How well do Freedom of Information Regimes protect Freedom of Information? The Effectiveness of Freedom of Information Regimes through the Lens of Comparative Constitutional Law

Karen Viktoria Akero-Stueland

Introduction

This article will, through a comparative constitutional law lens, examine the effectiveness of freedom of information[1] regimes in providing access to information from the public sector. Access to information is conducive to government accountability. To reap the benefits of access to information, however, the FOI regime needs to be effective in providing meaningful access to information, which in turn depends on the way in which the FOI regime is crafted and implemented by the government. I will argue that the degree to which the incorporation of exemptions in FOI regimes impedes the flow of information, varies depending on the constitutional environment. A comparison of the effect of exemptions in the United Kingdom and China will demonstrate that the effectiveness of such a FOI regime in granting sufficient access to information has been higher in the pro-disclosure environment of a democratic society. An analysis of Zimbabwe’s FOI regime will illustrate that providing an FOI regime is not in itself enough; such a regime can be used as an instrument to stifle speech rather than provide a right to FOI. This will lead to the conclusion that FOI is most effectively protected when it is provided through a regime which is tailored to the constitutional environment in which it is implemented.

The Relationship between Access to Information and Government Accountability

It is widely accepted that access to information can generate government accountability. The recognition of this can be traced back to the 18th century.[2] The political philosopher Jean-Jacques Rousseau illustrated the rule-of-law justification for access to information through his use of the word ‘transparency’, and proposed that the government should operate in ‘the eyes of the public’.[3]Jeremy Bentham recognised ‘publicity as the very soul of justice’.[4] History serves as a warning of the dangers posed by secretive regimes. Without transparency, governments have been left to govern ‘in the darkness of secrecy, [where] sinister interest and evil in every shape shall have full swing’.[5] With WWII, it became especially apparent that a government conducting its affairs in secrecy can engage in systematic human rights violations. States became increasingly alive to the importance of rights protection, and this led to the crystallisation of human rights commitments in the United Nations Declaration of Human Rights.[6] The notion of FOI spread like wildfire across the globe, marking the repudiation of the old proposition that the business of government should be conducted in secrecy.[7] Access to information is now recognised as a ‘fundamental right of free citizenry’ and entrenched as a principle of democratic governance.[8]

Access to information is aright from which other rights may flow. Access to information is vital for the protection of all human rights; ‘indeed the whole system for protection of human rights, cannot function properly without freedom of information’.[9] Information redistributes power from the ruling government to citizens, enabling the people to hold the government to account. According to the World Bank, access to information generates accountability, contributing to a ‘virtuous cycle of transparency’.[10] Access to clear information enables citizens to analyse outcomes and policies, which facilitates public debate and advocacy, and could ultimately secure accountability. In the words of U.S. Supreme Court Justice Brandeis, ‘sunlight’ is the ‘best disinfectant’ for public ills.[11] It is because of the power which FOI holds in generating government accountability, that it is crucial for governments to establish a FOI regime which is effective in providing access to information.

The Effectiveness of Freedom of Information Regimes in Contrasting Constitutional Environments

The effectiveness of FOI regimes in providing access to information depends on the way in which it is crafted and implemented by the government. There are various tools at the government's disposal in distributing information and granting access rights. Some countries have explicitly enshrined the right to information in their constitution, while other countries have read down other constitutional rights to give effect to FOI, and some have enacted FOI legislation. I argue that a statutory FOI regime is the most effective in providing access to information held by the public sector. Providing a separate legal regime through FOI legislation ensures that there is a legally enforceable and uniform mechanism for people to request and obtain information from the government. Laws which provide for the right to information have been found to increase public bodies’ responsiveness to requests for information.[12]

Because FOI legislation is drafted by the government itself, we should be alive to the possibility of undue restrictions to the flow of information. FOI regimes in the commonwealth have been crafted based on principles of disclosure.[13] One of these principles provides that FOI legislation may be subject to exemptions,but that these should be narrowly drawn.[14] It has increasingly become accepted that access to information legislation can include exemptions, as an unrestricted flow of information comes with its risks. Most FOI legislation today includes exemptions to ensure that the disclosure of information is limited, and that certain enclaves of government can survive in secrecy.[15]

