Access to information law
Obstacles, benefits and the need for anti-corruption commission
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.
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.