'To promote global transparency, you have to start local”

It is a truism that the efforts to promote global transparency start at the local level. A survey of the efforts to adopt freedom of information (FOI) legislations around the world reveals that the contribution of local campaigns was important, if not critical, in bringing the issue of transparency to the fore in public discourse. For example, the efforts to adopt FOI laws in India, the United Kingdom and South Africa, benefited from local campaigns spearheaded by grassroots and local civil society organisations (CSOs) like the Mazdoor Kisan Shakti Sanghatan (MKSS), Campaign for Freedom of Information, and Open Democracy Advice Centre of South Africa, to name a few.

More importantly, the significance of local efforts is magnified after the adoption of FOI laws in various countries. A recent report on the implementation of FOI, prepared by the World Bank, located the CSOs at the centre of the efforts to enhance transparency in countries which have adopted FOI Laws. This is also illustrated from the experience in India where issues of right of access, requesting procedures, appeals and promotional measures can be addressed more effectively at the local level.

Beginning with the questions of right of access, the campaign for the FOI in India started at the state level. The state of Rajasthan, in Western India, was the first one to provide the right to information. This was made possible by the vigorous and effective campaign of the MKSS which struggled for minimum wage in the government projects. These government projects were the main lifeline in the drought prone region. Similarly, the campaigns for FOI found success at the local government level first in the United Kingdom through the Local Government (Access to Information) Act 1985, before the adoption of Freedom of Information Act in 2000. These local campaigns also found willing partners in the local and regional news media, especially the newspapers. These organizations and newspapers which participated in the adoption are now in the forefront in implementation of the law too. For example, the Commonwealth Human Rights Initiative, has been participating in the appeals process and making submissions to the Central Information Commission in India. Another example is that of the regional newspaper from Andhra Pradesh, India, which runs a site called Mundadugu (which translates as ‘Next Step Forward’), run by the Telugu language newspaper Eenadu (translates to ‘Today’). This site carries news stories which have emerged from use of RTI applications, opinion pieces by experts, information of Public Information Officers, decisions of State and Central Information Commissioners, and very importantly practical information on how to use RTI. This is a vital resource as Telugu is spoken by 80 million people- equivalent to the population of Turkey- and this effort is carried by the largest newspaper from the state.

With regard to the requesting procedures, it is necessary that provision of information is made more accessible by at least providing information in the major language spoken in a particular place. The above mentioned news organization provides templates for applications and also contact information of the public information officers at the block, district and state level. A successful experiment is a RTI Helpline provided by the state of Bihar which provides for information requests to be made over the phone, which are then forwarded to the concerned department. The information is then provided by the public body to the requester. Even appeals are transmitted to the concerned department. Similar kind of assistance is provided on online platforms like RTI Nation and RTI India.  

A very local method of promoting transparency is used in the rural areas of Rajasthan where the village panchayats (village councils) started providing information on blackboards, painted on the walls of the council buildings.

It should be finally highlighted that spreading awareness about the RTI Act in India, and around the world is an unfinished task as a majority of the people are still unaware about this empowering tool. It would need a strong and focused promotional campaign at the local level for FOI to become an everyday fact of life.

Resistance to Right to Information

A recent survey, on rating the Right to Information laws around the world, conducted by Center for Law and Democracy and Access Info Europe, reveals an interesting trend in the 'strength' of the laws. The survey, which covers 61 indicators and totals to a maximum of 150 points, reveals that the early adopters of the RTI laws, were relatively weak in comparison to those which adopted in the last 10-15 years. The survey shows that the top 20 countries with scores over 100 tend to be younger laws, while Europe overall accounts for 15 of the bottom 20 countries, which score around 60. This is not surprising as the older laws are more limited in scope and have weaker appeals mechanisms, while the latter ones benefited from the knowledge and expertise generated in the last 10-15 years.

But one thing, that is coming to the fore in those countries which have adopted the laws in recent times, and therefore scored higher, is the resistance being put up by the public officials in the implementation of the law. Among these countries, India (which has the second highest score of 130) and South Africa (which has a score of 112), stand out with their efforts at excluding agencies (as in the case of India) and adoption of a  'secrecy law' (in the case of South Africa), whose primary aim is to push back the gains made by the people and civil society in promoting greater transparency in the public sector.

These developments do not bode well for the efforts at promoting transparency and accountability, but do fit in within the overall framework of the state of political development in these countries. It is no surprise then that those countries which adopted RTI laws early, have other advantages, like better rule of law, greater integration of technology in providing public services, well informed public and better overall infrastructure to provide public services.

This means that it is necessary that laws and policies that are aimed at promoting transparency and accountability should go hand in hand with other measures like adopting and implementing the necessary infrastructure, educating the public about their right to know and even improving the rule of law, as evidenced by the recent murders' of RTI activists in India. A promising development in India, is the proposed draft Electronic Services Delivery Bill, whose intent is to "fix the timelines for mandatory electronic service delivery" which can enable an "efficient, transparent and reliable delivery of web enabled public services in a definite and time bound manner to citizens, thereby transforming Governance".

