treating it as a privileged resource – and our practical ability to access it.

Underlying these wider phenomena, however, are a number of utilitarian benefits that the right to information delivers to society. These include promoting democratic participation, exposing corruption, fostering accountability and good governance, improving service delivery and facilitating competitive businesses.

Commentators often focus on the high-profile ways in which the media uses RTI laws, for example to undertake investigative reporting that reveals high-level corruption or to focus awareness on key public policy issues. This sometimes leads to a perception that the right is primarily, or even exclusively, a right that benefits, or is for, the media. Exacerbating this misperception is the often high-profile role that the media and media associations play in advocacy for RTI legislation.

Zambia, in common with a number of African countries, has struggled with the adoption of an RTI Law. This has been on the agenda for some time now, and yet these efforts have yet to bear fruit, despite a number of official promises. Similar situations pertain in some other African countries – such as Nigeria and Ghana – while in other countries – including Uganda and Angola – laws which have been adopted, sometimes quite a long time ago, are yet to be implemented.

The perception that the right to information is somehow a media right may be contributing to the reluctance of African governments to adopt RTI laws. Given other pressing basic needs, focusing on measures to assist the media may not seem like a priority. These laws, however, provide a number of important direct benefits to citizens or indirectly to citizens through civil society organisations, such as NGOs. This paper highlights the various types of benefits citizens derive from the right to information in different countries around the world. The aim is to demonstrate that, while the right is undoubtedly important for the media, it plays a much wider and more significant social role.

Personal Information and Service Delivery
An important, if fairly obvious, way in which individuals use RTI laws is to gain access to their own personal information. One might, for example, wish to obtain one’s medical information, information about the processing of an application or information about eligibility for certain benefits. In established right to information regimes, such requests often form an important proportion of all requests.

In some countries, requests for personal information are so commonplace that they are not even treated as RTI requests. And of course in all countries, even before adoption of an RTI law, public authorities do make some effort to respond to requests for personal information.

However, simply adopting an RTI law can have a transformative impact on personal requests. The law clarifies any ambiguity about the right of individuals to have access to the information, and so militates against officials obstructing access to this information. The law also clarifies the grounds upon which access might be refused, again fostering the provision of information.

In Canada, for example, prior to the adoption of the RTI law in 1982, practice regarding access to one’s medial information was mixed. Many medical officials would normally provide this information, but others would refuse it, or erect barriers to disclosure (e.g. by asking for fees or by claiming that they needed to check whether they could provide it). Sometimes, medical officials were genuinely unsure as to whether or not they should be providing the information to patients. The RTI law has clarified the rules, establishing precise grounds upon which access to one’s own medical information may be refused (basically where this would pose a clear risk to one’s own health or to safety).

Another good practice which RTI laws promote is the automatic provision of information about services which benefit individuals. Thus, good RTI laws include wide-ranging proactive publication obligations, including about services. For example, section 14(1)(f) of the South African Promotion of Access to Information Act requires public authorities to publish, on a proactive basis (i.e. even in the absence of a request), “a description of the services available to members of the public from the body and how to gain access to those services”. Once entrenched, these sorts of proactive publication practices also help foster e-government initiatives, rendering government more efficient and easing access to services, albeit only for those with access to the Internet.

In India, individuals have gone beyond using the RTI law simply to obtain information. Implementation of the RTI law is more robust than implementation of other rules (e.g. regarding the processing of applications or provision of benefits). As a result, individuals often use requests for information to resolve other sorts of service delivery problems (such as delay, obstruction or failure to apply the rules).

There are numerous examples of this. For example, a 2008 report by the Indian NGO, Participatory Research in Asia (PRIA), highlights a case where police refused to accept a FIR (First Information Report) from an individual who had been assaulted in a land dispute, even after the individual had produced a medical certificate attesting to his injuries. When he returned a few days later, with an RTI request asking for information about why his FIR had not been accepted, the police immediately registered the assault claim.[3] The purpose of the RTI request was not been to obtain information, but to pressure the police into providing the applicant with the services which he was due. In this way, the RTI Act is being used to promote more efficient service delivery in all sorts of areas across the public sector.

In many countries, individuals, often working with civil society groups, have used RTI laws to help them in their advocacy for better service delivery. In South Africa, for example, the Open Democracy Advice Centre (ODAC) has chronicled how local groups have used the RTI law to obtain water delivery. Villagers in Emkhandlwini had no water, whereas neighbouring villages were receiving water deliveries from municipal tankers. With the help of ODAC, the villagers filed an RTI request for minutes from the council meetings at which water programmes had been discussed and agreed, for the council’s Integrated Development Plan (IDP) and for the IDP budget. This information showed that there were plans to deliver water throughout the region, but that somehow Emkhandlwini had been left out.[4] Armed with this information, the villagers were able to reassert their claims for water.

