At the Beehive
Information Commissioners meet for 5th International Conference

The 5th International Conference of Information Commissioners (ICIC) was held in Wellington, New Zealand from 26-29 November. The conference brought together Information Commissioners, Ombudsmen, government officials, academics, civil society representatives from around the world and provided an occasion to the participants to reflect on the opportunities and challenges of maintaining openness and transparency in government. One of the important objectives of the workshop was to provide the participants with an opportunity to share their experiences and learn from each other about the working of legislations providing for the right to access official information. The Conference also marked the 25th anniversary of New Zealand’s Official Information Act, 1982 (OIA) This article summarises the presentations of some of the key speakers at the conference.

The four-day Conference comprised a day of closed meetings for the Information Commissioners from across the world and three days of open sessions where stakeholders discussed challenges faced by countries that have recently enacted access to information laws. An important issue that came up for discussion was the challenges faced by civil society representatives in countries that were yet to make any progress towards having a Freedom of Information (FOI) legislation. The Conference also addressed the role of multiple stakeholders in creating a culture of openness and participation through better implementation of FOI laws.

One of the key speakers was Professor Alasdair Roberts from the Maxwell School of Citizenship & Public Affairs, Syracruse University, USA who in his keynote address titled “Going Forward: Should we be building a global transparency movement?” addressed the key challenges facing the global Right to Information (RTI) movement. He was concerned that with globalisation and liberalisation of the economy in many countries, many government functions are being sub-contracted to private bodies which falls outside the purview of the access to information legislation. He cited examples of ports, airports and air traffic control, which are being rapidly privatised and warned of the danger that information relating to such operations being unavailable for public scrutiny. Professor Roberts observed that the challenge before the FOI community is to see how Freedom of Information can ensure that private companies participating in the privatisation of public services are made accountable to the public.

The second important challenge raised by Professor Roberts was the need for bringing private contractors managing and maintaining digitised records under access laws. This assumes importance because even though records are primarily maintained by the Government, however with records being digitised and electronic databases being developed, there is a growing trend where record keeping is outsourced and in that context bringing them under the Access to Information Law assumes significance.

Professor Roberts also stated that since the structure of the security sector (i.e. the police, defence, intelligence, law enforcement agencies) was changing with increased collaboration and information sharing between inter-government security agencies, the challenge before the RTI movement was how to keep track of these information sharing agreements and to see whether in dealing with requests for controversial information, there was a public interest override that would likely make a case for release of any such information. There were other challenges that were discussed and one of these was the need for creating awareness about the law. He noted that many FOI laws recently adopted by some countries were actually ‘dead’ because they are not being used by the people because of lack of knowledge and understanding of the law. He noted the problem was coupled with problems of lack of staff training for handling information requests. In order to ensure people use this law persistently, he emphasised that the implementation should include raising the level of requisite knowledge of the law, understanding the processes and creating awareness about how requests and complaints are to be filed.

Maurice Frankel, Director, Campaign for Freedom of Information, United Kingdom, presented UK’s experience on how requests for information on ministerial policy advice which are at times politically sensitive are being managed. To further explain this he discussed about the multi-stage appeal process that exists in the UK i.e. internal review, Information Commissioner, Information Tribunal and High Court. He noted that the multi-stage appeal process in a unique way provides a scope for a stage by stage review on a point of law which had resulted in the robust approach to requests for access to ministerial policy advice or internal discussions. He stated that the Information Tribunal had so far decided six such cases and in each occasion has either upheld or gone beyond the Commissioner’s decision. The outcome has been the full disclosure of the information involved in each case. However in some of the cases, the Government had taken recourse to appeals in the High Courts, arguing that disclosure of high level discussion was unprecedented that would “strike at the heart of civil service confidentiality”. He also reflected on some challenges such as delay in processing sensitive requests due to the multi-stage appeals process under UK’s Freedom of Information legislation. He also discussed the use of the “public interest test” which in UK as well as many other jurisdictions was central to requests where relevant exemptions apply.

Mark-Aurele Racicot, Adjunct Associate Professor, University of Alberta, Canada, in his presentation emphasised on the need for training multiple stakeholders in order to create a culture of openness and participation. In Canada though the FOI legislation was enacted in the late 1970s, yet the legislation does not address in detail the roles of the multiple stakeholders in creating a culture of openness. He stated that governments, commissioners, universities, Non Government Organisation’s, civil servants and citizens have important roles to play in reaching the legislation’s objective and stressed on the need for conducting trainings and the tools and technologies available for delivery of such training.

Richard Thomas, Information Commissioner from UK in his presentation shared the experience from UK where they have tried to focus on ensuring that access to information was not stifled by backlogs of cases leading to delay. He said that ever since the implementation of the Act, there has been a high number of requests made and it wasn’t long before complaints about non-fulfilment of requests came to the Information Commissioner’s Office. He said that this was mainly due to the high volumes information requests, the novelty and complexity of the issues raised, the interpretation and application of new legislation and, in some quarters ignorance of or resistance to the principles of FOI.

The Mexican Information Commissioner, Alonso Lujambio Irazabal in his presentation discussed the tensions and synergies of the relationship of sub-national FOI review bodies to their national counterparts and also gave a detailed insight of the established systems on standardisation to access information under national or sub-national FOI bodies as well as allowing access to information via electronic media.

New Zealand’s Minister of Justice, Annette King, discussed her country’s experience in implementing the Official Information Act (OIA) in the past 25 years. She noted, that because of the widespread acceptance of the principle of open government, the Transparency International: Global Corruption Report1 has reported that New Zealand had the lowest level of perceived corruption in the public sector, which was largely attributable to the OIA, and that it was fair to say that the OIA had made the principle of open government central to the ethos of public administration in New Zealand.

Among the civil society representatives, Toby Mendel of Article 19, stressed on how the models for the right to information could be applied across the board with particular reference to Asia. Mrs. Maja Daruwala, Director, Commonwealth Human Rights Initiative, spoke on the value of the right to information as a vital fundamental right to the survival of the poorest and clearly pointing out that it is not just a tool to enhance strong governance or primarily of relevance only to the media.

While the Conference heavily drew from the experience of developed countries like the UK, Canada, New Zealand and Australia, it completely overlooked the need for contextualising the experience of developed countries vis-à-vis that of the developing countries regarding FOI implementation with a special reference to the needs of these countries especially in the Pacific, Caribbean, South Asia and Africa.

The location of the next ICIC meeting has been decided with the Information Commissioner of Norway working on the possibility of holding the next meeting there in 2009.