Madrid, 28 September 2015, By Helen Darbishire, Executive Director, Access Info Europe
I am sitting in the Access Info Europe office in Madrid and staring in dismay at a document from the European Commission which seems to have more black lines covering the information it contains than anything useful.
Dismayed and also amazed that the reason for not giving out information about a possibly problematic public procurement process in Serbia – a waste sludge processing plant to be funded with European taxpayer’s money – is apparently the personal privacy of those responsible for the decision.
It’s 28 September 2015, the morning of International Right to Know Day (a day that I am proud to be one of the founders of on another fresh September morning in Sofia, Bulgaria, back in 2002) and I know that there is a lot that we can be celebrating, especially this year as we prepare for the 250th birthday celebrations of this right, evaluating the progress made since 1766 when Sweden first incorporated this right into law in its Freedom of the Press Act.
We can get very excited about the over 105 access to information laws worldwide, about all the impact that the open data movement is having in securing access to government information, and about the confirmation in the past decade by human rights tribunals (European Court of Human Rights, Inter-American Court of Human Rights) of access to information as a fundamental right.
We can cheer the fact that just last Friday (25 September 2015) the UN Sustainable Development Goals included information as one of the central pillars not just of development but of just, democratic societies with accountable governments.
All this should auger well for more government action to advance this right, something that will be a hot topic for discussion as thousands of transparency activists from around the world gather in Mexico City in October for the Open Government Partnership summit (27-29 October 2015), which will be one of the largest ever gatherings of those working to advance open government.
Time for a Reality Check
But it is also time for a reality check. Also on my desk is an appeal to the Spanish government against its refusal to provide me with any information about Spain’s participation in the same Open Government Partnership (OGP). The reason? That most of the documents that the Spanish government holds about the OGP are “internal” documents, not destined for public consumption. The irony of this reason for refusing access has made the whole Access Info Europe team laugh out loud. At least at the moments it doesn’t make us want to cry!
So how well are we really doing? How full or empty is the information glass? What are the main challenges that we should be taking on to truly advance transparency in the coming years?
The first answer to that question is that we really don’t know. The information that we have about levels of openness in different countries is patchy at best and many of the examples that we have are anecdotal.
We know that there is a trend towards openness in many countries – although we also know that the world’s access to information laws are of hugely varying quality, with Europe having both some of the best and some of the worst.
What we don’t have is strong comparative data on the actual levels of transparency in practice in many countries. One of the reasons we don’t have this is because of the time and human resources – and hence money – that is needed to do comprehensive mapping and get an accurate picture. Donors are keen to support transparency projects that can demonstrate an impact, and are more reluctant to put funds in to large scale measurements.
This is understandable but at the same time, given the widespread recognition of transparency as a cornerstone of a modern democracies, it’s something that need to be addressed. We have national and inter-governmental institutions dedicated to monitoring and measuring many aspects of our modern governance systems but rather remarkably when bodies such as the OECD or World Bank try to gather data on levels of government openness and access to information, they are forced to rely on dubious qualitative reports. In one report the OECD based its evaluation of Italian government openness on a report from one single ministry.
The Open Data Delusion
One of the most exciting areas of advancing transparency in recent years has been the opening up of government data sets. We know that we are making progress with open data and have some striking positive examples. At the same time, these are often not the documents we need to understand what is really happening in our societies.
In the month in which we were all deeply disturbed by the image of a dead boy on a Turkish beach – something which did at least mobilise the humanity and generosity inherent in most people, and moved many to action to help the Syrian refugees, shifting the political discourse in Europe – Access Info has been finishing a report which reveals that most of Europe’s governments don’t provide complete or accurate information on the detention of migrants and asylum seekers, that the data sets available are hugely variable in quality, and that the EU has only incomplete information from many of its Member States.
This is a prime example of what we can call the Open Data Delusion: it is clear that whilst we are getting more data sets in areas that are less complex or controversial, there are still many areas of government activity and public life where data is either not sufficiently well compiled or where it’s not made available. We still need to insist on more complete and detailed data sets in areas of heath, social services, education, and any other areas which touch on the fundamental rights.
In a similar vein, we are still far too reliant on leaked information to get the data that we really need. The Volkswagen scandal this week and the fact that we found out about the lobbying of the British, French and German governments by the auto industry, and in turn their lobbying of the European Commission is a typical example of how, in spite of all the progress we have made to open up decision making, there is still so much that we are unable to find out until, as in this case, it’s almost too late.
There is a huge campaign in Europe and globally to open up lobbying, and in the coming days Access Info Europe, Transparency International, the Sunlight Foundation, Open Knowledge and others will launch the “International Standards on for Lobbing Regulation” which include a series of principles on transparency of lobbying. Civil society has pulled together to define standards which we are calling on governments around the world to commit to and to implement so that we can begin to get a truer picture of the impact of lobbying on government decision making and ensure that the public interest is better taken into account. In the case of the Volkswagen scandal the interest is clear: reducing air pollution and saving thousands upon thousands of lives every year!
