Assessment and recommendations

The notion of access to information lies between two, somewhat opposite, legal concepts: on the one side, the right generally or specifically held by individuals or legal entities to obtain all communicable information under the law or certain items of information that concern them in particular, and, on the other side, the right of persons not to have information concerning them be disclosed, modified, or aggregated, especially through automated processing, to which such data may be subject.

OECD countries have passed legislation on the right to access information and established institutions guaranteeing the right to access information (IGAI). These entities play a fundamental role in the promotion, application, and growth of this right, as well as in the protection of personal data and the communication of documents and information.

In organisational terms, there are four kinds of IGAIs in OECD countries:

• An Ombudsman or Mediator (for example, in Sweden, Norway, and New Zealand);

• An Information Commissioner (for example, in the United Kingdom, Slovenia, Hungary, Scotland, and Germany);

• A commission or institution (for example, in France, Italy, Portugal, Mexico, and Chile);

Another body responsible for monitoring this right, such as the Right to Information Assessment Review Council and the Ombudsman in Turkey, both of which ensure the observance of all relevant laws.

In MENA region countries, the right to access information has been asserted, debated, and legislated on for the last twenty years, but especially since the cycle of revolutions beginning in 2011.

This report on IGAIs focuses on the proactive or requested communication of information by persons subject to this disclosure obligation. The first part assesses the situation in OECD countries, and the second, the situation in Jordan, Tunisia, Lebanon, and Morocco.

A well-established right in OECD countries

The creation and jurisdiction of IGAIs

As the right to information is a very old one in certain countries, OECD member countries made its development and observance a core concern after the end of the Second World War.

International conventions and recommendations, especially from the UN, the OECD, Inter-American Councils, the Council of Europe, the Organisation for Security and Cooperation in Europe (OSCE), and the European Union, have set goals and rules in the domain of access to information. In certain situations, they have led to a general, positive obligation to protect the right to access information, and to the establishment of national IGAIs.

The right to access information in some OECD member countries is expressly stated in the constitution; however, in most member countries, the assertion of this right is based on other constitutional provisions, especially the right to freedom of thought and expression.

In some OECD member countries, the lack of a legal framework to protect the right to access information remains a mere principle. Other countries have instead adopted legislation that asserts the principle of free access to government documents, and that attributes a general scope to this right, especially to what we can define as communicable information. In a small number of countries, the laws on access to information prevail over concurrent provisions in other pieces of legislation.

The forms of political organisation in OECD member countries have a considerable effect on the laws on access to information. In highly decentralised or federated countries, the division of powers between the central or federal government on one side and the decentralised or federated entities on the other has two consequences. First, the national law often establishes a general framework that local or federated entities adapt and complete according to their area of jurisdiction. This division may lead to national or federal IGAIs on the one side and IGAIs that report to local political bodies or federated entities on the other. States with a strong unitary tendency have one IGAI with jurisdiction over the entire country, while highly decentralised or federal states tend to have one national and several sub-national IGAIs.

IGAIs do not offer decentralised services per se within their network, but some of them have agents specifically delegated to the area of access to information who cooperate with national or local government administrations.

The legal nature and composition of IGAIs

In some OECD countries, the IGAI is a single-person entity, and in others, it is collegial. A single-person IGAI is typical of Nordic and Anglo-Saxon countries (the Ombudsman), and in Central and Eastern Europe. Countries based on Roman law and Japan have opted for commissions.

Sub-national IGAIs may be single-person or collegial, without there necessarily being a symmetry between them and the national entity. However, an IGAI’s individual or collegial form does not appear to have any bearing on its effectiveness.

IGAIs are legal entities under public or administrative law, depending on the institutional rules and regulations of each country. Some constitutions recognise the institution’s independence. Even without such recognition, though, IGAIs in OECD countries have legal autonomy and can be qualified as independent public authorities, even as a veritable court, as in the case of Canada’s IGAI.

As regards their functioning, IGAIs may form part of the legislative, judiciary, or executive branch. In some cases, as in Mexico, IGAIs are not part of any of these three branches and are instead constitutional or independent public bodies.

The legislation of some countries gives great latitude to the authority responsible for appointing individuals to the IGAI. Other countries instead specify exactly the requirements for candidates. The composition of the IGAIs generally varies from one country to the next. They are often composed of jurists, academics, judges, and professionals from the field of communication. The IGAI’s composition may also take into account certain particularities regarding the country’s constitutional or administrative organisation, as in the case of Belgium.

