Banco Mundial H. Darbishire Proactive Transparency

8/2/2019 Banco Mundial H. Darbishire Proactive Transparency

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Proactive Transparency:The future of the right

to information?Helen Darbishire

Access to InformationProgram

Governance WorkinG paper s


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Working PaPer

Pctv Tspcy:

Th futu f th ht

t fmt?A review of standards, challenges, and

opportunities.

Helen Darbishire*

* Helen Darbishire is Executive Director o Access Ino Europe, a Madrid-based NGO which promotes the right oaccess to inormation in Europe and engages in standard-setting internationally. Previously she worked with Article19 (London and Paris) and the Open Society Institute (Budapest and New York) providing expertise and support tocivil society, governments, and inter-governmental organizations (Council o Europe, OSCE, European Union, WorldBank) engaged in the adoption and implementation o access to inormation laws. She has worked extensively in Eu-rope (including central and eastern Europe) and Latin America, as well as in Arica and the Middle East. Helen Dar-bishire is current Chair o the FOI Advocates Network.


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The ndings, interpretations, and conclusions expressed in this volume do not necessarily refect theviews o the Executive Directors o The World Bank or the governments they represent. The WorldBank does not guarantee the accuracy o the data included in this work.

This paper has been commissioned by the Access to Inormation Program at the World Bank Insti-tute (WBI) and supported nancially by the Communication or Governance and AccountabilityProgram (CommGAP).

Th WBi accss t ifmt Pm seeks to connect key ATI stakeholders to jointlyidentiy, prioritize and implement actions or eective ATI adoption and implementation. The pro-gram aims to improve in-country capacity or the ormulation, implementation, use and enorcemento ATI legislation through regional knowledge exchange and networking, and by ostering the ca-pacity o multi-stakeholder coalitions to undertake eective ATI reorms.

CmmgaP, a global program at the World Bank, promotes the use o communication in gover-nance reorm programs and supports the building o democratic public spheres. By applying inno-vative communication approaches that improve the quality o the public sphereampliying citizenvoice; promoting ree, independent, and plural media systems; helping government institutions com-municate better with their citizens; and promoting an environment that enables and gives all actorsrights, duties, and opportunitiesthe program aims to demonstrate the power o communicationprinciples, processes, and structures in building eective states, promoting good and accountable gov-ernance, and hence achieving better development results.


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iii

Contents

acwldmts .....................................................................................v

excutv Summy ....................................................................................1

1. itduct ...........................................................................................3

1.1 The Benefts o Proactive Disclosure .................................................................... 3

1.2 Standard-setting on Proactive Disclosure .............................................................. 4

1.3 Proactive Disclosure as the Future o the Right to Know ...................................... 6

2. Th Dvs f Pctv Tspcy ......................................................9

2.1 Proactive Transparency and the Rule o Law ......................................................... 9

2.2 Proactive Transparency and Accountability ...........................................................10

2.3 Proactive Transparency and Participation ..............................................................12

2.4 Proactive Transparency, Government Services and e-Government ..........................13

3. accss t ifmt Lws d Pctv Tspcy ........................... 15

3.1 Incorporating Proactive Disclosure into Access to Inormation Laws .....................15

3.2 User-dr iven Proactive Transparency .....................................................................17

4. ittl d Cmptv Stdds f Pctv Dsclsu ............ 19

4.1 International Standard Setting on Proactive Disclosure .........................................19

4.2 Proactive Disclosure in International Treaties .......................................................20

4.3 An Emerging Minimum Standard or Proactive Disclosure ....................................21

5. Pctv Tspcy Pctc ......................................................... 23

5.1 Multiple Channels or Pushing Out Inormation ..................................................23


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iv Proactive Transparency: The Future of the Right to Information?

