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Other Information re: Official Wrongdoing
Bulgaria
Bulgaria’s Access to Public Information Act of 2000 explicitly states that information may not be withheld on grounds of commercial secrecy when there is an overriding public interest in access to the information, and that overriding public interest may be presumed when the information reveals corruption or abuse of power. Article 5(d).
The 2008 amendments of the APIA introduced the public interest test. The public interest override is applicable to exceptions related to the protection of trade secrets (Art. 17, para. 2; Art. 31, item 5), personal data (Art. 31, para. 5), opinions and statements related to on-going or prospective negotiations, and to opinions, recommendations, reports and consultations related to the preparation of the administrative acts and having no significance in themselves (Art. 13, para. 4).
For all the exemptions subject to the overriding public interest test, it shall be applied when the requested information aims at the revealing of corruption and abuse of power, increase of transparency and accountability of obliged bodies under Art. 3 (§ 1, Item 6 of the Additional Provisions of the APIA).
At the same time, the provision § 1, Item 5 of the Additional Provisions of the APIA provides for a wide scope of cases in which there is a presumption overriding public interest with regard to the trade secret. The provision concerns facts, information, decisions and data related to business activities, and whose keeping as secret is in the interest of the claimants but:
• reveals corruption and abuse of power, poor management of state or municipal property, or other unlawful or unpurposeful action or lack of action of administrative bodies or responsible officials within the respective administrations by which state or public interests, rights or legal interests of other persons are affected;
• gives opportunity to the citizens to form their own opinion and to take part in ongoing discussions;
• guarantees the lawful and purposeful fulfillment of the legal obligations of bodies under Art. 3;
• are related to the parties, subcontractors, the subject, the price, the rights and obligations, conditions, terms, and sanctions specified in contracts where one of the contracting parties is an obliged authority under Art. 3.
• disproves disseminated unauthentic information which concerns significant public interests;
Example of successful use of these provisions is the case of a reporter from one of the main national channels (bTV). She requested access to the documents contained in the file of a 2008 administrative case from the case log of the Administrative Court Varna. The request of the reporter had been urged by allegations in the press that the former chairperson of the court had taken a bribe to decide on that particular case. The chairperson of the court was obliged to provide the information. The court decided that there was high public interest in the disclosure as the Bulgarian society had reached a level of its development at which it showed strong intolerance against corruption. Summary of the case is available at: http://www.aip-bg.org/library/dela/case79.htm
Canada
At least three significant corruption scandals were uncovered by journalists using the ATI Act.
The Sponsorship Scandal. The sponsorship program was established by the Liberal Party of Canada as an effort to raise awareness of the Government’s contributions to Quebec industries and other activities in an effort to counter the Quebec Separatist movement. Allegations of corruption and misuse of public funds came to light following a request by a reporter under the ATI Act for information regarding a $550,000 payment made to an advertising firm. Broad corruption was discovered in the program including the misdirection of public funds to Liberal-friendly advertising firms in return for little or no work. Many of these firms in turn donated money back to the Liberal Party of Canada.
The allegations were investigated by then Federal Auditor General Sheila Fraser, which led to the establishment of a public inquiry in 2004. Justice Gomery of the Quebec Superior Court was appointed to head the inquiry. The Gomery Commission had a dual mandate: to investigate questions and concerns raised in the Auditor General’s report and to make recommendations based on such findings. Justice Gomery’s final report outlined a number of recommendations including, most notably:
- stiffer penalties for the violation of public spending legislation;
- the de-politicizing of civil service and crown corporation appointments;
- and a ban on the destruction of documents.
As a result of the sponsorship scandal and the Gomery Commission report, the sponsorship program and the agency mandated to administer the program, Communications Canada, were dismantled. A Public Accounts Committee was appointed to review and implement the report in conjunction with special counsel which was appointed to aid in the recovery of misdirected funds. The governance structure of Crown corporations were reviewed and various changes were made such as the strengthening of audit committees and the increase of transparency through greater access to information. The Treasury Board also tabled a report outlining recommended management reforms to the operation of the Federal Government including independent audit committees and harsher discipline for wrongdoing.
The subsequently elected Conservative Government also enacted the Federal Accountability Act, which was granted royal assent in December 2006. The Act’s mandate is to increase government transparency and accountability. The Act contains substantive prohibitions for public officeholders, limits individual and corporate campaign contributions and prohibits election candidates from the acceptance of gifts valued in excess of $500 which could be viewed as influencing the candidate. The Act also amends a number of existing statutes in an effort to increase transparency and accountability while also reducing the opportunity for corruption and mismanagement. These amendments include:
- the amendment of the Public Service Act to disallow the appointment of public service officials without competition;
- amendments to the ATI Act to add more officers, corporations and foundations to the Schedule requiring access to information; and
- amendments to the Financial Administration Act and the Criminal Code making fraudulent activities involving public money or money from Crown corporations indictable offences and prohibiting individuals convicted of such offences from Crown employment.
