Currently on the table for discussion in Parliament, Draft Law n°55/2014 concerning the right of access to information continues to make waves in the media and public sphere. Last week, Reporters without Borders confirmed concerns previously expressed by a number of civil society organizations including IWatch, Touensa, and the LTDH.
The law concerning access to information, of which the first version was adopted in Canada in 1985, guarantees access to information, i.e. certain administrative documents, through the regulation of a governmental institution. Indeed, the decision to make publicly available or not any document should fall within the jurisdiction of an independent authority.
The right of access to information is a constitutional right defined by Article 32:
The State guarantees the right to information and right of access to information. The State seeks to guarantee the right of access to communication networks.
Until today, Decree-law n°2011-41 of 26 May 2011 governs access to information; the adoption of law n°55/2014 may represent the evolution of the standing legal framework. The draft law in question is divided into several categories:
Field of Application
An achievement in and of itself, the 2011 law is not without flaws. First of all, it defines only public organisms and administrative documents, thus limiting the very notion of «information». Draft law n°55/2014 remedies this shortcoming with a new definition for «information»:
any document or recorded information whatever the date, form, or origin produced or acquired by organisms subject to the present law in the execution of their activities.
This definition is closer to international standards for the concept of «information», notably the following definition presented by The Tshwane Principles: «any original or copy of documentary material irrespective of its physical characteristics, and any other tangible or intangible material, regardless of the form or medium in which it is held. It includes, but is not limited to, records, correspondence, facts, opinion, advice, memoranda, data, statistics, books, drawings, plans, maps, diagrams, photographs, audio or visual records, documents, emails, logbooks, samples, models, and data held in any electronic form».
Expansion of the Scope of Organisms Concerned
Draft Law n°55/2014 widens the scope of organisms subject to the right of access to information.
The present law applies to the following organisms:
• Central administrations, public establishments and businesses as well as their overseas delegations;
• Regional administrations and local authorities;
• Legislative authorities;
• Judiciary authorities;
• Regulatory authorities;
• Private operators with public function;
• Companies which benefit from public financing exceeding an amount fixed by decree.
These organisms are heretofore referred to as «organisms subject to the provisions of the present law». Article 3, Draft Law concerning the right of access to information
In the 2011 version, only services rendered by the State via central and regional administration, local authorities, public establishments and businesses are considered to be «organisms» subject to the right of access to information. Draft law n°55/2014 includes these entities as well as national, regional, local organisms and, above all, public governmental authorities.
Access to Information: Procedures for the Organism Concerned
The draft law in question permits all citizens to access documents and accordingly requires organisms concerned to publish information of public interest. Under Article 8, such information includes:
• Legal texts governing activities;
• Principal functions, organization, addresses of headquarters and offices, as well as a list including the names and contact information for leading officials;
• Policies and decisions concerning the public in terms of an organism’s activities;
• Information relating to programs and projects;
• A list which includes the names and email addresses of officials in charge of access to information set out in the first paragraph of Article 37 of the present law;
• Procedure manuals used by these agents relating to services provided;
• The list of documents available in electronic form or hardcopy concerning services provided;
• The guide described in the fifth point of Article 39 of the present law.
To promote this transparency, the law provides for the allocation of necessary credits (Article 7), the creation of advisory committees responsible for advising the official in charge of access to information (Article 40), and the provision of training for agents of the said organisms (Article 39).
Access to Information – Procedures for Requesting Parties
Whereas the 2011 law does not delineate procedures except to specify that requests are to be submitted in written form, the new draft law is relatively explicit. In addition to requiring that written requests include the last name, first name and address for physical persons, and the social denomination and headquarters for moral persons, the draft law provides design template that organizations are to make available to the public. Furthermore, the official in charge of access to information must help illiterate and handicapped individuals. Finally, failure to provide an adequate response to a request for access to information is to be reported.
