The right to access information can be guaranteed by a state's written constitution or by its signature of particular international conventions. However, there still needs to be a specific law at national or sub-national level in order to set out the parameters for this right and the practical process for accessing information. In most cases, such legislation applies solely to the public sector, though there are good practice precedents (such as the South African Freedom of Information Act) for additional coverage of private sector actors. This is particularly useful in providing coverage of private institutions that receive public money or where information is needed from a private body for the exercise or promotion of a right or the provision of a service.

Legislation guaranteeing access to information is essential to safeguard the public against excessive official secrecy, and to ensure that the state informs society at large about its policies and decision-making processes. Indeed, access to information laws can be understood as a means to shift the balance of power in the informational relationship between government and citizens towards the latter. All existing international legal instruments that address corruption point to the need for access laws as a precondition for transparency, openness and accountability in government. The development and implementation of such laws is, however, no easy and straightforward task. An analysis of the effectiveness of access laws in different national contexts suggests a number of prerequisites that play a key role in determining the success or failure of such legislation.

Preparatory stage

Setting the scene for change
In the vast majority of countries where some form of legislation exists to guarantee access to information, the role of civil society has been crucial in promoting the access agenda. Underlying these efforts has been a belief that the secrecy surrounding powerful elites must be challenged if corruption and the abuse of power are to be addressed. Whether in regions emerging from military dictatorship, such as Latin America, those evolving after decades of communism, such as Eastern Europe, or those transiting from post-colonialism, as in much of Africa and Southeast Asia, corruption has often been aided by the culture of secrecy typical of the old regimes. By creating space for public discussion and organising citizen action on a range of access-related issues, civil society has often played an essential role in pushing back such secrecy and working to guarantee citizen access to information.

Grassroots movements promoting access to public information have had a direct impact on people´s lives, for example, by helping them access essential services. One such success story is that of Mazdoor Kisan Shakti Sanghatan in India:

Civil society mobilisation: Mazdoor Kisan Shakti Sanghatan in India

Mazdoor Kisan Shakti Sanghatan (MKSS) is a workers and farmers solidarity group in Rajasthan, India. In the course of their work they realised that the government was exploiting local villagers. Not only were they being denied minimum wages, they were also not receiving benefits from government-funded development activities earmarked for the area. Under the slogan 'Our Money-Our Accounts', MKSS workers and villagers organised to demand that local administrators provide accounts of all expenditure made in relation to local development work. Despite strong resistance from officials, the administration finally relented and provided the information requested. MKSS used the information disclosed to organise 'social audits' of the administration's books. Unsurprisingly, these public hearings revealed huge discrepancies between official accounts and actual output.

Following this initial success, similar hearings were held in other areas and demands grew for an access to information law. Initially, the government appointed a committee of bureaucrats to draft the bill. However, following much criticism about the lack of citizen involvement, it invited assistance from MKSS and the National Campaign for People's Right to Information. They held a series of public consultations that fed into the process which finally culminated in a new act.

For details see: CHRI (2003) "Open Sesame: Looking for the Right to Information in the Commonwealth", Chapter 4.

Ensuring citizen support for new access laws

Ensuring a prominent civil society role during consultations for new access to information laws is key to their successful implementation and effective use. Such involvement can create a strong sense of citizen ownership while, at the same time, educating organisations and citizens with regard to the operation of such legislation. Successful civil society involvement has seen civil society organisations (CSOs) organising campaigns promoting the need for access to information even before legislation has been contemplated by government. In such circumstances, CSOs can play a vital role in informing the public about what kind of law they should demand. Internationally, there are a range of networks consisting of organisations that share experience and expertise in access-related legal analysis and advocacy. CSOs wishing to promote access to information legislation can draw on these existing networks to strengthen their capacity to do so (see the 'Selected Websites' section for further information).

One example of a group of organisations that have gotten together to advocate as one global voice is the International Freedom of Information Advocates Network:

International Freedom of Information Advocates (FOIA) Network

Many of the challenges that access to information advocates are grappling with are common across all jurisdictions. In recognition of this, a group of advocates has formed the web-based FOIA Network. The Network facilitates the flow of information between organisations and countries on freedom of information issues, including news, international and national developments, project updates, research papers and draft bills. Most recently, the Network was active in celebrating "Right to Know Day", held on 28 September, in countries throughout the world. Information on how to join the Network can be found at: www.foiadvocates.net

For more details see: Open Sesame: Looking for the Right to Information in the Commonwealth, Page 68.
http://www.humanrightsinitiative.org/publications/chogm/chogm_2003/

Drafting stage

Access to information laws generally specify a series of procedures that should be followed in order to guarantee the right to information. A number of features need to be considered in order to make access laws as inclusive as possible and to facilitate their effective implementation. Any law should contemplate including the following basic elements enshrined in the set of principles outlined below.