The conditions for appointing the IGAI or its members seek to assure the highest level of ethics, independence, and competency, while reserving significant room for manoeuvring to the political power that remains directly accountable to the electorate.

The IGAIs’ general missions

In some countries where the IGAIs are much specialised, we can see a rapprochement between the authorities responsible for the right to access information and those responsible for the protection of personal data (e.g., in Italy and France).

A number of IGAIs encourage and coordinate the government’s action in favour of access to information. Some of them have the mission of overseeing the enactment of laws on access to information. To facilitate the application of laws on the right to access information, national legislation authorises IGAIs to provide their opinions, recommendations, and advice to the authorities and all individuals involved in the law’s application. IGAIs have the power to produce studies and reports, and to formulate general observations and proposals for action.

Depending on the legislation, the IGAI’s missions are fulfilled voluntarily or when requested by the concerned party. Within their general scope of jurisdiction, IGAIs often have the right to conduct investigations at their own initiative to formulate their observations.

Requests for access to information

The processing of requests to access information is of primary importance to an IGAI’s work and entails the examination and consideration of complex legal issues. An IGAI’s jurisdiction is granted by the relevant legislation on access to information. It is authorised to give its opinion on all aspects of this legislation as regards the individual or collective situations it may review. It specifically provides its opinion on the grounds for the refusal to communicate any information, and often on the possibility of its reuse, especially in Europe.

The free nature of access to information is becoming the rule, or at the very least, the expense does not exceed an acceptable threshold. Penalties for the improper communication of information vary depending on individual laws and practices. Similarly, exceptions to the right to access information remain significant in some countries, and the IGAIs often provide their opinion on these exceptions. An IGAI’s decision is generally based on three principles: the protection of privacy and national security, the concept of on-going cases, and the legality of the application.

The specific purpose of the accessibility or inaccessibility of a piece of information is to protect the legitimate interests of certain individuals or, more generally, those of society as a whole. Consequently, whistle-blowers must benefit from specific, adequate protections.

The modes of recourse against refusals of access to information and the legal grounds that grant people the right to consult an IGAI vary from one OECD member country to another. In case of an explicit or tacit refusal, some legal systems authorise the victim of the refusal to file an appeal before a court, or to appeal to an IGAI. Other legal systems, such as France’s, require that the person apply to the IGAI before bringing any legal proceedings.

When an IGAI receives a request to access information, it issues an administrative, public, or judicial decision. It may allow, in some cases, for a partial communication of the information.

The functioning of IGAIs

Single-person IGAIs are in most cases structured around a representative, information commissioner, or ombudsman. This person manages an office and may receive support from a council. Collegial institutions are composed of several members who hold the same hierarchical level, make collective decisions, and are managed by a chairperson.

IGAIs are supported by administrative departments whose personnel and organisation generally reflect the diversity of their missions. IGAIs responsible solely for access to information are smaller and have a relatively simple organisation, in accordance with their small staff. When an IGAI instead has a greater number of missions, the amount of staff increases and the organisational chart becomes more complex.

Depending on the traditions and legislation, the IGAIs enact procedures with varying degrees of formality to introduce, review, and rule on access to information, both in general and specifically concerning one or more individuals.

IGAI’s enjoy considerable autonomy in their operations. Their budgets differ widely in function of their missions, size, and the specific situation of each state or inter-state group.

A number of countries have seen a perceptible rise in requests for government documents. This development is sometimes due to people exercising the right to access information without having a legitimate legal interest. The saturation that persons responsible for access to information face is also due to the onerous nature of the legislation on access to information. Similarly, the centralised processing of requests can slow down access to information.

The increase in the number of explicit and tacit refusals to information often leads to a greater number of appeals to the IGAIs, and sometimes, an increase in the average time to process applications as well. The increase in the number of appeals to IGAIs results to some extent from the government’s reticence to communicate documents that supposedly can be communicated. The increase in the number of appeals results in a lengthening of the times that IGAIs need to process applications. The proactive communication of information improves the processing times for requests to access information.