According to Article 20, if the document in question might have «consequences for the life or liberties of a person», the organism must respond to the request within two days. There is no mention of who is to determine the consequences nor on what criteria the determination will be based; similarly, there is no description of sanctions warranted when an organism refuses a request or does not honor the procedures set forth. Indeed, it would be appropriate to designate a specific sanctions regime for such a case given the potential consequences for the requesting party.
Article 26 requires that the requesting party purchase a fiscal stamp of which the price is to be fixed by the Ministry of Finances. In this regard there is a concern that the cost of this fiscal stamp might deprive certain citizens access to information and thereby undermine the principle of accessibility for «all citizens» set forth in Article 1. Article 27 does make an exception for «needy families» and «persons with specific needs» who are not required to buy a fiscal stamp, although these categories of individuals are not defined. As a consequence the implementation of such a provision is sure to be inconsistent.
Appeals Process in the Case of Refusal to Provide Information
Under the law of 2011, the requesting party can, «in the fifteen days following the decision to refuse or the violation of the provisions of the present law, call upon the head of this organization who must respond within ten days» and, in the case that there is still no response, call upon the administrative court within thirty days. In the new text, Articles 33, 34, and 35 stipulate that the requesting party may appeal to the authority responsible for access to information (described below) before appealing to the administrative court.
Authority Presiding Over Access to Information
As per Article 42, the entity presiding over access to information is a «public authority of legal personality and financial autonomy». Its primary prerogatives are to:
• Make decisions concerning appeals submitted in the domain of access to information;
• Carry out investigations and hold hearings concerning public organisms;
• Impose sanctions designated by the draft law;
• Ensure the monitoring of publications (by organisms concerned).
The authority is to be composed of seven members with at least fifteen years of experience, except for the civil society representative who must have at least two years of seniority within the organism he or she represents. Specifically, these members are to include:
• A president chosen from among administrative judges;
• A vice-president chosen from among judicial judges;
• Five members: a university professor; a professor of secondary education or an assistant; a specialist in administrative documents or archives; a lawyer; a journalist; and a member of civil society in a domain associated with access to information.
These members will be chosen by the prime minister based on the proposal of special commission within the Assembly of the Representatives of the People (ARP) and according to a predefined procedure:
• The opening of candidatures by a special commission within the ARP;
• The said commission will be in charge of classing the three «best» candidates in each category by a secret ballot. These candidates must obtain 3/5 of votes;
• These three «best» candidates will be presented to the prime minister who will be in charge of appointing one candidate for each of the seven categories.
Appointed for a non-renewable term of six years, half the members of the authority will be renewed every three years. That no member within the authority is designated to represent the executive branch of government would seem an indication of independence except for the fact that all members are appointed by the head of government. An alternative approach would be for the constituent to be elected by the ARP or one of its special commissions including representation from all political parties. Moreover, the draft law designates but one civil society representative—for whom the selection criteria are not specified—whereas the active version of the law designates two civil society representatives.
Concerning the authority’s sources of funding, Article 59 refers to «subsidies allocated by the State», without further specification. In other words, if the State does not provide enough financial support, the authority in question may be limited in its capacity due to insufficient funding. Again, a wiser solution might be to elaborate and vote on a budget through the ARP so as to remove dependency upon the executive power. Article 59 also makes reference to «resources from the activities of the authority», whereas nowhere are these activities enumerated. Not only does this ambiguity undermine the principle of access for all citizens but also suggests the implementation of activities and services for which the authority is to receive compensation. What are these activities? What are the associated terms and conditions of their implementation and remuneration? The draft law fails to elaborate these important details.
Exceptions to Access to Information
Articles 28 through 32 lay out the contexts in which access to information can be refused. Article 28 provides a list:
1. Security and national defense;
2. International relations;
3. Economic interests of the State;
4. Classified information in conformity with the provisions of the present law;
5. Court procedures and the detection and prevention of crimes;
6. Inspection, control, and consultation;
7. Protection of private life;
8. Legitimate commercial interests of others, including rights to intellectual and industrial property;
9. Procedures of deliberation; exchange of opinion, points of view, and advice;
10. Procedures for testing, experimentation, and study.
Without a doubt, certain points in this list merit precise definitions. «Inspection, control, and consultation», as well as «processes of deliberation, change of opinion, points of view, and advice», and «processes of testing, experimentation, and study», are catch-all terms which could be construed in any number of ways.
