Assault On The Rti In The West

Ashwutthu

ASSAULT ON THE

n India, right to information is no more an alien concept. Rather it is in news every day, generally for good reasons. While Indians were empowered with this right recently, the first access legislation, namely, Access to Public Records Act, 1766 of Sweden is more than 240 years old. However, it was in 1946 that the right achieved the status of fundamental human right through a resolution by the General Assembly of the United Nations in its first session.

RIGHT TO INFORMATION

IN

THE WEST Prabodh Saxena Taking a refreshingly new look at the euphoria engendered worldwide hy right to ;,?formation legislation, the author analyses the real, ojien hidden, motives of governments. and their eagerness to share the truth'·With th'elr citizens... ..

As a matter of fact, the history of right to information can be divided in two phases, namely pre and post cold war era. Till 1989, only 14 countries had enacted access legislation over a period of a quarter century. The law was confined to rich countries, mainly stable democracies in the West. The perquisites for operating such law were a professional civil service, human right traditions, independent judiciary, assertive media, and active non-governmental organisations. Support or technologically advanced and modern record keeping ,

An IAS l?tficer l?f'the 1990 hatch. HP CatjJ:.e;-aild ~as to bealso a luxury an essential which reqUirement. could only beIt afforded was conSidered by the currently posted as Secretary. Home Department. Mr rich and the advanced countries at a huge cost. Saxena holds a LL.M in International Human Rights, London School of' Economics. and is a well-known. internationally puhlished author on the suhject.

The collapse of the Cold war saw a spurt in access legislations. The new 'Global Survey of Freedom of Information Laws for 2006/ by freedominfo.org; records that now 68 countries have access frameworks, generally formal legislations. The last decade itself accounts for half of them. Democratic giants like India, United Kingdom and Germany joined the club in 2005. The only notable exception is China, but China is riding the high tide of technological and economic growth and currently can afford to tread an independent path. HO\vever, it appears that for international consumption China too intends to put up a very limited access regulation framework, pennitting information retrieval in selected areas, before the Beijing Olympics 2008. Whether the extremely restricted regulations will extend beyond the event is anybody's guess ... Is this race for having an access legislation driven b) the highest traditions of democracy? Is it the desire of the political leadership to redefine democracy \\-here executive is made accountable not just to legislature but to the common masses (read voters) on a day to 8

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day basis? Is there a global movement for creating open, transparent. accountable and participatory governance? The answer may not be as simple as it may seem. It is intriguing as we see that a majority of these nations are not democratic in the real sense of the tenn. The list of these 68 countries includes a large number of erstwhile communist countries in Central Asia and Eastern Europe - all unstable with weak, and if one may say, "undemocratic democracies". As many as 28 countries adopted infonnation laws in the 1990s. The list also includes military regimes and some of the worst human right violators like Zimbabwe. Israel is another controversial member of the access legislation club. Pakistan is said to be operating an ordinance of dubious validity and uncertain currency. If we closely look behind the veil, one can fathom the multitude of real reasons for enactment of access legislations. It is a known fact that President Lyndon Johnson of the United States decided to take credit for the Freedom of Infonnation Act of 1966 and dedicated it to the people only after unsuccessfully trying all the tricks to block it. As a matter of fact, the tirst ever legislation of Sweden was enacted by the government of the day to bring out the 'misdeeds and omissions' of the previous regime. Soviet archives were partially opened by fonner President Boris Yeltsin to expose his predecessors. Commentators are of the view that revenge is the major driving force in the erstwhile communist world - be it Estonia. Lithuania, Latvia. the Czech Republic, Slovakia. Bosnia and Herzegovina, or for that matter, Bulgaria. At other places, scandals were the catalyst for enactments of infonnation laws, so as to buy peace with a huge section of protesting citizens. Scandals over police surveillance and government regulation of industry forced the enactment of Canadian federal law in 1983, much after the provinces in Canada had their laws on the statute books. Protest against awful conditions of meat packaging industry and public blood bank culminated in the Irish information law in 1997. A series of huge scandals one after the other, beginning with the Lockheed bribery case, left the Japanese Government with no option but to adopt the . access law in 1999. The American law gained strength and its present reputation, only after the Watergate scandal.

