Open Society Justice Initiative

This 190-page report details the results of a study undertaken by the Open Society Justice Initiative
and its partners to discover how government offices and agencies in 14 countries respond to specific requests for information.

The purpose of the study was to explore the strategy of, and trends in, one specific aspect of transparency: the passage of laws on freedom of information (FOI), or public access to government information and records. These laws are envisioned as key tools of democratic reform. As of 2006, 65 countries have laws that provide mechanisms for people to request and obtain information from their respective governments, with 53 such laws enacted in the past decade and a half. The key question is: how well do FOI laws actually work in practice?

This report documents how various countries did - or did not - honour the right of access to information. As part of the study, partners of the Justice Initiative in Argentina, Armenia, Bulgaria, Chile, France, Ghana, Kenya, Macedonia, Mexico, Nigeria, Peru, Romania, South Africa, and Spain filed a total of 1,926 requests for information. Requesters included members of non-governmental organisations (NGOs), journalists, business persons, non-affiliated persons, and members of excluded groups, such as illiterate or disabled persons or those from vulnerable minorities. The requests were for the types of information that public bodies hold - or should hold - and were were made in both oral and written form (and on occasion submitted by fax or email). The Justice Initiative and its partners then evaluated and analysed how the people who made requests were treated, how government offices and agencies responded, and the nature and quality of the responses to the requests.

Here is a summary of the main findings:

1. Requests often met with silence: Government failure to provide information is common: 47% of requests received no response, with South Africa, Chile, and Ghana performing especially poorly.
2. FOI laws make a difference: The rate of responses to information requests was nearly 3 times higher in states with such laws.
3. Transitional countries outperformed established democracies: Armenia, Bulgaria, Peru, Mexico, and Romania produced more frequent and higher-quality responses than France or Spain. (However, this does not mean that the governments of France and Spain are less transparent overall. France makes significant amounts of information available in published reports and on government websites.)
4. Civil society involvement helps: In Armenia, Bulgaria, Mexico, Peru, and Romania, where non-governmental organisations (NGOs) were involved in promoting and ensuring implementation of access to information laws - by, for example, filing numerous requests for information and undertaking strategic litigation in response to government refusals - requests made for the study received more responses than requests in other countries with less NGO involvement.
5. Discrimination plays a role: Individuals who identified themselves as journalists or NGO representatives received responses between 26% and 32% of the time and those who identified themselves as business persons received responses 19% of the time; persons who were members of an excluded group received responses 11% of the time. It is often requestors from ethnic minority groups who receive less information: In Romania, for example, a Roma requestor received answers to 30% of requests, compared to a 70% response rate for a non-Roma member of the public.
6. European countries are more responsive: Europe, where FOI laws have been more widespread and longstanding than elsewhere, saw a greater percentage of responses than did Latin American and African countries.
7. Inconsistent reponses are common: The study found that, where pairs of identical requests submitted by different requesters were presented to government bodies, the responses received were inconsistent 57% of the time. "In many cases, the inconsistency of responses reflected discriminatory behavior by government personnel toward the persons who requested the information. Furthermore, the study found that, where the same request was submitted twice and yielded noncompliant responses, the noncompliance manifested itself in different ways."
8. Written refusals are rare or lack legitimate grounds: In countries with FOI laws, government bodies made written refusals to provide requested information 5% of the time; in countries without FOI laws, written refusals were made only 2% of the time. Of the written refusals that were received, approximately 40% cited reasons recognised as legitimate under international and regional law for refusing the requests for information.

In light of these findings, the report recommends that national and local legislatures adopt FOI laws, and make it clear to public officials that noncompliance and discrimination in response to FOI requests are unacceptable. The Justice Institute also suggests that, given the importance of civil society pressure in making FOI laws effective, civil society organisations (CSOs) should monitor FOI practices, investigate suspected instances of discrimination, file lawsuits in instances where discrimination is found, and seek the imposition of penalties as set forth in antidiscrimination laws. The report goes on to make a number of specific suggestions to help countries implement effective FOI laws and regulations.