Principles on Freedom of Information Legislation

These principles, developed by Article 19, set out standards for national and international regimes which give effect to the right to freedom of information. They are designed primarily for national legislation on freedom of information or access to official information but are equally applicable to information held by inter-governmental bodies such as the United Nations and the European Union.

i) Freedom of information legislation should by guided by the principle of maximum disclosure;
ii) Public bodies should be under an obligation to publish key information;
iii) Public bodies must actively promote open government;
iv) Exceptions should be clearly and narrowly drawn and subject to strict "harm" and "public interest" tests;
v) Requests for information should be processed rapidly and fairly and an independent review of any refusals should be available;
vi) Individuals should not be deterred from making requests for information by excessive costs;
vii) Meetings of public bodies should be open to the public.

Report of the United Nations Special Rapporteur on Freedom of Expression, (2000) UN Doc. E/CN.4/2000/63, January 18, 2000, paras 43, 44. Annex 2.

The Principles were developed by the non-governmental organisation Article 19 - the International Centre against Censorship.

http://www.ohchr.org/english/issues/opinion/annual.htm

Maximum disclosure is the standard: Starting from the assumption that information is owned by the public but held by the state, the law should recognise that all information is open to the public except in specific and narrowly-defined cases. That secrecy is the exception and not the rule should be clearly indicated. Written provisions for the implementation of such legislation must also respect the spirit of maximum disclosure.

Access laws should oblige public bodies to proactively disclose and publish information about themselves, including about their functions, their decision-making processes and budgets, their activities, their staff, their contact information (particularly for staff who deal with requests for information), the kind of records that are kept and how they can be accessed.

Reaching out to the public does not necessarily entail the dedication of vast amounts of resources. The following is an example of a low cost access mechanism:

Accessing government information by phone: South Africa

In South Africa, the Access to Information Law requires that all telephone directories must include the numbers of government department Information Officers - thus facilitating the provision of information to communities in a format that is widely accessible to all citizens at low cost. These contact details can also be accessed online via the South African Government Information website at: http://www.info.gov.za

Public bodies should recognise the right of all members of the public to access information independently of their national origin or place of residence and without having to justify their specific interest in the information. Existing laws, such as official secrets laws, that are inconsistent with the requirement of maximum disclosure, should be repealed or revised.

Minimum exceptions: The definition of exceptions must also be clearly described in the text of access laws to avoid imprecise interpretation. Categories exempt from disclosure should be quantitatively limited. Blanket exemptions should be avoided and, instead, a harm test included which requires that information can only be withheld if disclosure is likely to cause serious harm to the relevant protected interest. Common exemption categories include information which, if disclosed, would cause serious harm to national security, international relations, personal privacy and safety, commercially and otherwise economically sensitive information, and the provision of law enforcement.

The following is a helpful set of principles for defining exceptions on the grounds of national security:

The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, 1995

These Principles were adopted on 1 October 1995 by a group of experts in international law, national security, and human rights convened by Article 19 in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, in Johannesburg.

The Principles are based on international and regional law and standards relating to the protection of human rights, evolving state practice (as reflected, inter alia, in judgments of national courts), and the general principles of law recognised by the community of nations. Particularly interesting sections include those that relate to the narrow designation of security exemptions and the right to independent review in the case of denials of access to information.

For the full text of the Johannesburg Principles, visit:
http://www.article19.org/docimages/511.htm

Evidence suggests that it is useful to define exceptions on the basis of content, rather than on type of document. Furthermore, there should be a requirement to justify non-disclosure and the possibility to appeal against a decision before an independent appeals body. The benefit of withholding any information must at all times be weighed against the public interest of disclosure. A basic three-part test for applying exemptions has been advocated by Article 19:

(i) Is the information covered by a legitimate exemption?
(ii) Will disclosure cause substantial harm?
(iii) Is the likely harm greater than the public interest in disclosure?

When drafting a new law, or revising an existing one, its implementation procedures need to include clear provisions that explain the decision-making process for exemptions to disclosure. The appeals mechanism to which citizens can refer if information is denied should also be clearly outlined.

Simple, cheap procedures for obtaining access: The law should ensure that ordinary citizens are not deterred from seeking information through, for instance, the imposition of unreasonable costs, excessive formalities or lengthy response times. The law should allow oral requests to be made - this will have major benefits in countries with high levels of illiteracy. The costs imposed on citizens for accessing information should only be those incurred to reproduce or copy the information, since its production and management should already be covered by citizens' taxes. Response times should be kept to an absolute minimum. In Sweden and Norway responses to requests for official government information are to be given within 24 hours, and in Perú, within five working days. This compares to a full 30 days in South Africa or Ireland.

Independent appeals mechanisms: If an applicant is denied information, appropriate mechanisms should be in place to allow for an internal appeal within the institution that denied the request. All laws should, however, also allow for the creation of an external or independent appeals system. Some countries have designated specially appointed information commissioners for this purpose, while others have used existing institutions or positions such as an ombudsman or vigilance commission. In all cases, the law should guarantee the independence of such appellate bodies, both in the way its members are selected as well as in a formal legal sense.