5.2 Access Points or Proactively Disclosed Inormation .............................................24

5.3 Making Inormation Relevant .............................................................................27

5.4 Comprehensible Inormation ..............................................................................28

5.5 Charges or Proactively Disclosed Inormation .....................................................29

5.6 Inormation Management or Timely and Complete Disclosure ............................29

5.7 Proactive Disclosure Principles ............................................................................31

6. Fud, Pmt, Mt d efc Pctv

Dsclsu ...........................................................................................33

6.1 Funds to Get Inormation Flowing ......................................................................33

6.2 Progressive Implementation ................................................................................33

6.3 Training Ofcials and Raising Public Awareness ...................................................34

6.4 Monitoring Levels o Proactive Disclosure ...........................................................34

6.5 Enorcing Proactive Disclosure ............................................................................34

6.6 Recommendations or Implementation o Proactive Disclosure Regimes ...............35

7. Ccluss d rcmmdts f Futu rsch .......................... 37

ax a: Clsss ifmt Cmptv ................................................. 39

ax B: Summy f th Pctv Dsclsu Ftus f

th ahus Cvt .............................................................................. 43

edts ................................................................................................. 45


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v

Acknowledgements

I would like to thank the ollowing people orresponses to my requests or inormation while

researching this paper, and or proactively sharinguseul inormation and ideas: Jerzy Celichows-ki, Charles Davis, Andrew Ecclestone, Greg Elin,Andrea Figari, dm Fldes, David Goldberg,

Jonathan Gray, KristinaKotnik Sumah, NorahMallaney, Jos Luis Marzal Ruz, Toby Mendel,Venkatesh Nayak, Nataa Pirc Musar, Neman-

ja Nenadi, Mateja Preern, Suzanne Piotrows-ki, Miguel Pulido, Andr Rebentisch, Alasdair

Roberts, Santosh Sigdel, Shekhar Singh, Gra-ham Smith, Richard Smith, Rick Snell, Ivan

Szekely, Roger Vleugels, and John Wonderlich.My gratitude also to my colleagues at Access In-o Europe, to the many contr ibutors to the FOIAdvocates Network, and to Marcos Mendiburu,Luis Esquivel, Aranzazu Guillan-Montero, Ro-sario Soraide and the team at the WBI Access toInormation Program. Errors and views are sole-ly the authors and do not necessarily refect theocial position o the World Bank.


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1

Executive Summary

This paper identies our primary drivers o pro-

active disclosure throughout history (Section 2).

The rst is the need to inorm the public aboutlaws and decisions and the publics right to be

inormed, to know their rights and obligations.

The second is the publics demand or the inor-

mation needed to hold governments account-

able both at and between elections. The third is

the demand or inormation in order to partic-

ipate actively in decision-making. The ourth is

the provision to the public o inormation need-

ed to access government services, which has ex-

panded signicantly in the past decade withgrowth o electronic access to services or e-

government.

These drivers led to progressive develop-

ment o laws and practices or proactive disclo-

sure. They have been given urther impetus by

the large-scale disclosure potential o the Inter-

net. Also advancing proactive disclosure has re-

sulted rom the development o the right o ac-

cess to inormation, as enshrined in access to

inormation laws, which increasingly contain

specic proactive provisions. The recently ad-

opted legal rameworks which include proac-

tive disclosure regimes (Section 3) point to an

emerging standard on the classes o inormation

which should be made available at the core o

any national proactive disclosure regime.

The national standards are reiterated andcomplemented by provisions by internation-

al bodies (Section 4). These international pro-visions make clear that, in addition to having

numerous benets or public bodies and ormembers o the public, proactive disclosure isan obligation that is part o the right o access toinormation. From comparing the national andinternational provisions it is possible to identi-y a set o 14 core-minimum o classes o inor-mation or proactive disclosure (detailed in Sec-tion 4.3).

The lessons learned rom the practical expe-riences o implementing proactive disclosure re-

gimes indicate that due consideration should begiven to how inormation will be structured, or-ganized, edited, and when and where it will bedisclosed (Section 5).

Also essential in setting up proactive dis-closure regimes is the need to allocate neces-sary resources, to consider rolling out proactivedisclosure programs progressively, and to estab-lish eective enorcement mechanisms to en-sure compliance. These considerations lead to anumber o recommendations including that in-ormation should be organized and publishedso that it is: available, ndable, relevant, compre-hensible, ree or low cost, and up-to-date. Whensetting up or improving proactive disclosureschemes, public bodies should ensure that theyare well-resourced, progressive, promoted (with-in government and to the public), comprehen-sively monitored, and properly enorced.