The increase in the number of appeals may become onerous. The encumbrance of IGAIs and the lengthening of timeframes are sometimes due to the liberality of the conditions for requesting information, the procedure for compiling an application by the requesting person, and the IGAI’s decision to extend the investigation of an affair in the interest of the requesting person. The IGAI also sometimes wishes to better communicate or give a more precise opinion that is more useful to both the requesting person and the representative of the institution. Late responses to IGAIs’ questions by the relevant persons also provoke delays in an IGAI’s processing of applications.

Consequently, some IGAIs came to believe that they were no longer able to carry out their missions properly under optimal conditions. This has led to internal evolutions within certain IGAIs, for example by concentrating human resources on the more complex applications. At times, legislative reforms have managed to simplify the procedures through the sorting of requests that do not require any investigation, or by entrusting simple applications to a single person rather than to an entire body within the IGAI. These reforms also entail new procedures for admitting requests to government departments, or the automated processing of simpler cases.

The oversight of the work of IGAIs

Even though IGAIs are independent institutions, they are subject to oversight, like all other public bodies in their country. They are exempt from the hierarchical control of the head of their department and the actions of the supervisory body within the executive branch, but, depending on the country’s legislation, they are subject to different forms of external oversight of an administrative or judicial nature.

Whether or not an IGAI reports to the Parliament, it remains under its oversight, either by virtue of the parliamentary oversight of the executive branch or directly, for example, as part of the compiling and review of the annual budget. Some IGAIs submit their reports directly to the Parliament, which may debate them.

Civil society organisations greatly value the right to access information, as it represents an essential tool for their work. It allows them to understand the reasons for public action and to respond accordingly. It also enables them to act as a proposing force.

Different types of judicial recourse against the actions of an IGAI are possible, depending on the legal system of each OECD member country. Depending on the country’s legislation, an IGAI’s decision may or may not be submitted directly to a court. At times, the decision by the person obligated to provide access to information could be appealed before a court.

A right to be upheld in Jordan, Lebanon, Morocco, and Tunisia

The evolution of the right to access information

Before the series of revolutions in 2011, the status of access to information was not favourable in Arab countries. Aside from Jordan, which passed legislation on access to information in 2007, most of the region’s countries did not have a law on the freedom to share information. If there was one, a number of provisions penalised the provision, sharing, and communication of information without the prior authorisation of the relevant authorities. Lastly, governments were rarely inclined in practice to allow citizens to exercise their right to access information.

The 2011 revolutions created a favourable climate for the right to access information. The increased transparency of the authorities and the state, as well as access to information in the government’s possession occupied a primary place among the demands that people made during these events. This led to crucial developments in legislation and the administrative habits of certain states.

In Morocco and Tunisia, the constitutions of 2011 and 2014 explicitly refer to the right to access information. To the contrary, the Lebanese constitution of 1926 and the Jordanian constitution of 1952 do not mention it, even though the former recognises freedom of expression and the press, and the latter, the right to question public authorities.

The Tunisian and Moroccan constitutions also provide for the creation of independent institutions responsible for protecting and developing civil and human rights. Within the sphere of their jurisdiction, these institutions are likely to participate in promoting and defending access to information.

International law also plays a role in promoting the right to access information in the four countries of the MENA region in question. Jordan, Morocco and Tunisia have also joined the Open Government Partnership. The four countries also cooperate actively with the OECD, for example through the MENA-OECD Governance Programme and the Open Government Programme.

Since 2016, the legislation on access to information in Tunisia, Lebanon, and Morocco has improved markedly. In Tunisia, the Assembly of the Representatives of the People adopted an organic law on access to information on 24 March 2016. On 10 February 2017, Lebanon adopted Law No. 28 on access to information, which establishes the main means of enacting this right. However, this law requires a certain number of implementing provisions, especially concerning the composition of the National Anti-Corruption Commission, and the procedures for appointing its members and performing its duties. On 6 February 2018, the Moroccan Parliament adopted Draft Law No. 31-13 on the right to access information, which will enter into effect one year after its proclamation.

Even though improvements have been made since 2011 at the legislative level, laws regarding access to information coexist with a number of constitutional, legal, or regulatory provisions that protect individual freedoms or personal data, for example. The consequence of this is either a strengthening or a weakening of the exercise of the right to access information.

Moreover, the right to access information in the four MENA countries in question remains poorly known and under-utilised, and the transparency and provision of public information remains low.

