Ten years defending and advancing our right to know

A reflection by Access Info Europe’s founder and Executive Director Helen Darbishire on the achievements of the global freedom of information movement ten years after the day on which International Right to Know Day was created.

The band of civil society activists seen here shivering on a misty Bulgarian mountain top on 28 September 2002 had spent the day in Sofia (the city whose name means «knowledge») brainstorming how to advance the right of access to information, including by founding the Freedom of Information Advocates network and coming up with the idea of holding an annual International Right to Know Day.

Not in our wildest imaginations did we predict the successes that this movement would have secured, just a decade later. It’s not that we were not optimistic: our discussions for how to promote the right were full of full of ambitions of the progress we were going to make, hoping to add to the 40 laws in the world at that time, and to improve implementation at the national level. The record of the day shows how we were going to educate the public and public officials, conduct monitoring of implementation, litigate against refusals, and promote the soft standard of the brand new (February 2002) Council of Europe recommendation on access to official documents.

From Laws to a Fundamental Right

There was no way, however, that our optimism would have carried as far as to imagine that there would now be as many as 93 laws worldwide with the newer laws having shorter timeframes, broader scope of public bodies, stronger oversight bodies, and increasingly more comprehensive proactive publication requirements. Nor would we have dared to hope that the right to know would be recognised as a fundamental right by international human rights tribunals.

Indeed, two years later, at a November 2004 meeting of FOI litigators from around the world organised by the Open Society Justice Initiative in London, there was a lot of caution around taking cases to the international tribunals out of fear that it would result in a ruling against access to information being a right, something which would forever slam the door in the face of the transparency activists.

One of those who decided to give it a go in spite of these concerns was Eduardo Bertoni, then Freedom of Expression Rapporteur for the Organisation of American States, who pushed forward the Claude Reyes v. Chile case, taken by lawyer Juan Pablo Olmedo, in the Inter-American Commission on Human Rights, leading to the first and best ruling to date, that of the Inter-American Court of Human Rights of 19 September 2006. That was followed by the 14 April 2009 ruling in the case taken by the Hungarian Civil Liberties Union against Hungary to the European Court of Human Rights, a case which stressed the importance of access to information for civil society, for «social watchdogs».

In June 2009, the Council of Europe adopted the world’s first binding treaty on the right of access to information, the Convention on Access to Official Documents, although it stopped short of recognising a full right, limiting it to a more general administrative right. Nevertheless, the FOI movement’s successes with laws and jurisprudence lead the UN Human Rights Committee to confirm the right of access to information as a fundamental human right in July 2011 in its General Comment Number 34. Various inter-governmental organisations including the Organisation for Cooperation and Security in Europe have also taken this stance and the European Union’s constitutional treaties establish a fundamental right of access to EU documents.

Shifting to the paradigm of «open»

Even if the most optimistic of us had been capable of imagining the legal and jurisprudential developments, I don’t think that we would or could have foreseen the massive paradigm shift in the way that government openness and transparency are now viewed. Only this Tuesday (25 September 2012) I was at a meeting of the OSCE in Warsaw and the opening speaker, a German diplomat, talked about the fundamental right to information and the presumption that all information should be public.

Even more remarkably, last week in Helsinki at the «Open Knowledge Festival» I listened to an «open data evangelist» from the World Bank («a what from the World Bank??!!» I might have asked ten years ago) arguing forcefully for massive proactive data releases and praising civil society for ranking governments, while in the corridors the buzz was around «the power of open» and the brainstorming on how to protect privacy when governments automatically pump entire databases out to the internet.

Beyond the standard setting is the impact which has been had on real life issues where transparency has helped in defending human rights, fighting corruption and promoting public participation in decision making. Access Info Europe, founded in 2006 to address the lack of civil society activism on this right at the European level and particularly in Western Europe, has been part of achieving this. Our work goes beyond advancing legal norms to fighting against excessive secrecy and for open government on a day-to-day basis.

We have helped civil society organisations around Europe obtain new information in areas including public procurement (Anti-Corruption Transaprency Monitoring Methodology) and anti-corruption mechanisms with Transparency International chapters (Tell Us What You’ve Done report), spending on the environment and protection of maternal health worldwide with the International Budget Partnership (Ask Your Goverment 6 Question campaign report), and CIA flights with Reprieve (see Rendition on Record).

The tools for evaluating access to information (Global RTI Rating) and monitoring (here) developed with partners, including with Toby Mendel and his team at the Centre for Law and Democracy have contributed to mapping out the current state of law and practice on the right to know.

Working with Hackers and Hacks

We work with programmers to make use of technology to advance the right and the tools we have built include AsktheEU.org (based on mySociety’s Alaveteli software). AsktheEU.org has helped secure much new information from the European Union, including information about the Ireland and the financial crisis from the European Central Bank and the full EU budget in machine-readable format from the European Parliament. The Spanish version, tuderechoasaber.es («your right to know») has exposed the piteous state of transparency in Spain with a rate of administrative silence hitting 60%. In spite of a vigorous and often frustrating civil society campaign, the Spanish government is, unfortunately, on the point of adopting a sub-standard access to information law.

