By Toby Mendel
Toby Mendel is Executive Director of Centre for Law in Democracy
The following is the concluding chapter (minus footnotes) of a recent report entitled Amending Access to Information Legislation: Legal and Political Issues. It is the seventh paper on access to information in the Governance Working Paper series published by the World Bank Institute.
What motivates efforts to reform the legal framework for the right to information, and who are the key players?
Answers to these questions vary considerably from country to country, making comparisons and conclusions difficult. A few tentative conclusions may be drawn from this initial survey of reform efforts. However, there is a need for more empirical evidence and study before firm conclusions may be put forward.
Some of the questions raised and areas for further research on amending ATI legislation include the following:
• What is the nature of the relationship between a strong central civil society campaign and the ability to secure positive amendments to ATI legislation?
• Under what conditions are strong central civil society campaigns likely to emerge?
• What sorts of causal relationships exist between the clarity of international standards and the ability to secure positive ATI amendments?
• How important is evidence of right to information shortcomings in promoting positive amendments?
• What are good-practice approaches to consultations around ATI law reform, including in the adoption of secondary rules?
• Is there a widespread pattern of difference between constitutionally authorized limitations to the right to information, on one hand, and to freedom of expression, on the other hand? If so, what are the reasons for this?
• How would a rigorous constitutional and international law analysis assess accepted ATI law standards (that is, to what extent have we come to accept rules in these laws that would not pass constitutional muster)?
Positive Pattern
The evidence reveals a strong pattern, albeit certainly not a uniform one, of positive amendments dominating negative ones or stalemates leading to inaction. This seems to refute the idea expressed by some campaigners that it is better to hold out for the best possible law at the point of first adoption, on the basis that it will be difficult to secure positive amendments later (although this may be true in some countries and contexts).
The positive trend seems to be based, at least in part, on the “motherhood and apple pie” quality of the right to information as a key democratic right and on the appeal that the right to information can garner across a wide range of stakeholders. It may also reflect the fact that amendments normally come after some track record of implementation of the law, which may help reduce the sometimes irrational fears held by officials and others about the impact of opening up.
Outliers
Some of the main outliers from this positive trend are established democracies like Canada and Ireland. The reasons for this are complex, but a lack of strong recent experience with the harm that secrecy can engender and weak civil society campaigns (perhaps along with a certain political culture of complacency) seem to be factors distinguishing these countries.
They may be contrasted with countries like Armenia, Bulgaria, India, and Mexico, for example, where the threat of harm from secrecy is far more poignant.
In general, it is easier to secure reforms where the existing law is out of line with clear international standards and comparative practice.
However, where international standards and comparative practice are less clear, there is likely to be more contestation around reform efforts. The clarity—particularly of comparative practice—tends to decline in relation to more politically sensitive ATI issues, which is also where ensuring pro-openness results has proved most difficult.
It is unclear whether the high degree of political sensitivity has prevented the emergence of international rules, or whether this sensitivity is caused by some other factor but results in difficulties in promoting openness.
Seizing the Moment
Campaigners should be ready to take advantage of any auspicious political moments because these moments appear to present major opportunities for positive reform. This often requires advance preparation for such moments, however, including through building broad alliances that can lend political weight to a campaign even if not all members play an active role.
The evidence also suggests that where there is a central reference point for civil society efforts—whether this takes the form of a leading nongovernmental organization or a coalition of groups—positive rather than negative reforms are more likely to be adopted.
More study is needed to determine the conditions likely to give rise to such reference points, but the willingness of a wide range of groups to support pro-openness campaigns suggests that this is an area that is often favorable for civil society development attention.
Relatively little use has been made of constitutional litigation as a strategy to reform the legal framework for the right to information, so this deserves more attention.
Amendments to ATI laws—particularly where they take the form of secondary legislation-are likely to attract less public attention than will adoption of the law in the first place. As a result, civil society actors and others wishing to engage in these processes may need to monitor them carefully.
The overall picture that emerges is of the right to information as an active area of social engagement, where a wide range of players exert themselves over time to put forward an impressive flow of proposed amendments to the ATI law, both positive and negative.
Although the former have tended to dominate in most countries, constant vigilance on the part of civil society and others who support the right to information is needed to ensure that this positive momentum continues.
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