Research proposal 2016
The Laws of Transparency in Practice – edited book
This research proposal looks at the issue of free access to information as part of the openness and transparency principle. As a general rule, the conduct of public administration should be transparent and open. Only exceptionally should matters be kept secret or confidential, such as those truly affecting the national security or similar issues. Likewise, personal data should not be disclosed to third parties. Free access to public information has always heated debate and generated controversy, probably more than other aspects of contemporary government and administration. The concept typically means having access to files, or to information in any form, in order to know what the government is up to (Birkinshaw, 2001: 1).
Professional literature discusses administrative reform as being directly connected to the democratic development of the society (Caiden, 1991; Yeatman, 1994). The definition of the term is “deliberate use of the authority and influence for the implementation of new measures in an administrative system through changing objectives, structures and procedures in pursuing the improvement and development of the administrative system” (United Nations, 1983). Openness and transparency are key concepts of reforming public administration, and their importance in the process is tremendous. Openness and transparency allow anyone affected by an administrative action to know its basis, they render outside scrutiny of administrative action by supervisory institutions easier, and they are an important instrument for the rule of law and accountability.
Transparency and openness partake a double nature: they are both a norm and an instrument. As a norm, transparency and openness are part of the value systems of liberal democracy and of human rights, which provide for a right of citizen to know what is going on in governance and for a duty of government to be transparent and open. As an instrument, they make more efficiency and effectiveness, by forcing governance to be more careful to stand public scrutiny (Dror, 1999: 63)
Many countries in Europe have Freedom of information laws from a long time ago (Nordic countries for instance), others have adopted them later on (Western Europe) or have experienced with such laws only after the fall of communism (Central and Eastern European countries) while there are even examples of rather new FOIAs (UK and Germany for instance). The EU has also adopted a Regulation in 2001 on access to public documents. The problems that occur in the implementation of FOIAs are different due to the legal and institutional context. Nevertheless, patterns of malfunctioning are comparable.
The research project intends to analyze in comparative and empirical perspective the main challenges that are facing the implementation of FOIAs in practice, by tackling several topics such as:
- Beneficiaries of access to information. Who seeks more information that is public and which are the vectors for dissemination of that information? Empirical insights into the categories of persons asking for public information should be carried out or secondary data should be used and analyzed. The role of NGOs in promoting the right to public information among citizens and legal entities, as vectors of transparency, and, further, in litigation.
- Entities that are bound by the law – the concept of “public authorities/bodies” and the challenges arising from such categorization. Departments and public officials in charge with providing access to public information. Professionalization. Oversight by other public bodies.
- The request for access. Conditionality under national law. Best practices in comparative perspective and in national administrations. The requirement of clarity and precision and solutions for dealing with it. Vexatious or repetitive requests. Dealing with Applications erroneously addressed to a non-competent public authority.
- The response/answer. Conditions of lawfulness. Structure and mandatory content. Challenges in practice. Substance and motivation. Communicating the response. Effects of silence.
- The relation between documents and information. The obligation to create new documents or to release information instead of a document. Record keeping.
- Methods of providing public information ex officio – bulletins, websites, newsletters. Legal requirements and sanctions for not complying with the law. Best practices, challenges.
- EXCEPTED INFO
- Scope of the exceptions. The relation with special legislation like Official Secret Acts or Acts on protection of personal data. An important aspect of all countries’ legal framework of providing access to public information is the restrictions or exceptions where the information is not provided to the public. The tendency of keeping secrecy over administration activity is a natural one, taking into account that despite such restrictions, when the actions of public servants are more visible, so are their mistakes. It was argued that the increase in wrongdoing is more a result of a greater transparency than an actual increase in cases dealt by the public authority (OECD 2000). This section will discuss the overall approach to secrecy in a given jurisdiction and its relation to the FOIA.
- Nonexistence of the document as an exception to freedom of access. Different approaches to the application of so called “Glomar doctrine” (Relating to some exempted information, a public authority may refuse to confirm or deny the existence or non-existence of requested information whenever the very fact of their existence or non-existence is itself classified or can jeopardize the secrecy of the information requested).
- Partial disclosure versus refusal to disclose a document
- Excepted info: official/state secrets, international relations/foreign policy; defense/ national security; third party consent. The economy of the state, monetary and financial issues of the state. The content of the concept. Case law and practice.
- Excepted info: Protection of personal information and privacy, Protection of commercial interest/business secrets; protection of decision-making or formulation of public policy; protection of ongoing proceedings and investigations. Access to final documents or decisions versus access to preparatory information. The content of the concept. Case law and practice.
- The public interest test. Some excepted information may still be released if the institution considers that there is an overriding public interest in disclosure. The content of the concept. Case law and practice
- Timeframes for answering the requests. The time frames reflect a balance between three types of interests. First, there is the interest of applicants, who would like a rapid and complete disclosure, effective penalties and sanctions applied to public authorities reluctant to implement the provisions of the Freedom of Information Act. Secondly, there are public authorities, which are interested in more time for complying with requests for public information and often speculate every chance to refuse disclosure. Thirdly, there are the third parties, interested at their turn in the procedure of consultation before disclosure. The different legal systems try to ensure a balance between these competing interests, consequently the solutions envisaged are different and the practices differ.
- Administrative and judicial remedies Administrative oversight. Administrative appeal and its procedure. Ombudsman and Information Commissioner. Judicial review. Powers of the courts in freedom of information matters. The role and the effect of alternative dispute resolution systems in this field.
- Fees and costs. Of a great importance is the cost of printing, copying the information; in the cost can be included the research involved for retrieving the information. The regime of re-using public information.
- Special regime for the access of Mass Media to the information of public interest.
- Special regime for access to environmental information. Aarhus convention. Main differences from access to regular public information.
- An overall assessment of the effectiveness of the FOIA. Its effect on accountability, reduced corruption and trust in government in specific jurisdictions.
Each section should be looked at from different angles: regulations, case law and practice. Empirical insights into the practice – analysis of already collected data, interviews, should be conducted in order to validate/invalidate the conclusions drawn on regulation/case law/ practice.
At EGPA 2016 Utrecht, the study group directors encourage interested members of the group to present papers on this theme from the perspective of their jurisdictions, with a focus on regulations, case law and best practices/challenges in practice. We will decide in/after Utrecht, depending on what papers are delivered, whether to have one country or comparisons between two or more countries, on certain topics.
Then, based on discussions and observations, the papers can be further developed into a chapter for the edited book that will be published in the end, possibly in 2017-2018. For this to happen, empirical research will have to be conducted to complement the legal analysis. We also encourage empirical research before EGPA 2016, if possible. We hope this will be a project that could bring all of us together for a new successful publication following ADR in European administrative Law in 2014.