ODAC relates a similar story from the small community of Weston, in the Eastern Cape where, although a serviced site for 40 houses had been developed, no houses had actually been built. A series of RTI requests, including for land contracts and contracts with land developers in the area, created enough pressure for 23 houses to be built. Finally, a request revealed that the Provincial Member of the Executive Council for Housing had approved the development of 40 housing units in Weston, and this number were finally provided to the community.[5]

Combating Corruption and Other Wrongdoing
Corruption is a serious social evil in many countries, which exerts significant pressure on the delivery of social services not only by draining off scarce resources but also by undermining efficiency as it involves debilitating transaction costs. There are numerous examples of the media using RTI laws to expose high-level corruption.

One of the most high profile such cases in recent years was the MPs’ expenses scandal in the United Kingdom. MPs fought tooth and nail to prevent the release of the details of their expenses. Ironically, this information was leaked to the Daily Telegraph newspaper, which started to publish it on 8 May 2009, nearly two months before it was due to be formally released by the House of Commons on 1 July 2009. The information provided a clue as to why MPs had fought so hard to keep it confidential. There were numerous cases of scandalous expenditures, and many more examples of inappropriate expense claims.[6] Dozens of MPs announced that they would not seek re-election due to the exposure of their expense claims. The then Speaker of the House, Michael Martin, was forced to step down after having steadfastly attempted to block the disclosure of this information, the only time this has happened in the 300 years the institution of the Speaker has existed.[7]

Less well known, but no less important, are the many examples of citizens and civil society groups using RTI to expose corruption, often at the local level. Perhaps the most dramatic, and impactful, of this comes from India, where a main impetus for the RTI law came from the use of information to expose massive corruption at the local level.

A pioneer of this was the Mazdoor Kisaan Shakti Sangathan (MKSS), a massive grass roots organisation based in Rajasthan, India, that grew out of a local struggle for minimum wages. Historically, local people had had difficulty getting paid the minimum wages they were due. The issue would become important at election time, when politicians made various promises in return for votes, but the promises never translated into lasting change. Over time, campaigners realised that real change depended on ensuring that relevant documentation, in particular the muster rolls,[8] was made public.

Over time, MKSS developed a new empowerment strategy based on the idea of a ‘jan sunwai’ or ‘public hearing’. This involved bringing people together for a local public meeting, chaired by a prestigious outsider, usually a lawyer, activist, academic or journalist. At these meetings, official documents – related to construction records for school buildings, Panchayat bhawan and patwari bhawan,[9] dams, bridges, and other local structures – that had been procured either through surreptitious means or from officials who had no idea of their import, were simply read out.

There was often laughter when the records were read out because they contained false information, such as bills for transport of materials for 5 km when the real distance was only 1 km, or people listed on the muster rolls who lived in other cities or were dead. This demonstrated, in front of the entire village, that corrupt officials were siphoning away money and that minimum wages were being paid only on paper. People who would have been intimidated on their own now had a platform where they could speak out.

Over time, this process generated widespread support for the right to information at both the grassroots level and among the middle classes who had not previously supported the poor but now spoke out against corruption, which they realised also hurt them.[10]

There are numerous other examples of the power of openness in the hands of citizens being used to combat corruption. In Mexico, for example, the right to information law is widely credited with the virtually complete disappearance of the ‘aviadores’, government employees who would get paid but never actually report for work. This was driven by numerous requests for information by people who suspected wrongdoing, but could not, in the absence of the RTI law, prove it.[11]

In early 1998, shortly after the Thai RTI law was first adopted, a parent, Sumalee Limpa-owart, used it to fight against corruption in the education system. Her daughter had been refused entry to the prestigious Kasetsart Demonstration School (KDS), a highly-regarded, State-funded school. Admission was supposed to be based on a competitive entrance examination. Surprisingly, however, the student body was largely composed of dek sen (children from elite families), leading to a widely held perception that “tea money” or some other form of bribery was involved.

