Breathing life into freedom of information laws: the challenges of implementation in the democratizing world

10 Sep 2013

Executive summary

This report is intended to be a practical, useful guide for stakeholders in national and local governments, the media, civil society, and business to making freedom of information laws work. The authors’ particular emphasis is on the role public officials and journalists must play in effectively breathing life into these laws, giving meaning to their democratic intent and legal guarantees.

Most of the world’s 90-plus freedom of information (FOI) laws are recent, enacted in the last two decades, and many are exemplary on paper. But many are also poorly implemented. Surprisingly but commonly, citizens, national and local public officials, and journalists are often unaware that such laws even exist, much less how they work. Non-governmental organizations and businesses typically make more requests than journalists or citizens, but frequently the total number of requests is far below what might be expected given the scope of FOI laws, which in some developing countries apply not only to government agencies but also to private entities that receive government funds. In countries transitioning from authoritarian pasts, governments retain the habit of working in secrecy, which hobbles democracy and promotes corruption.

Often when people seek information under FOI laws and are refused, they are denied on grounds that have no basis in law, or, if denied under a statutory exemption, without explanation of why the exemption applies. Sometimes requesters are denied for reasons that amount to official inconvenience, told that the request is too time- or resource-consuming to fulfill, or that the records they want do not exist. Requesters are asked to justify their requests, or officials simply ignore them, thus saving themselves the trouble of providing any explanation. The requester’s opportunity to contest an agency’s denial or failure to respond is typically inadequate: Internal appeals are often met with cursory review and the same result. Ombudsmen or other oversight bodies responsible for monitoring the law rarely have the authority to compel compliance when a request has been improperly denied, and pursuing redress in courts is time-consuming and expensive. Where citizens lack faith in their judicial system, the problem is compounded.

This paper begins with a review of the theory and practice of FOI laws, which are universally recognized as critical components of a modern system of free expression. It follows with discussion of the obstacles to effective implementation, including in an appendix several interviews with stakeholders in six countries in which FOI laws have been introduced recently: Albania, Armenia, Indonesia, Jamaica, South Africa, and Ukraine. The paper then makes several recommendations.

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