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3

1

There are two main ways by which inormationheld by public bodies1 can be accessed by the

public.2 The rst is when individual members othe public le requests or and receive inorma-tion (reactive disclosure). The second is when in-ormation is made public at the initiative o thepublic body, without a request being led. Thisis known asproactive disclosure3 and the result isproactive transparency which can be achievedusing a multiplicity o means ranging rom pub-lications and ocial gazettes, to publicly acces-sible notice boards, to radio and television an-

nouncements, to posting on the Internet via apublic institutions website.4 This paper reviewsthe development o, and the emerging standardsor, proactive disclosure.

1.1 The Benefts oProactive Disclosure

For public authorities, numerous benets ac-crue rom taking the initiative to publish the in-ormation they hold. Proactive disclosure en-sures that members o the public are inormedabout the laws and decisions that aect themand contributes to the rule o law. It acilitatesmore accountable spending o public unds andpromotes integrity in government. Disclosureo data and policy documents ensures that thepublic has the inormation needed to partici-

Introduction

pate in policy- and decision-making. Dissem-ination by public bodies o inormation about

how they unction helps the public access gov-ernment services. These benets are among themain drivers o increased proactive disclosure inrecent years, as examined in Section 2 o thispaper. The rise o the Internet has urtheredtransparency by making large-scale publicationo government data possible at low cost.

A urther benet o proactive disclosure isthat it encourages better inormation manage-ment, improves a public authoritys internal in-

ormation fows, and thereby contributes to in-creased eciency. In countries with access toinormation regimes, proactive disclosure hasanother benet, which is to reduce the burdenon public administration o having to processrequests or inormation that may be led underan access to inormation law.

From the perspective o members o the

public, the automatic availability o inormation

ensures timely access to inormation and helps

to ensure that there is equality o access or all

members o society without the need to le re-

quests. A signicant advantage o proactive dis-

closure, particularly when this becomes automat-

ic and close to real-time, is that it becomes harder

or public ocials to subsequently deny the exis-

tence o, or to manipulate, the inormation.5

Another important benet o proactive dis-closure in countries emerging rom authoritarian


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4 Proactive Transparency: The Future of the Right to Information?

regimes is that it gives some protection to ap-plicants rom weaker segments o society orwhom it is oten a hazardous activity to actual-ly request inormation that could expose pow-

erul vested interests. I such inormation is pro-actively available, then it can be downloaded oraccessed anonymously.6 This also helps avoid acommon situation in corruption-prone coun-tries where public ocials are more likely to at-tend to those who are suciently empoweredto le requests or inormation needed to de-end their rights.7

Taking the initiative to push out inorma-tion will contribute to public use o it, perhaps

by combining it with other data in a way thatadds value to the inormation, giving it great-er relevance or other members o the publicor making it more useul in public policy de-bates. As will be examined in Section 3, the cre-ative use o inormation by the public is inspir-ing greater proactive disclosure.

1.2 Standard-setting on

Proactive DisclosureAs this paper will show (Section 2), the numer-

ous benets o proactive disclosure have been

driving orces resulting in signicant quanti-

ties o public inormation being disclosed. This

inormation includes core data on the main

unctions o government (budgets, annual re-

ports, major policy decisions, etc.) and sector-

specic inormation that is produced or and

disseminated to aected members o the pop-

ulation (such as inormation about primary

schools, health care or the elderly, business de-

velopment opportunities, or support or immi-

grants).

Standard-setting on what inormationshould be disclosed, where, when, how, and towhom, has also been advanced by initiativescoming rom government bodies and as a result

o campaigns by civil society movements pro-moting proactive disclosure.

At least our groups o civil society activismon proactive disclosure can be identied:

1. ntl lvl, sctl cmps: Forexample around the rural land r ights move-ment in India, agricultural subsidies inMexico, or activism to promote citizen par-ticipation in budget processes in Brazil andPeru.

2. ntl/ttl ccss t -fmt cmps: The movementsto promote the inclusion o proactive dis-

closure provisions in the access to inorma-tion laws o India and Mexico studied inthis paper; the campaign or stronger pro-active disclosure provisions in the Councilo Europe Convention on Access to O-cial Documents.

