3. Provision 2: Legal and regulatory framework
The legal and regulatory framework builds the basis for any country’s open government agenda. Having a solid legal and regulatory framework for open government is an essential pre-condition for successful reforms, as laws and regulations are the foundation on which an open government agenda is built (OECD, 2019[1]). Enshrining open government policies and practices in laws and regulations can foster institutionalisation and provide public officials with a clear mandate to foster openness and give stakeholders a means to hold them accountable.
The legal and regulatory framework for open government in Adherents is very wide.
Evidence collected through the OECD Open Government Reviews and Scans shows that the underlying legal and regulatory basis for the promotion of open government policies and practices in Adherents is usually very large (Box 3.1). It includes, among others, legislative provisions relating to the principles of open government in countries’ constitutions, as well as laws and regulations on access to information, stakeholder participation, anti-corruption, the protection of personal data and national archives, digital government, open data, whistle-blower protection, civic freedoms, etc. In addition, most countries have put in place legal requirements to involve stakeholders in law-making, regulatory policy and specific policy processes (e.g., environment, infrastructure, land-use) (OECD, 2022[2]). Moreover, forms of democratic participation, i.e., political rights (e.g., elections, petitions, referenda, etc.), are usually regulated by law (or in the Constitution).
Laws and regulations on access to public information (ATI) form the backbone of an open government. All OECD Members now have these kinds of laws in place, foreseeing – in most cases – both proactive and reactive disclosure of information and data (OECD, forthcoming). ATI laws are often coupled with laws on the protection of personal data and provisions included in national archives laws/public record laws. In some countries, access to information laws also include specific rights and obligations regarding open government data.
In some countries, laws on citizen participation complement constitutional rights and obligations (e.g., Colombia’s Statutory Law on Citizen Participation from 2015). In addition, most countries have put in place legal requirements to involve stakeholders in law-making, regulatory policy and specific policy processes (e.g., environment, infrastructure, land-use). Moreover, forms of democratic participation, i.e., political rights (e.g., elections, petitions, referenda, etc.), are usually regulated by law (or in the Constitution) (OECD, forthcoming). Laws may also regulate specific participatory practices (e.g., the Government in the Sunshine Act in the United States from 1976 or the Participatory Budgeting Law in Peru from 2003).
Laws on accountability and integrity, including those on conflict of interest, financial disclosure, lobbying, whistle-blower protection and foreign bribery, often include numerous provisions that contribute to openness (e.g., by providing mechanisms for citizen oversight). Some countries have even adopted specific legislation on accountability (e.g., Canada’s Federal Accountability Act from 2006) which specify measures regarding administrative transparency and oversight. In addition, laws regulating the functioning of independent public institutions (e.g., Ombudsman, Comptroller, Audit institutions) usually include mechanisms for citizens to complain and oversee government actions and decisions.
Laws regulating the organisation of the different levels of government (e.g., decentralisation laws) can include provisions regarding the open government principles. In many cases, these frameworks reproduce the federal/central government responsibilities to local or decentralised levels, especially on citizen participation mechanisms.
Laws promoting the use of digital technology (e.g., connectivity, e-government laws, etc.) sometimes foresee specific obligations regarding information transparency and/or their use for participatory practices.
Lastly, specific/sectorial laws often include rights and obligations regarding the principles of open government. For example, in many countries, budget laws stipulate budgetary transparency and the participation of citizens and stakeholders in the budgetary process. Along similar lines, procurement laws may require the proactive disclosure of relevant information and consumer protection laws may establish complaint and feedback procedures.
Source: OECD (2022[2]).
Provisions relating to the open government principles are often enshrined in Adherents’ Constitutions.
Even before the existence of today’s legal and regulatory frameworks, some countries included notions and concepts related to the open government principles of transparency, integrity, accountability and stakeholder participation in their founding legal texts (e.g., Declarations). For example, Article 15 of the French Declaration of the Rights of the Man and of the Citizen of 1789 includes the concept of public accountability as a fundamental characteristic of the post-revolutionary regime (OECD, 2022[2]).
Today, most Adherents have included references to the principles of open government and specific rights and obligations associated with its principles in their Constitutions or other founding documents. For example, many Constitutions of Adherents establish access to public information (Figure 3.1) and citizen participation as basic constitutional rights. Moreover, they usually include specific provisions on the protection of civic space (e.g., freedom of peaceful assembly, freedom of expression, freedom of the press, etc.). The protection of open government principles, policies and practices at the constitutional level can provide public institutions and stakeholders with a clear mandate to promote open government reforms. It further creates the necessary legal certainty and legitimacy for effective implementation of all subsequent legislation (OECD, 2019[1]).
