•The world’s first Freedom of Information Law was adopted in the Kingdom of Sweden in 1766 – 245 years ago!
•The right to know about government expenditures was also recognized in the late 18th century in France (in the “Declarations of the Rights of Man”).
Historical Developments on Freedom of Information
•After Sweden, Freedom of Information Laws were later adopted in:
Colombia (1888)
Finland (1951)
The United States (1966)
Denmark & Norway (1970)
The Netherlands & France (1978), and
Australia, Canada & New Zealand (1982).
Freedom of Information in Africa
•South Africa became the first country to adopt an FOI law in Africa with the passage of the Promotion of Access to Information Act (PAIA) in February 2000
•In West Africa, Liberia was the first country to have an FOI Law when it adopted its Freedom of Information Act in September 2010.
Freedom of Information in Africa
•About 90 countries now have FOI Laws
•This is dramatic increase from just 13 countries in 1990.
•Only 10 countries in Africa have such laws.
•They are:
South Africa – Promotion of Access to Information Act (2000)
Zimbabwe – Access to Information and Protection of Privacy Act (2002)
Freedom of Information in Africa
Angola - Access to Official Documents Law (2002)
Uganda – Access to Information Act (2005)
Ethiopia - Law on Mass Media and Freedom of Information (2008)
Liberia - Freedom of Information Act (2010)
Freedom of Information in Africa
Guinea-Conakry - Organic Law on the Right of Access to Public Information (2010)
Nigeria – Freedom of Information Act (2011)
Niger - Law on Access to Public Information and Administrative Documents (2011)
Tunisia - Decree on Access to Administrative Documents (2011).
Quality of FOI Laws
•The quality of FOI Laws that have been passed in Africa & elsewhere vary widely
•Independent analysis shows that some of them are very good in providing a strong framework for the enjoyment of the right of access to information
•Others are of very dubious quality.
•In addition, many of the African FOI laws face implementation challenges
Quality of FOI Laws
•On 28 Sept 2011, Access Info Europe (Spain) & Centre for Law & Democracy (Canada), launched the first detailed assessment of FOI laws in 89 countries.
•The assessment is based on the RTI Legislation Rating Methodology which they developed as a tool to assess or rate the overall legal framework for the RTI in a country, based on how well the framework gives effect to the right to access information.
Quality of FOI Laws
•The Methodology provides an overall numerical assessment of how well a country scores out of a maximum of 150 points in terms of giving legal effect to the RTI.
•At the heart of the Methodology is a set of 61 main Indicators, each with a possible score range (in most cases of 0-2), depending on how well the legal framework delivers on each of the indicators.
Quality of FOI Laws
•The Indicators are drawn from a wide range of international standards on the RTI & comparative study of numerous RTI laws around the world.
•An Advisory Council of renowned experts on the RTI advised CLD & Access Info Europe on the development of the Indicators.
•The Methodology also includes detailed scoring rules, illustrating how points are allocated under each Indicator
•It also has a database for recording the results from the assessment.
Quality of FOI Laws
The methodology provides sub-ratings in 7 different thematic areas as follows:
Quality of FOI Laws
The detailed indicators evaluate whether:
•The legal framework recognizes a fundamental right of access to information.
•The legal framework creates a specific presumption in favor of access to all information held by public authorities, subject only to limited exceptions.
•The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law
Quality of FOI Laws
•The legal framework emphasizes the benefits of the right to information
•Everyone, including non-citizens & legal entities, has the right to request information.
•The right of access applies to all materials held by or on behalf of public authorities which is recorded in any format, regardless of who produced it.
•Requesters have a right to access either information & records or documents, i.e. a right either to ask simply ask questions or to apply for specific documents.
Quality of FOI Laws
•The right of access applies to the executive branch with no bodies excluded.
•The right of access applies to the legislature, including not only administrative information but all information, with bodies excluded.
•The right of access applies to the judicial branch including not only administrative information but all information, with no bodies excluded.
Quality of FOI Laws
•The right of access applies to commercial owned or controlled by the State.
•The right of access applies to other public authorities, including constitutional and statutory and other oversight bodies.
•The right of access applies to private bodies that perform a public function & private bodies that receive significant public funding.
•Requesters are required to provide reasons for their requests.
Quality of FOI Laws
•Requesters are only required to provide the details necessary for identifying and delivering the information, i.e. some form of address for delivery.
•There are clear & simple procedures for making requests & whether requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law.
Quality of FOI Laws
•Public officials are required assist requesters to formulate their requests, or to contact & assist requesters where their requests are vague, unduly broad or otherwise need clarification.
•Public officials are required to assist requesters who need help because of special needs, for example because they are illiterate or disabled.
•Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days
Quality of FOI Laws
•Clear & appropriate procedures are in place for situations where the authority to which a request is directed does not have the information, including the obligations to inform the requester that the information is not held & to refer the requester to another institution or to transfer the request where the public authority knows where information is held.
•Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides, such as to protect a record.
Quality of FOI Laws
•Public authorities are required to respond to requests as soon as possible.
•There are clear & reasonable timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request
•There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified & provided with an explanation.
Quality of FOI Laws
•There is any charge for filing requests.
