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What is the Right to Information?

The Right to Information is a Fundamental Human Right

The Right to Information is the key to Democracy and Development

- Making participatory democracy meaningful
- Cementing Trust In Government
- Supporting People-Centred Development
- Facilitating Equitable Economic Growth
- Tackling Corruption
- Bolstering Media Capacity

This is the age of information affluence. Technology, with its capacity for storing, simplifying and communicating information with astonishing speed has, more than ever, put information at the centre of development. Information is a global resource of unlimited potential for all.

Importantly, information belongs not to the state, the government of the day or civil servants, but to the public. Officials do not create information for their own benefit alone, but for the benefit of the public they serve, as part of the legitimate and routine discharge of the government's duties. Information is generated with public money by public servants paid out of public funds. Therefore, it cannot be unreasonably kept from citizens.

The Right to Information is a Fundamental Human Right

Lack of information denies people the opportunity to develop their potential to the fullest and realise the full range of their human rights. Individual personality, political and social identity and economic capability are all shaped by the information that is available to each person and to society at large. The practice of routinely holding information away from the public creates 'subjects' rather than 'citizens' and is a violation of their rights. This was recognised by the United Nations at its very inception in 1946, when the General Assembly resolved: "Freedom of Information is a fundamental human right and the touchstone for all freedoms to which the United Nations is consecrated" [1]. Enshrined in the Universal Declaration of Human Rights, the right's status as a legally binding treaty obligation was affirmed in Article 19 of the International Covenant on Civil and Political Rights which states: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers"[2] This has placed the right to access information firmly within the body of universal human rights law.

The right to access information underpins all other human rights. For example, freedom of expression and thought inherently rely on the availability of adequate information to inform opinions. The realisation of the right to personal safety also requires that people have sufficient information to protect themselves. In Canada, a court has recognised that the right to security creates a corollary right to information about threats to personal safety which would be violated if the police force knew of a threat and failed to provide that information to the threatened individual. [3]The right to food is also often reliant on the right to information. In India for example, people have used access laws to find out about their ration entitlements and to expose the fraudulent distribution of food grains. [4]Quite simply, the right to information is at the core of the human rights system because it enables citizens to more meaningfully exercise their rights, assess when their rights are at risk and determine who is responsible for any violations.

It is important that access to information is recognised as a right because it:

  • Accords it sufficient importance, as being inherent to democratic functioning and a pre-condition to good governance and the realisation of all other human rights.

  • Becomes part of the accepted international obligations of the state. This means that the right to access information attracts the guarantee of protectionby the state.

  • Distances it from being merely an administrative measure by which information is gifted by governments to their people at their discretion since a legally enforceable right cannot be narrowed or ignored at the whim of government.

  • Creates a duty-holder on the one hand and a beneficiary of a legal entitlement on the other. Non-disclosure of information is therefore a violation and the beneficiary can seek legal remedy.

  • Signals that information belongs to the public and not government. The idea that everything is secret unless there is a strong reason for releasing it is replaced by the idea that all information is available unless there are strong reasons for denying it. The onus is on the duty-holder to prove its case for refusing to disclose documents.

  • Sets a higher standard of accountability.

  • Gives citizens the legal power to attack the legal and institutional impediments to openness and accountability that still dominate the operations of many governments. It moves the locus of control from the state to the citizen, reinstating the citizen as sovereign.

The right to information holds within it the right to seek information, as well as the duty to give information, to store, organise, and make it easily available, and to withhold it only when it is proven that this is in the best public interest. The duty to enable access to information rests with government and encompasses two key aspects: enabling citizens to access information upon request; and proactively disseminating important information.[5]

When is private...public?

In a world where non-state actors - such as public or private corporations, non-governmental organisations (NGOs), quasi non-government organisations and international institutions - influence the destinies of millions, the ambit of the right to information needs to encompass more than just governments. Some Commonwealth countries have extended the coverage of their laws to some private bodies[6], recognising that the issue needs to be "resolved by reference to its role in protecting the fundamental interests of citizens, and not by reference to the provenance or structural characteristics of the institution holding the contested information."[7]

As more and more public functions, like provision of health care, supply of water, power and transport, and even prison management, are privatised, people need to be able to get information from the bodies performing these services. Often, agreements between government and service providers do not require them to make information about their activities available. This removes information from the public domain that would otherwise have been covered under access laws. Even where private bodies are not providing public services, their activities need to be open to public scrutiny if they affect people's rights.For example, the public should be able to access information on a factory's environmental management policies to ensure the factory is managing toxic waste appropriately and therefore, not diminishing their right to health.

