The right of access to information and the UNCAC
The right to access information is an essential component of a democratic society – enabling citizens to hold their elected representatives accountable for the decisions they make and the way they spend public money.
Why is access to information so important?
The right of access to information empowers citizens to obtain information held by public bodies (with limited exceptions). It encompasses a right to request and receive information, as well as an obligation on governments to publish information proactively.
With information, civil society activists and the public are equipped to participate in public debates, engage directly and knowledgably with public decision-makers, and have their rightful say in the development of public policy and law.
Access to information is an essential tool in the fight against corruption too, by increasing democratic accountability and transparency, identifying and uncovering corrupt practices and enabling participation in the development of anti-corruption policy and law.
To date, 100 countries have access to information laws (or freedom of information laws) and over 50 constitutions worldwide recognise this as a right, along with much jurisprudence confirming it. There are also many sub-national laws in larger countries with a federal or similar system (examples include Argentina, Germany, India, Mexico, Spain, and the UK).
Where these laws work effectively they can have positive and wide-reaching benefits including furthering the fight against corruption and improving public services:
- In India access to information cases have uncovered corrupt practices that limited the right to food intended for the most vulnerable sections of society; other cases have revealed the payment of bribes for issuing documents such as passports and birth certificates.
- In Uganda access to information has lifted the lid on the misappropriation of education funds by officials, which left schools without promised funding.
- In Canada access to information has successfully improved practices in the policing of protests.
- In Ireland access to information has improved services for the elderly.
- In Thailand access to information has improved equality in education – enabling the poorest people to access education based on merit.
See more examples of the right of access to information used successfully.
What are the obstacles to effective access to information?
Some key obstacles to effective and successful implementation of the right of access to information include:
- Poor quality of the legal framework: A weak or restrictive legal framework is one of the major obstacles to effective access to information. The scope of a weak law may exclude many kinds of information, and/or exclude certain branches of government or private bodies that perform public functions or receive public money. This can be a particular problem when trying to identify or prevent corruption.
- Other laws in conflict with access to information: Other laws, regulations or bilateral agreements that increase secrecy (e.g. trade agreements), or protect other areas such as personal data, can also be obstacles to accessing information held by public bodies. At the European Union’s offices, accessing the names of lobbyists participating in meetings has been a problem due to an overbroad use of personal data rules.
- Lack of citizen awareness: An effective access to information law can only help to prevent corruption and improve public services and accountability if citizens and civil society know how to use it. Inadequate promotion of the right to access information, which does not reach citizens and encourage them to exercise this right, can be a significant obstacle to transparency.
- Administrative cultures of secrecy: Coupled with a lack of citizen awareness, a culture of secrecy within a public administration can result in low response rates to access to information requests, as shown by studies in Spain, Italy and Cyprus.
How does the UNCAC help promote the right of access to information?
The UN Convention against Corruption (UNCAC) establishes that there should be specific mechanisms to ensure respect for access to information and to ensure transparency.
There are also provisions that require public disclosure and dissemination of specific information relating to the functioning of the administration and its anti-corruption measures.
Transparency of specific information
The UNCAC identifies a number of classes of information that should be publicly available to assist the fight against corruption and to ensure effective government accountability. Transparency requirements include:
- Employment of public officials (Article 7 (1)): Transparency with respect to the recruitment, hiring, retention, promotion and retirement of civil servants and, where appropriate, other non-elected public officials.
- Election campaign funds / political parties (Article 7(3)): States Parties are required to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties.
- Public sector systems (Article 7 (4)): States Parties are required to endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.
- Public procurement (Article 9 (1)): States Parties are obliged to ensure that systems of public procurement are based on the principle of transparency.
- Public sector finances (Article 9 (2)): States Parties are required to promote transparency and accountability in the management of public finances.
- Public administration (Article 10): States Parties are required to enhance transparency in the public administration with regard to its organisation, functioning, and decision-making processes.