There is also a strong economic angle to the growth of access ,legislations all over the world. In this age of globalisation and liberalisation, for a country to promote investment and attract FDI, it is essential to project transparent and fast governance. Right to Infonnation is regarded as a sine qua non of a progressive and less corrupt country. Multilateral dono~ agencies and international banks have included the presence of such legislation in their checklist for clearing projects. It is an open secret that President Musharraf enacted the Ordinance in 2002 to satisfy the preconditions of the International Monetary Fund. Multinational institutions have thus forced many nations to adopt access nonns. Looking at the global scenario, the swelling numbers do give a legitimate reason for satisfaction. But one should not lose sight of the fact that legislation is not the end. Who can appreciate it more than Indians, as even the most well-read' cannot inventorise the unending plethora of laws, so many unknown and not invoked. Philippines does not have a fonnal law, though the right to information was first included in its 1973 Constitution, and expanded on in its current 1987 Constitution. A 2001 survey co-organized by the Philippines Centre for Investigative Journalism, showed Philippines to have the most liberal . information regime in South-east Asia. 59% of Filipinos answered "Yes" when asked if records were available to the public. The right was a handy tool in the hands of media and activists of Philippines in overthrowing President Joseph Estrada. Zimbabwe, on the other hand, has arrested activists and journalists, including foreigners, under its Access to Infonnation and Privacy Protection Act 2002, as the taw gives the government extensive powers to control the media and suppress free speech by requiring the registration of journalists, and prohibiting the "abuse of free expression. " Whatever be the motivation and intent, the access legislations have truly started serving the citizens. In the first three years of its enactment, more than half a million Thais invoked their Official Infonnation Act. The way Sumalee, a Thai mother, secured admission for her daughter in a prestigious school by exposing the admission scam through the Act, is now a legendary tale told to students of infonnation regime.

Ashwattha

The American

law serves

more than 2 million

requests a year. The progress was smooth and satisfactory, by and large, till all hell broke loose with the collapse of the Twin Towers at New York on 11 September 2001, allegedly by AI Qaida. Immediately thereafter, the US withdrew information regarding critical infrastmcture and about monitoring and inspection. work of federal agencies from the web. A panic stricken Superpower soon found natural allies in Western Europe and allies Oul of convenience and coercion elsewhere. US and its allies in tandem, launched a "global war on terrorism". They may not have reached the source of terrorism so far and there may be serious doubts about the direction and purpose of this war, but certainly the cu Iture of openness and transparency is among its initial casualties. Accordingly, access regime is facing a new challenge from the increased coordination and networking among intelligence agencies post 9/1 I. NATO insists that members should have laws on classification and unless allies are assured that information will not be disclosed, it is not shared in the first place.

power has now shifted to the majority black. Elsewhere, a repeat is not expected as private players are continuously enhancing their. influence in the polity. Further, Certificates barring disclosures by Ministers are becoming common in developed countries. The 1983 Access to Information Act in Canada was amended by the Terrorism Act in November 2001, allowing the Attorney General to issue a certificate to bar an investigation by the Information Commissioner regarding information obtained in confidence from a "foreign entity", or for protection of national security, if the Commissioner has ordered the release of information. The Australian High Court has recently ruled that since a Minister is accountable to Parliament, he is responsible enough to block any information under the Act in public interest. White House is now on more occasions in favour of President's veto on disclosure, and such a certificate in US is outside the realm of judicial scrutiny. Certificate business is catching up in United Kingdom as well. Another mechanism of excluding citizens from decision making is to raise the level of crucial decisions from the national, to the international level. Ironically, there is a huge gap between commitment of multilateral agencies for pushing access legislations in member counties, and for transparency and implementation of access principles in their own organisations. Only European Union has disclosure laws comparable to national laws, as elsewhere the publication is restricted. Therefore, once decisions are taken at the forum of multilateral organisations, great deal of it moves out of the public domain. Should we call it a case of double standards, or is it the natural

Secrecy is now making its entry through the backdoor. The most common method is to entrust the public functions to private bodies as the right of the citizens expire once the function are transferred to the private actors. What we see today is a rush to privatise management of water, electricity, communication, prisons, toll highways, bridges, hospitals, schools, defence, municipal water supply, air traffic control and almost all aspects of public administration. To ensure that private players are not accountable to their clients, the contracts between the

tendency to lay tougher standards for others, while excluding oneself from the rigours?

government and the contractor provides that they will be considered to be 'held' by the contractor and not the government.