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The Right to Information is the key to Democracy and Development

The reluctance of so many member countries to enshrine the right to access information is surprising considering open government offers the key to deepening democracy and quickening development that the Commonwealth is so desperately seeking. The right to information lays the foundation upon which to build good governance, transparency, accountability and participation, and to eliminate that scourge upon the poor - corruption. As such, it should be embraced as much by the hard-headed economist as by the high-minded reformer.

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Making participatory democracy meaningful

To be a member of the Commonwealth, a country must comply with the values and principles set out in the 1991 Harare Declaration, which recognises "the individual's inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives."[8] While all members of the Commonwealth have made that commitment to democracy, in many countries the democratic principles of good governance, transparency and accountability are largely absent. The fact is that periodic elections and a functioning bureaucracy do not in themselves ensure that governments are responsive and inclusive. Something more is needed. Access to information is the key for moving from formal to consultative and responsive democracy. In 2002, the Commonwealth Law Ministers specifically recognise that "the right to access information was an important aspect of democratic accountability and promoted transparency and encouraged full participation of citizens in the democratic process"[9].

Information is often withheld even when people are engaged in exercising that most basic of democratic rights, the vote. In the absence of a continuous flow of information that accurately reveals how ministries are functioning, how politicians have performed or the experience and qualifications of new candidates, elections may end up promoting only narrow interests as voters fall back on tribal, clan, religious or class affiliations as the basis for their choice. Likewise, in the absence of a right to scrutinise the financial details of political party funding - some of it no more than bribes - citizens are unable to ensure that special interest groups, including criminal elements, do not co-opt their representatives for private gain. Better-informed voters mean better-informed choices, more responsive legislators and better governance.

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Cementing Trust In Government

Democracy and national stability are enhanced by policies of openness which engender greater public trust in their representatives. This is a crucial aspect of effective governance - without the support and trust of the people, governments will be more likely to face resistance to their policies and programs and implementation will be more difficult. A Commonwealth Foundation study in 1999 which sought the views of some 10,000 citizens in over 47 Commonwealth countries has shown that there is a growing disillusionment of citizens with their governments: "Citizens are suspicious of the motives and intentions of their governments. They feel ignored or even betrayed by their elected representatives. Indeed, they feel suspicious of the very programmes and agencies created to meet the needs they have. They feel neglected, ignored and uncared for."[10] The integrity of governments needs to improve - and be seento improve. Open government and access to information provide a means of achieving both these ends.

Over the years, instability and conflict have resulted in huge setbacks to development in the Commonwealth. Enhancing people's trust in their government goes some way to minimising the likelihood of conflict. Openness and information-sharing contribute to national stability by establishing a two-way dialogue between citizens and the state, reducing distance between government and people and thereby combating feelings of alienation. Systems that enable people to be part of, and personally scrutinise, decision-making processes reduce citizens' feelings of powerlessness and weaken perceptions of exclusion from opportunity or unfair advantage of one group over another.

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Supporting People-Centred Development

At the turn of the century, all members of the Commonwealth came together in their broader membership of the United Nations and pledged their commitment to the Millennium Development Goals (MDGs) - the most comprehensive poverty reduction and development agenda the international community has ever forged. At Coolum in 2002, the Commonwealth Heads of Government made a commitment "to work to eliminate poverty, to promote people-centred and sustainable development, and thus progressively to remove the wide disparities in living standards among us"[11]. Sadly, in 2003, poverty remains the hallmark of the Commonwealth. Almost two thirds of the people living in the Commonwealth still live on less than $2 a day.[12] Half of the 130 million children in the world who do not have access to primary education live in the Commonwealth.[13] Sixty per cent of HIV/AIDS cases worldwide are found in the Commonwealth.[14] Sub-Saharan Africa and South Asia (home to more than 85% of the Commonwealth) have within them the largest concentrations of hungry people in the world.[15] With just seven years to go to reach the MDG targets, many countries are slipping far behind schedule.

