Draft Law on Access to Information – An Information Revolution or a Faltering Step in the Right Direction?

Jasmine Foundation – Open Government is gradually being adopted in Tunisia following the Revolution. Popular demands for greater government accountability led to the adoption of Decrees 41 and 54 in 2011 guaranteeing the right to access to information. The decrees outline procedures that allow any person to request to have access to the administrative documents of public bodies, including those relating to their structure, organisation and policies, important decisions that concern the public, lists of staff and their functions, results of public tenders, economic and social statistics, all data relating to public finances including macro-economic indicators, public debt, public assets, medium-term expenditure, and budgets.

The new Tunisian Constitution of January 26th 2014 also introduces a new “ right to information and the right of access to information”, as a fundamental human right (Article 32). Several articles address the state’s obligation to prevent corruption (Article 10), manage resources efficiently and equitably (12, 13), and operate the public administration according to rules of transparency, integrity, efficiency and accountability (Article 15).

Since 2014, the government has been preparing a draft law on access to information to replace the existing decrees and fill gaps in the law. After two public consultations and the approval of the Ministerial Council, the draft law has been submitted to the Assembly of the People’s Representatives for discussion and voting.

• What changes does the draft law make?

The draft law is wider and more detailed than the decrees that it replaces. Article 8 sets out the documents that have to be provided by public bodies. “Public bodies” includes central state bodies, foreign representation bodies, regional and municipal authorities, legislative bodies, judicial bodies, regulatory bodies, public-owned companies and all associations and bodies that benefit from a certain threshold of public funding (the threshold is to be set by an Executive Order).

The law requires public bodies to take initiative to publish certain information on a regular basis, including a list of the services they provide, their legal and regulatory documents, programmes and policies of importance to the public, and a list of the persons responsible for access to information. This information must be published on a website and updated at least every three months. Guidance on how to request information from the body must also be made available on their website.

The law requires every public body to appoint a person responsible for access to information to handle all requests for information and provide assistance to those making requests. They must also draft an action plan to implement access to information within the organisation and a guide simplifying access to information procedures for members of the public.

The draft law envisages creation of an independent Commission on Access to Information responsible for monitoring respect for the right to access to information. The Commission will have powers to determine disputes relating to access to information, to impose sanctions and to give an opinion on draft legislation relating to access to information.

However, the draft law exempts a number of categories of documents from the right to access to information, where the information could prejudice:

–          national security and defense

–          international relations

–          economic interests of the state

–          classified information

–          trade interests of public bodies

–          decision-making – exchanges of views, advice

–          judicial proceedings

–          detection and prevention of crimes

–          the right to a private life

–          experiments and studies prepared for public bodies

These broad categories of documents that are exempted from right to access threaten to undermine the right itself. The draft law has been criticised by civil society organisations such as Article 19, LTDH and AlBawsala for being unclear and too broad.

• Lack of Tough Sanctions for Law Breakers

Article 62 of the draft law states that anyone who seeks to delay access to information or destroy information in an unlawful way should be fined 500 dinars. When compared to other national laws, this sanction appears extremely light. In the UK, for example, it is a criminal offence to alter, block, destroy or conceal information. The Canadian law on access to information also makes it a criminal offence to destroy or alter a document with the intention of violating the right to access to information, punishable by up to 2 years imprisonment and a maximum fine of $10,000.

The very low sanction in the Tunisian draft law allows potential violators to take the risk of hiding or destroying documents, safe in the knowledge that the consequences would not be too serious.

The draft law is now in the hands of the Assembly and has been submitted to the Rights, Freedoms and External Relations Committee for scrutiny. As it stands, the draft law brings in new measures that could serve to strengthen access to information. However, the broad exceptions to the right to access to information are worrying and could be widely interpreted to exclude vital information of importance to the public, such as environmental studies revealing pollution in certain areas, information relating to security forces, and information on the state of the economy.

The right to access to information is a fundamental building block of a democratic state. Given the latest statements by the President of the National Authority against Corruption that the national strategy against corruption remains “a dead letter”, every tool that can promote government openness and accountability and prevent and combat corruption must be used. Strong laws, tough sanctions and clear political will must be combined in order to send a strong message that it is time for a shift from a culture of secrecy to one of transparency and accountability. Only then will decision-makers succeed in ensuring a change of mindsets in the public sector and greater public awareness and participation in governance.