Ac­cess to in­for­ma­tion law

Ob­sta­cles, ben­e­fits and the need for anti-cor­rup­tion com­mis­sion

Executive Magazine - - Front Page - By Jeremy Ar­bid

Af­ter nearly a decade of prepa­ra­tion and de­bate, Le­banon’s Par­lia­ment fi­nally rat­i­fied an ac­cess to in­for­ma­tion law in Jan­uary. The coun­try is con­sis­tently per­ceived as cor­rupt, ac­cord­ing to global watch­dog Trans­parency In­ter­na­tional, and Le­banon does not rate highly on the World Bank’s ease of do­ing busi­ness in­dex. En­force­ment of this new law might, over time, help im­prove those rank­ings, as well as the busi­ness in­vest­ment en­vi­ron­ment and the qual­ity of ser­vices the govern­ment pro­vides to the pub­lic – all while co­erc­ing Lebanese au­thor­i­ties to be more trans­par­ent and ac­count­able to the cit­i­zens. The law came into ef­fect in Fe­bru­ary but, while this mag­a­zine has not yet put it to the test, its im­ple­men­ta­tion could face some ob­sta­cles, and an­other law is still re­quired to es­tab­lish a key body cru­cial to de­fine what in­for­ma­tion ac­tu­ally is ac­ces­si­ble.

OB­STA­CLES

The law pre­scribes that vir­tu­ally all govern­ment en­ti­ties pub­lish key doc­u­ments show­ing in­di­ca­tors of each of­fice’s per­for­mance, such as an an­nual re­port, or­ders and de­ci­sions, and of­fice ex­pen­di­tures. Govern­ment of­fices are re­quired by law to pub­lish th­ese doc­u­ments on­line, but a num­ber of th­ese en­ti­ties do not have web­sites, so it is un­clear how soon they would be able to com­ply with this par­tic­u­lar as­pect.

The law also out­lines a process by which spe­cific in­for­ma­tion can be re­quested from the govern­ment (see Ex­ec­u­tive’s explainer page 54, and ac­com­pa­ny­ing in­fo­graphic page 56), de­tail­ing what is to be pub­lished and lay­ing out the stages ac­com­pa­ny­ing any re­quest. The law is a wel­come and pos­i­tive step to­ward im­prov­ing trans­parency and pub­lic ac­count­abil­ity, civil so­ci­ety stake­hold­ers tell Ex­ec­u­tive, but there will be chal­lenges in re­quest­ing in­for­ma­tion and in ap­peal­ing re­quests that are de­nied.

The law calls for the es­tab­lish­ment of an an­ti­cor­rup­tion com­mis­sion (ACC) that would serve three pri­mary roles. First, it would act as a watch­dog by in­ves­ti­gat­ing al­le­ga­tions of cor­rup­tion. Sec­ond, as an ed­u­ca­tional en­tity guid­ing pub­lic ser­vants in fill­ing re­quests and in­form­ing cit­i­zens’ aware­ness of their right to in­for­ma­tion. Third, it would serve as an ad­vi­sory body con­sult­ing au­thor­i­ties on whether in­for­ma­tion should be dis­closed or re­main con­fi­den­tial. Es­tab­lish­ing the ACC re­quires ad­di­tional leg­is­la­tion that is still in sub­com­mit­tee at the Par­lia­ment, ac­cord­ing to Ghas­san Moukheiber (see Q&A with Moukheiber page 53).

The fact that the ACC is not es­tab­lished as the ac­cess to in­for­ma­tion law goes into ef­fect is a con­cern at mul­ti­ple lev­els. Ad­min­is­tra­tive records could be hard to track down be­cause, based on ob­ser­va­tional ev­i­dence, they’re nei­ther reg­u­larly dig­i­tized nor sys­tem­at­i­cally archived.