The sad fact is that while poor people throughout the Commonwealth have strong views on their own development destinies[16], they remain excluded. Tragically, this has resulted in governments taking advantage of the marginalised populations they should be helping. For example, from the Pacific to Africa to South Asia, the rural poor and indigenous communities who are so heavily reliant on their local natural resources for survival have often been excluded fromdecisions about their use and sale which have been made by governments dominated by the urban elite who have then co-opted the benefits. Likewise, women, who battle discrimination across the Commonwealth, continue to be ignored and their contribution to development undervalued. Withassured information, marginalised groups will be given their rightful voice and a powerful tool to scrutinise and engage with the development processes being directed at them.

Much of the failure of poverty reduction and development strategies to date can be attributed to the fact that, for years, they have been designed behind closed doors by governments who consulted with 'experts' but shut out the very people who were supposed to benefit. Even a parliamentarian in Ghana complained that the interim Poverty Reduction Strategy Paper required by the World Bank, as well as crucial decisions to take advantage of the Highly Indebted Poor Country Initiative which will affect government policy directions for years to come, were not referred to Parliament at large.[17] Donors have been complicit in keeping development planning processes closed. Multilateral institutions, such as the World Bank and the International Monetary Fund, are now beginning to open up following pressure from civil society groups, but much more work still needs to be done.

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Facilitating Equitable Economic Growth

The Commonwealth is relying on free markets to quicken development. But markets, like governments, do not function well in secret. Openness encourages a political and economic environment more conducive to the free market tenets of 'perfect information' and 'perfect competition'. Foreign and local investors need to be able to rely on the routine availability of timely and accurate information about government policies, the operation of regulatory authorities and financial institutions and the criteria used to award tenders, provide licences and give credit. Easy access to fulsome information that is not mired in bureaucratic processes creates long-term investor confidence in the local economic environment. A guaranteed right to information lays the foundation for market-friendly good governance principles of transparency and accountability, which in turn encourage strong growth.

Not merely economic growth, but also economic equity is promoted by access to information. At Coolum in 2002, the Commonwealth called on governments to "work to reduce the growing gap between rich and poor" and declared that "the benefits of globalisation must be shared more widely and its focus channelled for the elimination of poverty and human deprivation."[18] The liberation from government of information that would otherwise have remained unutilised increases economic opportunity for the less powerful as much as for the big player. A worker can access information about labour regulations and their entitlements, a businessperson can find out about licensing requirements, taxation and trade regulations; and farmers can get hold of land records, market trend analysis and pricing information.

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Tackling Corruption

A guaranteed right to access information is an essential and practical antidote to corruption, which is rife in too many Commonwealth countries. Corruption is destroying the rule of law and has created a mutually supporting class of overlords who need secrecy to hide their dark deeds in dark places. In the worst instances, it has led to the 'criminalisation of politics' and 'the politicisation of criminals', turning elections into futile exercises which merely legitimise bad governance and bad governors.

Corruption is leaching away the economic lifeblood of many Commonwealth societies. The World Bank estimates that corruption can reduce a country's growth rate by 0.5 to 1.0 percentage points per year. Transparency International estimates that over $30 billion in aid for Africa - an amount twice the annual gross domestic product of Ghana, Kenya and Uganda combined - has ended up in foreign bank accounts.[19] The need to give 'speed money', 'grease' or 'baksheesh' in return for public services or rightful entitlements amounts to an additional illegal tax. Corruption is especially severe on the poor, who are least capable of paying the extra costs associated with bribery and fraud or surviving the embezzlement of scarce public resources.

It is not coincidental that countries perceived to have the most corrupt governments also have the lowest levels of development or that countries with access to information laws are also perceived to be the least corrupt. In 2002, of the ten countries scoring best in Transparency International's annual Corruption Perceptions Index, no fewer than eight had effective legislation enabling the public to see government files. Of the ten countries perceived to be the worst in terms of corruption, not even one had a functioning access to information regime.[20] The right to access information acts as a source of light to be shone on the murky deals and shady transactions that litter corrupt governments. It enables civil society and especially the media to peel back the layers of bureaucratic red tape and political sleight of hand and get to the 'hard facts.'

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Bolstering Media Capacity

In robust democracies, the media acts as a watchdog, scrutinising the powerful and exposing mismanagement and corruption. It is also the foremost means of distributing information; where illiteracy is widespread, radio and television have become vital communication links. Unfortunately, this power to reach the masses has often been perceived as a threat by closed governments, which have carefully regulated private ownership of the press and attempted to curb the media's ability to gather news, investigate and inform. Zimbabwe's repeated attempts to close the independent Daily Newsnewspaper is an example of this sinister tendency. Satellite television and the internet are making slow inroads, but even the content of these are sometimes restricted.