International standards justify exceptions for the granting of access to information according to three criteria, the two most important of which are (1) national security, public order, health, public morals, and (2) repercussions for the rights or reputation of others. The exceptions cited in Article 28 are not justified by any such criteria.
Although some exceptions are certainly legitimate and necessary given the prejudice that they might provoke, it is vital that the organism which refuses access to information delineate the risks of this prejudice. Without criteria or evaluation procedures, the definition of «prejudice» remains at the discretion of the organism concerned which can thus restrain the right of access to information.
Also problematic is the question of national security. In the absence of a precise definition, nearly any information could be construed as falling into the category of «national security». To distinguish information associated with this concept, it would be wise to present a list of information that fits this definition as the Tshwane Principles have done:
(i) Information about on-going defense plans, operations, and capabilities for the length of time that the information is of operational utility.
(ii) Information about the production, capabilities, or use of weapons systems and other military systems, including communications systems.
(iii) Information about specific measures to safeguard the territory of the state, critical infrastructure, or critical national institutions against threats or use of force or sabotage, the effectiveness of which depend upon secrecy;
(iv) Information pertaining to, or derived from, the operations, sources, and methods of intelligence services, insofar as they concern national security matters; and
(v) Information concerning national security matters that was supplied by a foreign state or inter-governmental body with an express expectation of confidentiality; and other diplomatic communications insofar as they concern national security matters. Principle 9: Information that Legitimately May Be Withheld (pp. 19-20), The Tshwane Principles
It is worth noting that, as per Article 30 of the draft law, the exceptions listed are obsolete in cases concerning the violation of human rights, health, public security, environment, corruption, or acts of mismanagement. Unfortunately, the said article does not require organisms subject to the law to communicate information concerning the rights and liberties of citizens, surveillance, or the structure of government and its ministries. This obligation is all the more necessary given current institutional opacity and general inaccessibility of such information.
Minimal Protection for Whistleblowers
Article 29 stipulates that the right of access to information does not apply in the case that the information concerns the identity of whistleblowers denouncing fraud or corruption. The provision, while fair, is insufficient as there is no measure in place to prevent prosecution or retaliation by authorities nor eventual professional sanctions for whistleblowers. Without the protection of exemption from these administrative, civil, and penal repercussions, the whistleblower will remain at the mercy of sanctions. The same protection should be extended to journalists. On the contrary, there is no mention of the status of journalists who diffuse information in the public interest.
Minimal Sanctions for Violations
Under Article 62, a fine of 500 dinars must be paid by :
Anyone who intentionally
• Impedes access to information within the organisms subject to the present law;
• Illegally destroys information or obliges another person to commit this act.
Such a sanction is incomplete and far from dissuasive. What about violations committed as a result of negligence? What about sanctions for organisms that do not respect procedures for the publication of information? What penalty applies when the organism concerned does not designate an official in charge of information, or does not provide access to information when the provision of such information poses a threat to the life or liberties of a person? What about the refusal to provide access to information in cases of violation of human rights, heath, public security, environment, corruption, or acts of mismanagement?
Three Steps Forward, Two Steps Back
Unfortunately there are no penalties prescribed for the cases cited above. Though a good deal more thorough than the law in place and more in line with international standards, Draft Law n°55/2014 remains flawed in the eyes of critics such as the National Union of Tunisian Journalists, the Tunisian Association of Parliamentary Journalists, and Reporters Without Borders. The absence of definitions and penalties in measure with violations could render this law—if indeed it is adopted—a text conducive to restrictive interpretations and therefore restrictive of civil rights and freedoms.