The only available statistical data on the right to access information extending over several years comes from Jordan, where 10,305 requests were filed between 2012 and 2015. In 2016, this number jumped considerably to 12,101. There was a high rate of positive responses to requests for access between 2012 and 2016. Moreover, between 2008 and 2017, the Information Council, which is the national IGAI, received 51 appeals. Between 2012 and 2017, the country’s government issued 353 refusals for communication, compared to the 45 appeals filed with the Information Council; this represents a 12.7% appeal rate.

The legal nature and composition of IGAIs

The four MENA countries covered in this report have created or are about to create collegial commissions that form their national IGAIs. Jordan established its IGAI in 2007, and Tunisia, in 2017; both are composed of nine members. The Moroccan Law of 6 February 2018 provides for the creation of a Commission on Access to Information composed of ten members. The Lebanese law of 10 February 2017 provides for the creation of a National Anti-Corruption Commission that will ensure the IGAI’s mission; however, it does not define the composition of this commission nor does it determine precisely its missions and attributions. As a result, this report does not examine these aspects.

In the Jordanian, Tunisian, and Moroccan laws, the level of the IGAI’s autonomy from the government varies. In Jordan, the Information Council is not independent from the government; it is directed by the Minister of Culture. The Moroccan Commission on Access to Information will be placed under the responsibility of the Head of Government. To the contrary, the Tunisian Authority for Access to Information is an autonomous legal entity, and it will be either an independent government authority or a specialised administrative body.

The Jordanian IGAI is composed essentially of public officials, in close relation with its attributions. In the other two cases, the IGAI’s composition is broader and opened to other profiles, as well as members of civil society. In Jordan and Morocco, the designation of IGAI members falls to the executive branch, while in Tunisia, the Assembly of the Representatives of the People holds this role. Strong ethics rules apply to all three IGAIs to guarantee the integrity of its members.

The general missions of IGAIs

The general missions of these four IGAIs include the assurance of the right to public information as an instrument for promoting democratic values and rights. The laws of these four countries provide a broad definition of the term “information”, and consider that all representatives of the government or public administration as well as any person providing a mission of public service or one closely linked thereto, for example, through receiving subventions, is under the obligation to communicate the information.

The general laws of these four countries prescribe the mandatory publication of a certain number of documents, such as laws and regulations. The Tunisian, Lebanese, and Moroccan laws on access to information provide for the proactive disclosure of a large amount of other documents and pieces of information, such as directives and circulars, unlike the Jordanian law on access to information, which does not contain such provisions. Publication may be made in various ways, including online.

Neither the Jordanian law on access to information nor the Tunisian law explicitly consider the reuse of information. The Lebanese and Moroccan laws do, but they also protect third party and intellectual property rights. For that matter, they do not regulate the potential terms and conditions of remuneration, for example through licenses for the reuse of information.

The limitations on the right to access information provided for in the laws of the four MENA region countries in question are at times complex and dependent on the history of each country or its current political, social, and geographic situation. Certain limitations are linked to is the identity of the requestor. For example, the Jordanian law reserves the right to request information to the country’s citizens; however, most of these limitations are connected to the information requested. This law establishes a large number of exceptions to the right of access, especially when the information involves privacy. The Tunisian law contains a provision for exceptions based on an assessment of the harm to national security or defence, the relevant international relations, and third party rights.

The four IGAIs examined promote and assess the actual enactment of the law on access to information, write reports, provide their opinions on laws and regulations, and share their experiences with their foreign counterparts.

The processing of access to information requests

The right of a person or group of persons to access information is expressed initially by formulating a request with the holder of that information. In exercising their missions, the IGAIs examine the application of the access to information law.

The laws of the four countries dictate precise procedures for making requests from the entity required to communicate the information. Requests must be made in writing, sometimes exclusively by using the form provided by the government administration for this purpose.

Response times are specified in the laws and are sometimes subject to modulation to account for specific circumstances. In the Lebanese and Moroccan laws, the decision is made in writing and is justified.

If the person requesting is not satisfied, he/she may file an appeal within the specified timeframe, either exclusively with the IGAI, as is the case in the Tunisian, Lebanese, and Moroccan laws, or, according to the Jordanian law, either with the IGAI or with the Council of State, which has its own jurisdiction.

The Lebanese law on the right to access information does not contain any provision for investigating the requests. The Jordanian law entrusts the investigation of the request addressed to the Information Council to the Information Commissioner, but it does not clearly define his/her powers of investigation. The Tunisian law attributes expanded powers of investigation to the Authority for Access to Information. In particular, it may conduct all research necessary on site at the relevant entity and question anyone who may be able to help. Under the Moroccan law on access to information, the Commission on Access to Information receives, investigates, and rules on complaints.

