Date: 16 May 2012
By Marcelo Sarkis
Sarkis is a lawyer, Institutional and Governmental Affairs at ALCÂNTARA&HOLSTAD International Consultancy, Brasília – Brazil. www.alcantaraholstad.com
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. (Art. 19 The Universal Declaration of Human Rights)
In Brazil, the right to access information, besides being protected by the Universal Declaration of Human Rights, was the object of commitment in various international treaties and conventions, including the UN Convention against Corruption (Articles 10 and 13), the American Declaration of Principles on Freedom of Expression (item 4) and the International Covenant on Civil and Political Rights (Article 19).
Internationally, it should be noted that Brazil participates in the Open Government Partnership, an initiative aiming to secure commitments from governments in the areas of transparency promoting, combating corruption, social involvement and development of new technologies.
In turn, in terms of law, as in other democratic countries, the Constitution of the Federative Republic of Brazil, promulgated in 1988, establishes a comprehensive legal framework of rights and guarantees, ensuring by the heading of art. 5, that all are equal before the law, without distinction whatsoever, guaranteeing Brazilians and foreigners residing in the country the inviolable right to life, liberty, equality, safety and property.
However, for foreigners to better understand the Brazilian legal context, it is necessary to remember that before democratization, Brazilians lived for 21 years under a military dictatorship. The country is therefore still working to remove the last vestiges of secrecy from this period of exception.
In this sense, the major regulatory framework will come into force on May 16 2012: Law 12.527/2011, available in Portuguese at: http://bit.ly/JS437F.
Implementing Three Rights
The key point of the law is the regulation of the three rights already provided by the Constitution of1988 that have not yet been exercised because of their dependence on its instrumentalization. In free translation, they are:
1 Everyone shall have the right to receive information of own interest or of public interest from public entities, which shall be given within the time prescribed by law, subject to liability [...]; (See item XXXIII of Art. 5).
2 The law shall regulate the forms of direct or indirect user participation in public administration, especially regulating: The users’ access to administrative records and information about acts of government [...]; (See section II, § 3 of art. 37).
3 Public administration also refers to, as provided by law, the management of governmental information and arrangements to make available documents of the Brazilian Cultural Patrimony (See wording of § 2 c / c heading of art. 216).
As we see in the explanatory material below, despite problems of implementation, it is a well-received innovation. There is hope that it will create a new culture in which public data is available to all society. In other words, citizens will have the opportunity to know about government decisions and high politics.
In the present context of prosperity, the best trademark for the country that the Brazilian Government can leave for its people is the hard work in combating corruption, and transparency is an important mechanism to achieve this goal.
Get to Know Law No. 12.527/2011
The Act aims to ensure access to public information, providing objective measures, being agile, clear and easy to understand.
End of eternal secrecy: It is the end of the so called eternal secrecy, in which public documents had an indefinite period of confidentiality.
Who must comply? The Union, the 26 states, the Federal District, the 5,565 cities, all Brazilian public bodies under direct administration of the Executive, Legislative and Judiciary, and even prosecutors, the Courts of Accounts, local authorities, trusts, public enterprises, societies of mixed economy and entities that receive public money.
General Law: The law applies to the Union (Federal Executive Power). The 26 states, the FederalDistrict and the Cities, in their own legislation, under the general rules set forth in this Law, should define specific rules adapted to their regional realities.
Guidelines: Publicity is now the rule and secrecy the exception. The culture is active transparency, in which information should be published regardless of request. The administration uses the internet and IT resources, promoting the culture of transparency and developing the social control over their activities.
Minimum information: Web sites should contain: a) a record of competence and organizational structure, addresses and telephone numbers of the respective units and working hours for the public; b) records of any passing or transfers of financial resources; c) records of expenses; d) information concerning bidding procedures, including the respective notices and results, as well as all contracts; e) general data for the monitoring of programs, actions, projects and works of agencies and entities; and f) answers to frequently asked questions from the society.
About the application: The application must contain information identifying the applicant and specifying the required information.
Lack of motivation: It shall not be necessary to justify the reason for the requested information.
Management Response: The administration should provide the information immediately if it is available. If it is not available, the information must be provided within a period of twenty days, renewable for another ten days.
Right to Appeal: When information is not granted, the reason for the refusal of access may be appealed against within ten days.
Appeal Response: The superior authority of the entity that denied information must also respond within five days.
Restrictions on access of information: The law will continue to preserve the secrecy of taxation, banking and industry arising from direct economic activity by the state, a private person or entity that has ties with the government.
Human Rights: Information or documents dealing with behaviors that involve human rights violations committed by public officials or under the orders of a public authority may not be subject to restricted access.
Society and the State Safety: The law continues to protect data and documents crucial for the security of society and the State.
Risk to the society’s security: Life, health and safety for the population.
Risk to national security: Defense; sovereignty; integrity of national territory; the conduct of negotiations or the country’s international relations, or those that have been provided on a confidential basis by other states and international organizations; strategic plans and operations of the Armed Forces; financial stability, the country’s economic and monetary policy; intelligence activities; inspections and investigations, ongoing research projects and scientific or technological development; information that may endanger the safety of an institution or senior officials of national or foreign origin and their families.
Levels of confidentiality: The information held by public bodies and agencies, subject to its nature and its importance to the safety of society or the state, may be classified as top secret, secret or Reserved.
Time limits of confidentiality: (i) reserved documents can be kept confidential for 5 years, (ii) secret documents can be kept confidential for 15 years, and (iii) top secret documents can be kept confidential for 25 years.
Published: After these deadlines, the information must be “automatically” published, with the exception of top secret documents, which may have the secrecy extended once more. Therewith, the maximum confidentiality of documents is 50 years.
Note: The law indicates how the classification of information should be done, points out the competent authorities and provides liability for breaches of the law.
