Challenges and Opportunities in Implementing Access to Information Laws
Posted: 9 September, 2024 Filed under: Chioma Henrietta Okoli | Tags: Access to Information Laws, accountability, Bureaucratic resistance, Challenges and Opportunities in Implementing Access to Information, civic engagement, cultural challenges, Culture of secrecy, democratic principles, FOI, freedom of information, fundamental right, good governance, Institutional Challenges, Lack of resources, open governance, Reluctance to share information, right to information, RTI, sensitive information, transparency Leave a comment
Author: Chioma Henrietta Okoli
Senior Legal Officer, National Human Rights Commission, Nigeria
Introduction:
Access to information, often known as Freedom of Information (FOI) or Right to Information (RTI) is a fundamental right that enables individuals to seek, receive, and impart information freely.[1] It is a fundamental cornerstone of transparent governance, democratic principles, and citizen empowerment. It enables individuals to participate in the decision-making processes of their governments, fosters accountability, and strengthens the foundations of democratic societies.[2] To this end, countries worldwide have enacted access to information laws with the aim of ensuring public access to government and privately held information.[3] However, despite the noble intentions of these laws, their effective implementation remains a multifaceted challenge, impeding the realisation of a truly open and accountable society.
This article delves into the intricacies of access to information laws, examining the complexities, obstacles, and potential avenues for improvement in their implementation. Additionally, it acknowledges the opportunities these laws present for fostering transparency, good governance, and civic engagement. The exploration will be organised into three primary dimensions: legal challenges, institutional challenges, and cultural challenges, each posing unique hurdles to effective implementation. Furthermore, we will draw insights from the experiences of different countries, emphasising successful strategies and best practices that have paved the way for the realisation of access to information goals.
Challenges in Implementing Access to Information Laws
Implementing access to information laws poses a multifaceted challenge in today’s information-driven society. It can be a complex and challenging task for governments and organisations. The various challenges that may arise during the implementation process include the following:
Legal Challenges
i. Vague or restrictive legislation
Access to information laws often vary in their clarity and scope, leading to potential ambiguities that hinder effective implementation. Some laws employ restrictive language, making it difficult to navigate the legal framework and exercise the right to access information. An example is the proposed Restrict Act in the United States which was introduced in March 2023.[4] This Act has been criticised for having the potential to grant the secretary of commerce enormous power to regulate transactions with foreign technology companies and for containing wording that is broad and vague.[5] These vagueness and restrictions can obstruct the overarching goal of transparency and democratic accountability.
ii. Excessive exemptions
Another legal challenge lies in the presence of excessive exemptions within access to information laws.[6] While exemptions may be necessary to protect sensitive information, an overabundance of exemptions can grant government agencies the authority to withhold information even when its disclosure is in the public interest.[7] Such provisions fundamentally undermine the purpose of these laws and limit their effectiveness.
iii. Complex request procedures
Many access to information laws establish complex and convoluted procedures for requesting information from government agencies. These procedures can be intimidating and difficult to navigate, deterring individuals and organisations from exercising their rights to access information. Simplifying these procedures is essential to ensure that information is genuinely accessible.[8] Additionally, in some jurisdictions such as Ghana, persons requesting for information were required to pay huge sums of money in order for the government to avail the requested information during the initial phase of the implementation of the Right to Information Act 2019. This presented a significant impediment to access to information until the Right to Information Commission intervened by enacting regulations to standardise the fees that may be charged to requesters.[9]
iv. Limited enforcement mechanisms
The weak enforcement mechanisms and inadequate penalties for non-compliance pose significant challenges to the effective implementation of access to information laws.[10] When government agencies do not face substantial consequences for failing to provide requested information, the laws lose their deterrent effect, reducing their efficacy in ensuring transparency and accountability.
Institutional Challenges
i. Bureaucratic resistance
One of the most formidable institutional challenges in implementing access to information laws is bureaucratic resistance.[11] Government agencies may resist sharing information due to concerns about potential political consequences or a deeply ingrained culture of secrecy within their organisations. Overcoming this resistance necessitates a concerted effort to change organisational attitudes and practices.
ii. Lack of resources
Inadequate allocation of resources for implementing access to information laws can severely hinder compliance.[12] These resources include funding, training, and technology necessary to manage and respond to information requests promptly and efficiently. Governments must prioritise the allocation of these resources to ensure the successful implementation of access to information laws.
iii. Reluctance to share information
A general reluctance among public officials to proactively share information can undermine the objectives of open governance.[13] Encouraging a culture of transparency within government organisations is crucial to overcoming this institutional challenge. This involves not only changes in policy but also fostering a mindset shift within government agencies.
iv. Lack of timely and accurate responses
A key aspect of access to information laws is the timely and accurate response to information requests.[14] Delays or inadequate responses can undermine the purpose of these laws and erode public trust. Establishing clear timelines for response and creating mechanisms to address appeals or disputes are vital components of effective implementation.
