Information Disclosure Policy: A Toolkit for Pacific Governments (July 2006)
### CORE PRINCIPLES Drawing on international and regional standards, evolving State practice, and the general principles of law recognised by the community of nations, this Toolkit sets out 4 key principles which commonly underpin information disclosure policies. These principles reflect agreed standards endorsed by the United Nations Special Rapporteur on Freedom of Expression in 2000.25 Notably, the African Union,26 the Organisation of American States27 and the Commonwealth28 have also endorsed minimum standards on freedom of information, while the European Union has developed a specific Regulation on Freedom of Information.29 Maximum disclosure It is important to make a clear statement that as much information as possible will be released to the public. The principle of maximum disclosure commonly underpins access to information regimes. In practice, this presumption in favour of access means that all people have a right to access information and all bodies covered by the policy have a corresponding duty to provide access in accordance with an Information Disclosure Policy (IDP). All arms of government - for example, the Head of State (eg. President, monarch, Governor-General), parliament, the courts, and the armed services - are usually covered by an IDP. All bodies are encouraged to release as much information as possible, including emails, file notings, contracts, draft documents and the like. Records management systems need to be (re)developed to facilitate the aims of the law. Any denial of information is based on proving that disclosure would cause serious harm to a legitimate interest and that denial is in the overall public interest. The principle of maximum disclosure nonetheless recognises that the right of the public to access information is not absolute. Exemptions from disclosure are usually allowed where release of information would cause serious harm to national security, international relations, law enforcement activities or the competitive position of a company. Unreasonable disclosure of personal information is also usually not permitted. However, IDPs need to avoid broadly defined exemptions applying to whole classes or types of information. In most cases, each document and the context of its release is unique and needs to be judged on its merits. Accordingly, exemptions are applied on a content-specific case-by-case review. Non-disclosure is only justified where, on balance, withholding the information is in the "public interest". A good IDP will not permit non-disclosure simply to protect a government official from embarrassment or because disclosure might be confusing for the public. In such cases, governments may consider disclosing additional information to put the requested information into context. There is always be a strong public interest in disclosures which lead to the exposure of wrongdoing in public authorities. Information which is of general relevance to constituents is routinely published and disseminated. Even in the absence of a comprehensive law on the right to information, one effective way of promoting development accountability and more meaningful public participation in development activities is for governments to explicitly prioritise greater publication and active dissemination of information to the public. At a minimum, basic information needs to be published about government organisations, such as the names of the responsible Minister, key staff, contact details, organisational structure, the services provided and programmes run, the departmental budget and ongoing updates on expenditure. To promote better development outcomes, information can also be published about proposed activities, as well as updates about the implementation of current programmes (eg. budget, beneficiaries, proposed outcomes). Governments can also publish information about opportunities for the public to participate in organisational consultations and activities, and keep them updated on general government business. Information is published and released in a form and language which makes it practically accessible by all members of the public. Even where information is released to the public, it will have little useful impact in terms of improving development and governance outcomes unless it is released in a form which can be understood by ordinary people. In Pacific countries, at the very least this means that information needs to be released in languages other than English, so that people in villages are not effectively excluded. More specifically, technical government information - in particular, information about budgets and expenditure - needs to be explained in simple language so that people can make sense of it. The medium for publication also needs to be considered. In countries with minimal internet access, web publishing may not have a significant impact. The opportunities presented by existing government and community outreach networks need to be explored. For example, community noticeboards, village meetings and provincial government offices can all be used as dissemination points. Local government or NGO fieldworks can also be utilised to disseminate information to the public. Broadcasting key information - on commercial and community radio and television - is also an option that can be pursued. Simple, cost-effective, timely access processes A key test of an access policy's effectiveness is the ease, cost and promptness with which people seeking information are able to obtain it. Even where the government routinely publishes key information, members of the public may submit specific requests for access to information. The government needs to have in place procedures for handling such requests. Request procedures need to be clear and uncomplicated so that the public are not confused or burdened by complex bureaucratic requirements. Applications can be submitted in writing (electronically, by mail or by hand) or even orally where the applicant is illiterate or where geographic difficulties might mean that requests by telephone are the most practical method. Procedures need to specify a processing time limit; usually information must be either provided or refused within 5 to 30 days. Ideally, no fees should be imposed because public taxes already support information collection and dissemination. At most, only the actual costs incurred in copying and posting the requested information will be passed on to applicants. Officials are nominated as a key contact point for information disclosure. Most access to information regimes nominate specific officials who are given primary responsibility for handling requests for information. Commonly, a Departmental Information Officer (DIO) is appointed within each department to act as the contact point for applications and for internal information queries for other officials. Powers can then be delegated to other officers within the department or regional offices, if necessary. This approach makes it easier for the public to know who to submit their application to, as well as identifying someone who can be contacted if follow-up is necessary. DIOs can also be targeted for specific information disclosure training and can act as a disclosure expert who other officials can call on for advice. The special needs of poor, illiterate or marginalised groups need to be addressed. Access