3. Sctl/l cmps: The ac-cess to environmental inormation move-ment (resulting in the Aarhus Convention);campaigns or openness to combat corrup-

tion (leading to, inter alia, the UN Con-vention against Corruption); transparen-cy around natural resource extraction (thePublish What You Pay campaign, leading tothe Extractive Industries Transparency Ini-tiative); and the aid transparency movement(where organizations such as Publish What

You Fund and aidino are working to in-clude proactive publication standards in-to the International Aid Transparency Ini-tiative).

4. Suptl ttvs: The eorts topromote transparency o international -nancial institutions lead by the Global Trans-parency Initiative coalition, and the work othe One World Trust in evaluating account-ability o intergovernmental bodies (alongwith multinational corporations and inter-national non-governmental organizations).


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5Introduction

These movements have secured proactivedisclosure provisions in national legal rame-works, treaties, and standard-setting documents.While some o these provisions are sector-spe-

cic, others are cross-cutting and apply to allpublic institutions. As the standards or proactivedisclosure evolve, they are increasingly includ-ed in national access to inormation laws, tak-ing their place alongside the right to request andreceive inormation as part o the right to in-ormation. Section 3 examines proactive disclo-sure provisions o national access to inormationlaws, while Section 4 examines how these arerefected in international standards on the right

o access to inormation.It is now well established that there is a hu-

man right o access to inormation held by pub-lic bodies. The right is enshrined in at least 50national constitutions and international courtshave read it into the reedom o expression andinormation provisions o human rights treaties.8I the only channel or access to inormationwere via requests led by individuals, huge in-ormation inequalities would rapidly arise with

dierent people knowing dierent things aboutthe unctioning o government, with large sec-tions o the population remaining ill inormed,to the detriment o society as a whole. Such asystem would also place an intolerable burdenon public ocials who would have to strive toanswer huge volumes o requests rom inorma-tion-hungry citizens. Proactive disclosure there-ore levels the playing eld or access to govern-ment-held inormation.

At the same time as recognizing that accessto inormation is an integral part o the rightto inormation, national legislators and inter-national human rights bodies have been some-what cautious in dening the precise nature andscope o the proactive disclosure dimension othe right. Hence (as will be examined in Section4) even new instruments such as the Council oEurope Convention on Access to Ocial Doc-

uments contain only rather general reerences toproactive disclosure obligations.

Clearly to publish all inormation held bypublic bodies is a huge task and can only be an

aspiration at this stage (although as signaled inSection 3.2, there are now some interesting ini-tiatives in that direction). The questions there-ore remain: which inormation should be pub-lished, and when and how?

This paper attempts to advance the debatearound that question by analyzing the multipleproactive disclosure provisions in national lawand international treaties in order to identiy theemerging global consensus on the classes o in-

ormation which should be included in a proac-tive disclosure regime (Section 4).

The paper examines the practical challengesrelated to the implementation o proactive dis-closure regimes and some o the lessons learnedrom which principles or making proactive dis-closure work in practice can be derived (Sec-tion 5). It concludes by identiying some uturechallenges and areas where additional research isneeded (Sections 6).

The mthdly or the research includ-ed a review o reports about the national lawand practice on proactive disclosure and relat-ed issues in a number o countries includingChile, Estonia, France, Hungary, India, Mace-donia, Mexico, Peru, Slovenia, the UK, and theUnited States. International declarations, juris-prudence, and treaties containing transparencyprovisions were also reviewed, as was academicliterature. This review was supplemented by in-terviews with civil society practitioners, sta oinormation commissioners oces, and govern-ment ocials.

Four countries whose access to inorma-tion laws include proactive disclosure provisionswere examined in more depth or the standard-setting analysis: India (Right to Inormation Acto 2005), Mexico (Law on Transparency and Ac-cess to Public Inormation o 2002), Hungary


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(e-FOIA, 2005), and the UK (Freedom o Inor-mation Act adopted in 2000, entered into orcein 2005). While specic legislation is likely togive a much greater level o detail than the gen-

eral provisions o an access to inormation law(take, or example, specic legislation on pub-lic procurement in many countries), these re-cent and high prole access to inormation lawspoint to emerging minimum standards or pro-active disclosure regimes.