Note: Preliminary data up to 24 April 2022. The United Kingdom does not have a written constitution. However, a series of acts are considered to be an equivalent to the constitution. The Human Rights Act 1998 is one of these, and it mentions the right to information as part of the right to freedom of expression in Article 10: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority regardless of frontiers. No data available for France, Hungary, Iceland, Luxembourg and Switzerland.
Source: OECD (2020[3]).
Recent years have seen the adoption of new laws and regulations on open government policies and practices.
In recent years, a number of Adherents have used their open government agendas to promote the adoption of new laws and regulations in different areas of open government. This has been most notable in the area of access to information. Examples of recent relevant laws and regulations that were adopted by Adherents include among other things: the Open Government Law of the Netherlands (2022), the E-Government Law and Open Data Law of Germany (2017 and 2021), the Right to Information Law (31.13) of Morocco (2018), Luxembourg’s Law on transparent and open administration (2018), Colombia’s Statutory Law on Citizen Participation (2015), Chile’s Law No 20.880 on Probity in the Public Function and Prevention of Conflicts of Interest (2016) and Presidential Instructive No 5/2012 on Open Government (2012) (Box 3.2).
The Open Government Law of the Netherlands entered into force in 2022. It replaces the Government Information (Public Access) Act. The aim of the law is to get administrative bodies of the government in the Netherlands to actively disclose more information to the public.
Germany’s E-Government Law was adjusted in 2017 to include a paragraph (“First Open Data Law”) that obliges federal entities to provide certain government data in machine-readable format and free of charge. The scope of data to be published and the scope of authorities that fall under this obligation was increased through the adoption of a second Open Data Law in 2021.
Morocco ratified its Right to Information Law (31.13) in February 2018 and thereby officially joined the Open Government Partnership. Since March 2020, citizens have been able to exercise the constitutionally protected right to request government information.
Luxembourg’s Law of 14 September 2018 on transparent and open administration establishes the right to access selected documents by public bodies. The Commission on the access to documents is the main public institution in charge of the law’s implementation as of 1 January 2019.
Colombia’s Statutory Law on Citizen Participation of 2015 aims to promote, protect and ensure the different modalities and mechanisms of the citizens’ right to participate in the political, administrative, economic, social and cultural spheres in Colombia.
Chile’s Law No 20.880 on Probity in the Public Function and Prevention of Conflicts of Interest (2016) requires declaration of assets and interests from a broad set of high-level public officials, i.e., the president, ministers, senators and deputies. These declarations are monitored by the Office of the Comptroller and published online.
Chile’s Presidential Instructive No 5/2012 on Open Government of 2012 establishes the publication of open data as a fundamental means to increase government transparency and foster government data re-use. The Instruction establishes that State bodies must proactively make available to the public as much information and data as feasible to be published, in formats that allow its reuse.
An analysis of commitments included in OGP Action Plans shows that the promotion of stronger legal and regulatory frameworks through the OGP-process has been a priority for Adherents (for example, Australia, Greece, Chile and Italy have committed, included specific commitments to this end in their OGP Action Plans) (Box 3.3).
Australia’s commitment 3.1 “Information Management and Access Laws for the 21st century” in the first Open Government Action Plan 2016-2018 (Government of Australia, 2016[4]) aimed to simplify the existing legal frameworks surrounding access to information, including the Freedom of Information Act (1982) and the Archives Act (1983).
Three years after the corresponding law on transparency had come into effect, Chile included a commitment in its 2012-2014 action plan (Government of Chile, 2015[5]) to further improve access to public information.
Greece included a commitment in the 2016-2018 action plan (Government of Greece, 2016[6]) to establish a comprehensive Framework Law on Open & Participative Governance. This law should establish a binding legal mandate for the existing policies on open government and establish more inclusive governance mechanisms.
In the 2014-2016 action plan (Government of Ireland, 2015[7]), Ireland put forward the commitment to regulate lobbying, leading to the Regulation of Lobbying Act 2015. Six years later, Ireland’s current action plan sets out to review and strengthen the legislative framework for lobbying.