The four laws precisely state the timeframes for the IGAIs to decide on individual appeals filed with them. The timeframe for the Jordanian Information Council to rule on a request is 30 days from its filing. A draft law has proposed to reduce this timeframe to 15 days. The timeframe is 45 days for the Tunisian IGAI, 2 months for the Lebanese National Anti-Corruption Commission, and 30 days for the Moroccan Commission.

The nature of the Jordanian IGAI’s decisions is not clearly defined as binding. The commission does not have the power to inflict penalties on public authorities that fail to observe the law. The Lebanese law remains silent on the binding nature of the National Anti-Corruption Commission’s decisions. The same holds true for decisions by the Moroccan Commission on Access to Information. The Tunisian law is very innovative; the decision by the Authority for Access to Information is in fact binding on the entity concerned by the decision.

The IGAI’s functioning and officials

The MENA region countries studied, which all have a unitary political structure, have established IGAIs at a national level that are headquartered in the country’s capital. Only the Jordanian Information Council has been fully active for the last ten years. On 17 July 2017, the Tunisian Assembly of the Representatives of the People elected the nine members of the Authority for Access to Information. On 1 February 2018, this authority issued its first decision. Since then, it has experienced an important increase in the number of requests and in its activity as a whole.

Even though the Lebanese law on the right to information has been passed, the Lebanese National Anti-Corruption Commission has not been appointed, and current legal mechanisms do not seem to be sufficient to permit its operation. As the Moroccan law on access to information has just been passed, the Commission for Access to Information has not yet been created.

In Jordan, the Information Council is supported by the Information Commissioner, who provides its general secretariat. Given the very low number of individual appeals filed with the Information Council, this body does not experience any difficulties in fulfilling its mission. Consequently, it has been able to work on promoting the right to access information.

The Tunisian law on access to information specifies the modes of operation for the Authority for Access to Information, which are similar to that of a court. The Authority for Access to Information has a secretariat and receives funding from the state. The Authority’s Board appoints the secretary general.

The modes of operation for Morocco’s Commission on Access to Information resemble those of the Tunisian IGAI. Here, however, the government appoints the secretary general on the recommendation of the Commission. Moreover, the Commission does not have an independent secretariat, which is instead provided by the secretariat of the National Supervisory Commission for the Protection of Personal Data.

The Jordanian information law does not prescribe the appointment of information officials within the government administrations, but it does establish that the official in question must facilitate information acquisition. The laws of the three other countries foresee the appointment of individuals who are mainly responsible for ensuring the right to access information, or, in one case, who act as agents of the IGAI.

1.1.12. Oversight of the IGAIs’ actions

The IGAIs that form part of an administrative hierarchy are subject to hierarchical control. This is the case of the Jordanian Information Council and the Moroccan Commission for Access to Information. The Lebanese National Anti-Corruption Commission and the Tunisian Authority for Access to Information are not subject to hierarchical oversight, according to the legal provisions that govern them. Only the Tunisian Authority for Access to Information presents its annual report to the President of the Republic, the President of the Assembly of the Representatives of the People, and to the Head of Government.

NGOs are very active in the field of access to information. They closely follow the work of the Jordanian Information Council. In all the countries observed, they formulate observations and recommendations on draft laws on information. The Tunisian law on access to information charges the Authority with promoting a culture of access to information within civil society.

The IGAI decisions are subject to appeal before an administrative court, thus guaranteeing the respect of rule of law.

Recommendations

1. 1. The principle of the public’s free access to information is one of the cornerstones of any democratic society, as it guarantees transparency in the work of government administrations and legal entities, especially those with a mission of public service and who are thus closely tied to this principle.

2. 2. In a democratic society, a certain right may have exceptions to ensure its compatibility with equivalent or superior rights. Consequently, national laws place limits on the right to access information when this infringes upon the rights of individuals or on the nation’s security. However, too many exceptions would diminish this right excessively and even neutralise it. Thus, it is recommended: a) to limit exceptions to the right to access information, by appropriately using the harm test and the public interest test in the information’s accessibility; b) to ensure that conflicts between the various laws do not excessively deprive the law on the right to access information of its purpose; and c) to examine under which conditions it is appropriate to invoke the principle of the legal superiority of the right to access information over the concurrent rights.