Lobbying is not, however, by any means the only area of decision making where we have too little information. Access Info Europe is currently leading a pan-European project on decision-making transparency, working with partners at the national level across Europe, and what we are finding is that in many cases we simply can’t get the information we need about even basic decision-making process.
Perhaps one of the most concerning ways in which we are seeing the right to information limited is the expanding invocation of the privacy exception to refuse access to even basic documents about government activity and the spending of public funds.
At the EU level we have seen the denial of even basic information about activities which are clearly part of public functions such as the expenses of European commissioners or Members of the European Parliament on grounds of privacy.
Perhaps more concerning is the blanking out of the names of all officials and often much other data in documents directly related to decision making such records of meetings and decision-making processes in the European Commission or the refusal to grant information about a run-of-the-mill public tender process in Serbia with EU funds, which may or may not have been carried out correctly, but which certainly now seems suspicious given the wholesale reluctance to make public information about how the winner of the tender was chosen.
Here we have an unexpected post-Snowden effect which was not at all what the privacy activists were calling for. Almost in response to the clamour for greater protection of our personal data, we are seeing a marked increase in the use of privacy to deny information about the actions of public officials.
This use – or even abuse – of privacy is also impacting on other areas where it had seemed, on paper at least, that progress was being made towards openness. A prime current example is that of company registers. The world’s leading governments have made pledges in various international fora, including the G8 and G20 as well as for some in the OGP, to open up Company Registers and to move towards including the names of beneficial owners in them. This has been done in response to a series of scandals about company behaviour – including the Lux Leaks scandal – and the concern about businesses avoiding fiscal obligations, something that the financial crisis has made a priority concern for governments.
To date only the UK has done moved forward in a significant way to open up its Company Register, with Denmark making the register available to Danish citizens with electronic ID. Otherwise, Access Info Europe tried to obtained access to the Company Registers of 32 countries across Europe and was denied access to them all, unless of course we were ready to pay large sums (ranging from 75,000€ in the Netherlands to 286,000€ in Estonia and 380,355€ in Macedonia).
There is now a campaign underway, on which Access Info is working engaged together with organisations such as Global Witness and One, to obtain access to the names of the beneficial owners of companies once they are collected.
If we are to have a hope of making progress with this campaign, if we are going to be able to make the case that the owners of companies or lobbyists (be they business or NGO representatives) should be ready to put their names into the public domain, we urgently need to the political class to end its transparency hypocrisy and to stop hiding behind the right of privacy when it comes to access to basic information about their activities as public officials.
At Access Info we are currently working on a set of standards on how to get the balance right between privacy and transparency. Clearly the personal data of each of us as individuals needs to be protected but this is very different from privacy being an acceptable shield behind which public officials can hide and clearer guidelines on how to get this balance right are urgently needed.
Last but not least, for all the progress that the right to information movement has made in recent years, there still remain huge swathes of the political and administrative classes which don’t really believe in transparency.
Of course there will always be the transparency sceptics, those that believe that government can function more efficiently when decision makers don’t have to worry about the bothersome citizens. But as the EU’s Advocate General stated clearly in the case of Access Info Europe vs. Council of the European Union it is inevitable that “public scrutiny places serious constraints on those involved in legislating.”
The Advocate General made clear that “Inconvenient though transparency may be, when carrying out legislative as well as non-legislative functions, it must be said that it has never been claimed that democracy made
Once the principle of transparency has been established, it should be the obligation of public officials to implement the rules. What we often see however, are obstacle after obstacle being put in the way of the requester.
Across Europe these obstacles include from the phenomenon of administrative silence, which is the passive aggressive approach to resisting transparency: by simply not answering requests the burden is put on the requester to chase, to harass, or to take up valuable time in filing administrative or legal appeals. Countries which high levels of administrative silence include Italy (over 70%), Spain (over 50%) and in Access Info Europe’s monitorings of countries across Europe on different topics, rates of silence are often over half of requests submitted.
Another approach is making it burdensome to submit requests. In many countries it is easy and can be done by email, but in some countries (the Czech Republic, Malta, Spain), ID documents need to be presented. This even though is shouldn’t matter who is asking for the information.
The European Commission has also recently gone this route, demanding the postal address of all requesters. This is an obstacle, more an annoyance really. What is more remarkable is that responses are now being delivered by registered mail, what in the UK we refer to as “snail mail”. Sometimes the answer takes a month to arrive (although to be fair an email is often also sent, making the whole postage process seem even more unnecessary).
In addition to a complaint to the European Ombudsman, which is already underway, Access Info Europe is this week launching a more light-hearted campaign featuring the “Brussels Snail” which in many ways sums up the prevailing attitude to openness to be found in many government offices around the world: it’s the 13th annual International Right to Know Day, the right is almost 250 years old, and we still have lots of work to do.
Which brings me back to the blacked out documents on my desk. Time for another legal challenge it seems! Happy Right to Know Day!