Senior Legal Officer
Centre for Law and Democracy
The right to information (RTI) is a key human right, fundamental to political participation and to ensuring robust accountability over public institutions. Historically, Europe has been at the forefront of the development and adoption of the RTI. Sweden adopted the world’s first RTI law in 1766, nearly 200 years before the world’s second RTI law was adopted, by Finland, in 1951.2 Of the first 20 countries to adopt RTI legislation, 14 are in Europe, and while only around half of the world’s countries have passed RTI legislation, 26 of the 28 EU (European Union) member states have an RTI law on the books, with Cyprus and Luxembourg the only exceptions. By contrast, RTI laws have been passed in just four of the 22 member states of the Arab League, two of the 10 full members of the Association of Southeast Asian Nations and 16 of the 54 African Union states.
However, not all RTI laws are created equal. As any requester of information can attest, deficiencies or loopholes in the legal framework can lead to significant limitations of the right of access. Although there are certainly many public officials who maintain a positive attitude towards openness and transparency, in every country there are others who will seek out any legal excuse to avoid giving out information, particularly if the disclosures contain embarrassing or sensitive material. For the right to information to be meaningful, it must be implemented by a law with the appropriate safeguards to protect against abuses. This includes clear rules around procedures for filing and responding to requests; a suitably broad scope of applicability; clearly defined exceptions; sanctions for breaches of the law; and a strong and independent oversight body with a clear mandate to promote and protect the right to information.
Over the past two decades, global recognition of the right to information has increased dramatically, as has the rate at which new RTI laws have been adopted. Accompanying this emergence has been the development of a reasonably consistent set of standards for a strong legal framework for RTI. Some examples of standard-setting documents that have emerged are the Organization of American States (OAS) Model Inter-American Law on Access to Information,3 the African Commission on Human and Peoples' Rights Model Law for African States on Access to Information,4 and Article 19’s Model Freedom of Information Law.5 It is significant that, although these model laws were drafted by different experts, representing different regions of the world and at different times, they are strikingly similar in terms of the standards they espouse, indicating that the global RTI community has, more or less, coalesced around a uniform understanding of what makes a strong RTI law.
In 2011, the Centre for Law and Democracy, in collaboration with Access Info Europe, drew on these accepted standards to develop the global RTI Rating. The Rating is based on a scoring tool which uses 61 indicators,6 drawn from accepted international standards for what makes a strong RTI law, to comparatively assess legislation from around the world. The indicators are organised into seven different categories: (i) right of access; (ii) scope; (iii) requesting procedures; (iv) exceptions; (v) appeals; (vi) sanctions; and (vii) promotional measures. As new laws have been passed, the RTI Rating has been continually updated and, as of July 2015, it had been applied to 102 of the 104 national RTI laws.7
It is important to note, at the outset of this discussion, that the global RTI Rating is not a full and complete measure of a country’s openness. It measures only the strength of an RTI law and not how well it has been implemented. Several high-scoring laws, notably those passed in Ethiopia and Yemen, essentially exist on paper only. The RTI Rating also does not measure proactive disclosure, nor the level of a country’s open data commitments. Nonetheless, a strong RTI law is an important prerequisite to an open government. A weak RTI law will not provide for robust accountability no matter how diligently its rules are followed. And although open data has become an increasingly important aspect of transparent government, particularly with the broad distribution and unprecedented analytical opportunities that have accompanied the digital revolution, these measures are no substitute for an effective right to request information. Governments will never release embarrassing or compromising information proactively, which means that while open datasets provide an important insight into the mechanics of government, there are limits as to the level of oversight and accountability that they can provide. In other words, while we acknowledge that there are limitations in our methodology, the results of this programme of analysis are nonetheless valuable, particularly in what they reveal about Europe’s traditional leadership in this important dimension of human rights.
For years, advocates familiar with the global RTI landscape have seen a shift in momentum between the developed and developing world. Many of the most dynamic and energetic RTI systems are operating in emerging democracies, such as Mexico, India and Indonesia. Advocates and officials from the “Global South” are increasingly assuming a mantle of worldwide leadership on these issues. The global RTI Rating presents this trend in particularly clear terms.
Chart 1: RTI ratings EU RTI Scores vs. Rest of the World
Source: Global RTI Rating 2015.
The global RTI Rating scores RTI laws out of 150 points. The major international model laws score fairly close to this standard. The OAS Model Inter-American Law on Access to Information scores 142 points, while the Model Law for African States on Access to Information scores 138. The average global score is 85.92 points, or 57 per cent. Given that the RTI Rating measures access laws against an extremely high standard, the relatively low overall scores are not particularly surprising, although it is important to note that the top-scoring countries: Serbia (135 points or 90 per cent), Slovenia (129 points or 86 per cent) and India (128 points or 85 per cent) are all within striking distance of this ideal, showing that the standards are neither unrealistic nor unworkable. The average among member states of the European Union (EU) is, in comparison, just 78.04 points, or 52 per cent. The global average, excluding EU member states, is 88.58, 10 points higher. In other words, far from leading the world, the EU has now fallen significantly behind international standards.