Critical Point: The critical point is its regulation, i.e., let the good intentions leave the paper and transparency become the practice! The preparations took six months, a period considered too short for most public managers because even though the information already existed it must be organized and selected, which requires time, training of personnel and investment in resources.
Serviço de Informações ao Cidadão (SIC): From day 16, in addition to its own rules in the limit of jurisdiction, each agency must create their proper Citizens Information Service.
Conclusion: It is to be expected that the law will be implemented gradually, with some specific resistance, up to the moment when transparency has become a permanent culture!
There is a strong commitment by the government for Brazil to be recognized as an example of democratic maturity, willing for development and capable to provide a safe business environment.
Discover the work of some organizations:
• http://www.opengovpartnership.org;
• http://www.informacaopublica.org.br;
• http://www.acessobrasil.org.br;
• http://www.portaldatransparencia.gov.br;
• http://www.transparencia.org.br;
Historical data: “The first nation in the world to develop a legal framework on access was Sweden in 1766. The United States approved its Freedom of Information Act, known as FOIA (Freedom of Information Act), in 1966, and has received since then different amendments aimed at its adaption to the passing of time. In Latin America, Colombia was a pioneer in 1888 establishing the Code that gave access to governmental documents. Today the law in Mexico, from 2002, is considered a reference having foreseen the establishment of fast systems for access, monitored by an independent organ. Chile and Uruguay, among others, have also approved laws for the access of information”.
Source: Controladoria Geral da União.
]]>Date: 16 May 2012
The ruling African National Congress in South Africa has proposed modifications to the controversial Protection of State Information Bill, but critics say they do not go far enough.
The Right2Know Coalition that opposes the “secrecy bill” on May 11 called the ANC proposals “a small but important victory” but added that “the moment for celebration isn’t here yet.”
ANC members of the National Council of Provinces (NCOP) ad hoc committee on May 10 proposed that section 43, which criminalizes the release of classified information, contain an exception for cases where “such disclosure reveals criminal activity.” Those charged with disclosure could argue that the information was wrongly classified to begin with. The committee said its deliberations will extend until the end of June.
The ANC also moved narrow the scope of section 49 to make it apply to only the disclosure of classified state information.
The ANC proposal can be found here. For official documents summarizing the public hearings and notes on the May 8 meeting see this page on the Parliamentary Monitoring Group site. Notes on May 9 meeting are here.
Broader Exemption Sought
The proposed amendments “would improve the badly flawed whistleblower protection,” according to the R2K Coalition, but more changes are needed. The summary of its statement continues:
In this formulation, those exposing state secrets would face up fines or up to 5 years in prison unless they were protected by South Africa’s existing (though inadequate) whistleblower protection laws, or unless the exposure revealed unlawful activities or was made to fulfil responsibilities handed down by law.
However, this protection only applies to the offence in clause 43, and has not yet been made applicable to offences contained in clause 36, 38, and 49 – offences which carry penalties of between 5 and 25 years and currently have no public interest defence. In other words, this protection is an improvement, but is not meaningful until it is extended to all offences contained in the Bill.
In the ANC’s proposed amendments, the crimes of “espionage” and “hostile activities are still sufficiently broad and far-reaching that anyone who exposes information that could “directly or indirectly” benefit a foreign state face severe prison sentences – up to 25 years. This still incriminates journalists and whistleblowers who are acting in the public interest, even if it may be intended to apply only to true acts of espionage. Two improvements to these sections have been to remove prescribed minimum sentences, and to amend the offences so that one is only guilty of a crime if one “knew” their disclosure may benefit a foreign state.
The ruling party has not budged on clauses 15 and 44, which make mere possession of classified information a crime. Even if the document were already in the public domain, one would face up to 5 years in prison for not immediately delivering the document to a police station.
The Department of State Security is still given complete protection from any kind of state security – in terms of clause 49, there is absolutely no protection for receiving, retaining or exposing information that has been classified by this department. Thus, the complete veil of secrecy over the work of spooks remains intact.
In addition, beyond the proposed amendments to the Secrecy Bill’s offences and penalties, the committee has not addressed in any meaningful way the many unresolved issues in the rest of the Bill, as raised in the public hearings.
Reactions Guarded
A report on the development by the South African Press Association quotes the South African National Editors’ Forum as calling the proposals “a step in the right direction.”
The African People’s Convention (APC) welcomed the “bold move.” The Congress of the People (Cope) chief whip in the NCOP, Dennis Bloem, said: “This is a small but important victory. The attempt by government to muzzle the media and punish whistleblowers to conceal scandals and corruption has already been dealt a blow.”
A detailed article penned by Stefaans Brümmer, who has been involved in the campaign against the Bill both as managing partner of the M&G Centre for Investigative Journalism and a member of the Right2Know Campaign, begins, “There are still snags in the current secrecy Bill which need to be overcome before the messy democratic success is turned into good law.
Regarding the proposed public interest defense, he writes:
The exemption states — or attempts to state — that one cannot be penalised for disclosing a classified record if the disclosure reveals criminal activity or if the record should not have been classified in the first place.
But there are significant hitches:
The exemption has been added to what may be called the “simple disclosure” offence. But there is a parallel “disclosure of a state security matter” offence which is not covered. The latter offence relates to the classified documents of the State Security Agency (SSA). The effect will be that whistleblowers, journalists and activists wanting to blow the whistle on corruption and other forms of crime will be fine if they do so at the hand of documents classified by the police or military, but not documents of the SSA. This is irrational and, one hopes, an oversight.
There are circumstances other than the exposure of criminal activity that should also be exempted in the public interest, to whit when “an imminent and serious public safety or environmental risk” needs to be exposed. Those exact words appear elsewhere in the Bill, under the provisions to apply for a record’s declassification, so one would hope that the ruling party and ministry should have no principled objection to include those in the exemption. Again, a matter of drafting.