Italy took steps to combat corruption within the public administration through a commitment in the 2012-2014 plan (Government of Italy, 2014[8]) on passing a regulatory framework that foresees anti-corruption plans by all administrations, among others.
As part of the current action plan (Government of Netherlands, 2020[9]), Netherland’s commitment on Transparency in the Political Parties act aims to further increase transparency about the financing of political parties and political campaigns.
The Slovak Republic’s commitment to “Submit a draft law on data to the government” in the 2017-2019 action plan (Government of Slovak Republic, 2017[10]) sought to establish a comprehensive framework on data, bringing together several laws, regulations and resolutions on the topic.
Spain’s current 2020-2024 action plan (Government of Spain, 2020[11]) comprises numerous commitments on laws and regulations, including for example a commitment to modify Law 19/2013 on Transparency, access to public information and good governance to solve practical problems and clarify concepts. In addition, there are attempts to improve the legal framework at subnational level, including through a commitment to improve the implementation of national access to information regulation through a corresponding law approved by the Balearic Islands Government.
In order to provide clarity on the obligations and rights associated with open government, a small number of Adherents (and subnational governments in Adherents) have established dedicated regulatory documents on open government. In most cases, these regulatory documents have taken the form of a directive/decree which are usually more flexible than laws (OECD, 2020[12]). The adoption of executive decrees and directives on open government can be a strong indication as to the importance that a government is giving the open government agenda (Ibid.). Notable examples include the United States’ Open Government Directive and Canada’s Directive on open Government (Box 3.4).
In 2009, the Office of Management and Budget of the United States issued an Open Government Directive. The Directive directed executive departments and agencies to take specific actions to implement initiatives to foster reforms in the areas of transparency, public participation and collaboration. In particular, the Directive required executive departments and agencies to take steps to publish government information online, improve the quality of government information, create and institutionalise a culture of open government by developing and publishing an Open Government Plan and create an enabling policy framework for open government (Government of the United States, 2009).
The Directive on Open Government of Canada from 2014 applies to all federal government departments and it actively encourages all other federal institutions to make use of it. The objective is to promote information management practices that enable the proactive and ongoing release of government information in order to support transparency, accountability, citizen engagement and socio-economic benefits (Government of Canada, 2014). The Directive foresees that the Deputy Head of each department shall designate an Information Management Senior Official, which among other things is responsible for the development and implementation of a Departmental Open Government Implementation Plan, which shall be updated every year and published on the website of the respective department (Ibid.).
The open government law of the Autonomous Community of Extremadura in Spain (2013) takes a holistic approach to open government and its principles and includes chapters on open administration (transparency in administrative matters, public information) and good governance as well as participation and collaboration with citizens. The law is innovative in that it is relatively concrete in outlining what different institutions are supposed to do to foster openness (e.g., Article 2: “Agreements concluded by the Autonomous Administration with public and private entities must be registered in the Register of Agreements, within fifteen days from the date of their signature”).
Source: (OECD[2]).
A focus on access to/freedom of information laws.
Laws and regulations on access to public information (ATI) are key to an open government and have become a common practice in Adherents. Because of the importance of these laws for Adherents’ open government agendas and to reflect the historic focus that the OECD has put on ATI through its work on Open Government, this section focuses on this specific part of the legal and regulatory framework for Open Government.
All OECD Members but Costa Rica have these laws in place, incorporating – in most cases – both provisions regarding proactive and reactive disclosure of information and data. ATI laws are often coupled with laws on the protection of personal data and provisions included in national archives laws/public record laws.
Note: Costa Rica does not have an ATI Law.
Source: Author, based on Global Right to Information Rating (n.d.[13]), “By country”, https://www.rti-rating.org/country-data/ (accessed on 16 December 2021).
Many of the first generation of ATI laws provided for the right of access to official "documents" or "records" – meaning documents officially created by the administration in the course of its duties. Recent laws have clarified the scope of the "right to access information" and the definition of "information" more broadly than documents or records; they refer to all material held by public authorities in any format (written, audio, visual, etc.). They have also strengthened proactive disclosure and have defined a clear mandate, responsibilities and a range of powers for bodies in charge of its implementation and/or oversight. In fact, many Adherents’ laws providing access to information have been amended since they were first adopted to expand the scope, introduce new technology or define institutional arrangements for the implementation of the law (see Provision 7 below for analysis of the implementation of provisions relating to proactive disclosure to information).