The United Kingdom’s Freedom of Information Act 2000 demonstrates how the crafting of legislation can limit information access. There are wide exemptions included which restrict the flow of information. Information access is further limited by Section 53, which grants Ministers the power to override decisions to disclose information by the tribunal system set in place for evaluating information requests. The only requirement is that ‘reasonable grounds’ must be provided, giving the Government wide powers to control access to information.[16] Despite the restrictions imposed, these have not posed an impediment to the effectiveness of the FOI regime due to the strong constitutional environment in the United Kingdom. Overall, the Act has proven effective in granting information to citizens. Anyone can request information from the Act; it covers over 100,000 public bodies, and in the first four and a half years of its operation,there were 500,000 FOI requests.[17] This can be illustrated further through the case of R (Evans) v Attorney‐General, concerning the executive-override of the decision to disclose communications between the Government and a member of the monarch.[18] The leading judges in the majority, Lord Mance and Lord Neuberger, found that the constitutional environment required that the Act be interpreted to restrict this wide discretion granted to the government. Lord Mance, with whom Lady Hale agreed, regarded it as ‘clear’ that there was ‘a very strong interest in disclosure in the interest of transparency’.[19] The information was disclosed to the public despite the restrictions imposed by the FOI regime, as the regime operates in a system in which the rule of law rightly asserts its fundamentality.[20] In a strong constitutional environment, exemptions in the legislation providing the right to FOI will not be detrimental to the effectiveness of the FOI regime.

By contrast, in non-democratic constitutional environments, FOI regimes can prove ineffective. Alasdair Roberts has expressed surprise at ‘the extent to which the rhetoric of transparency ha[s] permeated China’, as it is ‘one of the most secretive regimes in the world’.[21] Upon examination of China’s FOI regime, it becomes apparent that it is not that peculiar. By crafting broad and ambiguous exemptions in the Regulations of the People’s Republic of China on Open Government Information 2007, the government has been able to use the legislation as a shield from public scrutiny.[22] China’s nascent and brief regulation creating a general right to access, which is vulnerable to abuse, can be contrasted with FOI laws in the West which include detailed exemptions. As Chen argues, the legislative regime has in fact been misused to cover maladministration.[23] The law has left gaps that should have been filled by the judiciary, but the courts have not taken this opportunity to facilitate transparency, but have ‘undervalued or neglected the public interest in promoting government accountability through transparency’.[24] In such an environment, a FOI regime is largely ineffective in providing access to information.

 

The Migration of FOI from the West: Zimbabwe through the Looking Glass

 

The leading countries in adopting FOI legislation are long-standing democracies, with Sweden’s Freedom of the Press Act 1766 being the oldest in the world. The Cold War resulted in profound changes in the political order, and triggered the ‘third wave’ of democracy. As a fundamental component of democracy, the constitutional or statutory recognition of aright to information became an effective way for nations to signal their alliance with the superpower.[25] By the end of 2004, over fifty countries had adopted FOI legislation. The emerging normative pull of implementing FOI regimes has, however, not necessarily strengthened citizens’ right to FOI; the degree to which FOI regimes have enabled citizens to meaningfully exercise their right of access has varied across the world.

With the spread from the West of FOI legislation, ‘nobody want[ed] to be left out – not least the Mugabe government’.[26] Countries from the developing world that have passed FOI legislation, but which have not done so in a process of recent democratic transition, seem to have weaker FOI legislation, especially when the government has ‘less than full democratic credentials’.[27] This can be demonstrated through the lens of Zimbabwe’s FOI regime. The people of Zimbabwe were granted a general right to FOI through the Access to Information and Privacy Protection Act (AIPPA) in 2002. Although AIPPA provides for a general right of access to public information, Banisar notes that in practice AIPPA has been used to stifle the free press rather than to encourage any kind of access to information.[28] Even though Section 5 of AIPPA grants access rights to state information – with wide-ranging provisions prohibiting the ‘abuse of free expression’, AIPPA has enabled the government to control the activities of journalists and the media, and limit their ability to act as ‘public watchdogs’.[29] It is clear that the ideological roots of the FOI regime are not grounded in the ‘universalising discourse of human rights’, but rather in ‘paramilitary […] exclusionary politics’.[30] AIPPA has not been effective in providing access to information, and has instead been used to chill free speech. In contrast to the large volume of requests in the United Kingdom, a 2004 report found that there had only been one instance in which information had been requested through AIPPA.[31] Clearly,‘having a law in place is not on its own enough’[32]; FOI legislation can be used to merely ‘play to the gallery’.[33] Strengthening the right to FOI in Zimbabwe would require efforts to raise awareness of the existence of the regime so that requests for information can be made. An increase in the use of the legislation could further expose its limitations and build practical evidence which can be used to lobby for its reform to secure aright to FOI which is more than illusory.

Conclusion

The effectiveness of FOI regimes is dependent on the amount of control it allows the government to exert through it. Although the incorporation of exemptions in FOI legislation might not be detrimental when implemented in stable democracies, it is detrimental in other constitutional environments. The implementation of FOI regimes in non-democratic and developing countries has not secured government accountability. This is evident through the respective regimes in China and Zimbabwe, which have stifled the voice of citizens and served as shields from public scrutiny, rather than promoted a culture of transparency. An FOI regime is most effective in providing a meaningful right to FOI when it is tailored to the constitutional environment. In strong democratic constitutional environments, exemptions can be drafted broadly and will not significantly impede the effectiveness of the FOI legislation. Conversely, in non-democratic constitutional environments, exemptions should be crafted narrowly, and the legislation should clearly set out the FOI framework, as this specificity can safeguard against arbitrary use of the legislation. Further, the legislation should be set up in tandem with a right to appeal a decision not to disclose requested information, and impose positive obligations on public authorities to proactively disclose certain categories of information. Only country-specific solutions to enhance the FOI regime can ensure that it truly protects the right to FOI.