The second half of the exemption, which appears to shield one from being penalised from exposing a record which should not have been classified in the first place, is so unintelligibly worded as to raise doubt that it will achieve its purpose. A disclosure is exempted if it reveals “criminal activity for ulterior purposes listed in section 14 and section 47″. Those two sections deal with the conditions under which records may and may not be classified, and criminalising wrongful classification. But what on earth does “criminal activity for ulterior purposes” mean?
The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other forms of crime may be maliciously prosecuted under the espionage or related sections of the Bill, where again no public interest defence or exemption is available.
He also goes into detail on the offenses for which there would be no public interest defense: ”espionage”, “receiving state information unlawfully” (for the purpose of espionage) and “hostile activity” (similar to espionage, but where the beneficiary is for example a terrorist organisation rather than another state).
The Democratic Alliance welcomed the amendments, too, but said “the ANC’s amendments still do not go far enough.”
The DA remains concerned about areas of the bill such as:
Reception Lukewarm for ANC Compromises on Secrecy Bill
The ruling African National Congress in South Africa has proposed modifications to the controversial Protection of State Information Bill, but critics say the proposed amendments do not go far enough.
The Right2Know Coalition that opposes the “secrecy bill” on May 11 called the ANC proposals “a small but important victory” but added that “the moment for celebration isn’t here yet.” The committee said its deliberations will extend until the end of June.
ANC members of the National Council of Provinces (NCOP) ad hoc committee on May 10 proposed that section 43, which criminalizes the release of classified information, contain an exception for cases where “such disclosure reveals criminal activity.” Those charged with disclosure could argue that the information was wrongly classified to begin with.
The ANC also moved narrow the scope of section 49 to make it apply to only the disclosure of classified state information.
The ANC proposal can be found here. For official documents summarizing the public hearings and notes on the May 8 meeting see this page on the Parliamentary Monitoring Group site. Notes on May 9 meeting are here.
Broader Exemption Sought
The proposed amendments “would improve the badly flawed whistleblower protection,” according to the R2K Coalition, but more changes are needed. The summary of its statement continues:
In this formulation, those exposing state secrets would face up fines or up to 5 years in prison unless they were protected by South Africa’s existing (though inadequate) whistleblower protection laws, or unless the exposure revealed unlawful activities or was made to fulfil responsibilities handed down by law.
However, this protection only applies to the offence in clause 43, and has not yet been made applicable to offences contained in clause 36, 38, and 49 – offences which carry penalties of between 5 and 25 years and currently have no public interest defence. In other words, this protection is an improvement, but is not meaningful until it is extended to all offences contained in the Bill.
In the ANC’s proposed amendments, the crimes of “espionage” and “hostile activities are still sufficiently broad and far-reaching that anyone who exposes information that could “directly or indirectly” benefit a foreign state face severe prison sentences – up to 25 years. This still incriminates journalists and whistleblowers who are acting in the public interest, even if it may be intended to apply only to true acts of espionage. Two improvements to these sections have been to remove prescribed minimum sentences, and to amend the offences so that one is only guilty of a crime if one “knew” their disclosure may benefit a foreign state.
The ruling party has not budged on clauses 15 and 44, which make mere possession of classified information a crime. Even if the document were already in the public domain, one would face up to 5 years in prison for not immediately delivering the document to a police station.
The Department of State Security is still given complete protection from any kind of state security – in terms of clause 49, there is absolutely no protection for receiving, retaining or exposing information that has been classified by this department. Thus, the complete veil of secrecy over the work of spooks remains intact.
In addition, beyond the proposed amendments to the Secrecy Bill’s offences and penalties, the committee has not addressed in any meaningful way the many unresolved issues in the rest of the Bill, as raised in the public hearings.
Reactions Guarded
A report on the development by the South African Press Association quotes the South African National Editors’ Forum as calling the proposals “a step in the right direction.”
The African People’s Convention (APC) welcomed the “bold move.” The Congress of the People (Cope) chief whip in the NCOP, Dennis Bloem, said: “This is a small but important victory. The attempt by government to muzzle the media and punish whistleblowers to conceal scandals and corruption has already been dealt a blow.”
A detailed article penned by Stefaans Brümmer, who has been involved in the campaign against the Bill both as managing partner of the M&G Centre for Investigative Journalism and a member of the Right2Know Campaign, begins, “There are still snags in the current secrecy Bill which need to be overcome before the messy democratic success is turned into good law.
Regarding the proposed public interest defense, he writes:
The exemption states — or attempts to state — that one cannot be penalised for disclosing a classified record if the disclosure reveals criminal activity or if the record should not have been classified in the first place.
But there are significant hitches:
The exemption has been added to what may be called the “simple disclosure” offence. But there is a parallel “disclosure of a state security matter” offence which is not covered. The latter offence relates to the classified documents of the State Security Agency (SSA). The effect will be that whistleblowers, journalists and activists wanting to blow the whistle on corruption and other forms of crime will be fine if they do so at the hand of documents classified by the police or military, but not documents of the SSA. This is irrational and, one hopes, an oversight.
There are circumstances other than the exposure of criminal activity that should also be exempted in the public interest, to whit when “an imminent and serious public safety or environmental risk” needs to be exposed. Those exact words appear elsewhere in the Bill, under the provisions to apply for a record’s declassification, so one would hope that the ruling party and ministry should have no principled objection to include those in the exemption. Again, a matter of drafting.
The second half of the exemption, which appears to shield one from being penalised from exposing a record which should not have been classified in the first place, is so unintelligibly worded as to raise doubt that it will achieve its purpose. A disclosure is exempted if it reveals “criminal activity for ulterior purposes listed in section 14 and section 47″. Those two sections deal with the conditions under which records may and may not be classified, and criminalising wrongful classification. But what on earth does “criminal activity for ulterior purposes” mean?
The risk remains that a whistleblower, journalist or activist who discloses a classified record with the purpose of revealing corruption or other forms of crime may be maliciously prosecuted under the espionage or related sections of the Bill, where again no public interest defence or exemption is available.