Charting the global increase in RTI Rating scores over time presents another interesting picture (see Chart 2).
Chart 2: Compared Strength of RTI Laws Over Time
Source: Global RTI Rating 2015.
Globally, the RTI Rating shows that more recent legislation tends to be stronger than laws passed 10 or 20 years ago. Between 1996-2000 and 2001-05, the laws passed in the EU were roughly in line with international averages. However, while the rest of the world continued to improve, in the EU scores actually dropped for laws passed within the last decade. It is important to note, however, that only three EU member states passed RTI laws after 2005: Malta, Hungary and Spain. With such a small sample size, one must take this regression with a grain of salt. Nonetheless, it is at least safe to note that the global trend of laws becoming stronger over the last decade does not hold true within the EU.
Examination of the scores by category provides a more precise picture. The EU is slightly ahead of the rest of the world in terms of its procedures for access, something that is not surprising given its developed bureaucratic traditions. However, the EU is behind in the remaining six categories, including particularly noteworthy gaps in the way that exceptions are handled, mechanisms for appeals and oversight and promotional measures.
Chart 3: RTI comparison of scores of EU member states against the rest of the world
Source: Global RTI Rating 2015.
In part, the relatively poor score of EU countries can be traced back to their early adoption of this right. RTI standards have advanced significantly over the past two decades, over which time experience has demonstrated which legal formulas are optimal for guaranteeing the right to information and novel new approaches have emerged.
For example, a particularly important ingredient of a strong RTI law is a public interest override, whereby even if information subject to a request falls under an exception to disclosure, it should still be released if, on balance, the public interest in disclosure outweighs the likely harm. Of the 13 countries which passed laws before 1990, six of them (46 per cent): Austria, Denmark, Finland, France, Greece and Sweden, scored zero on this indicator. A further four countries: Australia, Canada, the Netherlands and the United States, scored just one point out of a possible four, indicating that their legislation has a public interest override but is very weak. Only two of these early adopters (15 per cent): Colombia and Norway, score full points for having a strong public interest override and, in Colombia’s case, the override was not present in the original version of the law as it was passed in 1985. Rather, Colombia’s public interest override was actually introduced in 2014 as part of a reform package. By contrast, of the nine countries on the RTI Rating which passed laws in 2013-14, only three (33 per cent) scored zero on this indicator, and four of the countries in this most recent cohort (44 per cent) scored full points here. For EU states, this is an area of particular weakness. Of the 26 EU countries which have RTI legislation in place, 15 (58 per cent) have no public interest override at all. Among the rest of the world, the percentage of countries which lacks a public interest override is just 28 per cent.
However, while the age of Europe’s RTI laws provides an explanation for their relative weakness, this is not an excuse for their poor showing. Old laws can and should be updated, particularly where they have failed to keep pace with international standards, and where they have such an impact on an important democratic right. In addition to introducing a public interest override, Colombia’s 2014 reform package contained several other major improvements, resulting in a jump in score from just 82 points up to 102.
A similar factor which may contribute to the EU’s relatively poor score is a clearer understanding among citizens of emerging democracies of the importance of transparent government, due to their first-hand experience of the ugly results when governments are allowed to run unchecked. Nearly all of the countries which top the rankings of the global RTI Rating could be classed as emerging democracies. In that vein, it is significant that the two top-scoring countries in the EU: Slovenia and Croatia, are among its youngest democracies.10
The impact of the EU itself, as a democratising force, also cannot be ruled out. Countries of south-eastern Europe are probably the world’s strongest according to the RTI Rating.
Chart 4: RTI Ratings among states of the former Yugoslavia
Source: Global RTI Rating 2015.
Causality is often difficult to determine where legislation is concerned. The adage that “success has a thousand fathers” can be true here, as a proper development process for an RTI law will involve consultations with a wide and diverse group of stakeholders, all of whom may seek to have an impact on the result according to their own agenda and interests. However, there are some indications that an interest in EU membership, and the concomitant pressure to adopt progressive legislation to promote democratic accountability, may have played a role in the passage of some of Europe’s, and indeed the world’s, strongest laws.