3. 3. Ease of access is one of the keystones of access to information, especially for citizens who are less experienced in facing the difficulties of dealing with the entities required to communicate information. Furthermore, the exercise of a public freedom does not require any justification, in principle. Consequently, it is not indicated that people must formulate their requests: a) in writing; b) exclusively using a prepared form; or c) justifying them.

4. 4. However, the information’s transmission must not endanger anyone reporting personal knowledge of a breach of the law, a threat or a serious danger to the general interest and who is acting impartially and in good faith. Thus, all laws must provide for a special system to protect whistle-blowers in relation to the right to access information.

5. 5. Moreover, the exercise of a public freedom must be as easy and broadly accessible as possible, and not be excessively limited by economic or administrative imperatives. This is why one should: a) limit the expenses for making information available to those people who are actually and directly served by the concerned entities; and b) not limit the right to access information solely to citizens.

6. 6. Access to information within the shortest timeframes possible is, in certain circumstances, of considerable importance to a person’s life, security, and liberty. Consequently, it is essential for national laws to provide that the response timeframes to a request to access information be as brief as possible whenever necessary to protect a person or his/her liberties.

7. 7. The reuse of information concerns the concepts of the freedom of circulation of information and of transparency. It has a financial component, for example, when the data repositories of the government administration are used to create business value. At the same time, the protection of the economic and intellectual rights of the government administration and of private parties must be ensured at a time where the available information increases exponentially. To this end, it is necessary: a) to quickly pass laws on the reuse of information in all countries; b) make IGAIs responsible for ensuring the exercise of these laws; and c) grant IGAIs the financial, human, and technical means to take over the processing of requests to reuse public data.

8. 8. IGAIs are essential instruments of a democracy and the rule of law. Their existence and the terms and conditions of their operation cannot be subject to political or economic powers, nor be exempt from clear, complete regulations that give IGAIs the means to fulfil their missions completely. Thus, countries should: a) quickly complete the regulations regarding access to information by adopting the provisions that apply the laws on access to information; b) give IGAIs full legal autonomy; c) create national IGAIs as quickly as possible; d) grant IGAIs all the financial, human, and technical means necessary to fulfil their missions; and e) regulate the processing of requests by establishing automated procedures for processing and sorting requests.

9. 9. The proactive publication of information represents the basis for increased transparency and openness on the part of the government and the actions of those persons obligated to transmit the information. It provides persons searching for information with immediate access to public data and avoids any expense for them associated with filing a request or undergoing administrative procedures. For the public bodies, it reduces the costs tied to processing access to information requests arising from laws on freedom of information. Lastly, it creates a climate of trust in public institutions, which is essential to countries located in geopolitically complex regions. Furthermore, proactive communication tends to reduce the need to resort to the IGAI to obtain information. Consequently, IGAIs must promote a culture of proactive disclosure of information, especially via the Internet and by updating portals and websites belonging to entities and persons obligated to communicate information.

10. 10. Access to information is a matter of primary interest to citizens and civil society, and it must be promoted among them, along with the recourse to IGAIs. This can be accomplished by bringing the parties together as close as possible, for example, through meetings, trainings, and the sharing of analyses and experiences.

11. 11. For information to be identifiable and usable, it must be processed and categorised appropriately. It often comes from many sources and documents, especially electronic ones, and it is often poorly structured and is rarely suitably organised. Access tools are multiplying and users have considerable difficulties in appropriating them. This results in a loss of time, a feeling of saturation and confusion, and often a lack of knowledge of essential information. Therefore, the bodies responsible for providing access to information must take all measures to help promote the management, updating, categorisation, and preservation of the information they hold to facilitate the information’s presentation to the requesting parties. The IGAIs must also help fulfil this mission.

12. 12. The work of IGAIs often runs into indolence on the part of the government or a lack of diligence among the personnel involved in this process. Furthermore, revealing the truth sometimes requires expanded—but clearly defined—powers of investigation. For these reasons: a) IGAIs should be given the power to investigate individual pieces of information, and be able to carry out all investigation procedures and question all relevant persons working in the entities in question; b) the persons in charge of the law on access to information in the entities within the scope of the law must collaborate actively with the IGAI to facilitate the performance of its duties; and c) one should evaluate whether the burden of proof for the non-communicability of the information does in fact rest with the persons who deny access to it.