He also goes into detail on the offenses for which there would be no public interest defense: “espionage”, “receiving state information unlawfully” (for the purpose of espionage) and “hostile activity” (similar to espionage, but where the beneficiary is for example a terrorist organisation rather than another state).
The Democratic Alliance welcomed the amendments, too, but said “the ANC’s amendments still do not go far enough.”
The DA remains concerned about areas of the bill such as:
Date: 14 May 2012
The new Constitution of Egypt is on the verge of being drafted. In order to support the forthcoming work of the drafters, ARTICLE 19 has produced a comprehensive policy brief outlining how the new Constitution should protect the right to freedom of expression and freedom of information.
The brief is based on international legal standards on freedom of expression, including the decisions of international and regional human rights courts as well as the authoritative interpretation of international human rights law by the UN Human Rights Committee, regional mechanisms and other bodies, such as the Special Rapporteur on Freedom of Opinion and Expression. The brief also lists specific examples of constitutional provisions in a range of other countries. ARTICLE 19 hopes that international and regional standards and comparative examples indicating the best practices of states on the protection of the right to freedom of expression and freedom of information shall provide a useful source of reference and inspiration for drafters of the new Egyptian Constitution.
More specifically, ARTICLE 19 believes that the new Egyptian Constitution must contain a substantive chapter or section devoted to the protection of human rights, in the form of a Bill or Charter of Rights or equivalent. Such protection of human rights should be at the heart of the new Constitution. It is of paramount importance that the new Constitution states that all international treaties ratified by Egypt, customary international law and general international law have legal force in Egypt, and that the core international human rights treaties which Egypt has ratified are applicable and binding in domestic law.
ARTICLE 19 also strongly urges the drafters to ensure that the new Constitution defines freedom of expression broadly to include the right to seek, receive and impart information and ideas, and to cover all types of expression and modes of communication. The Constitution should grant this right to every person and should explicitly require that all limitations to the right to freedom of expression strictly meet the three-part test set by international law.
The brief makes a whole range of specific recommendations for the protection of the right to freedom of expression and freedom of information, including the access to information, and details how the new Constitution should protect freedom of media and freedom of expression through Information and Communication Technologies (ICTs), and suggests mechanisms for enforcement of rights.
Crucially, ARTICLE 19 calls on the Egyptian Government to ensure that the process of drafting the new Egyptian Constitution is genuinely participatory for all groups in society, including women and minorities, and transparent so that there is a real sense of ownership over the final text.
ARTICLE 19 hopes to continue to be engaged in assisting the Constitution Drafting Committee and Egyptian stakeholders to formulate the best possible constitutional framework for the Egyptian people, one to meet the state’s international obligations but also serve to make human rights protection and promotion part of daily life and social consciousness in the country.
]]>Date: 7 May 2012
Yemen’s parliament April 24 approved a right to information bill.
The legislation was first presented in 2008 by MP Ali Hussein Ashaal, of the Islah party, according to a Yemen Times article. “This was followed by another draft presented by the Ministry of Information, and since deliberations on both drafts have been proceeding off and on until recently.”
The outcome was “a combination of both drafts, making Yemen only the second Arab country after Jordan to issue such a law,” the paper said. Jordan has a FOI law.
Describing the Yemen legislation, the article says:
The law stipulates that every government has to dedicate a media person to answer applicants within ten days of a request. A penalty up to six months imprisonment was stipulated for any individual who prevented or stalled the providing of information requested within the ten days. Moreover, those who acquire information illegally and publish it could face imprisonment of up to two years.
It was not clear in the law to what extent access to information applies to the private sector.
The law comprising of 66 articles, includes clauses for protecting privacy, and the protection of privileged information, such as information that affects fair competition, copyright, military strategies and foreign policy.
The Times article quotes Basheer Al-Maqtari of the state-run National Information Center, as saying, “The law was passed because of international pressure and is not really complete,” He also said, “For example, it ignores applications for information from non-Yemenis and it does not cover international companies working in Yemen.”
The Times says:
The delay in approving the law was a concern for many human rights and media organizations. The Economic Media Center last month presented a petition to the parliament signed by over a hundred civil society activists, demanding the law to be passed soon.
Before the law comes into force, it requires the signature of the president, which according to the constitution should happen within days of the parliament’s decision.
It was not clear in the law to what extent access to information applies to the private sector.
The law comprising of 66 articles, includes clauses for protecting privacy, and the protection of privileged information, such as information that affects fair competition, copyright, military strategies and foreign policy.
The Times article quotes Basheer Al-Maqtari of the state-run National Information Center, as saying, “The law was passed because of international pressure and is not really complete,” He also said, “For example, it ignores applications for information from non-Yemenis and it does not cover international companies working in Yemen.”
The Times says:
The delay in approving the law was a concern for many human rights and media organizations. The Economic Media Center last month presented a petition to the parliament signed by over a hundred civil society activists, demanding the law to be passed soon.
Before the law comes into force, it requires the signature of the president, which according to the constitution should happen within days of the parliament’s decision.
]]>Date: 7 May 2012
In the first draft Constitution for Zambia was released April 30 and includes a provision on access to information.
The 253-page document was hailed by media groups as a progressive for its clauses on media freedom.
Separately, a taskforce is preparing a freedom of information law.
The access to information provision states:
37. (1) A citizen has the right of access to- (a) information held by the State; and (b) information that is held by another person; which is lawfully required for the exercise or protection of any right or freedom. (2) A person has the right to demand the correction of untrue or misleading information recorded or published with respect to that person. (3) The State has the obligation to publicise any information that is in the public interest or affects the welfare of the Nation.
The draft Constitution also addresses privacy, stating:
34. (1) All persons have the right to privacy, which includes the right not to have – (a) their person, home or property searched; (b) their possessions seized; (c) information relating to their family, health status or private affairs unlawfully required or revealed; or (d) the privacy of their communications infringed.