The research or this paper identied a lack

o comparative mapping o proactive disclo-

sure in national law and practice. This can be

accounted or by the multiplicity o legal pro-

visions requiring proactive disclosure at the na-tional level, combined with signicant disclosure

o inormation as a matter o good practice. New

initiatives to release entire datasets proactively are

adding to the complexity o the picture.

There has been some comparative mappingby sector. Perhaps the most comprehensive isthe work o the International Budget Partner-ship which produces a global ranking o budgettransparency in 85 countries, the Open Budget

Index, every two years.9

Similarly the Global In-tegrity Initiatives annual Integr ity Index checksor levels o transparency in a number o areas opublic lie including elections, public procure-ment, privatization, and business licensing in 92countries. 10 More such surveys are needed toarrive at an accurate picture o the volume andnature o government inormation that is cur-rently disclosed and to be able to identiy whereattention to increasing transparency is needed.

1.3 Proactive Disclosureas the Future o theRight to Know

This paper was elaborated during 2009, a yearwhich saw a series o signicant developmentsor the right o access to inormation in gener-

al and proactive disclosure in particular. Some othe highlights are:

Juy 1, 2009: Mandatory minimum

standard proactive disclosure rules come in-to orce in the UK under the InormationCommissioners Model Publication Scheme(Section 3.1).

Juy 21, 2009: President Barack Obamaon his rst day in oce issued a memoran-dum on the Freedom o Inormation Actwhich shited the U.S. Administration roma presumption o secrecy to one o disclo-sure in response to FOI requests, and went

one step urther to urge proactive disclo-sure:

The presumption o disclosure also meansthat agencies should take afrmative steps tomake inormation public. They should notwait or specifc requests rom the public. Allagencies should use modern technology to in-

orm citizens about what is known and doneby their Government. Disclosure should be

timely.11

april 14, 2009: European Court o Hu-

man Rights conrms or the rst time that

there is a undamental right o access to in-

ormation linked to the right to reedom

o expression and necessary or civil soci-

ety to hold government bodies account-

able and to create orums or public debate

(Section 4).

apl 30, 2009: European Union rules re-quiring member states to proactively dis-close data on agricultural subsidies come in-to orce (Section 3.2). This is the largest everproactive disclosure initiative to apply acrossthe 27-member Union.

My 21, 2009: U.S. Government launch-es Data.govwhose purpose is to give directpublic access to machine-readable datasets


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7Introduction

generated by the Executive Branch o theU.S. Federal Government. An initial 47 da-tasets are on line, o the thousands plannedor release. Openness advocates hail this

as an enormous change in attitude aboutwhat public means12 (Section 3.2).

Ju 10, 2009: UK government announc-es that Tim Berners-Lee, one o the inven-tors o the World Wide Web, is workingwith to create a single online point o ac-cess or government-held public data andhow to use the Internet to improve gov-ernment consultation processes. Data.gov.ukwas subsequently launched on January 21,

2010 (Section 3.2). Ju 18, 2009: Worlds rst treaty on ac-

cess to inormation, the Council o EuropeConvention on Access to Ocial Docu-ments opens or signature; it contains a pro-vision on proactive disclosure (Section 4.2).

July 8, 2009: Indian government announced

that it will be broadening the rules or proac-

tive disclosure contained in the Right to In-

ormation Act (2005) to increase disclosure

in non-strategic areas beyond the 18 core

disclosure provisions o the act. Civil society

groups point out that there is fexibility in

the existing provisions and urge better com-

pliance with these.13 (Section 3.1).

This paper will consider some o these de-velopments in more depth as it examines theproactive disclosure o inormation, which someexperts are characterizing as the uture o the

right to inormation. The rst section, howev-er, will begin with the historical development oproactive disclosure o public inormation andexamine some o the driving orces that havelead to the development o this hal o the r ighto access to inormation.


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2

The Drivers oProactive Transparency

Four main driving orces have shaped the devel-opment o proactive transparency through his-

tory. The rst is the governments need to in-orm the public o laws and decisionsand thepublics right to be inormed. The second is thedemand or inormation to hold governmentsaccountable at and between elections. The thirdis the evolution o public participation in de-cision-making, which depends on inormationbeing available. The ourth is ensuring that thepublic is inormed about how to access govern-ment services.