Slovenia’s Access to Public Information Act mentions, among its purposes, the implementation of several EU directives.11 Croatia’s Law on the Right to Access Information contains a similar reference.12 External reporting has also connected Croatia’s RTI progress to its accession to the EU.13 In the debate that led to the adoption of Serbia’s Law on Free Access to Information of Public Importance, prominent Serbian legal thinkers mentioned the importance of conforming to European and international standards in adopting the law.14 A few months before the law was adopted, the Council of Europe, the Organization for Security and Co-operation in Europe and the Fund for an Open Society organised a roundtable at the Serbian parliament, which included a presentation of the draft law.15 Bosnia and Herzegovina’s information oversight body, the Institution of Human Rights Ombudsman/Ombudsmen, explicitly mentions the country’s desire for EU membership in its description of the adoption process of the Freedom of Access to Information Act.16
The possibility that the robust RTI frameworks in the former Yugoslavia are at least partially a consequence of the EU’s influence in promoting key democratic rights is ironic given the relatively poor scores among the EU’s core membership, including the fact that one of the EU’s founding members, Luxembourg, still does not have an RTI law on the books.
Regardless of the extent to which the EU influenced the development of RTI in south-eastern Europe specifically, there is no denying the strong role that the EU plays in promoting respect for human rights around the world. The EU’s core membership includes many of the world’s oldest and most stable democracies. These same countries support important international programmes aimed at promoting democratic rights in the developing world, including the right to information. Nonetheless, the member states of the EU should view these scores as a wake-up call. The only way to truly lead is by example. While the development of robust right to information regimes among emerging democracies is a fact worth celebrating, as is the increasing leadership shown by the Global South on this issue, the failure of the EU’s core membership to keep pace with these changes, and to modernise their legal frameworks in line with the improving international standards, should be cause for concern. It is also worth noting that, with every year, this gap will widen further, as further new democracies pass their own, robust RTI laws.
Open and transparent government is in everyone’s best interests. It encourages participation and engagement among the populace, and promotes efficiency and honesty among civil servants. This is as true in Europe as anywhere else in the world. While the global RTI Rating does not pretend to be a measure of the health of Europe’s democratic structures, or even the overall level of openness of its public institutions, these results nonetheless point to real problems, which can only be solved through major reforms to Europe’s RTI frameworks.
1 Thanks to Laurent Fastrez, Intern, Centre for Law and Democracy, for contributing research.
2 A list of the global RTI laws, including their date of passage, is available at: www.RTI-Rating.org (last accessed 10 July 2015).
3 Available at: www.oas.org/en/sla/dil/access_to_information_model_law.asp (last accessed 10 July 2015).
4 Available at: www.achpr.org/instruments/access-information/ (last accessed 10 July 2015).
5 Available at: www.article19.org/data/files/pdfs/standards/modelfoilaw.pdf (last accessed 10 July 2015).
6 A full description of the RTI Rating programme, including the indicators, is available at: www.rti-rating.org/ methodology (last accessed 10 July 2015).
7 The only national RTI laws not yet rated are Mozambique and Sudan, as we have thus far been unable to obtain copies of these laws.
8 Full scores for the model laws are available at: http://www.rti-rating.org/international-institutions (last accessed 10 July 2015).
9 It is worth noting here that a few of our European scores, including that for Austria, the lowest-scoring country on the Rating, are still pending review by a national expert. However, while future revisions may result in some slight shifts in results, positions are not likely to change significantly, as a score in this range generally indicates that the legal framework lacks the basic hallmarks of a proper RTI system.
10 After our Rating of Croatia was carried out, the country passed a new RTI law, in 2013. Our scores have not been updated to reflect the change, but a quick review indicates that this law, like its predecessor, would rank near the top of the RTI Rating table.
11 An English translation is available at: www.rti-rating.org/wp-content/uploads/Slovenia.pdf. (last accessed 10 July 201
12 Reg. No.: 71-05-03/1-13-2, 2013. Available at: www.revizija.hr/en/access-to-information/law-on-the-right-to-access-information (last accessed 10 July 2015).
13 FreedomInfo, "Croatia Adopts New Freedom of Information Law", 15 February 2013. Available at: www.freedominfo.org/2013/02/croatia-adopts-new-freedom-of-information-law/ (last accessed 10 July 2015).
14 See, for example, Milnkovic, D., “Why is Free Access to Information Important for Serbian Citizens and Media?”, available at: http://www.presserecht.de/ (last accessed 10 July 2015).
15 Serbian Parliament Archives, “Održan Okrugli sto Slobodan pristup informacijama - ustavno pravo građana i zakonska mogućnost”. Available (in Serbian) at: www.parlament.gov.rs/Održan_Okrugli_sto_„Slobodan_pristup_informacijama_–_ustavno_pravo_građana_i _zakonska_mogućnost“.9770.941.html (last accessed 10 July 2015).
16 See www.ombudsmen.gov.ba Default.aspx?id=32&lang=EN (last accessed 10 July 2015).
Senior Legal Officer
Centre for Law and Democracy
+1 902 431-3688