Cultural Challenges
i. Culture of secrecy
A prevailing culture of secrecy in many societies presents a substantial challenge to the successful implementation of access to information laws.[15] Transforming this culture into one that values transparency and openness requires sustained efforts over time, including awareness campaigns, training programs, and changes in organisational culture.
ii. Lack of awareness
Both public officials and citizens may lack awareness of their rights and responsibilities concerning access to information.[16] Raising awareness and providing education on these matters is essential to foster a demand for transparency. It is equally crucial to educate government officials about their obligations to provide information in a timely and accessible manner.
Opportunities in Implementing Access to Information Laws
i. Political will and leadership
Strong political will and leadership are pivotal in overcoming the challenges associated with implementing access to information laws.[17] When leaders at all levels of government demonstrate commitment to transparency and openness, government agencies are more likely to comply with these laws. Moreover, political will can drive legislative reforms to address challenges in access to information laws.
ii. Independent oversight bodies
The establishment of independent oversight bodies can significantly enhance the effectiveness of access to information laws.[18] These bodies serve as impartial arbitrators, mediating disputes between requesters and government agencies. They can also monitor compliance and hold government agencies accountable for non-compliance, thereby ensuring that the spirit of these laws is upheld. Countries like Angola, Ethiopia, Liberia, Niger and South Africa have established oversight bodies to assist in monitoring and implementation.[19] In Kenya, the Access to Information Act, 2016 bestows responsibility on the Office of the Ombudsperson (Commission on Administrative Justice) to enforce compliance with the Act.
iii. Engagement with civil society, media, and academia
Collaboration with civil society organisations, media outlets, and academic institutions can play a pivotal role in advancing access to information.[20] These stakeholders can facilitate information dissemination, raise awareness among the public, and provide valuable expertise. Their engagement can help bridge the gap between citizens and government agencies, fostering a culture of openness and accountability.
iv. Balancing openness and privacy
Access to information laws inherently challenge the delicate equilibrium between transparency and privacy.[21] On one hand, these laws provide the means to access government-held information, contributing to informed decision-making and public discourse. On the other hand, concerns about privacy, especially in cases involving personal or sensitive data, necessitate safeguards to prevent unintended consequences. Striking the right balance involves establishing clear guidelines on what information can be disclosed, considering legitimate concerns about privacy, national security, and business confidentiality.[22]
v. Technological advancements and efficient dissemination
The digital age has ushered in transformative opportunities for the implementation of access to information laws. The integration of technology can streamline the process of requesting and accessing information, reducing administrative burden, and promoting efficiency.[23] Online portals, databases, and e-request systems can enable citizens to submit requests and receive information with greater convenience.[24] However, challenges arise in ensuring equitable access to these technological resources, particularly for marginalised communities or those lacking internet connectivity.
vi. Capacity building and awareness
The success of access to information laws depends on the capacity of public institutions to effectively respond to requests. Adequate training and resources are essential for government officials tasked with processing and releasing information.[25] Simultaneously, awareness campaigns are vital to ensure the population understands their rights and the processes of making information requests. A well-informed populace can drive demand for transparency and hold institutions accountable.
vii. Encouraging proactive disclosure
While access to information laws primarily focuses on responding to requests, there is a growing movement toward proactive disclosure. This involves government bodies voluntarily publishing information of public interest without waiting for specific requests.[26] Proactive disclosure enhances transparency, reduces the burden on request processing, and demonstrates a commitment to open governance.[27] However, determining what information should be proactively disclosed and ensuring its accuracy remain challenges.
Conclusion
Implementing access to information laws is a complex and multifaceted task that involves governments, civil society, and the general populace. While challenges such as legal complexities and institutional resistance persist, opportunities through technology, international cooperation, and best practices can pave the way for progress. By addressing these challenges and seizing the opportunities, countries can move closer to achieving a truly open and accountable society that benefits all its populace. Access to information laws have the potential to transform governance, uphold democratic principles, and empower the populace, but realising this potential requires a concerted and sustained effort from all stakeholders.
Chioma Henrietta Okoli is a lawyer and human rights defender serving as Senior Legal Officer at National Human Rights Commission, Nigeria where she promotes, protects and enforces human rights. She has nearly a decade of experience working on various national and international projects aimed at advancing human rights in Nigeria. She holds a Master of Laws (LLM) degree specializing in Human Rights and Democratisation in Africa from the Centre for Human Rights at University of Pretoria, South Africa.
[1] UNESCO ‘Access to Information Laws’ https://www.unesco.org/en/access-information-laws (accessed 25 August 2023).
[2] Anne Nderi ‘Freedom of information is democracy’s cornerstone’ Pambazuka’s News 18 September 2008, https://www.pambazuka.org/governance/freedom-information-democracys-cornerstone#:~:text=Freedom%20of%20information%20promotes%20good%20governance%2C%20democracy%2C%20trust,access%20it%20are%20often%20frustrated%20by%20government%20officials. (accessed 25 August 2023).