Further impetus comes rom the Internet,which makes possible rapid and inexpensive pro-

active disclosure. The Internet has given us e-gov-

ernment, large-scale public consultations, and

direct participation in decision-making (e-de-

mocracy).14 Other communication technologies

such as mobile phones provide platorms or pub-

lic bodies to disseminate inormation to wider

audiences; in some developing countries there is

greater mobile phone use than Internet access.15

In many ways, the existence o inormation and

communication technologies (ICTs) is in itsel

a driving orce or greater access to inormation

and can be seen as a th driver o proactive trans-

parency, albeit a cross-cutting one.

2.1 Proactive

Transparency andthe Rule o Law

Governments have always had pragmatic rea-

sons or making inormation available so that

citizens could know and obey the laws o the

land, something essential or a rule-o-law state

to unction eectively. The earliest orms o

proactive disclosure were the criers or bell-

men in ancient Greece, who went through

the streets announcing news such as victoriesin battles. In medieval Europe, people would

be hired to walk through the streets ringing a

bell, banging a drum, or blowing a horn to call

or peoples attention, and would then read out

important news such as royal proclamations, lo-

cal bylaws, warnings o danger or inormation

about market days; they also played a role in

passing news rom village to village.16 Although

in many parts o the world the town criers role

has been replaced by newspapers, radio, tele-vision, and now the Internet, they still exist

in parts o the developing world transmitting

news rom loudspeakers, sometimes mounted

on moving vehicles.17


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With the rise o the mass media, the needor town criers and notices hung in public plac-es decreased but public authorities around theworld have preserved this tradition o proac-

tively disseminating inormation. This is partic-ularly the case with respect to inormation thatimpacts directly on people in a limited geo-graphic area: it is common around the worldto see notices pinned to ences, gates, or treesannouncing, or example, that a minor con-struction project is planned in that locality andinorming the public o the opportunities topresent objections to the local authority.

The need to inorm the public about legis-

lation, policies and decisions so that they can beobeyed and enorced still underpins much pro-active disclosure by government. The principleo the rule o lawrequires that laws be known.18Hence, legal regulations can only enter intoorce once published in an ocial journal, andadministrative decisions are only applicable oncereceived by those concerned.19 From a humanrights perspective, a law must be published in away that acilitates public knowledge: the prin-

ciple that ignorance o the law is no excuse al-so places responsibilities on government to dis-seminate the law.

A typical example o modern democraticpractice is France, which has an extensive sys-tem or publishing all legislation, norms andregulations. In addition to the traditional O-cial Journal,20 the main 21st century vehicle isthe Legirance website,21 which holds French,European and International law, has electronicversions o Frances Ocial Journal, latest newsabout laws adopted, and links to the Senate andCongress websites (See Figure 1 or a screen-shot). In line with this, Frances 1978 law, one othe rst to have some proactive disclosure pro-visions, required publication o orders, instruc-tions, decisions and interpretations o the law(See also Section 3.1).22

Promoting public knowledge o laws andpolicies and inorming citizens o their rightswas historically at the origin o proactive trans-parency. The rule o law basis or proactive dis-

closure still preserves its undamental impor-tance when dening proactive disclosure rules.

2.2 ProactiveTransparency andAccountability

A second driver or proactive transparency hasbeen the publics demand or inormation in or-

der to hold governments accountable or theiractions and how they spend public unds. Thisdemand led both to rules requiring proactivedisclosure and, more recently, to access to inor-mation laws.

As concepts o democracy evolved, the rule-

o-law motive or proactive transparency was

joined by demands or government accountabili-

ty. In the 18th century the word transparency to

describe open government was used in the works

o political philosophers such as Jean-JacquesRousseau (17121778), who promoted trans-

parency in his plans or the government o Po-

land in 1772, proposing that all public ocehold-

ers should operate in the eyes o the public and

even wear a uniorm so that they could never be

anonymous.23 Similarly, political philosopher Jere-

my Bentham (17481832) argued that the more

closely we are watched, the better we behave.24

In spite o this recognition o the link be-

tween transparency and honesty or integrityin public lie, the bureaucratic model o dis-creteness and secrecy25 prevailed, with isolat-ed exceptions such as Swedens long traditiono open government.26 Only in the latter parto the 20th century did civil society demands orgreater accountability to prevent corruptioncombined with the democratic transitions at the


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11The Drivers of Proactive Transparency

end o the Cold Warcreate increased pressuresor proactive disclosure o inormation.