The resistance to the Secrecy Bill in South Africa and the planned move to take the issue to the Constitutional Court, which will be asked to declare it unconstitutional, as the secrecy bill goes against the constitutional provision on access to information, is heartening to note.

It is imperative that we need to resist the opposition of the public officials, while also demanding for other measures to promote transparency and accountability, especially in creating the necessary frameworks of law and policies.

Wikileaks versus Blackboards!

While people have rightly been held in thrall by the releases of Wikileaks, I would like to shed light and comment upon one of the most innovative modes to promote proactive disclosure, as required under the Right to Information law in India. The village is called Malav in the Kalol District of Gujarat, and the sarpanch (head of the village council) has decided to paint the walls of the Panchayat (village council office) so that, "Most of the wall paintings contain crucial information about the development schemes and finances, which can be accessed even when the office of the panchayat remains closed as they have been painted on its outer walls."

This unique model of proactive disclosure goes a long way to meet the requirement of the RTI Act, both in letter and spirit of the law. The law calls for a proactive disclosure of information, wherein public authorities are required, under Section 4 (2), (3) & (4), to 'provide as much information suo moto to the public' and utilize various means to disseminate information, taking into consideration the particular circumstances of a local area.

On the other hand, Bihar, a State which ranks quite low on development indicators among all states in India, has adopted a unique method to assist the public to request information from public bodies. The State government has launched the Jaankari (inquiry/query) which is a call centre that takes calls from public, transcribes their requests for information, and submits the application to the concerned department. The information gathered is then relayed to the requester, over the phone, and the call centre also assists the public to appeal, in situations where the demand for information is not met. This experiment goes a long way to meet the requirement of Section 6 of the RTI Act, wherein the Information Officers, are required to provide assistance to applicants, if necessary.

These success stories show the potential for the RTI Act in India to make a difference, which has been termed as a second independence moment.

What does 'personal privacy' mean under FOIA, Exemption contained in 5 U. S. C. §552(b)(7)(C).?

In a recent development, the U.S Supreme Court in the case between FEDERAL COMMUNICATIONS COMMISSION ET AL. v. AT&T INC. ET AL. has held that, "corporations do not have “personal privacy” for the purposes of Exemption 7(C)" of 5 U. S. C. §552, other wise known as the Freedom of Information Act. The case arose from AT&T suing the Federal Communications Commission, which agreed to release information to CompTel, a trade association, upon a FOIA request for documents AT&T had provided to the Federal Communications Commission Enforcement Bureau during an investigation of that company.

"The Bureau found that Exemption 7(C) applied to individuals identified in AT&T’s submissions but not to the company itself, concluding that corporations do not have “personal privacy” interests as required by the exemption. The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. It held that Exemption 7(C) extends to the “personal privacy” of corporations, reasoning that “personal” is the adjective form of the term “person,” which Congress has defined, as applicable here, to include corporations."

This decision by the U.S. Supreme Court is commendable, considering the fact that the court has, just a year ago expanded the power of corporations in the CITIZENS UNITED v. FEDERAL ELECTION COMMISSION case, wherein it struck down the restriction on 'corporations' to spend on political campaigns. (On a side note, if one reads the Citizens United case, one is certain to fall asleep, whereas reading the headlines on the same issue makes one jump out of their seats! And, I am also confused about the decision, after I have read the primary decision itself!)

The decision of the Court in the FCC v.AT&T case is a balanced decision, wherein the Court closely examined whether corporations can have a 'personal' character, specifically under FOIA and found that, “Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically“give the phrase its ordinary meaning.” Some of the adjectival usages that the Court referred to include - corn and corny; crank and cranky; crab and crabbed (handwriting). The Court emphatically observed that,
"We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them."
and upheld the decision of the FCC.

It is indeed, very heartening to see that the Court still strictly interpreted FOIA and did not expand the scope of the limitations as it would have undermined the intent of the law, considering that private corporations have an increased presence in citizens' lives and not governed under FOIA, which is applicable only to Federal agencies. In the absence, of a FOIA applicable to private entities the existing limitations, serve as a balance between private interest and public interest.

Concluding the decision, the Court observed, tongue in cheek, the following:
"We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase“personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally."

Right to Information

This blog will be about Access to Information/Freedom of Information/Right to Information laws that are in place, in 82 countries and counting, and will be a sounding board for ideas and issues that arise in the campaign for transparency and accountability.
While Sweden is credited with the adoption of the first freedom of information law in 1776, there were only 13 countries at the end of 1990 (end of the Cold War), with a spurt in the number of countries adopting such legislations in late 1990s and early 2000s. A glance at the world wide trend paints a greener picture regarding the adoption of FOI laws.
On the other hand a comparative perspective captured below, presents the distance that has to be traveled for the adoption of strong FOI laws.