Even though ATI laws have been largely implemented, and some have reached a significant maturity level, there is limited evidence regarding the factors and circumstances that affect their effective implementation, as well as their long-term impact on broader policy objectives like governments’ transparency, accountability and integrity. Solid mechanisms for monitoring and evaluating the implementation of the law need to be established in order for governments to accurately gauge the impact of consistently and successfully granting public access to information.
Laws and regulations that protect civic space form the backbone of Adherents’ open government agendas.
Although the protection of civic space and open government initiatives are not always explicitly linked by public officials (see Figure 1.3), laws and regulations that protect civic space facilitate and are central to national open government agendas. In fact, freedoms of expression, association and peaceful assembly are fundamental civic freedoms that enable effective and inclusive civic participation, in addition to transparency and accountability.1 As such, they are an integral part of the analysis of the legal and regulatory framework for Open Government.
Freedom of expression is widely protected in law, but with exceptions.
In all Respondents (100%), legal provisions specify that all persons (anyone physically present in a country, even temporarily or irregularly) are granted freedom of expression in their legal frameworks. As illustrated in Figure 3.3, defamation and hate speech2 are the two most common exceptions to freedom of expression, present in 97% of Adherents’ respective legal frameworks. Other exceptions focus on providing protection from certain kinds of speech such as incitement to violence (86%), discriminatory language (68%) or insults to heads of state (38%). Some exceptions such as defamation laws present challenges to civic space and open government principles such as transparency and accountability. Defamation laws generally aim to protect the reputation of individuals from false or offensive statements by limiting freedom of expression. According to the results of the Survey on Open Government (OECD, 2020[3]), defamation is criminalised in 86% of Respondents’ legal frameworks, while the remaining 14% foresee non-criminal remedies, such as civil proceedings. Out of the 32 Respondents that criminalise defamation, 91% have imprisonment as a potential sanction. International guidance on defamation has stressed that criminal sanctions in this area risk stifling freedom of expression by leading to self-censorship and that if sanctions are overly broad, there is also a risk of them being abused in some contexts, thus restricting access to information and legitimate journalistic reporting on matters of public interest (Council of Europe, 2007[14]; UN Human Rights Committee, 2011[15]; Griffen, 2017[16]).
Freedom of Peaceful Assembly is widely protected in law, but with exceptions.
Similar to freedom of expression, freedom of peaceful assembly is essential for the public expression of people’s views and opinions, and underpins open government. The right to peaceful assembly is granted to anyone (meaning anyone physically present in a country, even temporarily or irregularly) in 92% of Respondents, although again with exceptions and challenges, particularly related to the use of force during protests and a failure to protect participants and journalists covering protests (OECD, 2021[18]; Frontline Defenders, 2020[19]; OECD, 2021[20]; Narsee, 2021[21]; US State Department of State, 2020[22]; ENNHRI, 2021[23]). There have also been cases of fatalities and injuries following engagement by state forces in the context of demonstrations (ACLED, 2021[24]; Article 19, 2020[25]). As a reaction to increased police violence during protests, recent court decisions and legal changes have been introduced by Respondents such as Brazil, Chile, Colombia and Mexico to reduce and control the use of force during protests (Corte Suprema de Justicia, 2020[26]; Inter-American Commission on Human Rights, 2021[27]; Ministerio del Interior, 2021[28]; Comisión Nacional de los Derechos Humanos, 2019[29]).
International human rights bodies have highlighted that advance notification requirements for holding assemblies, while permissible to ensure their smooth conduct, should not be used to stifle freedom of peaceful assemblies (UN Human Rights Committee, 2020[30]; OSCE/ODIHR and Venice Commission, 2020[31]).
illustrates that in 78% of Respondents, assembly organisers are obliged to notify the relevant authority in advance, and in some countries, such as Italy and Korea, a failure of notification can lead to imprisonment. In a significant development in Brazil, in 2021, the Supreme Federal Court ruled that meetings and demonstrations are permitted in public places regardless of prior official communication to authorities, and that the state is obliged to compensate media professionals injured by police officers during news coverage of demonstrations involving clashes between the police and demonstrators (Supreme Federal Court, 2021[32]). As regards the use of public spaces for assemblies, international guidance suggests avoiding blanket restrictions or designating perimeters as areas where assemblies may not occur as such measures risk being disproportionate and can only be justified if there is a real danger of disorder. Some Adherents still have laws indicating public places where it is not permissible to hold assemblies (e.g., Tunisia, Romania) (OECD, 2022[17]).