As armed in a 1999 joint paper romthe Organisation or Economic Cooperationand Development (OECD) and the EuropeanUnion (EU), openness and transparency servetwo purposes:

On the one hand, they protect the public in-terest as they reduce the likelihood o mal-administration and corruption. On the otherhand, they are essential or protecting indi-vidual rights, as they provide the reasons orthe administrative decision.27

The OECD-EU paper then denes theclasses o inormation to be published proac-tively:

Public registers have to be made accessibleto the general public. The agents o authori-ty usually have to identiy themselves to the

public. Civil servants must accept certain re-strictions to earnings rom private activities,which have to be disclosed and authorisedbeorehand in any event. Particularly impor-tant to the application o openness is the ob-ligation o public authorities to provide rea-sons or their decisions.28

Figure 1: Access to Legislative Inormation in France


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An example translating this approach in-to law comes rom Canada, where a series olaws mandate proactive disclosure. In 2003,publication o travel and hospitality expens-

es was required or senior government ocials.In 2004, publication o all contracts worth overCA$10,000 (US$9,358) was required, as was in-ormation on the reclassication o public ser-vice positions. In 2005, proactive disclosure oall grants and contributions over CA$25,000(US$23,395) was introduced as part o the gov-ernments management improvement agen-da. Reporting is quarterly and can be accessedthrough a simple Internet portal on the website

o the Treasury Board o Canada Secretariat.29Creating a level playing eld or compe-

tition in the market has been another drivingorce towards proactive disclosure o nancialinormation in post-authoritarian countries. Forexample, in Chile, achieving probity (honesty)in government in the post-Pinochet transitionwas seen as important not only or democratiza-tion o the state, but also as a key actor in eco-nomic growth,30 and lead to adoption o a series

o laws with transparency provisions.31

Great-er transparency o state spending was achievedwith the ChileCompra electronic public pro-curement system, established in 2003.32 Finan-cial transparency was expanded in 2006 whenChiles President Bachelet ordered every publicbody to publish details o the spending o publicunds, contracts, and sta inormation; the de-cree required that each body link the disclosureo nancial data to the ChileCompra system.33

Making nancial inormation public willnot in itsel root out corruption but does acil-itate review by members o the public, civil so-ciety organizations, and journalists.34 The rightto have access to inormation to hold govern-ment accountable was conrmed in an April2009 ruling rom the European Court o Hu-man Rights, which said that access to inorma-tion is essential or civil society to play its social

watchdog role and that states have an obliga-tion to eliminate barriers to access inormationwhere such barriers exist solely because o an inor-mation monopoly held by the authorities.35Proac-

tive disclosure thereore plays a crucial role inmaking social oversight o ongoing governmen-tal activities possible, thereby strengthening ac-countability to the public.

2.3 ProactiveTransparency andParticipation

The third driver o proactive transparency is in-creased citizen participation in decision-mak-ing. The decisions can range rom the local lev-el (how to make best use o a piece o wasteland,or example) to aecting an entire nation (suchas how to develop a countrys poverty reduc-tion strategy).

Public participation can change the waypublic policies are developed, reducing captureby special interest groups, and ensuring that de-

cisions take into account the views and needso aected communities. Although inormationalone is not sucientadditional mechanismsare necessary or receiving input rom the pub-lic, reviewing it, and providing eedback on howthis input was taken into considerationmean-ingul participation exercises are contingent onthe public having timely access to the same da-ta as the ocials making the decision. Partici-pation cannot be eective or equal i individu-

als have to le requests and wait or an answer.In countries with high levels o Internetpenetration, holding online consultations low-

ers the barriers to participation. For example, the

UKs Department o Health held a consultation

which was ramed as ollows:

The Government has launched a consultation tofnd out what you think o plans to help improve


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13The Drivers of Proactive Transparency

everyones mental well-being and the services thatprovide mental health care.36

The consultation notice is accompanied by

relevant background documents opening up orpublic debate an important area o health care.

