By Kouloud Dawahi
The author is Common Law, Internet Policy Analyst with IGMENA, “a Hivos programme that brings voices together from the MENA region on Internet Governance and policies.” This article was posted on the IGMENA website June 8 and is reprinted with permission.
Public sector information
The Internet has played a major role in facilitating access to data all over the world. It has helped pierce the veils of secrecy of governments. Decision-makers have become aware that secrecy has no place in the digital world. Tunisian decision-makers are no exception, especially after the Tunisian revolution. In this context, Tunisia has designated the right to access information as a constitutional right in 2014.
Recently, the new Tunisian Freedom of Information Law was adopted as part of the Tunisian legal arsenal to safeguard the newly born democratic experience. It is the law #22 of 24 March 2016, relating to the right to access information, promulgated on 29 March 2016.
What does this law provide?
It establishes a legal framework for access to information in accordance with the international standards.
Promotion of Open Government
This law is part of the ongoing efforts to enhance open government by improving public service delivery and implementing the principles of open government as one of the Tunisian government’s commitments in accordance with the Tunisian Open Government Partnership (OGP) first action plan. It is worth mentioning that adopting a freedom of information law is part of the OGP eligibility criteria. Therefore, Tunisia proceeded by establishing the law #54 of 2011 that was reaffirmed with Circular #25 of 5 May 2012, and later on, the new law came in accordance with the OGP first action plan.
Recently, according to the 2015 World Justice Project Open Government Index, Tunisia is ranked first in the MENA region, and its global ranking is 65 out of 102 countries, when it comes to the right to information, with a score of 0.50. Its overall global ranking is 59th, when it comes to open government, with an overall score of 0.51.
Duty to publish key information
It sets a duty of making public records available to the public. Information officials’ role is not limited to accede to requests for information. They have a duty of publishing, updating information and also a sanction for information officials in case of non-compliance to their duty.
Maximum disclosure
The principle of maximum disclosure implies that the scope of the right to information should be broad as concerns the range of information and bodies covered, as well as the individuals who may claim the right.
In this context, the Tunisian law set an exhaustive list of the public institutions in question, including the government, local authorities, the three branches of power, and even public enterprises and non-governmental organizations receiving public funds. The OCED report on Open Government in Tunisia estimated that the applicability of the law to central and local government, the three branches of power (executive, legislative, and judiciary) and other relevant bodies (public enterprises and regulatory authorities) would place Tunisia among the most advanced OECD countries.
Process to facilitate access
According to the international principles for freedom of information law, requests for information should be processed rapidly and fairly and an independent review of any refusals should be available. To reaffirm this principle, Tunisian law provides that citizens can request access to any public record held by public authorities through a simple administrative procedure, which consists of filling out a form.
No justification of the purpose of the request is required. The institution has a duty to answer the requests within a fixed deadline. The refusal of the request shall be justified. An implied or outright rejection of the request opens the door for appeal at two levels.
The law establishes an independent administrative authority, the Commission of Access to Information, which is responsible for supervision and dealing with complaints and appeals related to access to records at a first level. Nonetheless, both the applicant and the public body should be able to appeal to the courts against decisions of the administrative body.
Limited scope of exception
It sets the exceptions to the principle related to public order, national defense, international relations, and an individual’s privacy or intellectual property infringement.
Costs
International standards state that “Individuals should not be deterred from making requests for information by excessive costs.” Access to information is free unless the providing the information would require additional expenses. In this case, the applicant should be notified.
Protection for whistleblowers and openness of meetings principles
Even though a small hint to whistleblowers’ personal data protection can be found in article 25, this law does not tackle the protection of whistleblowers nor the openness of public bodies meetings principal as well.
What challenges lie ahead? Setting a culture of openness and transparency
Whether in Tunisia or in the MENA region as a whole, there has always been a deep-rooted culture of secrecy of the government, which is part of the residues of years of dictatorship regimes. The trust between citizens and bureaucrats needs to be rebuilt, which can only be done if the oversight mechanisms vested in the Commission of Access to Information are correctly applied. It is also important that appeals reach the court by the Commission or access to information applicant.
A lot of efforts need to be made:
- Providing guidelines and regular training for the officials to promote bureaucratic knowledge of the law. Information officials are not legal experts; they need to have a basic understanding of the law’s provisions, such as how to process a request or the functioning of appeal mechanisms.
- Raising awareness about people’s right to information in order to encourage people to exercise this right and engage in civic participation. This is the task of civil society as part of the equation of social change.
Evidence-based decision-making
In Tunisia and across the region, the problem of lack of data-driven decision-making exists. Decision-making was usually the result of ideological or political choices in the past. Yet data-driven decision-making plays a major role in achieving sustainable development, as highlighted in the World Summit on Information Society 2016. Therefore, there is a need for accessible and updated data that can be put to effective use for analysis and assessment of current policies’ performance to improve the performance of decision-makers. This law can be a catalyst of such innovative decision making.
Moreover, there is the challenge of the reliability and quality of the information provided, because any freedom of information legislation is only as good as the quality of the records to which it provides access. Such rights are of little use if reliable records are not created in the first place.[2]
Unleashing innovation in the public sector
Access to information should not be an end in itself but rather a means to an end. Today the world is no longer talking about “Public sector information made available on request or on a need to know and government owned information.”[3] It is talking about data-driven policies, free and cross-border flows of data. These innovative economic drivers cannot be achieved in the first place without the effective use of public service information in addition to private sector information as well. Since 2003, the European directive about the re-use of data (the Directive 2003/98/EC on the re-use of public sector information) was set.
Later on in 2011, the “Digital Agenda: Turning government data into gold,” stated that “the European Commission has launched an Open Data Strategy for Europe, which is expected to deliver a €40 billion boost to the EU’s economy each year.” It estimated that the large volumes of information collected by numerous public authorities and services were a goldmine of unrealised economic potential.
In the case of the Tunisian legislation, the role of public information as an economic driver was an aspect that the Tunisian legislators did not grasp. Therefore a lot of efforts to raise awareness about the potential of Big Data analysis and capacity building that should be put in place in terms of data management and data analysis.
Setting a legal arsenal is the first step toward change, as it a safeguard of citizens’ rights and sets a duty on officials to comply with the law. The legal framework sets the background that should be consolidated by collaborative efforts by the different stakeholders, academia, the private sector, and civil society. A lot of work needs to be done to unleash the potential of public (and private) sector data. But the Tunisian progress to date is very promising.
References and further readings
[1] Ibid.
[2] Draft UK Code Of Practice On The Management Of Records
[3] Waltraut Ritter, Creating Value through Public Sector Information (PSI) Re-use, IP of the Public Sector Information, p11.
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