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Global Freedom of Information & the National Security Archive

This posting covers a fascinating area of activity for access organizations like the National Security Archive – the international freedom of information movement. Toby McIntosh, a colleague and expert who edits “freedominfo.org,” a FOI clearinghouse sponsored by the Archive, is my co-author on today’s piece, which gives a broad overview of transparency developments overseas.

[By the way, this is our last posting about the National Security Archive. It’s been a pleasure to be a guest blogger this month and I’m grateful to James Jacobs for the invitation. Hope to hear from you or see you at Gelman Library at George Washington University!]

* * * *

STATE OF PLAY

Most Americans would likely agree that the right of access to government information is a cornerstone of our political system. But it would probably surprise a lot of people to know that the U.S. was not the first country to inscribe the concept into law. That honor goes to Sweden whose Parliament – in 1766 – adopted “His Majesty’s Gracious Ordinance Relating to Freedom of Writing and of the Press,” which provided for abolishing political censorship and securing public access to government documents.[1] Exactly 200 years would pass before the United States would enact the Freedom of Information Act.

The U.S. was still relatively early to the game. Only Finland (which was actually part of Sweden when the first act was passed) approved a similar law before us – in 1951. A handful of other European states followed in the 1970s, and by 1990 there were 14 members in the club. But the years since the fall of the Berlin Wall saw that number rocket upwards.

Today there are 93 countries with freedom of information acts – known also as right-to-know (RTI), or access-to-information laws. Most of these countries – 38 – are in Europe; 22 are in the Americas. Asia has 18; Africa has nine; and the Middle East and Oceania three apiece. (Several of these countries, unlike the U.S., have even put the concept in their Constitution.)[2]

There are multiple reasons for this global blossoming of openness. In some (mostly democratic) countries, like Japan, scandals like the Lockheed bribery case helped drive the process. In Thailand, South Africa and elsewhere, access was part of a broader dynamic of political, economic or educational reform. The collapse of Soviet-led communism from 1989-1991 was a major impetus, prompting several former socialist states to adopt statutes to open their secret histories and help put their pasts behind them.[3]

The individual instigators in different countries were equally diverse, ranging from civil society groups pressing for stricter environmental enforcement or pro-consumer or anti-corruption measures, to parents trying to make school systems operate more fairly.

Two of the biggest international FOI success stories have been India and Mexico.

With legal debate on the issue stretching back to a Supreme Court ruling in 1975 (i.e., that access to information is a fundamental right), India finally passed the Right to Information Act in 2005. A wide-ranging law, its written provisions and implementing measures are often highly creative in the ways they deal with the circumstances facing average citizens.[4]

In the state of Bihar, for instance, where literacy rates are below 50% but cell phone penetration approaches 70%, local authorities created a 24/7 call center to allow the filing of RTI requests. Similarly, with the Internet accessible to only 10% of the population, local government procurement data is literally put up on walls in public areas for all to see. (Unlike in the U.S., India’s 30-day deadline for a response means something. If agencies don’t comply, they get phone calls from RTI authorities demanding that they follow up.)[5]

Mexico’s access to information law, passed in 2002, has turned into a global model, setting a new international standard for transparency by creating a Federal Access to Information Institute (IFAI), that implements and oversees the law at the national level, and Infomex, a Web site that lets users file information requests electronically. Over 300,000 requests have been submitted since the law was implemented.[6]

These cases are not entirely representative, unfortunately. Getting access laws passed and ensuring they have adequate muscle has been anything but smooth sailing. Government and civil activists face persistent challenges trying to beat back pressures from central authorities, the military, local bureaucrats, or wealthy business interests. Even developments like the war on terror have threatened progress on the openness front (not least in the USA).

Current struggles to get new laws through parliaments are underway worldwide, with hotspots including the Philippines, Ghana and Sierra Leone. Key points of debate usually center around the scope of the law’s coverage, the strength of the exemptions, the time frames for responses, and the system for adjudication of disputes.

After passage of these laws, the controversy often continues. The Indian prime minister set off a firestorm recently by complaining about the “frivolous” use of the Right to Information Act. In Denmark, the government wants to amend its law to better protect materials developed during the policymaking process. And in Scotland, activists want more public-private partnerships covered.

THE ARCHIVE’S ROLE

In the late 1980s, when political ferment was afoot in Eastern Europe during the Gorbachev era, the National Security Archive received a visit from a small group of young political activists from Hungary. Their organization, FIDESZ, wanted to know how to make a freedom of information process work in their country – looking ahead with characteristic optimism (but also great foresight) to the day when the communist regime in power for the previous four decades would finally teeter and fall. So they came to the Archive to hear our experiences, a visit that started a lively and extraordinarily fruitful partnership with similar groups across Eastern Europe and later the former Soviet Union.

In the years since, the Archive has become increasingly active around the world, following events in places as far-flung as South Africa, the Philippines, and Guatemala. By providing our own experiences as a civil society organization and also taking the lead in helping to bring like-minded groups together with FOI legal experts, we’ve worked to get local populations started on the complicated process of building their own information access institutions.

In Mexico, for instance, the Archive collaborates closely with scholars, lawyers, and openness advocates engaged in the public debate about the right to know. We bring international transparency activists to train Mexican NGOs on the effective use of FOI laws in advocacy work. We organize conferences to encourage network-building across the country. We also encourage the news media to monitor government transparency programs and to use FOI laws in pursuit of breaking news stories.