procedures need to be designed to specifically take into account the needs of the poor, illiterate or marginalised groups. For example, in countries where education constraints mean that many people are illiterate, systems for making an application for information need to allow oral applications and officials need to be under an obligation to assist requesters to understand the information they are given. Where women are less empowered, proactive disclosure requirements can require that places where woman gather are nominated as priority dissemination points. Procedures for facilitating access by disabled people can also be considered. In the Pacific, with its special challenges of geography, it is important that consideration given to how people in outlying areas can most easily access information. Complaints The public needs to be able to complain to someone if they believe the Policy has not been implemented or misapplied. Ideally, a strong, independent and impartial reviewer/body will be given a mandate to review refusals to disclose information and other procedural matters, with the power to compel release. In many countries, a specific Information Commission(er) is established specifically for this purpose. In other jurisdictions, an existing Ombudsman or administrative tribunal fills this role, and/or the courts can hear appeals. The key issue is that bureaucrats should not have the last word on disclosure because sometime there will be cases where it will be in an official's interest to withhold information, even where the Policy requires disclosure. There need to be some independent oversight mechanism available to ensure that decisions are correctly made. Where implementation is poor, the public also needs to be able to make a complaint. It is crucial that the review agency itself should be trusted by the public. Complaints procedures need to be simple, timely and cheap to promote maximum accessibility by the public. Mechanisms need to be available to deal with cases of wrongdoing. In many countries, sanctions are available to punish officials who deliberately delay release of information, knowingly provide incorrect information, conceal or falsify records, wilfully destroy records subject to requests or obstruct the work of information officials. This approach recognises that bureaucrats in countries with an entrenched culture of secrecy may need the strong incentives arising from penalties to prod them into implementing openness and access seriously. Such penalties serve a useful role in protecting the government against officers working against its interests and those of its constituents. In any case, mechanisms will usually be available to punish serious cases of criminal wrongdoing which have been identified in the criminal law, such as forging or destroying documents. Monitoring, public education and training A body or person is responsible for monitoring and promoting information disclosure. It is increasingly common to include provisions in access laws and policies mandating a body - such as the Ombudsman or a Unit within a key Ministry or under the Prime Minister's Office - to monitor and promote implementation. Monitoring is important - to evaluate how effectively public bodies are discharging their obligations and to gather information which can be used to support calls for improvements to the law and implementation activities. Ongoing monitoring and evaluation will enable implementation efforts to be continuously assessed, reviewed and strengthened, so that best practice can be distilled and copied, and areas still requiring more work can be identified and addressed. At a more strategic level, governments need to take steps to monitor how the improvements in disclosure activity are contributing to other governance and development goals. Public education programmes and/or a media strategy also need to be developed to publicise the new policy and people's rights under it. For example, the public need to know what kind of information they can expect to be routinely published, and how they can make an application for information. Any education programmes and materials need to be developed to ensure that they are in a form accessible to all people, literate or illiterate, in both the urban and rural areas of the country. Where people have a limited understanding of how governments works, it may also be necessary to undertaken broader civic education programmes, so that the public understand the value of information disclosure to their everyday lives. Where civil society is not strong, it can also be useful to target education programmes at NGOs and the media, because they are commonly key information intermediaries between governments and the public. Officials are given specific training on information disclosure principles and processes. One of the most important practical ways of promoting information disclosure is to undertake training programmes to ensure that all officials understand their duties and are committed to openness. Beyond the mechanics of knowing what the law says, what records management systems hold and how information is to be provided, holistic training emphasises the role of public servants in implementing 'openness' as a core value of public service.30 Training needs to focus on changing the attitudes that distance governments from the people they serve and must aim at mitigating the disquiet that changes in institutional culture always create.31 Performance criteria also need to be incorporated into officials' employment contracts and any Public Service Charter to encourage officials to prioritise their new responsibilities under the policy. 25Hussain, A. (2000) Report of the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression submitted in accordance with Commission resolution 1999/36, Doc.E/CN.4/2000/63, 5 April. See also Ligabo, A., Haraszti, M. & Bertoni, E. (2004) Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, http://www.cidh.org/ Relatoria/showarticle.asp?artID=319&lID=1. 26See also Declaration of Principles on Freedom of Expression in Africa, Part IV, adopted by The African Commission on Human and Peoples' Rights, meeting at its 32nd Ordinary Session, Banjul, The Gambia, 17- 23 October 2002, http://www.article19.org/ docimages/1600.pdf. 27See Organisation of American States - General Assembly (2003) Access to Public Information: Strengthening Democracy, resolution adopted at the fourth plenary session, June 10 2003, AG/RES.1932 (XXXIII-O/03). 28See (1999) Commonwealth Freedom of Information Principles, in Promoting Open Government Common-wealth Principles And Guidelines On The Right To Know, Report of the Expert Group Meeting on the Right to Know and the Promotion of Democracy and Development, Marlborough House, London, 30-31 March 1999. 29See European Union (2001) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, Official Journal of the European Communities L145/43. 30Access to Information Review Task Force, (2002) Access to Information: Making it work for Canadians, pp. 157-165, http://www.atirtf-geai.gc.ca/accessReport-e.pdf as on 27 August 2003. 31Commonwealth Human Rights Initiative, (2001) Human Rights and Poverty Eradication: A Talisman for the Commonwealth, New Delhi, CHRI, p. 96
Commissioned by the Pacific Media and Communications Facility, an Australian Government, AusAID initiative managed by MDI International in association with MC Media & Associates