TheTimes of Zambia reported favorably on the media provisions.
]]>Date: 7 May 2012
The South African Right2Know coalition May 3 objected to plans by a parliamentary committee to consider the controversial Protection of State Information Bill in two sessions rather than the planned seven.
Nobel Prize winner Nadine Gordimer, who has opposed the bill before, recently argued that it sh0ud be “rejected in its entirety” in an article, “South Africa: The New Threat to Freedom,” on the New York Review of Books website.
“In the new South Africa that was reborn in the early 1990s, with its freedom hard-won from apartheid, we now have the imminent threat of updated versions of the suppression of freedom of expression that gagged us under apartheid.
“The right to know must continue to accompany the right to vote that black, white, and any other colour of our South African population could all experience for the first time in 1994.”
She offers detailed criticisms of the bill.
The Ad Hoc Committee on the Protection of State Information Bill of the National Council of Provinces, changed its schedule and now plans to meet on May 4 to consider amendments, allow the state law advisor a week to draft amendments, and then meet again on May 11 to consider adopting the bill.
In the previous schedule, meetings were set for April 24, 25 and 26, and May 2, 8, 15 and 16.
“In light of the wide-ranging issues raised during the hearings, even that schedule seemed completely inadequate,” wrote Murray Hunter, National Coordinator of the Right2Know campaign. “We point out that the planned seven days of deliberation have been compressed into two. We would like to ask what circumstances have changes to motivate the Committee to attempt to deal with all the proposed amendments in all the submissions made, and consider the drafts proposed by the State Law Advisors, and vote on them, in just two days?”
The letter continued:
It is the usual practice to give the submissions of the public at least some cursory attention.
For example, it is often the practice to request a summary of the issues in submissions prepared by the State Law Advisors, and then discuss them in committee. Alternatively the Law Advisors flag the major policy issues, and they are discussed with the opposition, so that consensus can be established where possible.
Is it the Committee’s intention to dispose of this part of the process? Is a schedule of amendments already prepared without public discussion, or has a decision been taken in caucus that no amendments will be allowed, without that debate taking place in the committee?
This sudden development, on the back of extraordinary public and civil society opposition to the Bill in its current form, undermines the committee’s pledge, through the Chairperson’s public comments in recent months, that its work would not be rushed.
We therefore call on the committee to request an extension of its deadline, and reschedule its work with ample time for deliberations.
]]>Date: 6 April 2012
Advocates of a freedom of information bill in Sierra Leone are pressing the government to take action on the long-stalled FOI bill, and looking for a procedural move that could ease passage.
Activists continue to hope that the government will act to arrange the process so that the bill will not go back to square one in Parliament.
The bill was introduced in the House of Parliament in September 2010, and by October 2011 had gone through the first-, second-, third-, and committee-stage readings. With the new session just started the bill could be back to the beginning procedurally, but the government could move to have it considered in the bull body without going back through the committee process.
Although there have been some hints this might happen, there also are suggestions that some in Parliament might not approve of this course. (See previous FreedomInfo.org report.)
The recent pro-bill statement came from the Freedom of Information Coalition Sierra Leone (FOICSL), Human Rights Watch and Amnesty International .
“The government has been promising us passage of this bill for too long,” said Emmanuel Abdulai Saffa, chairperson of the Freedom of Information Coalition, Sierra Leone. “This legislation is key to addressing longstanding patterns of corruption and serious human rights violations, which were at the core of our brutal 11-year armed conflict.”
According to the statement, “The executive and legislature in Sierra Leone have traded accusations that the other is to blame for the hold-up in enacting the legislation. Regardless of the reason for the delay, the government should present a united front and show the necessary political will to ensure that the bill is passed into law.”
“President Ernest Bai Koroma has made numerous public statements endorsing his ruling All People’s Congress party’s (APC) support for the passage of the Freedom of Information Bill. In 2009, he told the Sierra Leone Association of Journalists and a representative of the Freedom of Information Coalition, `Like the anti-corruption law, I want to pass the best FOI law in Africa.’ ”
The All People’s Congress, in a 2007 manifesto, stated that “the principles of transparency and accountability and the elimination of corrupt practices are generally recognized as indispensable attributes for … governance” and pledged that “an APC government will ensure strict adherence to these principles and practices.”
“The government should stop dragging its feet on the Freedom of Information Bill,” said Corinne Dufka, senior West Africa researcher at Human Rights Watch. “For the Sierra Leone people’s welfare and in the interest of development and the rule of law, the government should embrace transparency, rather than thwart it.”
“Time is running out,” said Brima Abdulai Sheriff, director of the Sierra Leonean section of Amnesty International. “We call on the government and parliament to demonstrate their commitment to respect for human rights by passing the Freedom of Information Bill before the end of the parliament’s session in June.”
“The right to know is not merely important as an aspect of freedom of expression. It is also an important tool for bringing about the full realisation of all other human rights. The FOI will provide a means by which people can come to know about their rights and entitlements, identify when their rights are being violated and hold governments to account for their constitutional and international human rights obligations,” said Sheriff.
]]>Date: 6 April 2012
About 440 persons are expected to attend the Open Government Partnership conference in Brazil April 17-18.
Only a few national action plans have emerged in advance of the meeting, but more than 40 will be unveiled during the two days of meetings in Brasilia. For the agenda, plus a list of side events and participants, see this page.
The latest government to join the OGP is Serbia, bringing OGP total membership to 54.
In the run-up to the meeting, various OGP announcements have been made.
- Webcasts of the OGP meeting will be provided, the OGP has said.
- The OGP launched a blog.
- A three-hour meeting will be held April 18 by representatives from civil society groups, previously estimated to number more than 100, about ways work together going forward on the OGP at the country and international level.
On the day before the conference, the OGP Steering Committee will meet to discuss governance issues and other matters. No agenda has been posted for the meeting.