In the former Soviet Union, Archive staff have supported a series of FOIA advocacy groups from St. Petersburg to the Caucasus in their efforts at monitoring, education, and legal work surrounding new pieces of access legislation that have been adopted in Russia and neighboring countries. Their energetic campaign has featured filing lawsuits against the Russian Federal Security Service and applying to the Supreme Court of the Russian Federation in opposition to restrictions on materials on political repression in the Soviet Union. The Archive has also co-organized international conferences and training sessions for FOIA activists from Russia, Georgia, Armenia, Azerbaijan, Ukraine and Kazakhstan.
Campaigns for more and better FOI laws are only a part of the larger transparency picture.

For several years, the Archive has cooperated with human rights groups, ombudsmen, special commissioners, international courts, supreme courts and other official and civil society groups investigating and prosecuting human rights abuses. These efforts typically center around obtaining documentation (from U.S. and local government files) that can be used as evidence in those proceedings. Our staff has been active in a dozen countries, from Peru to Liberia to Indonesia to Spain, witnessing some remarkable results. In 2008, Archive-supplied documents and expert testimony helped convict Peruvian ex-ruler Alberto Fujimori of human rights abuses in the 1990s. These experiences are invaluable for stimulating local governments and groups to press for laws and procedures to open broad public access to their own hidden files.

One of the more significant areas of potential change currently relates to international financial/trade institutions (IFTIs) – from the World Bank to NATO. IFTIs are generally creatures of national central banks that have always been notoriously opaque. In 2003, freedominfo.org launched an initiative to measure, test, compare and ultimately increase openness within these institutions by publishing detailed reports on individual organizations, and thereby sparking a series of collaborations between freedom of information advocates and IFTI campaigners. Freedominfo.org’s continuing work and results can be found in a special section called “IFTI Watch.”

Finally, in September 2011, the Obama administration initiated the Open Government Partnership. The OGP is a “multi-stakeholder collaboration,” drawing in civil society organizations (of which the National Security Archive is one) as well as governments. Eight governments (Brazil, Indonesia, Mexico, Norway, Philippines, South Africa, United Kingdom, and the U.S.) initially endorsed an Open Government Declaration, then promulgated country action plans “to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.” The OGP now has 57 member nations who have pledged to make commitments toward more open governance.[7] (FreedomInfo.org has written about 100 articles on the OGP.)

RESOURCES

With so many new developments on the international front, it’s becoming more of a challenge to keep track of all that is happening. This is a particularly critical issue for those who are working to spread the adoption of RTI laws. Knowing about best practices and being able to draw on the experiences of similarly inclined groups around the world are key to these efforts.

Freedominfo.org is geared toward keeping abreast of these issues. It also provides useful research materials for free distribution. (For the texts of laws, background documents, links to national organizations and country-specific articles, see the “Country Info” tab; or search by country name.)

There’s also an email that goes out to subscribers (no charge) once or twice a week on current news and research, and freedominfo.org’s Blog Roll provides a listing of more than 100 active blogs on FOI issues.

For the best listing of FOI-related conferences and events, see the one maintained by the Carter Center here:

http://www.cartercenter.org/peace/americas/access_to_information/calendar.html.

FOI laws internationally vary considerably, but there are not too many broad comparative materials available. One valuable resource is by Toby Mendel, “Freedom of Information: a Comparative Law Survey,” published in many languages by UNESCO:

http://portal.unesco.org/ci/en/ev.php-URL_ID=26159&URL_DO=DO_TOPIC&URL_SECTION=201.html

A country-by-country rating showing a wide variety in the quality of the legal framework of FOI laws has been done by the Centre for Democracy and Law and Access Info:

http://www.rti-rating.org/index.html.

There’s plenty else out there. But we hope this material is a start, and we encourage you and your colleagues to learn more about the international FOI movement. Feel free to sign up with freedominfo.org or any of the other entities above, or write to us with questions.

Malcolm Byrne
Deputy Director and Research Director
The National Security Archive
mbyrne@gwu.edu

Toby McIntosh
Editor
Freedominfo.org
tmcintosh@bna.com
__________________

Endnotes:

[1] The World’s First Freedom of Information Act: Anders Chydenius’ Legacy Today, (Kokkola, Finland: Anders Chydenius Foundation, 2006), see www.chydenius.net.
[2] http://www.freedominfo.org/2012/10/93-countries-have-foi-regimes-most-tallies-agree/. At least one expert, David Banisar, counts 99, including countries and “jurisdictions” with “laws” and “regulations.” Download his latest map from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1857498.
[3] See the freedominfo.org Web site for details on developments across the world. For an excellent overview of global trends and issues that remains relevant, see Thomas Blanton, “The World’s Right to Know,” Foreign Policy, July/August 2002, pp. 50-58. On the former communist system, see Malcolm Byrne, “Freedom of Information in the Post-Communist World,” Problems of Post-Communism, Vol. 50, No. 2, March-April 2003, p. 56.
[4] http://www.freedominfo.org/regions/east-asia/india/.
[5] Tom Blanton, presentation, “Access to Information and Accountability: A Global Context,” Woodrow Wilson International Center for Scholars, October 11, 2012. http://www.wilsoncenter.org/event/access-to-information-and-accountability-global-context.
[6] http://www.freedominfo.org/regions/latin-america/mexico/.
[7] See the Open Government Partnership Web site: http://www.opengovpartnership.org/about.

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