13. 13. Few laws make IGAI opinions and decisions binding. This is understandable, as it gives more leeway to the representative of the institution, who is incidentally subject to court oversight. However, depriving IGAI opinions and decisions of any force undermines their effectiveness and authority and raises doubts as to the usefulness of their creation. Therefore, it is indispensable to find a balance so that the non-enforcement of a national IGAI’s opinions and decisions remains the exception. Consequently, one must: a) assess the proper enforcement of IGAI opinions and decisions; b) if the assessment reveals a low rate of enforcement of opinions and decisions, consider amending the law to make IGAI opinions and decisions binding, and if necessary, grant the IGAI the power to impose penalties; and c) with the aim of upholding the independent decision-making by an IGAI, legally qualify its actions, especially in favor of requests for access to information, so that they cannot be annulled or modified by government authorities.

14. 14. In some countries, especially in the MENA region, recourse to the right to access information remains unknown, and little information is available or even reliable. Hence, the great need for a regular oversight of the enactment of the right to access information, for example by creating centralised statistics. The national IGAI could be granted this mission, in collaboration with the competent administrative bodies.

15. 15. Good public governance, of which transparency and access to information constitute cornerstones, requires the concerted, systemic action of all actors involved. Hence, the need to provide the means necessary to guarantee cooperation between IGAIs and the other institutions involved in access to information, especially those responsible for protecting personal data, good governance, preventing and fighting corruption, and mediation (the ombudsman).

16. 16. IGAIs cannot carry out all of their vast missions on their own. An extensive involvement of the entities subject to the law on access to information is indispensable. This is even truer for those IGAIs that lack local units, and which experience a lack of field contact and difficulty in accessing information and coordinating the work of the entire government administration. Therefore, it is advisable for IGAIs to establish networks of officials and to use all means available (written documents, websites, and meetings, for example) to animate these networks.

17. 17. Creating a favorable environment for transparency and access to information also requires making all points of contact with citizens available. This includes, in addition to officials in charge of access to information, all points of interaction with citizens (welcome centres, information offices, etc.), and communicators. Communicators are potentially important levers for accessing information, as they are a permanent point of contact with the media.

18. 18. One should also recall the importance of education and capacity building on the importance of this right for officials in charge of access to information and employees who work in offices that hold information; this should occur at all levels of government and in all independent institutions.

19. 19. The IGAI represents a means of enforcing the law as issued by the Parliament. It may also become the Parliament’s auxiliary by informing it of the status of the right to access information and assessing the law’s implementation. At the same time, even if the IGAI is not subject to the Parliament’s authority, the Parliament cannot ignore it. The IGAI is in fact an essential element of the state, which the Parliament oversees by virtue of the mandate granted to it by the electorate. Hence, it is imperative that strong, on-going relations between the IGAI and the Parliament be established, for example through a public review of the reports and hearings of the IGAI conducted by Parliament.

20. 20. Consultation of the IGAI before adopting laws and regulations on access to information or that have an effect on this access is of the greatest importance. In fact, it can strengthen the quality of the text and the legal coherence of all the legislation, all the more so because IGAI case law supplements that of the constitutional courts and tribunals that rule on disputes over access to information. Lastly, the IGAI’s opinions are based on its own experience and interactions with stakeholders, and on its knowledge of the current state of this domain at an international level. Consequently, it could be helpful to consult the national IGAI, and for it to issue its opinion on draft laws or regulations prepared by government, or that the Parliament wishes to examine.

21. 21. Citizen access to the judiciary to dispute an opinion or decision by a public body or an entity responsible for carrying out a mission in the public interest constitutes one of the bases of the rule of law. Therefore: a) judicial recourse against decisions issued by government authorities refusing access to information must be made totally accessible, for example by guaranteeing that they can be filed at no cost whatsoever and accepted without use of a lawyer; b) the courts in the claimant’s place of residence must be assigned jurisdiction to hear these requests; and c) judges in the competent courts must be educated about the right to access information.

22. 22. Finally, governments should include commitments on access to information in their open government action plans. This will favor the involvement of all entities subject to the right to access information, at the central and local levels, and raise interest among citizens and civil society. Furthermore, IGAIs must be able to participate actively in international exchanges around access to information, transparency, and accountability, and should integrate the Open Government Partnership.

Assessment and recommendations