For all previous FreedomInfo.org articles on the OGP see this collection.
Action Plans Incoming
Action plans are expected from just over 40 countries. (The original eight members of the now 54-member organization issued their plans last September.) The plans will be presented orally April 17 in concurrent regional sessions during with government and civil society representatives will each have five minutes to make comments.
The action plans are being uploaded via an online form on the OGP website.
The form requires that countries list some contact information that has previously been largely unavailable – an overall government focal point for their OGP process (name, agency, title, contact info) as well as the specific agencies involved in each new commitment they are making, and a contact point for each of these commitments (name, agency, title, contact info).
Director of the OGP Support Unit Julie McCarthy wrote, “…. the existence of an online, searchable, tagged, downloadable and ultimately visualizable database of information on the content of each OGP country action plan that is in keeping with best practice and standards on open data.”
Among the plans known to be approached was one recently approved for the Czech Republic.
As the date for governments to announce their action plans approaches, some national controversies have ensued. In Canada activities have bemoaned the lack of a draft action plan, according to media reports such as one in the Winnipeg Free Press.
OGP Challenges Discussed
Going into the meeting, the OGP’s challenges were addressed in a post on the OGP blog by Felipe Heusser, the founder and director of Fundación Ciudadano Inteligente, a Latin American NGO based in Chile.
He says in part that “the degree to which the actions plans are the result of a participatory process, and not a mere consultation or top-down notification, is fundamental…”
A second big challenge regards to the governance of OGP, he writes, saying, “It is yet to be seen how will OGP govern member countries without mediating international treaties or law enforcing tools, and how will it govern such a diverse group of civil society organizations that though committed to democracy, are not necessarily elected bodies. We witness an innovative organization that will have to prove that transparency and civic participation can move forward without traditional law-binding instruments.”
He continues:
Risks on the other hand remain on failing to pressure governments to fulfill their transparency commitments, and to have them praise their OGP membership without achieving nor even committing to real substantive transparency reforms, in opposition to small cosmetic transparency policies that are abundant in many country action plans. The governance of civil society organizations on the equal side of governments is a chapter in itself. It is also to be seen how coordination, standards and agreements will be achieved among CSO’s, how will they be represented at upper levels of OGP, but above all, how will we develop enough cohesion to protect organizations that are left on the sides by governments that oppose an open dialogue, and cohesion to stand together to push for real transparency change.
High-Level Attendees
Confirmed attendees for the event include Brazilian President Dilma Rousseff, U.S. Secretary of State Hillary Clinton, UK Cabinet Minister Francis Maude and dozens of senior government ministers from around the world. Amongst a range of speakers are Ushahidi co-founder Juliana Rotich, Yemini anti-censorship activist Walid al-Saqaf and Indian education activist and TED-Fellow Gautam John.
]]>Date: 6 April 2012
On 2 April 2012, a global coalition of NGOs - Access Now, ARTICLE 19, Bolo Bhi, Electronic Frontier Foundation, Center for Democracy & Technology, Citizen Lab , Index on Censorship and Reporters Without Borders - sent a letter to the Prime Minister of Pakistan and to the Minister of Information and Technology, urging them to abandon a plan for national URL filtering and blocking system. The letter comes as a follow up to a verbal commitment made by the Secretary IT, Mr Farooq Awan, that the plan for a national URL filtering and blocking system, announced earlier this year, has been withdrawn.
As a global community, we actively campaigned to stop the impending firewall and to inform the government and international surveillance companies of the repercussions this will have on academia, businesses, trade, and civil society. As a result, five major international companies known to sell surveillance, filtering, and blocking systems have publicly committed not to apply for the government’s call for proposals.
In Pakistan, only approximately 20 million out of 187 million people have access to the Internet. Despite this, the Internet generates positive benefits for Pakistan through economic growth, education, entrepreneurship, and exchange of culture. The ICT R&D Fund was developed to further the use of ICTs and promote research in the field. An announcement contrary to the progress and development of ICTs from the same organization was disappointing.
While it has become common knowledge that surveillance and censorship technologies are often used in Pakistan, the extent to which this is taking place has only recently become apparent with public reports on censorship and surveillance technologies by a large number of international companies. We also understand the Pakistan government may attempt to involve an academic institution in developing the system, making the biggest victim of this technology also a contributor.
Bushra Gohar, member national assembly, recently informed us of a verbal commitment by Secretary IT, Mr Farooq Awan, that the plan for a national URL filtering and blocking system has been withdrawn. However, no public statement exists.
As members of civil society and organizations committed to ensuring the government upholds democratic principles in Pakistan, and with concerns about restrictions on privacy as well as access to information, we strongly urge the ICT R&D fund of the Ministry of IT to reconsider its decision to filter URLs in Pakistan and make a public commitment that they will not purchase the URL filtering and blocking technology. If the Pakistani government wants to further develop business, innovation, entrepreneurship, trade, and academia, it must realize the adverse effects this filtering system would have on these priorities, and hence, not go ahead with this plan.
Signed
]]>Date: 6 April 2012
ARTICLE 19's Tunisia office has launched a series of webpages in English and Arabic explaining international standards on media, press and broadcasting regulation and also on the right to information.
International standards: Right to information عربي ;
International standards: Regulation of media workers عربي ;
International standards: Regulation of the print media عربي ;
International standards: Regulation of broadcasting media عربي.
]]>Date: 6 April 2012
The Constituent Assembly of Tunisia, elected in October 2011, is currently drafting a new Constitution of Tunisia. In response to these efforts and to support the work of the drafters, ARTICLE 19 has produced a comprehensive policy brief outlining how the new Constitution should protect the right to freedom of expression and freedom of information.
The brief is based on international legal standards on freedom of expression, including the decisions of international and regional human rights courts as well as the authoritative interpretation of international human rights law by the UN Human Rights Committee and the Special Rapporteur on Freedom of Opinion and Expression. The brief also lists specific examples of constitutional provisions in a range of other countries.