Pub­lic of­fi­cials, in­no­cently or not, might not in­clude per­ti­nent in­for­ma­tion in the re­quired doc­u­ments to be pub­lished au­to­mat­i­cally on their of­fices’ web­sites, or they might deny re­quests sim­ply be­cause there is no cul­ture of dis­clo­sure within the govern­ment, says Dany Had­dad, a for­mer con­sul­tant for the Lebanese Trans­parency As­so­ci­a­tion, the lo­cal chap­ter of Trans­parency In­ter­na­tional. The law is “ask­ing them to be like the pri­vate sec­tor, where you have to re­port about your work, but the pub­lic sec­tor has never done this,” Had­dad says. The ACC would be in­stru­men­tal in defin­ing what in­for­ma­tion is dis­closed, and without it in place there is no cen­tral au­thor­ity de­cid­ing how nar­rowly to in­ter­pret in­for­ma­tion that is ex­empted from

dis­clo­sure. The law lists broad cat­e­gories where in­for­ma­tion would not be ac­ces­si­ble, in­clud­ing: pro­fes­sional and trade se­crets; pri­vate in­for­ma­tion re­lat­ing to in­di­vid­u­als and open court cases; min­utes of con­fi­den­tial govern­ment meet­ings; opin­ions is­sued by the State Coun­cil; and state se­crets re­lat­ing to se­cu­rity, for­eign re­la­tions or the econ­omy. So, hy­po­thet­i­cally, Banque du Liban (BDL), Le­banon’s cen­tral bank, could cite bank­ing secrecy in a re­fusal to deny fig­ures on its stim­u­lus packages.

The ACC would also be the au­thor­ity rul­ing on ap­peals to de­nied or ig­nored re­quests. But it is just one of sev­eral av­enues of ap­peal, Moukheiber says. While the law pre­scribes that the State Coun­cil will rule on ap­peals of ACC de­ci­sions, it does not clearly out­line where ap­peals should be heard in the ab­sence of the ACC. “You al­ways have to ask, what if we don’t es­tab­lish the anti-cor­rup­tion com­mis­sion? Will this law be null and void? The an­swer is no,” Moukheiber says, adding that Le­banon’s com­mon law of ad­min­is­tra­tion al­lows ap­peals of de­nied re­quests to be heard by the State Coun­cil and other courts. But, he ad­mits, this could be open to in­ter­pre­ta­tion. “I’d say you have three ap­peals pos­si­ble: you can go to court; you can pur­sue dis­ci­plinary pros­e­cu­tion of ad­min­is­tra­tive re­course to force the ad­min­is­tra­tion to give the doc­u­ment; or, af­ter it’s es­tab­lished, ap­peal to the anti-cor­rup­tion com­mis­sion.”

That is wor­ri­some, says Ay­man Mhanna, ex­ec­u­tive di­rec­tor of the Samir Kas­sir Foun­da­tion. “My con­cern is that the law specif­i­cally says where the ap­peal should go,” a risk, he says, that could push the courts, or the State Coun­cil, to back away from rul­ing on ap­peals. “They could say ‘the law states the ap­peal should go to the [anti-cor­rup­tion com­mis­sion], there­fore we can­not look into it’,” Mhanna adds.

HOW IS IT USE­FUL?

Ac­cess to in­for­ma­tion is not just about dig­ging up the govern­ment’s dirt or ex­pos­ing cor­rupt prac­tices. “There is a very strong role for jour­nal­ists,” Mhanna says, “very of­ten peo­ple look at ac­cess to in­for­ma­tion only from a con­fronta­tional point of view. I think this ap­proach is needed, but it’s not the only way to get re­sults.” Ac­cess to in­for­ma­tion can be used in a very con­struc­tive and non-con­fronta­tional way to im­prove the qual­ity of jour­nal­ism, es­pe­cially in­ves­tiga­tive jour­nal­ism. Govern­ment­pro­duced re­ports and statis­tics can in­form longterm plan­ning on pub­lic health is­sues, for ex­am­ple, by in­ter­na­tional donors and on-the-ground non­prof­its pro­vid­ing health care ac­cess. Data mea­sur­ing the sec­tors of the econ­omy can also help for­eign and lo­cal in­vestors make de­ci­sions about where to put their money.

Ghas­san Moukheiber con­sults with other MP’s.

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