It is safe to say that most of the people from around the world familiar with the terms “government openness” or “open data” have gathered in Mexico City this week to discuss the achievements, challenges and next steps of the Open Government Partnership (OGP). It is probably also safe to say that for an influential multi-stakeholder initiative like OGP, access to information should be a number one priority, and countries without freedom of information (FOI) laws should not be granted membership at all.
So far it is not the case.
Since OGP membership is based on a specific scoring mechanism, countries without FOI laws — such as Argentina, Costa Rica, Ghana and Kenya — are free join the partnership if they perform well in other critical areas.
By now, there’s a growing demand from civil society to change this practice, something that we at the Sunlight Foundation strongly support.
— Fabrizio Scrollini (@Fscrollini) October 28, 2015
As we and many other advocates have pointed out before, the existence of open data policies and other proactive disclosure rules are too often used as an argument (or, dare we say, as an excuse) by governments for not adapting stronger legal guarantees on access to information in a reactive manner. (More on what we think about the need to harmonize traditional FOI laws and open data policies here.)
It is essential to understand that reactive information requests are most often used by journalists and civil society as an investigative tool, to obtain yet-undisclosed information which has — sometimes purposefully, sometimes accidentally — been withheld by governments. As such, FOI laws are usually not the most beloved part of a government’s openness agenda, but are nevertheless fundamental cornerstones of working and inclusive democracies. In other words, freedom of information and open data are two essential sides of the same coin, each playing a key role in oversight.
Lack of FOI: The case of Argentina
In order to explain why FOI matters, we took a look at how the absence of a national access to information law can prevent citizens from exercising their fundamental rights — and how that might harm society in the long term — through three examples from Argentina.
In the absence of a FOI law, Argentine civil society uses all the weapons from the country’s legal arsenal, including existing governmental decrees, local level FOI regulations and litigation. And while some of the Argentine courts indeed rule in favor of transparency (earlier this month, for instance, the Court of Appeals ordered the lower chamber of the Argentine Congress to proactively publish information about its administrative resolutions), without a strong law that includes all the branches and levels of government and has clear rules on enforcement, most of these requests will go unanswered, incomplete or become irrelevant by the time they are responded.
According to economists and politicians (both inside and outside the country), inflation in Argentina is close to 40 percent, which is considered one of the highest in the world. The national statistics institute in Argentina, INDEC, keeps reporting about strikingly lower figures though. In 2007, ADC, a local nongovernmental organization asked the agency to disclose the methodology behind the country’s consumer price index (CPI).
Regardless of the economic rationale behind keeping inflation high, it seems reasonable to grant public access to basic information about how the government calculates the CPI, mostly to allow for further economic debate. The request was however denied, and the official methodology was only disclosed two years later.
To take another example, abortion is strictly limited in Argentina. Civil society has long been bombarding national and local government agencies with requests for detailed information on relevant practices and statistics, such as the processes behind contraceptives distribution, reproductive rights campaigns, data on pregnancy interruptions performed in hospitals, the type of technology used for such surgeries, the number of death tolls emerging from illegal abortions and much more.
A few weeks ago, a number of organizations, including ADC and Amnesty International, filed a new request on the topic, this time in the province of Mendoza. Their questions were related to important datasets that could pave the way for more objective arguments about the effectiveness of the policy. However, in the absence of a strong FOI law, our bet is that most of these questions will remain unanswered.
A third area of concern lies in the obstacles the public faces in learning how their money is spent. For example, Aerolineas Argentinas, the Argentine national airline company, is a government-owned enterprise that receives huge amounts of taxpayer money, but it fails to disclose even basic information about its financials.
Chequeado, a Buenos Aires based fact-checking organization, made a request to the state-owned company and asked for its balance sheets; unsurprisingly, this request was unsuccessful, and the company has been silent ever since. Again, without strong rules on enforcement, a potentially positive court ruling may depend on the sympathy of the judiciary, and the spending of public money may continue to remain obscure.
And these are only a few of the many examples.
It is important to note that while similar examples of government resistance to information disclosure may very well occur in countries with existing legislation on reactive information requests, that does not mean that FOI is redundant or unnecessary. On the contrary, it is rather a sign that there is a lot to improve most everywhere. FOI laws give civil society the meaningful leverage and legal standing they need to help make these improvements come to pass.
So the task is there for all of us: The Open Government Partnership and the next Argentine government need to take FOI much more seriously. In the meantime, civil society still needs to come up with better and more effective ways to harmonize open data with freedom of information regulation.