ARTICLE 19 hopes that international and regional standards and comparative examples indicating the best practices of states on the protection of the right to freedom of expression and freedom of information shall provide a useful source of reference for drafters of the new Tunisian Constitution.
More specifically, ARTICLE 19 believes that the new Tunisian Constitution must contain a substantive chapter or section devoted to the protection of human rights, in the form of a Bill or Charter of Rights or equivalent. Such protection of human rights should be at the heart of the new Constitution. It is also of paramount importance that the new Constitution states that all international treaties ratified by Tunisia, customary international law and general international law have legal force in Tunisia, and that the core international human rights treaties which Tunisia has ratified are applicable and binding in domestic law. ARTICLE 19 also strongly urges the drafters to ensure that the new Constitution defines freedom of expression broadly to include the right to seek, receive and impart information and ideas, to cover all types of expression and modes of communication. The Constitution should grant this right to every person and should explicitly require that all limitations to the right to freedom of expression strictly meet the three-part test set by the international law.
The brief makes a whole range of specific recommendations for the protection of the right to freedom of expression and freedom of information, including the access to information, and details how the new Constitution should protect freedom of media and freedom of expression through Information and Communication Technologies (ICTs). The policy brief also examines the place of religion in the Constitution. Finally, it describes the most appropriate mechanisms to effectively protect constitutional rights through a tribunal or constitutional court.
Crucially, ARTICLE 19 calls on the Tunisian Government to ensure that the process of drafting the new Tunisian Constitution is genuinely participatory for all groups in society, including women and minorities, and transparent so that there is a real sense of ownership over the final text.
ARTICLE 19 hopes to continue to be engaged in assisting the Constituent Assembly and Tunisian stakeholders to formulate the best possible constitutional framework for the Tunisian people, one to meet the state’s international obligations but also serve to make human rights protection and promotion part of daily life and social consciousness in the country.
]]>Date: 4 April 2012
An increasingly document-based justice system was edging out scrutiny. This court of appeal ruling helps to entrench openness
The court of appeal today took a bold step forward in advancing court transparency. The decision in Guardian News and Media Ltd v City of Westminster Magistrates Court established in common law for the first time the right of ordinary people and the media to obtain documents that are used in court cases.
It has been a long time coming. The UK has undergone a transparency revolution over the past 10 years. The Freedom of Information Act 2000 (FOIA) has forced over 100,000 government bodies to make the information that they collect and use in daily actions available on request to the public. Recent government initiatives have made the expenditures of government bodies and local governments available online. Parliamentary bills, reports and proceedings are available online quickly.
The courts were an early proponent of openness: open justice has been a principle since the 17th century. It is essential to ensure that courts are accountable by allowing any person to attend court hearings. But as other government institutions have become more open, courts' practices have not evolved to the same extent. The decision to allow tweeting (in principle) is welcome and the Bailii initiative and others have resulted in many decisions becoming publicly available, but many gaps remain. The Justice Wide Open event at City University a few weeks ago revealed that there were many legal and practical limits to open justice. Few local newspapers now cover local courts and even the larger national media only attend a few cases; transcripts remain the commercial property of the court reporters and video and audio recording of cases is forbidden for reasons that are hard to understand; non-media such as community micro-sites have little access to anything; the FOIA only has limited application to the courts.
In this case, the growing practice of judges and the lawyers moving to a more document-focused case system and referring to documents that are only partially read out triggered the need to change the rules. An average court case is a bewildering series of references to documents contained in the large boxes on the judges' and parties' tables. A member of the public or reporter has little chance to follow, especially when the documents are non-public and only briefly summarised. This decision will allow for better scrutiny of the arguments and the evidence, which is especially crucial in extradition cases where a foreign government is demanding the handing over of persons based on crimes different than under UK law.
The court based its decision on the common law rather than the still evolving case law on the right to access from the European Court of Human Rights, which is still being resisted by the courts here. But after reviewing cases from Canada, the US, New Zealand and South Africa, the court found that the rest of the world had moved forward on this and considered it wise to follow suit.
A strange aspect of this case was that the US government was the only party opposing the release of the documents. The documents that the Guardian were trying to obtain were so basic you really do have to wonder why there was any opposition to their release, especially since no arguments were made that their release would cause any harm. Had the case been held in the US, they would have been routinely made available to anyone who wanted them. Perhaps it was US fear of having to release evidence in more controversial future cases, such as the potential extradition of Julian Assange to the US.
In the US, the Public Access to Court Electronic Records system allows anyone for a very small fee to be able to access most documents submitted electronically, including the briefs in any federal court case. It has over a million users. Taking this decision forward, the UK should now adopt a similar system of proactive disclosure. In the 21st century, open justice should be online justice.
• A copy of the Article 19 submission to the court can be found at article19.org
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Date: 20 March 2012
The Malaysian government has no plans to propose freedom of information legislation because this is already provided for in the Constitution, according to the minister for Information, Communications and Culture, Datuk Seri Dr Rais Yatim.
His ministry is focusing on improved information dissemination efforts to get information to the people rather than introducing a new act, he said during question time in parliament according to a report in The Star.
He was responding to a question from Khairy Jamaluddin (BN-Rembau) who asked if the government had plans to introduce a FOI bill. “To another question from Khairy on abolishing the Official Secrets Act 1972, Rais said the government saw the act as necessary for national interest,” The Star reported. The article continued:
“The Official Secrets Act does not come under my ministry but under the Home Ministry. However, in this context, it should be made clear that every government has the right to classify certain matters which can jeopardise national security as confidential,” he said. To a supplementary question from Saifuddin Nasution (PKR-Machang) whether the government planned to make it easier for the people to get access to credible information on official secrets, Rais said the matter had to be studied in detail.