There are opportunities to strengthen the enabling environment for CSOs/freedom of association in some Adherents.
In order for there to be an open and enabling environment for CSOs that facilitates citizen and stakeholder participation, it is important that they are free to operate. Legal provisions in 89% of Respondents specify that anyone (including anyone physically present in a country, even temporarily or irregularly) is granted freedom of association. In line with international guidance, CSOs should be able to operate as registered organisations (with legal personality) or remain unregistered (Kiai, 2012[33]; Council of Europe, 2007[34]; OSCE/ODIHR and Venice Commission, 2015[35]). Figure 3.5 illustrates that in 46% of Respondents, CSOs are obliged to register in order to operate, contrary to international guidance, while in 54% of Respondents CSO registration is voluntary and/or only needed for entities that seek to obtain legal personality or in order to receive public interest or similar status. In some Adherent countries, such as Chile or Costa Rica, non-registration can lead to administrative fines and in Tunisia, a failure to register can result in imprisonment and fines (Boussen, 2021[36]; Freedom House, 2021[37]; Shahin, 2018[38]). 39% of Respondents have relatively short timelines of 15 days or less for registration. Long timelines of three months to one year for obtaining a decision on registration exist in a minority of countries (14%), such as in Canada, Colombia and Spain.
United Nations and Council of Europe bodies have emphasised that associations should be free to participate in states’ decision-making processes and in matters of political and public debate (United Nationas, 1998[39]; Kiai, 2012[33]; Council of Europe, 2007[14]; OSCE/ODIHR and Venice Commission, 2015[35]). In 2022, the European Parliament noted in a resolution that in some EU member states restrictions have been placed on CSOs’ ability to engage in political activities (European Parliament, 2022[40]). Table 3.1 shows that the majority (59%) of Respondents do not have legally established limitations on CSO political activity. However, in 41% of Respondents there are restrictions in place; in 26% limitations apply specifically to CSOs that have public benefit or charitable status; in 9% there are general restrictions on political campaigning and activity for all types of CSOs; and in 6% there are disclosure requirements for certain political activities. A general restriction on political activity for any type of CSO exists in three Adherents. In one Adherent, political associations and any manifestations of a political nature by associations are prohibited. Whether particular activities of CSOs are characterised as being political ultimately depends on the interpretation of courts. Legal uncertainty that can result from provisions that link the public benefit status of CSOs to abstaining from political activity can lead to restrictions on politically committed CSOs out of fear of a withdrawal of their non-profit status.
Adherents support the implementation of their legal and regulatory frameworks on open government through guiding materials.
The implementation period has seen Adherents putting increasing efforts into facilitating and accompanying the implementation of their existing laws and regulations on the open government principles. Most notably, many Adherents have used their open government agendas (and in many cases their OGP Action Plans) as a platform to elaborate materials, such as guidelines, toolkits and manuals to guide the implementation of relevant laws and regulations and build their staff’s and civil society’s open government literacy. These materials can help to materialise abstract principles and legal provisions into every-day practice.
Most commonly, Adherents offer resources on open government data (89.5%, 34 respondents) and citizen and stakeholder participation (78.9%, 30). Approximately two-thirds of the Respondents cover reactive (68.4%, 26) and proactive (65.8%, 25) disclosure. Almost one-third of responding Adherents (28.9%, 11) have guidelines or toolkits available on open government as an integrated concept (Figure 3.6). When it comes to guidelines for non-public stakeholders, 25 Respondents (67.6%) have these tools available for reactive disclosure of information and 24 (64.9%) for open government data. Only ten (27%) Respondents have guidelines specifically focusing on open government in place.
While the progressive design of guiding documents is a good practice that should be further pursued, evidence collected through the OECD Open Government Reviews and Scans indicates that Adherents could make further efforts to ensure that existing and new materials are known and used by public officials and non-public stakeholders. In many cases, public and non-public stakeholders are not even aware that materials to support them exist.