•There are clear rules on access fees, which are set centrally, rather than being determined by individual public authorities, including a requirement that fees be limited to the cost of reproducing & sending the information; that inspection of documents & electronic copies are free; & a certain initial number of pages (at least 20) are provided for free.
Quality of FOI Laws
•There are fee waivers for indigent requesters
•There are no limitations on or charges for reuse of information received from public bodies, except where a third party which is not a public authority, holds a legal copyright over the information.
•The standards in the RTI Law override restrictions on information disclosure, such as secrecy provisions in other legislation to the extent of any conflict.
Quality of FOI Laws
•The exceptions to the right of access are consistent with international standards.
•A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused.
•There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest.
Quality of FOI Laws
•Information must be released as soon as an exception ceases to apply, for example, after a contract tender process decision has been taken, & whether the law contains a clause stating that exceptions to protect public interests do not apply to information over 20 years old.
•There are clear & appropriate procedures in place for consulting with third parties who provided information which is the subject of a request on a confidential basis, provided that third parties do not have veto power over the release of information.
Quality of FOI Laws
•There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed.
•When refusing to provide access to information, public authorities must state the exact legal grounds & reason(s) for the refusal & inform the applicant of the relevant appeals procedures.
Quality of FOI Laws
•Where it is mandatory to lodge an internal appeal, e.g. to a higher authority within the public authority that first refused access or otherwise failed to comply with the law, before proceeding to an external appeal, the process is simple, free of charge & completed within clear timelines of 20 working days or less.
•Requesters have the right to lodge an external appeal with an independent administrative oversight body, such as an information commission.
Quality of FOI Laws
•The appeal, both internal & external, is free of charge & does not require a lawyer.
•The grounds for external appeals are broad, including not only appeals against refusals to provide information, but also refusals to provide the requested form, administrative silence & other breach of timelines, charging excessive fees, etc.
•Clear procedures, including timelines, are in place for dealing with external appeals.
Quality of FOI Laws
•In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules.
•The independent oversight body has the necessary mandate & power to perform its functions; including reviewing classified documents & inspecting the premises of public bodies.
•The decisions of the independent oversight body are binding.
Quality of FOI Laws
•In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information.
•The independent oversight body may impose appropriate structural solutions on the public authority, such as order training or better records management.
Quality of FOI Laws
•Member(s) of the oversight body are appointed in a manner that protects it against political interference & have security of tenure so they are protected against arbitrary dismissal, whether procedurally or substantively, once appointed.
•The oversight body reports to & has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence.
Quality of FOI Laws
•There are prohibitions on politically connected individuals from being appointed to this body and/or requirements of professional expertise for members.
•Requesters have a right to lodge a judicial appeal in addition to an appeal to an independent oversight body.
•Sanctions may be imposed on those who willfully act to undermine the right to information, including through the unauthorized destruction of information.
Quality of FOI Laws
•There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform, either through imposing sanctions on them or requiring remedial actions of them.
•The independent oversight body & its staff are granted legal immunity for acts taken in pursuit of their mandate & others are granted similar immunity for releasing information pursuant to the RTI Law?
Quality of FOI Laws
•There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing, i.e. whistleblowers.
•Public authorities are required to appoint dedicated officials in the form of information officers or units with a responsibility for ensuring that they comply with their information disclosure obligations.
Quality of FOI Laws
•A central body, such as an information commission(er) or government department, is given overall responsibility to promote the right to information.
•Public awareness-raising efforts such as producing a guide for the public, are required to be undertaken by law.
•A system is in place whereby minimum standards regarding information management are set and applied.
Quality of FOI Laws
•Public authorities are required to create & update lists or registers of the documents in their possession & to make these public.
•Training programmes for officials are required and/or are to be put in place.
Quality of FOI Laws
•Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations, including statistics on requests received & how they were dealt with.
•Central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law.
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Quality of African FOI Laws
On the basis of these indicators, national laws in Africa were rated thus:
•Liberia’s FOI Act was rated No. 5 out of the 89 national laws assessed;
•Ethiopia’s Law on Mass Media & FOI was rated No. 10;
•South Africa’s PAIA was rated No. 12;
•Uganda’s ATI Act was rated No. 22;
•Nigeria’s FOI Act was rated No. 35;
Quality of African FOI Laws
•Angola’s Access to Official Documents Law was rated No. 46;
•Niger’s Law on Access to Public Information and Administrative Documents, 2011 was rated No. 49;
•Zimbabwe’s Access to Information and Protection of Privacy Act was rated No. 58;
Quality of African FOI Laws
•Tunisia’s Decree on Access to Administrative Documents was rated No. 59;
•Guinea-Conakry’s Organic Law on the Right of Access to Public Information, 2010 was rated No. 69.
Latest Development on Freedom of Information
•Brazil is the latest country in the world to pass an FOI Law
•On 25 October 2011, the Brazilian Senate passed its Access to Information Bill
•Brazilian President Dilma Rousseff signed the Bill into Law on 18 November 2011.
Freedom of Information Around the World
•Although only 90 out of 193 countries now have FOI Laws, most of the world’s 7 billion people now enjoy a legal right of access to information.
•The total number of people living in countries with FOI laws now stands at 5,476,774,339 (about 5.5 billion)
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