“In determining whether certain information or data should or should not be be made public, objectivity would be the main yardstick and the ministry sees this from the aspects of universality and demands for official secrecy,” he said.
Two of the 15 state governments (Selangor and Penang) have enacted FOI laws.
]]>Date: 20 March 2012
After initially having been excluded from the witness list, the South African Right2Know Coalition has been invited to testify before a legislative committee considering the Protection of State Information bill.
The committee relented following objections by opposition party representatives on the panel and added the coalition to the list of 18 witnesses who will give presentations during four days of public hearings to begin March 27.
The Right2Know Coalition has prepared a statement on the legislation.
Attention also has been drawn in media reports to the limited number of media-related witnesses, two, on the witness list. The hearings are being held by the ad hoc committee of the National Council of Provinces , which is dominated by African National Congress members.
The committee will hear objections to the contentious bill from most witnesses, including public protector Thuli Madonsela, the South African Human Rights Commission and human rights lawyer George Bizos. Corruption Watch, the Congress of South African Trade Unions and its affiliate, the National Union of Metalworkers of South Africa, also were shortlisted.
The committee decided not to accepts proposals to testify by Media24 journalist Cera-Jane Catton; former editor-in-chief of The Star newspaper Harvey Tyson; Jane Duncan, chair of the Media and Information Society (Highway Africa); Marian Pike, lecturer in media studies and public relations management at the Cape Peninsula University of Technology; Print Media SA; and the Media Institute of SA.
The media will be represented by two organizations, the SA National Editors’ Forum (Sanef) and Media Monitoring Africa (MMA).
Most of the witnesses are expected to be critical of the bill.
Eleven opposition parties were planning a March 17 joint public rally in Khayelitsha to oppose the bill without the inclusion of a public interest defense clause, according to a Business Day report.
The committee received more than 250 written submissions.
The list for oral presentation is: Advocate Thuli Madonsela; George Bizos SC, on behalf of the Legal Resources Centre; the SA Human Rights Council; the Nelson Mandela Centre of Memory at the Nelson Mandela Foundation; Cosatu; Webber Wentzel on behalf of Sanef; the Helen Suzman Foundation; Lizette Burger on behalf of the Law Society of SA; advocate Mike Pothier on behalf of the SA Catholic Bishops’ Conference; Kobus van Rooyen on behalf of the SA Jewish Board of Deputies; Alison Tilley on behalf of the Open Democracy Advice Centre; David Lewis on behalf of Corruption Watch; W Aroun on behalf of the National Union of Metalworkers of SA; Reverend Ivan Booth from the Diakonia Council of Churches; William Bird for MMA; Dr Jeffrey Mabelebele on behalf of Higher Education South Africa; Murray Hunter from R2K: and Mark Weinberg on behalf of the Alternative Information and Development Centre.
]]>Date: 20 March 2012
With conflicting signals coming from top government officials, advocates for a freedom of information in Sierra Leone are coalescing to lobby for FOI legislation.
The activity comes as a top minister pledged action on a bill, according to a media report by Michael T. Kamara and Mariama Bundu in Awareness Times. But the Speaker of the Parliament was less reassuring.
Minister of Information and Communication, Alhaji Ibrahim Ben Kargbo, “has assured journalists that his ministry is going to strongly lobby parliamentarians to fast track the remaining processes in passing the Freedom Of Information (FOI) Bill in parliament before the end of this Parliament’s term come September,” according to the article.
The minister spoke March 15 at the National Conference on Freedom of Information and the Rights to Access Information, organized by the Society for Democratic Initiative in Sierra Leone in Freetown.
The article continued:
Minister Kargbo noted that when his Government assumed governance in 2007, the President, Dr. Ernest Bai Koroma urged him to ensure that the FOI Bill is passed into law through Parliament. He confessed that it is his responsibility, as a former President of the Sierra Leone Association of Journalist (SLAJ) and now the Minister of Information and Communication, to ensure the Bill is fast tracked. He reechoed the importance of the Bill, whilst highlighting reasons why he thought it must be passed into law soonest.
However, the Honorable Speaker of Parliament, Hon. Justice Abel Stronge whilst delivering his address, noted that there is nothing like “fast-tracking”, in parliament, as stated by the minister. According to him, Bills sent to Parliament have to go through all the stages and thorough discussions before being passed into law.
He however urged his audience that the Bill will eventually be finalized and passed into law after it had gone through all the normal processes. The Hon. Speaker called on Sierra Leoneans to continue to be patient and allow their representatives in Parliament to thoroughly debate on the Bill.
The FOI bill, under debate for 10 years, came close to passage last year, clearing virtually all legislative hurdles and advocates had hoped Parliament would not require it to traverse all the steps again in the new session.
The conference was “a resounding success,” reported SDI Executive Director Emmanuel Saffa Abdulai. He wrote:
The meeting touched on important issues of national importance, bringing to light issues like how FOI will aid the transparency struggle in the extractives, the political will questions, the role of the media and civil society, whether the bill would be passed before elections or not etal. What came out of the meeting however is the reality that there is a huge gap in government and parliament’s position on the FOI bill. The speaker was saying one thing and the minister another. For us, it came out that we need to create the platform for these two institutions to meet.
At the end of the meeting, the FOI coalition convened in whole for the first time, with representatives not just from the regions this time but also, and most importantly, focal persons from each district headquarter towns. I am attached for your consumption minutes of the brief discussions.
Agreed upon action points include:
- Distribution of simplified FOI report to all the region
- Sending Text Messages to MPs
- Collate Petition Signatures in all the district against MPs
- Jingles cassette be distributed to each district
- Marshal CSOs in all the towns in protest for the delay in passing the FOI Bill
- Petition MP in their different constituency
See previous FreedomInfo.org reports by searching for “Sierra Leone.” In February President Ernest Bai Koromo again pledged his support, FreedomInfo.org reported, but past pledges have not resulted in action, see previous FreedomInfo.org summary,)
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