Brazil
Brazil’s “Guide on procedures to comply with the Law on Access to Information and use of Fala.BR” (Guia de procedimentos para atendimento à Lei de Acesso à Informação e utilização do Fala.BR) assists public servants of the federal executive power who need to respond to Access to Information requests based on the Law on Access to Information - LAI (Law No. 12,527, of November 18, 2011). The guidelines aim to ensure a high-quality service regarding the treatment of requests for information and the correct use of the Integrated Ombudsman and Access to Information Platform (Fala.BR). In regard to proactive disclosure of information, the “Active Transparency Guide (GTA) for Bodies and Entities of the Federal Executive Branch” guides the bodies and entities of the Federal Executive Branch when publishing information on their official websites under the Access to Information Law (Law No 12,527, of November 18, 2011), as well as institutional information, procurement data and other. By standardising institutional websites with the help of this guide, public bodies facilitate navigation for citizens on all governmental websites, allowing them to quickly localise and retrieve relevant information.
Australia
Tailored to Australian public officials, who need to take decisions on FOI-related matters, this toolkit covers everything in relation to access to information in Australia from its importance to democracy to the concrete application of the Freedom of Information Act. Each section contains links leading to more extensive information and guidance across governmental websites, such as the 12 tops for good FOI practice.
Source: Comptroller General of the Union (2017), Guide to procedures for complying with the Access to Information Law and using Fala.BR, https://www.gov.br/acessoainformacao/pt-br/lai-para-sic/guias-e-orientacoes/guia-de-procedimentos-para-atendimento-a-lei-de-acesso-a-informacao-e-utilizacao-do-e-sic#intro; Comptroller General of the Union (2019), Active Transparency Guide (GTA) for Bodies and Entities of the Federal Executive Branch, https://repositorio.cgu.gov.br/bitstream/1/46643/1/gta_6_versao_2019.pdf; Office of the Australian Information Commissioner (n.d.), FOI Essentials for Australian Government agencies and ministers, https://education.oaic.gov.au/foi-essentials/#:~:text=Freedom%20of%20information%20allows%20individuals,making%20and%20government%20service%20delivery
Adherents ensure compliance with existing legislation on open government through different means.
In order to put legislation into practice and ensure that legal provisions are being followed by all relevant actors, Adherents have established a variety of mechanisms to ensure compliance. The concrete institutional set-up for oversight with legislation varies according to the policy matter and to the specific national context. Accordingly, there can be large differences regarding the institutional arrangement for oversight. Enforcement and oversight mechanisms can include parliaments, Ombudsman offices, supreme audit institutions, independent commissions, and central government bodies, such as ministries, with a particular mandate for oversight of some policy areas. These oversight bodies are instrumental in guaranteeing sound accountability across the public administration. That said, for these bodies to effectively fulfil their mandate, it is key that their competencies are clearly defined, they have adequate human and financial resources, and they are sufficiently independent. Furthermore, they should have the ability to enforce their decisions through formal actions, such as applying sanctions. In addition to core oversight and enforcement mechanisms, citizens should also have opportunities for recourse and redress in cases where these bodies do not deliver on their responsibilities. For instance, if complaints and appeals to the oversight mechanisms do not produce results, judicial mechanisms and administrative courts often exist to serve this remedial function. The following sections provide selected examples of oversight mechanisms that are most common among Adherents.
Most Adherents have a body that oversees the implementation of the access to information law.
An important factor in implementing ATI laws is the existence of institutional arrangements for oversight, monitoring and promotion of their application. Oversight bodies can be an independent information commission (or agency or other body) with a mandate purely to oversee the implementation of ATI laws (which is the case for 47% of Respondents, or they could be a body such as an Ombudsman with an ATI mandate as part of a wider remit (e.g., human rights, discrimination or gender) (which is the case for 24% of Respondents). The ATI oversight mandate can also be assigned to a central government body, which is not independent from the executive branch (which is the case for 50% of Respondents). Some respondents have systems in which two or more public bodies oversee the implementation of access to information laws such as in Colombia.
Source: OECD (2020[3]), 2020 Survey on Open Government.
The mandate and responsibilities of these bodies vary widely among countries but can be grouped into enforcement, monitoring and promotion of the law. In relation to enforcement, bodies can be in charge of managing an ATI online portal, consolidating the proactively disclosed information from other government institutions, reporting to parliament on its implementation regularly (e.g., yearly) and redistributing misallocated or non-allocated requests among government institutions. It is also related to appeals and/or revisions processes, such as handling complaints on breaches to the law, initiating investigations on potential breaches, issuing opinions/witness in litigations on the law and sanctioning public officials/institutions for non-compliance.
