Making the Access to Information Law Work: The Challenges of Implementation

Laura Neuman, Richard Calland
2007

Summary

How can Access to Information (ATI) laws be successfully implemented? After a decade of proliferation of these laws, it is clear that the stimulus of both a supply of information and a demand is the key to meeting policy objectives. This book chapter from Columbia University Press focuses on the government side of implementation – the ‘supply side’ – using examples from Latin America, the Caribbean and South Africa. Although there are technical aspects to effective implementation, adjusting mindsets is a more important and challenging priority.

A government’s implementation of an ATI law is often related to their original motivation for supporting it, and the way in which the law was passed. Where the law was passed as part of an integrated policy or to meet civil society demand, progress has been good. However, where the law was passed to satisfy conditions of loans from international donors, commitment has been questionable.

Important factors in the implementation of ATI regimes include: the degree of societal involvement in the demand for and drafting of legislation; alternative approaches taken by government; and embedding provisions for implementation into the law. In addition:

  • Some governments have sought to take action on transparency without waiting for the passing of laws. Where this has taken the form of Supreme Decrees from the executive, they have often been undermined by older secrecy provisions.
  • However, pilot Voluntary Openness Strategies can begin the transformation from a culture of secrecy to a culture of openness.
  • When drafting the law, focussing energy on debates over exemptions to access is misguided. If governments are determined to withhold information, they will do so regardless of how exemptions are written into the law. It is more productive to look at the processes necessary for the law’s effective implementation and enforcement, including the procedures for legal challenge to the use of exemptions.

Robust implementation is very difficult. Three key problems are: lack of leadership; inadequate support for those implementing requests; and failure to realise that implementation is a process requiring long-term commitment. Other important challenges include:

  • The political commitment required for effective implementation. This commitment can be measured by the level of resources provided, and willingness to accept citizen participation and to embed information rights in the constitution.
  • The choice of agency or individual to implement the new regime. Nominating a lead implementer with authority and respect will send an important message.
  • The commitment of public servants. They are on the front line of implementation, and engaging them early and strategically in the implementation process is vital.
  • Record keeping and archiving. In order to respond to requests, an adequate information management system must be designed and established. Record keeping standards must also be improved.
  • Availability of information. The best approach for dealing with vast amounts of information is to make them immediately and unconditionally available. This is better for the demand side, and limits the need for government decision making.

Source

Neuman, L., and Calland, R., 2007, ‘Making the Access to Information Law Work: The Challenges of Implementation’, in The Right to Know, ed. A. Florini, Colombia University Press