[3] Elizabeth Shepherd ‘Freedom of Information, Right to Access Information, Open Data: Who is at the Table?’ The Round Table, 2015, Vol. 104, No. 6, 715–726 https://www.tandfonline.com/doi/epdf/10.1080/00358533.2015.1112101?needAccess=true&role=button (accessed 25 August 2023).
[4] RESTRICT Act: S. 686 — 118th Congress https://www.govtrack.us/congress/bills/118/s686 (accessed 30 August 2023).
[5] PolitiFact https://www.politifact.com/factchecks/2023/apr/19/instagram-posts/would-the-restrict-act-criminalize-the-use-of-vpns/ (accessed 30 August 2023).
[6] Jamie Horsley ‘Some Thoughts on Typical Exemptions from Government Information Disclosure’ https://law.yale.edu/sites/default/files/documents/pdf/Intellectual_Life/CL-OGI_Horsley_Some_Thoughts_on_Typical_Exemtions_from_Govoernment_Information_Disclosure_2009.pdf
(accessed 1 September 2023).
[7] As above.
[8] Anti-Corruption Resource Centre ‘Right to information laws: https://www.u4.no/publications/right-to-information-laws-impact-and-implementation.pdf (accessed 3 September 2023).
[9] TD Adjin-Tettey ‘Ghana’s Right to Information (RTI) Act of 2019: Exploration of its implementation dynamics’ (2023) 32 African Journal of Information and Communication 1.
[10] Anti-Corruption Resource Centre ‘Right to information laws: https://www.u4.no/publications/right-to-information-laws-impact-and-implementation.pdf (accessed 3 September 2023).
[11] Eric Schewe ‘America’s State Secrets and the Freedom of Information Act’ JSTOR Daily 3 March 2017, https://daily.jstor.org/americas-state-secrets-freedom-information-act/ (accessed 4 September 2023).
[12] n 8.
[13] Civicus https://civicus.org/documents/toolkits/Public%20Information.pdf (accessed 5 September 2023).
[14] UNESCO ‘The Right to Information in Times of Crisis: Access to Information – Saving Lives, Building Trust, Bringing Hope!’ https://en.unesco.org/sites/default/files/unesco_ati_iduai2020_english_sep_24.pdf (accessed 5 September 2023).
[15] UNCA Coalition ‘Access to Information’ https://uncaccoalition.org/learn-more/access-to-information/ (accessed 5 September 2023).
[16] Huma Haider and others ‘Communication and Governance’ https://gsdrc.org/wp-content/uploads/2010/04/CommGAP2.pdf (accessed 5 September 2023).
[17] Laura Neuman and Richard Calland ‘Making the Access to Information Law Work: The Challenges of Implementation’ https://www.cartercenter.org/resources/pdfs/peace/americas/making_the_law_work.pdf (accessed 6 September 2023).
[18] As above.
[19] Gilbert Sendugwa ‘Analysis of Oversight Mechanisms in Africa’ freedominfo.org, 21 March 2014, https://www.freedominfo.org/2014/03/analysis-oversight-mechanisms-africa/.
[20] Andrew Puddephatt ‘Exploring the Role of Civil Society in the Formulation and Adoption of Access to Information Laws: The case of Bulgaria, India, Mexico, South Africa, and United Kingdom’ World Bank Institute file:///C:/Users/USER/Downloads/Exploring_the_Role_of_Civil_Society_in_t.pdf (accessed 6 September 2023).
[21] David Banisar ‘The Right to Information and Privacy: Balancing Rights and Managing Conflicts’ World Bank Institute https://documents1.worldbank.org/curated/en/847541468188048435/pdf/80740-Right-to-Information-and-Privacy-Box-377336B-PUBLIC.pdf (accessed 6 September 2023).
[22] As above.
[23] Victoria Lemeiux & Stephanie Trapnell ‘Public Access to Information for Development: A Guide to the Effective Implementation of Right to Information Laws’ World Bank Group https://openknowledge.worldbank.org/server/api/core/bitstreams/eda74693-7a7c-52f9-bbb1-51899b779264/content (accessed 6 September 2023).
[24] As above.
[25] n 8 (accessed 6 September 2023).
[26] Helen Darbishire ‘Proactive Transparency: The future of the right to information?’ World Bank Institute https://openknowledge.worldbank.org/server/api/core/bitstreams/730c2d07-758d-5b8e-a4ee-73e21247444f/content (accessed 7 September 2023).
[27] As above.
About the Author:
Chioma Henrietta Okoli is a lawyer and human rights defender serving as Senior Legal Officer at National Human Rights Commission, Nigeria where she promotes, protects and enforces human rights. She has nearly a decade of experience working on various national and international projects aimed at advancing human rights in Nigeria. She holds a Master of Laws (LLM) degree specializing in Human Rights and Democratisation in Africa from the Centre for Human Rights at University of Pretoria, South Africa.
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