Monitoring responsibilities can be related to compliance with the law itself, the internal appeals process and/or the awareness of the law among citizens. Finally, bodies responsible for promoting the law can be in charge of advising public institutions on its application and providing training and/or awareness-raising campaigns to civil servants and/or civil society. According to the Survey on Open Government findings, the most common responsibility of independent information commissions and central government authorities is advising public institutions on the application of the ATI law. For Ombudsman institutions, it is handling complaints on breaches of the law. Certain countries with two bodies with an ATI mandate were found to face competing responsibilities in terms of enforcement of the law.
The independence and enforcement capacity of these bodies is crucial. Some do not have the necessary enforcement capacities to sanction non-compliance, are not independent, or do not have the necessary resources (human and financial) to conduct their mandate. This can lead to weak implementation of ATI laws (OECD, 2019[41]). Evidence collected by the OECD suggests that common elements support the effective functioning of ATI oversight bodies. First, the establishment of a clear and well-disseminated mandate that sets roles and responsibilities is an important factor ensuring the body’s legitimacy. Second, the institutional autonomy and the independence of public officials within the organisation are key to reinforcing the impartiality of their decisions and operations. Last, their enforcement capacity – both in terms of their ability to issue sanctions and in having adequate human and financial resources to perform their role – is crucial for the oversight body to effectively conduct its mandate.
Increasingly, bodies responsible for ATI are moving towards combining their role on ATI and on personal data protection in order to protect both rights as in Argentina, Belgium, Mexico and the United Kingdom. Although both topics are treated as separate legal frameworks in most countries and require different technical capacities and training, their proximity and complementarities are pushing countries to centralising their role into a single institution.
To further ensure a proper implementation of the law, several ATI laws currently require the establishment of an information office or officer responsible for ensuring compliance with the legal framework. These officers are generally appointed to guarantee both proactive and reactive disclosure of information, including but not limited to, consolidating proactively disclosed information, responding to information requests, redistributing misallocated or non-allocated requests among other public bodies, and supporting colleagues in responding to requests. Of the Adherents that responded to the Survey on Open Government, 57% stipulate the establishment of this office/r in their ATI law (Figure 3.8). That being said, while several countries may not directly include these provisions in the law, data from the survey found that they have established similar positions in practice.
Institutional protection and mechanisms to counter violations of civic freedoms that undermine civic space and open government.
State protection of civic freedoms is only effective if there are accessible mechanisms in place to counter violations of rights, both in law and in practice. National courts play a crucial role in providing effective enforcement and redress by recognising violations of civic freedoms and imposing sanctions. Aside from bodies of the executive and courts, publicly funded independent oversight mechanisms are fundamental to protecting civic space. These are essential as they provide complaint mechanisms for citizens, issue advisory opinions and publish related data. Figure 3.9 illustrates that according to the results of the 2020 Survey on Open Government, 86% of Respondents have established independent public institutions that address human rights complaints such as National Human Rights Institutions (NHRI) or Ombudsperson offices. All these Respondents have either passed specific legislation establishing human rights complaint or oversight mechanisms or have set out the main elements of such institutions in their constitutions. In 84% of Respondents, the independent public institution may initiate human rights investigations of its own accord (suo moto), regardless of whether an individual human rights complaint was received or not. This is crucial to ensure complete and consistent human rights protection in a country, as in this way, human rights protection mechanisms can engage proactively in situations and are not dependent on complaints from other sources. This is especially important for sensitive matters where individuals may fear negative consequences if they lodge a complaint (Council of Europe, 2019[42]). 34 Adherents responded that they collect data on complaints regarding violations of civic freedoms, and 54% of Respondents disaggregate the data to some degree. Disaggregation is key to a detailed understanding that can guide interventions.
The independence of such bodies is best achieved when the procedure for the appointment of the leaders or members of national human rights institutions is described in an official act outlining the specific duration of their mandates and the duration is longer than the mandate of the appointing body. Financial independence can be ensured through the provision of sufficient funding via a separate budget line, which has been instituted by 86% of Respondents. Finally, data from the 2020 Survey on Open Government also shows that 52% of Adherents have separate oversight institutions that specialise in discrimination cases and in promoting equality.
Ombudsmen institutions are actively contributing to open government efforts.
