Freedom of information and MeTA

Posted on 2 April 2009

By Richard Calland.
The right of access to information has gone through a massive growth spurt in the past decade. More than fifty countries have passed access to information (ATI) laws of some sort. The right to seek and receive information, and the state’s duty to process such requests for information, has been the subject of a ground-breaking case that came before the inter-American Court of Human Rights. Now it is possible to say that the ‘right to know’ is incontrovertibly enshrined in international law.

This is the legal side. More importantly, the right has undergone what one might call a ‘personality change’. Ten years ago, it was seen as the poor relation – the second cousin, so to speak – of the longer-established right to freedom of expression, a useful tool for journalists seeking information to buttress their investigations, but of little concern to the poor. Now however, it has become a bridge to realising socio-economic rights, such as the right to adequate housing or decent health care.

Inspired by the iconic work of the MKSS social movement in Rajasthan, several NGOs and law centres around the world have developed a methodology whereby ATI is used as a ‘leverage’ right to help ensure that resources intended for poverty-alleviation reach their proper destination or that political space is created for destitute communities ignored by government to demand efficient and equitable delivery of public services.

From rural Rajasthan, where corruption of ration-dealing was exposed, to the discriminatory practices of a certain category of schools in Thailand, to the village of Ntambanana in Northern KwaZulu Natal in South Africa, people have been able to claim their right to food security, to quality education and to clean water.

This represents an important paradigm shift. But is it enough? As the tyres of the legal expansion in ATI rights has hit the hard tar of the road of implementation and enforcement, so campaigners have come to realise that passing the law is the easy bit; making it work in practice, especially for poor and vulnerable communities, represents a much greater challenged that requires persistence and precision in the application of the law.

Furthermore, changes in the structure of the state have meant that seeking and receiving information from the State is not always enough. Private entities often perform public functions; private sector opacity and lack of accountability may be just as harmful to people.

There are several lessons for META. First, ATI laws may be helpful, or even necessary, but they are rarely likely to be sufficient. They may not be workable in practice; or, the culture of secrecy may be so engrained that it cannot be easily shifted. Having a viable enforcement procedure – such as an affordable, accessible and specialist intermediary appeals’ mechanism such as an information commissioner – is essential.

South Africa’s law is unique. Backed by a far-reaching constitutional provision, it provides for access to privately-held information where access is required for the protection or exercise of any right. So in terms of access to adequate health care (a right that is also enshrined in the South African bill of rights), a person could request corporate records relating to the testing, pricing and efficacy of medicines, amongst other things.

Second, where the political and institutional culture is inclement, it may be better to reach agreement about transparency on the basis of a voluntary, non-legal disclosure regime. In this way, information-holders will agree to disclose particular categories of information.

Since META will operate in a non-legal manner, seeking to build consensus through the governance device of a multi-stakeholder process whereby key sectors agree new standards and means of verification, this may have a special relevance.

Third, in this regard, India represents again a vanguard case study. Having established a legal right in response to a social demand for openness, there have been astute embellishments to the foundational ATI legal regime. One example of this was the passing of the National Rural Employment Guarantee Act 2005 which provides workers with a right to access certain records relating to construction and other development projects so as to be able to monitor their employers and protect themselves from exploitative conduct. As MeTA moves forward, it may well be sensible to consider whether such targeted legislation would be useful – either to cement any new consensus around the disclosure of certain records or to compel disclosure where information-holders are dilatory in doing so.

Fourth, it is important to understand that the notion of a ‘right to information’ is something of a misnomer. The common legal standard that is followed in legislation giving effect to the right of access to information is to provide a right to seek and receive records – ie existing paper or digital documents. It is not a right to ask questions, but to rather to find out what is going on through an examination of the paper-trail.

The lesson here is that META needs to be absolutely clear about the pieces of information – the records – that are critical to the dual process of promoting accountability in the pharmaceutical industry and of diagnosing the blockages that prevent poor people from accessing affordable, safe medicine.

MeTA’s biggest challenge may be to identify the precise documents that will unlock the opacity of the supply chain and to then forge consensus about the rules of the game for their disclosure – what must be disclosed, when and how, and to whom.

Last, while legal instruments that grant people a right of access to information, are very important steps forward, we have learnt that it is only where there is a powerful demand for information that those who hold information are likely to have the political incentive – and thereby the political will – to match supply to demand.

META can help forge consensus about new standards of transparency, identifying the key parts of a complex array of supply chains that must be opened up to proper public scrutiny, but in the end, it can only be a complement to, rather than a substitute for, concerted social demand for change.

Yet, nor should the pivotal idea that a ‘right to know’ as a human right protected in international law, be lost. A rights-based approach helps to embed the principle of transparency and to encourage a culture of justification in terms of the commercial choices made by the industry. With greater openness, corporations and governments have to explain and justify the way in which they do business and the impact of their decisions on the poor.

Richard Calland is Associate Professor of Public Law at the University of Cape Town and founder Executive Director the Open Democracy Advice Centre. He is a member of META’s International Advisory Group.