Where the media is unable to get reliable information held by governments and other powerful interests, it cannot fulfil its role to the best of its abilities. Journalists are left to depend on leaks and luck or to rely on press releases and voluntary disclosures provided by the very people they are seeking to investigate. Lack of access to information also leaves reporters open to government allegations that their stories are inaccurate and reliant on rumour and half-truths instead of facts. A sound access regime provides a framework within which the media can seek, receive and impart essential information accurately and is as much in the interests of government as it is of the people.

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[1] UN General Assembly, (1946) Resolution 59(1), 65th Plenary Meeting, December 14.

[2] Emphasis added.

[3] Ontario Court (General Division), Jane Doe v. Board of Commissioners of Police for the Municipality of Metropolitan Toronto et al., Court File No. 87-CQ-21670, Judgment July 3, 1998 cited in Roberts, A. (2003) "Challenges to the right to information", CHRI unpublished, p.1.

[4] Kejriwal, A. (2003) "More stories of Parivartan", India Together, April 2003: http://indiatogether.org/2003/apr/gov-rtidelhi.htmas on 1 October 2003.

[5] See Chapter 2 for a detailed discussion of the parameters of effective access to information legislation.

[6] See Chapter 3 for a detailed discussion.

[7] Lewis, D. (2003) "The Need and Value of Access to Information from Non-State Agencies", CHRI unpublished, p.9.

[8] Declaration (1991), Commonwealth Harare Declaration, Issued by Commonwealth Heads of Government, Zimbabwe, 20 October 1991: http://www.thecommonwealth.org/whoweare/declarations/harare.html

[9] Communiqué 02/88, Meeting of Commonwealth Law Ministers in Kingstown, St Vincent and the Grenadines, 18-21 November 2002, para.20, www.thecommonwealth.org/docs/communiques/News88.doc.

[10] Commonwealth Foundation (1999) Citizens and Governance: Civil Society in the New Millennium, pp. 38-39, http://www.commonwealthfoundation.com/information/infosheet.cfm?id=23 as on 1 October 2003.

[11] Declaration 02/19, (2002) The Commonwealth in the 21st Century: Continuity and Renewal, issued by Commonwealth Heads of Government in Coolum, Australia, March 5: http://www.thecommonwealth.org/dynamic/press_office/display.asp?id=417&type=press&cat=53

[12] World Bank (2001) World Development Report 2000-01: Attacking Poverty, Oxford University Press, New York.

[13] Cox, W. (2001) The Role of the Commonwealth in Poverty Reduction, address given at the Conference on Human Rights and the Alleviation of Poverty, Wilton Park, London.

[14] UNDP (2002) HIV/AIDS Statistical Fact Sheet, http://www.undp.org/hiv/docs/barcelona-statistical-fact-sheet-2July02.doc. Nine of the worst-affected countries are members of the Commonwealth: Botswana, Cameroon, Lesotho, Mozambique, Namibia, South Africa, Swaziland, Zambia and Zimbabwe.

[15] UNDP (2003) UNDP Human Development Report 2003, Oxford University Press, New Delhi, p.6.

[16]See Rademacher, A. & K.Schaftt et al. (1999) Voices of the Poor: Can Anyone Hear Us?, Oxford University Press for the World Bank, http://www.worldbank.org/poverty/voices/.

[17] Globalization Challenge Initiative, (2000) 'Who Governs Low Income Countries: An Interview with Charles Abugre on the Ghana Poverty Reduction Strategy Initiative', IMF and World Bank News and Notices, Fall: www.challengeglobalization.org/html/news_notices/fall2000/fall2000-01.shtml

[18] Declaration 02/19, (2002) The Commonwealth in the 21st Century: Continuity and Renewal, issued by Commonwealth Heads of Government in Coolum, Australia, March 5: http://www.thecommonwealth.org/dynamic/press_office/display.asp?id=417&type=press&cat=53

[19]United Nations, (2000) Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Press Kit Backgrounder No3: http://www.un.org/events/10thcongress/2088b.htm

[20] Ibid. See also Transparency International, (1998) "Press Release: Eight out of ten "clean" countries have effective freedom of information", http://www.transparency.org/pressreleases_archive/1998/1998.12.03.ford.html as on 22 July 2003.

 

 
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