Sumalee sent a letter to the school requesting the marks and answer sheets of her daughter and the 120 students who were admitted. When she received no reply, she filed a petition under the Official Information Act and eventually appealed the case to the Official Information Commission, which ordered disclosure of the information. Parents of children who had been admitted appealed to the courts, which rejected their case. Sumalee was eventually given access to the answer sheets and marks in March 1999. By that time, the school had already admitted to corrupt practices in the processing of the admission of 38 students.[12]

Closer to home is a remarkable story about the power of information to reduce corruption or ‘capture’, as it is sometimes euphemistically called, in the Ugandan education system. One feature of this system, at least in the 1990s, was significant capital transfers to schools via local authorities. A public expenditure tracking survey (PETS) in the mid-1990s revealed that 80% of these funds never reached the schools. One of the actions taken by the central government to address this was to publish data in local newspapers regarding the monthly capital transfers that had been made to local governments. This meant that both officials at the schools and parents could access information about the (intended) size of the transfers. By 2001, the rate of capture had dropped to 20%.[13]

In many countries, RTI laws have also been used by citizens to protect their rights. In 2006, for example, an RTI request to the BBC revealed that the flagship public service broadcaster was paying female news correspondents working for its main One, Six and Ten o'clock news broadcasts some £6,500 less than their male counterparts.[14] Although the BBC claimed that this was not discriminatory but merely reflected age differences among the respective staff,[15] it did prompt it to undertake a comprehensive pay review.[16]

Participation in Decision-making
RTI laws play an important role in enhancing the ability of citizens to participate in decision-making processes. Without information, citizens may not even know that a decision-making process is going on, or they may not know how they might provide input into it. Even if they do have this knowledge, effective participation often depends on having access to the relevant background and underlying information relating to the process. Individuals and civil society groups in countries around the world have used RTI laws to bolster their ability to participate.

For example, Slovak law requires companies that engage in the harvesting of trees in forests to prepare a forest management plan, which must be approved by the Ministry of Agriculture. Historically, these plans were classified documents. A local NGO, the Vlk (Wolf) Forest Protection Movement eventually managed to gain access to these plans, under the recently adopted RTI law, after the Supreme Court ruled that they could not be classified under the new law. Using information in the plans, Vlk managed to campaign successfully for larger areas of forest to be protected as nature reserves.

Significantly, in 2005, amendments were introduced to forestry legislation to ensure that the information and background material used in developing forest management plans were made public. The new amendments also set a precedent for public participation in the development of forest management plans by allowing representatives of NGOs to be present at official meetings.[17]

In New Zealand, campaigners have used the RTI law to campaign for greater openness around GM foods. As part of a wider campaign against GM foods, the Green Party of Aotearoa New Zealand used the RTI law in 2006 to access a Cabinet document which revealed that the New Zealand government planned to veto “country-of-origin” labelling rules without holding a public consultation or parliamentary debate. The Green Party introduced a bill on food labelling which would have significantly enhanced labelling requirements. Although the bill was easily defeated, the campaign generated massive publicity and so the government was forced to introduce country-of-origin labelling rules for imported foods.[18]

In Uganda, the Bujagali dam project has been very controversial. Greenwatch Limited, an environmental NGO, successfully petitioned the High Court, based on the RTI guarantee in the Ugandan constitution, to order the release of a key document about the dam project. Both the Ugandan government and the World Bank had refused to release the document, and the government even denied that it existed. An analysis of the document by the International Rivers Network suggested that it would lead to significant increases in the cost of power for Ugandans.[19] This and other problems with the dam initially lead to the withdrawal of support from funders like the World Bank, although the funding was later restored and the project is now due to be completed in 2012.[20]

Open Government Data
The idea of open government data (OGD), which refers to the disclosure by public authorities of datasets in open, machine-readable formats, free of copyright or other re-use restrictions, has become increasingly popular in recent years. Computer geeks and others have put these datasets to some very imaginative uses, creating benefits for citizens and businesses alike. It is widely believed that OGD makes a significant economic contribution, and many governments are now making freely available much information that they used to charge for.[21]

An increasing number of municipal governments are setting up OGD sites, along with some national governments. [22] The datasets hosted on these sites may be used by programmers to create all sorts of ‘apps’ that may serve any number of purposes. For example, one of three apps featured on the UK government’s OGD site provides a list of scheduled roadworks in the UK, broken down by county, allowing motorists to plan trips so as to avoid them. Another very useful UK OGD application is Where Does My Money Go (http://wheredoesmymoneygo.org/), which provides citizens with accessible information on how their taxes are spent, including through the use of visual techniques (such as bubble charts presenting spending pictorially).

The direct benefits of OGD are, for the moment at least, largely dependent on access to the Internet, which remains limited in poorer countries like Zambia. At the same time, this is mitigated by two factors. First, in most countries, access to the Internet is increasing rapidly. Second, there are often downstream benefits to citizens other than those who directly make use of OGD, for example in the form of promoting business efficiencies and the like.