[1] Hereafter referred to as ‘FOI’.

[2] Christopher Hood, 'What Happens When Transparency Meets Blame-Avoidance?' (2007) 9 Public ManagementReview, 193.

[3] Jean-Jacques Rousseau, The Government of Poland (Hackett Publishing Co, 1772).

[4] Jeremy Bentham, Writings of The Poor Laws (Oxford: Claredon, 2001).

[5] Jeremy Bentham and John Bowring, The Works of Jeremy Bentham (W Tait, 1843).

[6] United Nations Declaration of Human Rights 1948.

[7] Alasdair Roberts, Blacked Out Government Secrecy in the Information Age (Cambridge University Press 2006) 9.

[8] Commonwealth Human Rights Initiative, 'Our Rights Our Information: Empowering People to Demand Rights Through Knowledge' (Commonwealth Human Rights Initiative 2007) <http://www.humanrightsinitiative.org/publications/rti/our_rights_our_information.pdf>accessed 11 December 2018, 4.

[9] Toby Mendel, 'Freedom of Information: An Internally Protected Human Right' (Article19.org, 2003)<https://www.article19.org/data/files/pdfs/publications/foi-as-an-international-right.pdf> accessed 11 December 2018.

[10] World Bank and InternationalMonetary Fund, 'Global Monitoring Report 2006: Millennium Development Goals -Strengthening Mutual Accountability, Aid, Trade, and Governance' (2006).

[11] Solomon Goldman, The Words of Justice Brandeis (Andesite Press 1953).

[12] Justice Initiative, 'Transparency & Silence: A Survey of Access to Information Laws and Practices in 14 Countries' (www.justiceinitiative.org, 2006) <http://www.justiceinitiative.org/db/resource2/fs/?file_id=17488> accessed 11 December 2018.

[13] Commonwealth Human Rights Initiative, 'Our Rights Our Information: Empowering People to Demand Rights Through Knowledge' (Commonwealth Human Rights Initiative 2007) <http://www.humanrightsinitiative.org/publications/rti/our_rights_our_information.pdf> accessed 11 December 2018, 38.

[14] Ibid.

[15] Alasdair Roberts, Blacked Out Government Secrecy in the Information Age (Cambridge University Press 2006).

[16] Freedom of Information Act 2000, Section 53.

[17] Patrick Birkinshaw, ‘Freedom of Information and its Impact in the United Kingdom’ (2010) 27 Government and Information Quarterly, 312, 321.

[18] R (Evans) v Attorney‐General [2015] UKSC 21, [2015] 2 WLR 813.

[19] Ibid, [144].

[20] Mark Elliott, ‘A tangled constitutional web: the black-spider memos and the British constitution's relational architecture’ (2015) Public Law 539-550, 7.

[21] Alasdair Roberts, Blacked Out Government Secrecy in the Information Age (Cambridge UniversityPress 2006).

[22] Yongxi Chen, 'Privacy and Freedom of Information in China: Review Through the Lens of Government Accountability' (2015) 1 European Data Protection Law Review.

[23] Ibid.

[24] Ibid.

[25] Alasdair Roberts, Blacked Out Government Secrecy in the Information Age (Cambridge University Press 2006).

[26] Baffour Ankomah, ‘Zimbabwe Media: playing to the gallery?’ (2002) New African 34.

[27] John M. Ackerman and Irma E. Sandoval-Ballesteros,‘The Global Explosion of Freedom of Information Laws’ (2006) 58 Admin. L. Rev. 85.

[28] David Banisar, Freedom of Information around the World 2006 (Privacy International, 2006) <http://www.freedominfo.org/documents/global_survey2006.pdf>accessed 3 February 2020, 20.

[29] Pippa Norris, 'The Role of theFree Press in Promoting Democratization, Good Governance and Human Development'(GSDRC, 2007) <http://gsdrc.org/document-library/the-role-of-the-free-press-in-promoting-democratization-good-governance-and-human-development/> accessed 11 December 2018.

[30] David Banisar, Freedom of Information around the World 2006 (Privacy International, 2006 <http://www.freedominfo.org/documents/global_survey2006.pdf> accessed 3 February 2020, 20.

[31] Toby Mendeland Rashweat Mukundu, The Access to Information and Protection of Privacy Act: Two Years On (ARTICLE 19/MISA-Zimbabwe, 2004).

[32] African Network of Constitutional Lawyers, ‘National Study on Access to Information inZimbabwe’ (University of Cape Town, 2012) 48.

[33] Baffour Ankomah, ‘Zimbabwe Media: playing to the gallery?’ (2002) New African 34.