The Legal Leaks Toolkit developed after a brainstorming with Christian Mihr, then of our partner n-ost in Berlin now of Reports San Frontiers Germany, has been used to train dozens of investigative journalists from across Europe their right to know, and our help desk has followed up assisting them with requests and appeals.

Access Info Europe’s own litigation has had some notable successes, particularly the excellent decision of the EU’s General Court which ruled that citizens have a right to know the negotiating positions of Member States in the Council of the EU (this is currently on appeal before the European Court of Justice). There have also been some illustrative failures: a five year legal battle to obtain information from the Spanish government about what it is doing to implement the UN Convention against Corruption was lost before the Spanish Supreme Court this summer and Access Info Europe has been ordered to pay €3000 in costs, something we cannot appeal although we have turned to the Constitutional Court and will take the case on to the international level. Setbacks such as this are part of the ongoing work of pro-transparency activists worldwide.

A Powerful Global Movement

Last but not least on the list of successful outputs of that September Saturday 10 years ago is the Freedom of Information Advocates Network  itself. I can’t count the number of times over the years when people have told me it’s the most useful list they are on; there are also many who say that even if they don’t contribute actively, they read what comes across the list and store it for reference when needed, and that is very important. That information flow and knowledge sharing a virtual complement to the many meetings at which members of the right to information community has come together over the past ten years share lessons learned and to brainstorm how to advance the right. Often those discussions have taken place with key allies such as the information commissioners appointed in an increasing number of countries to ensure that public bodies comply with the right to know.

The Sofia meeting was convened by eastern Europe’s first dedicated right to information organisation, the Bulgarian NGO, the Access to Information Programme, lead by Gergana Jouleva, along with the Open Society Foundation, at that time represented by myself and Eszter Filippinyi. It was primarily a European meeting, as much of the activity in terms of new access to information laws had been happening in that region in the decade after the fall of the Berlin wall, but as Tom Blanton of the non-governmental organisation the National Security Archive described in July 2002 in a Foreign Affairs article entitled «The World’s Right to Know» the movement was already global; in line with that the Sofia meeting included activists from India, Mexico and South Africa.

Now in 2012 the movement is both broader and deeper. There are many specialised sectors such as budget transparency, extractive industry transparency, aid transparency, and legislative transparency. There are many new organisations – I personally have been involved with establishing at least three: Publish What You Fund in 2009 (aid transparency), Civio in 2010 (new technologies and transparency in Spain), and in 2012 Diritto di Sapere («Right to Know») in Italy. There are also dedicated websites, notably freedominfo.org and wobbing.eu.

In recent years the movement has been given fresh energy and new perspectives by a generation of digital natives or at least «digital fluents» bringing the full power of communication technologies and the internet to exploiting the social value of public information and advancing openness.

The coalition of governments, businesses and civil society around the Open Government Partnership is now coming together to debate what open government means in practice in the 21st Century and this raises new standard-setting challenges which Access Info Europe is actively engaged in with the global Open Government Standards initiative.

Right to Know professionals: Soft Power!

This is now a professional field – something which can be measured perhaps by the growth in master’s theses and PhDs on the right to information. In spite of the funding challenges there are some committed donors supporting this work (both governmental and private donors) which have created the conditions for a flourishing civil society ecosystem and many thousands of experts around the world. It is a common effort and yet it is still a field where individuals have a huge impact, whether those individuals be activists, information commissioners, judges in national and international courts, or openness-minded politicians or public officials.

It is possible to identify and name many key individuals, just a few are mentioned here, which is unfair as there are so many more – many who are also dear friends – who follow in the line of those 18th century «founders» of this movement, Anders Chydenius (drafter of the World’s first access to information law) or Peter Forsskal whose seminal text – brought into English by Access Info’s founding board member David Goldberg –  «Thoughts on Civil Liberty» contributed to the drafting of that first law even though he had to struggle against censorship and seizure of his publication.

In spite of all the advances, however, there are regions where promoting the right to know is risky, triggering even physical attacks on transparency activists in countries such as India and Russia, and threats in other places where the right – along with the broader democratic context – is still fragile.

Rising to the challenges, the dedication, enthusiasm and optimism of this movement never ceases to amaze me and is a wellspring of energy for me personally. That also goes for my wonderful colleagues working at and around Access Info Europe: Lydia, Vicky, Pam, Alicia and Alvaro, not to mention the moral and intellectual support our board members: Carlos, Daniel, Juanjo in Spain and David, Gergana, Maeve and Ivan, as well as all our committed interns and volunteers.

It is truly impressive how the exercise of «soft power» has contributed to advancing this right so that it is now both a fundamental right and a sine qua non of a democratic society, of an open government. We cannot be complacent as there are many challenges ahead, which are captured in the FOIAnet’s 10-10-10 Statement  and which include exploring the full implications of the right of access to information for transparency in both the public and privates sectors. There are exciting challenges, which will no doubt keep us busy for the next ten years, but on this Friday, 28 September 2012, we can also pause for a moment to acknowledge the successes, and that is something well worth celebrating!

Helen Darbishire
28 September 2012