Conclusion
In countries where right to information laws are not yet in place, it is not always clear to citizens why they have attracted so much attention in recent years. In poorer countries, like Zambia, in particular, the adoption of an RTI law may seem somewhat of an unnecessary luxury, given the many very pressing development needs. Often, the perception of these laws is that they are mainly for the benefit of the media, which already seems to be a privileged player in society.

In fact, the longstanding experience of many countries in regions all over the world clearly demonstrates the importance of RTI laws not only to the media, but also directly to citizens. The uses that citizens make of these laws ranges from the relatively mundane – such as accessing one’s personal information – to far more important uses, such as improving service delivery, either on an individual or community basis, exposing corruption and fostering participation in decision-making and enhancing social advocacy.

The fact that the media are sometimes the most high profile and visible beneficiaries of RTI laws should not obscure the real situation. In most countries with established RTI systems, ordinary citizens and NGOs make up the largest proportion of all requesters. There are good reasons for this, namely the sorts of direct benefits these laws provide to individuals, along the lines outlined in this paper.

 

[1] See, for example, Claude Reyes and Others v. Chile, 19 September 2006, Series C No. 151, para. 77 (Inter-American Court of Human Rights) and Társaság A Szabadságjogokért v. Hungary, 14 April 2009, Application No. 37374/05 (European Court of Human Rights).

[2] See, for example, the press release of 21 February 2011 by the Forum of Independent Human Rights NGOs in Egypt. Available at: http://www.cihrs.org/English/NewsSystem/Articles/2762.aspx.

[3] Participatory Research in Asia (PRIA) (2008), Tracking Right to Information in Eight States: 2007. New Delhi: PRIA. Pp. 19-20.

[4] Digging out the truth, dogged ODAC holds on: ODAC 5 Year Review, p. 9. On file with author.

[5] Ibid., p. 8.

[6] A full list of the claims investigated by the Daily Telegraph is available at: http://www.telegraph.co.uk/news/newstopics/mps-expenses/5297606/MPs-expenses-Full-list-of-MPs-investigated-by-the-Telegraph.html, accessed 22 December 2010.

[7] See: http://news.bbc.co.uk/2/hi/uk_news/politics/8057203.stm.

[8] A list of persons employed and wages paid.

[9] Buildings made for the village-level functionaries.

[10] For more information on this look on the MKSS website: http://www.mkssindia.org/.

[11] Sobel, David, Bethany Noll, Benjamin Bogado, TCC Group and Monroe Price (2006): The Federal Institute for Access to Information in Mexico and a Culture of Transparency (Annenberg School for Communications, University of Pennsylvania), p. 41.

[12] See Mendel, Toby, “Corruption, Access to Information and Human Development” in Rajivan, A. and Ramesh, G., eds., Perspectives on Corruption and Human Development (2009, New Delhi, Macmillan), p. 849.

[13] Reinikka, Ritva and Svensson, Jakob, The Power of Information: Evidence From a Newspaper Campaign to Reduce Capture, December 2003. Available at: http://emlab.berkeley.edu/users/webfac/emiguel/e271_s04/jakob.pdf. There is some evidence that not all of the reduction was due to transparency, but everyone agrees that it played a major role. See Hubbard, Paul, Putting the Power of Transparency in Context: Information’s Role in Reducing Corruption in Uganda’s Education Sector, Center for Global Development, Working Paper Number 136, December 2007.

[14] See The Independent, “Female reporters paid £6,500 less than men by BBC “, 8 December 2006.

[15] The female correspondents concerned had an average age of 41 years, compared to 46 years for the males.

[16] Commonwealth Human Rights Initiative, note  NOTEREF _Ref160861972 \h 18 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360030003800360031003900370032000000 , p. 72.

[17] See Commonwealth Human Rights Initiative, Our Rights, Our Information: Empowering people to demand rights through knowledge, pp. 64-65. Available at: http://www.humanrightsinitiative.org/publications/rti/our_rights_our_information.pdf.

[18] Ibid., pp. 57-58.

[19] See Transparency International Kenya, Adili Newsletter #58, 2004, p. 5. Available at http://www.tikenya.org/documents/Adili58.pdf.

[20] See NewVision, “Bujagali dam to be ready next year”, 12 March 2010. Available at: http://www.newvision.co.ug/D/8/12/712732.

[21] For example, the UK Ordinance Survey Maps, which used to be sold, are now available electronically for free. See http://www.ordnancesurvey.co.uk/oswebsite/getamap/.

[22] See, for example, http://data.gov.uk/, run by the UK government, which boasts that it hosts over 5,600 datasets, along with numerous applications running on them.