As recognised by the 2017 OECD report The Role of Ombudsman Institutions in Open Government, Ombudsman institutions can play a significant role in promoting open government and strengthening democracy given their unique placement as an independent public body (OECD, 2018[43]). These institutions can act both as an interface and as mediators between citizens and public institutions at the supranational, national and local levels, and their work can span various policy sectors (e.g., health, education and youth). For example, while competencies and powers vary widely across countries, 19 OECD countries have created a specific Ombudsperson for youth or children at the regional or national/federal level to protect civic space for children and young people, promote their rights and hold governments accountable. Moreover, 11 more OECD countries have created an office dedicated to children or youth within the national Ombudsperson office, or included youth affairs as part of its mandate (OECD, 2018[44]). Furthermore, Ombudsman institutions are valuable actors in ensuring that public bodies adhere to good governance practices and achieve the highest standard of administrative processes, all with the intention of serving the public interest. Due to this position, they have a unique ability to advance the open government principles of transparency, accountability, integrity and stakeholder participation in their own functions and mainstream their application across the wider public administration (OECD, 2017[45]). However, despite the promising scope of their mandates, the potential of Ombudsman Institutions largely goes unfulfilled in most contexts. The below figure demonstrates that while 75% of surveyed Ombudsman Institutions3 responded that they contribute to public administration reform, only 34% noted that they contribute to open government reforms (Figure 3.10).
Note: n=64, as 64 OIs reported having contributed to public governance reforms in the responses to the 2017 OECD Survey on the Role of Ombudsman Institutions in Open Government.
Source: The Role of Ombudsman Institutions in Open Government (OECD, 2018[43]).
In terms of the legal and regulatory frameworks for open government (provision 2), progress in Adherents has been notable in recent years. In particular:
2.1: Provisions relating to the open government principles are commonly enshrined in Adherents’ Constitutions or founding documents. Furthermore, all but one Adherent now have Access to Information (ATI) laws in place and a significant number of Adherents have strategically used their open government agendas to promote the adoption of new (or reform existing) laws and regulations on open government policies and practices. Moreover, all Adherents have legal frameworks granting fundamental civic freedoms that underpin protected civic space but there are notable exceptions to these rights and implementation varies. Moving forward, Adherents are encouraged to continue using their open government agendas to update relevant open government legislation. In particular, they are encouraged to review their civic space laws to ensure they are in line with international guidance in each area, whether as part of open government, human rights, democracy or other relevant agendas (OECD, 2022[17]).
2.2: Adherents have made notable efforts to design guiding documents and materials to foster the implementation of the legal and regulatory framework on open government. However, more attention could be given to ensuring that guidelines are communicated widely and used on a day-to-day basis by public officials and non-public stakeholders.
2.3: Adherents have made important efforts in implementing a legal framework for ATI, however more efforts need to be put in place to monitor and evaluate the legal framework to ensure its proper implementation. In addition, Adherents could ensure that a dedicated ATI oversight body to ensure oversight, supervision, monitoring and evaluation of the ATI law is established. This institution needs to have a clear mandate, sustained resources and an adequate level of independence, and capacity for enforcement needs to be provided to ensure the protection of the right. Where there is adequate institutional capacity, a long-term view could be taken to establishing an independent commission on ATI. The institution in place needs to be equipped to face new challenges (e.g., conciliating access to information and data protection). Lastly, establishing ATI information offices or officers in all public bodies and equip them with adequate resources is needed to carry out their activities to support public administrations in effectively implementing ATI laws.
2.4: Finally, independent public institutions that address human rights complaints are a crucial enabler of protected civic space and require suo moto powers to fulfil their role, in addition to a legal structure (and related resources) to allow them to be independent and sustainable.
References
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Notes
← 1. The OECD’s analysis of the protection of civic space draws on international standards, including those related to the protection of civic freedoms. Such guidance includes relevant United Nations standards (e.g., the International Covenant on Civil and Political Rights) as well as regional human rights bodies and courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights. Analyses from CSOs and academic institutions are also considered where relevant, along with their insights.
← 2. For the purposes of this report, hate speech is defined as any kind of communication in speech, writing or behaviour that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, and aims to incite discrimination or violence towards that person or group, e.g. based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.
← 3. The 2017 OECD Survey on the Role of Ombudsman Institutions in Open Government was responded to by 94 Ombudsman institutions in 65 countries and territories.