A more

subtle

device

is to raise

the

cost

of

informati
The only country in the world, which enables citizens to access records of private companies if the same is needed for enforcement of a right, is the Republic of South Africa. This special provision owes its existence to the historical fact of ownership of economic pO\\-er in the country resting with the minority white community, even though the political 10

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In the United Kingdom, London is contemplating 'Substantial increase in fees through Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2007, to strike what it calls the right balance between access to information for all and the delivery of other public services. Currently, a request can be refused if the cost of dealing with it exceeds £600. in the case of a Government department, or £450 for any other public authority. Staff time is worked out at £25 per hour, for determining whether the information is held, and for locating, retrieving and extracting it; and in doing so the public authority may aggregate requests received from the same person, or persons who appear to be acting in concert, or in pursuance of a campaign, within a period of 60 working days. The proposed regulations allow the authorities to include reading time, consideration time, and consultation time also in the calculation of the appropriate limit The Government argues that a small percentage of requests and requesters were placing a disproportionately large burden on public authority resources, at times to enable journalists to pen lead stories. Nobody can deny that there is merit in the argument and it can be empirically supported, but it is also a universally accepted fact that substantial increase in cost is sure to kill the right. The refusal of requests will become a function of cost, irrespective of the public interest involved. It is for this reason that the Government is finding it very hard to push the regulations. It is interesting to note that though generally London and Edinburgh do not agree on major political issues, on sharing information even the Scottish government is considering bringing in a new system of charges for FOI requests. The enthusiasm about right to information has also been dampened by vociferous protests by the privacy advocates. One man' s right to information is often at the cost of privacy of the other. Don't we get irritated by a tlood of unwanted messages on our mobiles? Vulnerable personal data like births, deaths. marriages, divorces, property tax, vehicles, driving licences, court records, family court proceedings. bankruptcy, criminal cases reach people not connected with the

issu~s, and misuse of this information is widely reported. Instant access to social security numbers, addresses, phone numbers, credit card numbers, bank account numbers, tax information has created a new class of identity thieves. Similarly, large-scale misuse of government data and businesses exploitation of commercially valuable government data is commonplace in developed countries. Digitisation is seriously compromising civil liberties as digital biographies are often used for investigative purposes by businesses, employers, private detectives. A worried House of Commons Standing Committee on Human Rights stressed that "Everyone is the rightful owner of their personal information, no matter where it is held, and this right is inalienable". In the United States, a law has been passed to protect the confidentiality of driving licences details. Elsewhere, it is being realised that in the absence of privacy law, information may cause damage to the same civil liberties which an access law is supposed to promote and protect. Hence the contlictbetween these two civil rights needs to be resolved harmoniously and fast. Finally a brief word about India as well. Indian law on right to information is a result of natural process of maturing of democratic forces over a period of time, since India attained independence. It is a matter of satisfaction that the newly released book Blacked OulGovernment Secrecy in the biformation Age - by Alasdair Roberts starts with the working of the Act in India. The Act is fast finding its roots but trivialisation of requests is a serious issue. Capacity building of stakeholders and expansion to rural areas is the main challenge and so is the capability of the Public Authorities to undertake suo moto publication of the maximum information. It has also to be appreciated by the government that mere passing of the law without proper budgeting for record management and data retrieval is not sufficient. It is calculated

that in 2004, the. annual cost of

implementing the Act in Canada was US$19.4 million, each request costing US$ 1,340. In Australia the comparable figures are US$ 14 million and US$ 330 respectively. The US spends $ I per head annually for

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Ashll'ClI/hu

administering the law. It has to be kept in mind that at best on Iy . 1-2% of the cost of operating the law is recovered in the form of fee and the rest has to come as budgctal) support from the State. Unless there is a reasonable budgetary arrangement provided. it will be ditlicult to realise the optimum potential of the Act. It is a painful irony that this right is under the greatest, challenge in its birthplace, namely the developed and the democratic Western democracies. which have been the cradle of human rights and liberalism. Threats of terrorism. real and perceived, have robbed the essential strength of these societies considerably. Governments are competing among themselves to devise means to dilute the access standards. Sometime the response is blatant as in case of so called anti-terrorism measures. At times the response is indirect through privatisation. use of disclosure barring certificates. decisions at multilateral level. raising fees etc. Indiscriminate and ulterior use of law has exposed the right to opposition from persons concerned about unwarranted invasion of privacy rights. Unfortunately, the July 2005 bomb attack in London and the recently pre-empted terror plan of blowing away planes in the sky have not helped the matter. It has come as another opportunity for the votaries of those who believed in the words of Jonathan Lynn and Antony Lay in Yes Minister that "Open Government is a contradiction in terms. You can be open or you can have a government" The time for celebration is detinitely far away. The emphasis should be on regaining the status which the right till reccntly enjoyed in the western democracies. Else,\here, there is a need to provide space tor the right to stabilise itself. Indian bureaucracy and the citizens particularly have to learn to respect the spirit behind the right. The vigil and the struggle has to continue to make this "second wave of democratisation" real and universal.

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