- Private sector transparency (Article 12 (2c)): The UNCAC refers to the need for transparency in the private sector for anti-corruption measures to be effective. In particular, it requires States Parties to promote transparency among private entities, including where appropriate, measures regarding the identity of legal and natural persons involved in the establishment and management of corporate entities.
- Decision-making process in government (Article 13 (1a)): States are required to enhance the transparency of and promote the contribution of the public to decision-making processes.
These access to information provisions are important as they:
- Push for stronger laws: The UNCAC holds an important role in highlighting and pushing states to adopt legal frameworks incorporating the right of access to information. A strong access to information law would help to give citizens the right to request information and shine a light when there are suspicions of corruption.
- Encourage proactive transparency: Many types of information described above are simply not available to the public. The UNCAC encourages a significant increase in the volume of information that is automatically available to the public and published proactively.
- Monitor implementation: The official reports by States Parties and the parallel review reports by civil society help to uncover where States Parties are not fully implementing the UNCAC, or where improvements can be made, including on transparency measures.
Advancing the right of access to information in UNCAC forums
The UNCAC Conference of States Parties’ Resolution 5/4 on the Follow-Up to the Marrakech Declaration on Prevention of Corruption, adopted at the 5th Conference of States Parties in Panama in 2013:
- Reaffirms the need for a culture of integrity, transparency and accountability (paragraph 2)
- Urges the adoption of transparent principles in the public service (paragraph 17)
- Calls for effective processes to promote transparency, competition etc. in public procurement (paragraph 22)
- Urges States Parties (in line with articles 10 and 13 of the UNCAC) to continue to take measures to enhance transparency in public administration, including through the introduction of effective measures facilitating access by the public to information (paragraph 23)
- Requests that the Secretariat to provide technical assistance upon request to States Parties seeking to introduce or enhance measures in this area, in cooperation, where appropriate, with interested donors (paragraph 23)
The UNCAC Coalition advocated for such language through statements, letters, briefing notes and policy discussions. Ahead of the 5th Conference of States Parties the Coalition had the following asks on access to information:
- Countries should adopt and implement comprehensive access to information legislation that protects the right of access to information in line with international standards and ensures they are being properly implemented in practice.
- UNODC should include specific questions on access to information in its assessment questionnaire for countries, and the Working Group on Prevention should include the issue of “ensuring that the public have effective access to information” in its work plan.
The meetings of the UNCAC Working Group on Prevention also provide opportunities for advocacy on the issue of access to information. At the last session of the Working Group in September 2014, the UNCAC Coalition organised a side event on UNCAC Access to Information and Technical Assistance.
The second review cycle due to start in mid-2016 will cover prevention issues and is another focus for civil society organisations. With the review cycle questionnaire still in development, civil society has the opportunity to advocate and place pressure on the inclusion of questions relating to access to information.
Advancing in the right of access to information at the national level
At the national level, civil society can use UNCAC to promote access to information by:
- Using the UNCAC as a lever: Encouraging national governments to adopt and develop access to information laws that meet the highest international standards to improve the national legal framework for transparency.
- Using the UNCAC review process for advocacy in the current cycle: Highlighting the need for greater transparency and access to information in practice by using the available legislation to get access to full UNCAC country implementation reports, or access to the consultation process. Organisations can also campaign to highlight the poor quality or implementation of access to information legislation, and under the auspices of the UNCAC demand both legal and practical improvements.
- Using the UNCAC review process for advocacy in the second review cycle: This cycle will cover all the chapter II transparency provisions.
- Sharing information: The UNCAC Coalition is a network for civil society to share stories and experiences about access to information and transparency with other organisations. This can inspire cooperation and support at the national, regional, and international levels, in order to tackle opaque systems around the world.
- Engaging with global networks: UNCAC Coalition members working to promote the right of access to information can also benefit from linking their campaigns to those of other transparency activists. There are regional right to information networks in Latin America (Alianza Regional) and Africa (AFIC), as well as the global Freedom of Information Advocates Network, which can provide useful resources and support.
- Global Right to Information Rating
- The Global Network of Freedom of Information Advocates
- Right 2 Info