The Tainted Blood Scandal. Born out of a reporter’s request for information under the ATI Act, the tainted blood scandal led to the removal of the Red Cross from management of Canada’s blood system and various criminal charges. Following a five year investigation by the Royal Canadian Mounted Police (RCMP), charges were laid in 2002 against the Red Cross, a U.S.-based pharmaceutical company and several doctors. The allegations included failure to properly screen blood donors, failure to test blood properly and failure to warn the public of the risks associated with blood products. In 2001, the Supreme Court of Canada ruled that the Canadian Red Cross was negligent in its management of the blood system during the early years of the AIDS crisis. The criminal charges against the agency were dropped in 2005 when the Red Cross pleaded guilty to a lesser charge - violating the Food and Drug Act by distributing an adulterated or contaminated drug - and was fined $5,000, the maximum penalty permitted for the offence. The Red Cross also agreed to donate $1.5 million to a University of Ottawa endowment fund and scholarship for family members of those affected by tainted blood products. In 2007, the Ontario Superior Court acquitted the former Canadian Red Cross Director and several doctors for their role in the tainted blood scandal.
The Somalia Scandal. Born out of a reporter’s request for internal military documents used to prepare individuals for responding to media questions, the Somalia public inquiry report revealed a high-level cover-up, systemic leadership problems in the Canadian military and a lack of public accountability, all in connection with the involvement of the Canadian military in Somalia. Suspicions surfaced following the military’s provision of altered briefing documents to a reporter in response to an ATI request. When the reporter requested more documents, he was informed that they no longer existed. Eventually a public inquiry was called, but was controversially cut short, and never examined top level government decision-making or the actual events in Somalia. On the stand at the Somalia Inquiry, Gen. Jean Boyle, chief of the defence staff, admitted that he deliberately violated the spirit of the ATI Act but blamed the alteration of the documents on his subordinates. The Commission’s final report was a striking attack on the procedures, support and leadership of the Canadian armed forces and the Ministry of Defence. Following public outcry over the incidents in Somalia, Pte. Kyle Brown was convicted of second degree murder and torture in the death of Somali teenager, Shidone Arone. Brown received an unduly light sentence of 5 years and was dismissed with disgrace from the Canadian army. The military also instituted a number of training reforms, declared a policy of zero tolerance for racism and harassment of any kind, and dismantled Canada’s elite Airborne Regiment.
India
The RTI Act requires that intelligence and security agencies, even though they may be exempted from the law by government order, must nonetheless supply information in response to credible allegations of corruption or human rights violations. Information about allegations of human rights violations must be provided with the approval of the relevant Information Commission within 45 days from the date of the receipt of the request.
Japan
A citizen requested details of costs relating to travel by then-Tokyo Governor Aoshima and a group of Tokyo legislators to Europe in July 1996 for an official signing ceremony sealing a friendship agreement between Tokyo and Rome as well as visits to Munich and Berlin. He based his request on Tokyo’s information disclosure ordinance. (The Tokyo legislature was not subject to Tokyo’s disclosure ordinance at that time, but the requested documents were held by an official of the Tokyo government whose office was subject to the disclosure ordinance.)
The Tokyo prefecture who held the requested documents sought guidance from the legislature as to whether or not to disclose the documents, and the legislature opposed disclosure. The prefecture accordingly refused to disclose all the documents on the ground that disclosure would damage relations between the governor and the legislature.
The requester filed suit demanding disclosure. The Tokyo District Court ordered disclosure, stating: “Determination whether the relationship of trust will be damaged or not must be objectively rational when viewed by residents of Tokyo. The determination of the Tokyo prefecture, based solely in respect to the subjective relationship between the parties, is not acceptable to Tokyo residents.”[1]
The Tokyo prefecture appealed to the Tokyo High Court, which upheld the lower court’s decision, and then appealed to the Supreme Court, which refused the case and the Tokyo High Court decision became final in April 1999.
As a result of disclosure in this case, it was found that numerous items apparently were forged, such as appended handwritten receipts, and it seemed that legislators had padded their bills. Based on the disclosed information, the requester filed a demand for an audit, and the auditor identified more than eight hundred thousand yen in losses due to falsified receipts. With interest added, legislators and prefectural staff reimbursed approximately one million yen to the prefecture.
Montenegro
The Montenegrin law states that requested information must be made accessible if it contains details that obviously indicate corruption, even if the information would otherwise fall under one of the legal exceptions.
The law specifies what kind of details might indicate corruption and would therefore fall under this provision;
- disrespect to substantive regulations;
- unauthorized use of public resources;
- misuse of powers;
- unscrupulous performance of public duties;
- the existence of reasonable suspicions a criminal offence was committed;
- the existence of the grounds for attacking a court judgment.
Romania
Romania's ATI law provides that "information that favors or conceals the violation of the law by a public authority or institution" cannot be classified and should be disclosed in the public interest. Law no. 544/2001 of the 12th of October 2001 on Free Access to Information of Public Interest, Article 13.
[1] Legislators’ Foreign Travel Expense Receipts, Tokyo District Court [citation needed].