Translating law into practice

Even when a law is passed by parliament, unless it has been properly implemented and can be used effectively by citizens, it is still a long way from being a "living" document that can be used effectively to counter corruption. Key requirements to ensure the effective implementation of access to information laws are:

- Allocating appropriate resources - human, financial and technological - to ensure prompt and appropriate implementation;

- Building public awareness of the existence of an access to information law as well as citizens' capacity to use it;

- Informing and training public officials, in all branches of government, with regard to using the law;

- Promoting a shift in organisational culture among public officials to embrace the concept that information is held by the state but owned by the public;

- Developing an appropriate information management and record-keeping system;

- Creating and maintaining a strong institutional regulatory framework, including an information commission or ombudsman, to ensure compliance with the law.

In some countries (for example Mexico and the United Kingdom), preparatory periods have been introduced before the implementation of access laws to allow the state to adapt and change its information management systems and train its public officials. Such preparatory periods have proved key in establishing information regimes within the time-frames stipulated by law. Some care should, however, be exercised to prevent situations in which complex preparatory periods significantly delay the actual implementation of legislation. As institutions prepare to deliver a new information regime, a positive effect is that they often also begin to proactively produce a range of information about themselves in the form of annual reports, organisational charts, employee directories and budget information.

As at the drafting stage, the involvement of civil society in the implementation of access to information laws is key to ensuring that information is presented in a manner that serves citizens' needs. In South Africa, for example, the Open Democracy Advice Center conducts training on the Promotion of Access to Information Act (2000) for both holders and requesters of information.

Article 19's Manual for Training of Public Officials

This manual is intended as a resource for use by those undergoing training on access to information. It is aimed primarily at public officials, although the first section of the manual could also be used to introduce civil society organisations and journalists to the concept, principles and application of access to information measures. The manual includes notes for trainers, a suggested agenda for a two-day training workshop and several practical case studies. Available in English as of 2004, the organisation has announced plans to translate it into Spanish, French and Russian at a later stage.

For details click here.

Recently, the Open Society Institute´s Justice Initiative gathered experts and organisations to discuss the use of litigation as a means to promote and defend access to information. This course of action may open up new avenues to gain effective access to publicly held information.

For more information see: http://www.justiceinitiative.org/db/resource2?res_id=102365

Monitoring stage

Once implemented, the effectiveness of access to information legislation should be systematically reviewed. International organisations such as the United Nations, the European Union, the OECD and the Organisation of American States, among others, have "special rapporteurs" on freedom of information who regularly review access to information legislation. Monitoring efforts should take into account the systemic context within which a particular law must operate. Ultimately, much will depend on the effectiveness of government bureaucracy, the success of internal reforms, and the impact of shifts in organisational culture.

Civil society organisations can play a substantial monitoring role, for example by designing and operating participatory citizen monitoring tools. In systems where the creation of legal instruments has been supported by civil society, such monitoring represents a natural progression. In India, for example, the Right to Information Councils established under some individual state laws, include both members of the government and of the public. In cases where legislation has been framed only within the political class, however, monitoring may be weak or entirely absent, thus leading to a feeling of disenfranchisement among the general public.

A truly global monitoring effort is illustrated below:

Open Society Institute Access to Information Monitoring Tool

Conducted in Armenia, Bulgaria, Macedonia, Peru and South Africa, this survey is a comprehensive effort to test the limits of government transparency. It involved the submission of 100 information requests to 18 different public institutions by a range of actors in each country. On average, only 35 percent of requests for information were fulfilled. Many requests not explicitly rejected were ignored, 36 percent of requests resulted in tacit "mute" refusals.

For further details see: http://www.justiceinitiative.org
http://unpan1.un.org/intradoc/groups/public/documents/UNTC/UNPAN018513.pdf

Key recommendations

- Political will and commitment should be built to ensure the successful development and implementation of an effective access to information regime. The common message at all levels should be that openness is the rule and secrecy the exception.

- National or local level legislation should incorporate internationally accepted principles on access to information, including the definition of exceptions.

- Well-trained public officials have a significant impact on the success of access to information regimes. Training will also help diminish the secrecy culture in favour of citizen service. Officials should be trained with regard to the use of access to information systems and given appropriate technological support.

- Adequate resources should be assured in order to secure proper implementation of access laws. In particular, record management systems should be developed/strengthened to ensure that simple systems are in place that allow information to be easily recovered and requests responded to within legal time-frames and in user-friendly formats.

- Public awareness of the benefits of accessing information should be raised. Both state and civil society actors should actively encourage the view that access to information is a fundamental right and that exercise of this right is a crucial element of democratic accountability.

- The state should assure civil society participation in the design, implementation and monitoring of access to information measures. Civil society has been largely responsible for triggering the campaigns that have successfully resulted in the adoption of new access to information legislation and plays an important role in monitoring such laws.

- Public institutions should proactively and systematically provide information about themselves and their activities. Such information may include descriptions of their objectives and activities, organisational structures, decision-making processes, budgets and financial reports as well as staff directories.

- States that have signed international and/or regional anti-corruption conventions should ensure compliance with their provisions in relation to the implementation of specific national legislation to guarantee access to publicly held information.

- Civil society groups monitoring the implementation of such conventions should hold their governments to account for adopting and implementing access to information provisions.