In other countries, inormation or consul-

tations can be disseminated in fiers, on notice

boards, and by holding public meetings. These

approaches have been used in Latin Amer-

ica or inorming the public about participa-

tory budgeting exercises. Direct consultations

on budget spending priorities originated in the

Brazilian city o Porto Alegre in the late 1980s37

and in the 1990s spread to other countries in-cluding Peru, which is the only country in the

world to have a national law requiring partici-

patory budgeting.38 That law, adopted in 2003,

has transparency as one o its key pillars39 and

requires the publication o key budget inor-

mation.

The combination o the requirements un-der Perus participatory budget law and its accessto inormation law40 has lead to measurable in-

creases in proactive disclosure o inormation. AJune 2009 study ound that hal the authoritiesmonitored had published at least 70% o legal-ly mandated inormation on their websites, withthe highest score being 91 percent.41

The role o transparency in acilitating par-ticipation has been conrmed by internation-al human rights bodies. In the Americas, theHeads o State o the Organization o AmericanStates declared in 2004 that: Access to inorma-tion held by the State, subject to constitutionaland legal norms, including those on privacy andcondentiality, is an indispensable condition orcitizen participation and promotes eective re-spect or human rights.42The right to participateis contingent on the right o access to inorma-tion, and that participation can only be satisacto-rily achieved through proactive disclosure o in-ormation.

2.4 ProactiveTransparency,Government Services

and e-Government

The ourth driver or proactive transparency isthe need to inorm the public about govern-ment services. This is a corollary o inormingthe public about the legal rights and obligations,and has been a traditional basis or proactive dis-closure. Services may be general or or a speci-ic section o the public (or example, students,

businesses, or parents)Proactive disclosure about public services

has been given new impetus in the past decadeby ICTs, which turn slow bureaucratic proce-dures involving lots o paperwork into simpletransactions with documents and guidance ac-cessed at the click o a mouse. This is knownas e-government and according to the WorldBank it has the ability to transorm relationswith citizens, businesses, and other arms o gov-

ernment.43

One country that has achieved signicantadvances in e-government is Estonia, which ad-opted its rst Inormation Society Strategy in1998, just nine years ater emerging rom theSoviet bloc.44 Since then there has been a steadyincrease in acilitating electronic access to gov-ernment services, whether it be or paying tax-es, applying or parking permits, or commentingon drat legislation. Electronic ID cards, now inthe possession o the major ity o citizens, can beused to interact with the government through acomputer or mobile phone. The Citizens Por-tal, a virtual representation o the state on theInternet, gives the public direct access to 20main registers o the state without leaving theirhomes.45 The Estonian Inormatics Centre re-ports that in 2007 these services were used a to-tal o 43 million times.46


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Another advantage o ICTs is the speedwith which newly created data can reach mem-bers o the public. In Estonia, Cabinet meetingshave been run live on the Internet and Estonian

citizens get to know about policy decisions aslittle as 30 seconds ater they have been made.47

E-government should not, however, replaceexisting disclosure modes in countries with lowInternet penetration. Conventional channelsnotice boards, inormative leafets, radio, tele-vision, and public meetingsor use o mo-bile phone where relevant, permit the publicto learn about services and subventions in areassuch as health, education, employment, agricul-

ture, and business, thereby contributing to hu-man and economic development.

This section has reviewed the main driv-ing orces or proactive transparencythe ruleo law, accountability, public participation, andaccess to services. These drivers resulted in pro-

active transparency both prior to and separate-ly rom the adoption o access to inormationlaws. As a result, the right to request and receiveinormation was introduced in an environmentwhere considerable volumes o public inorma-tion were already available. As the next sectionwill show, there is now a convergence betweenproactive and reactive disclosure, with the pub-lics right to ask or inormation having an im-pact in dening which inormation is disclosed

proactively.


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15

Access to Inormation

Laws and ProactiveTransparency

Access to inormation laws primarily regulatethe mechanisms by which the public can re-

quest inormation rom public institutions.48They usually conrm the right to inormationalong with a presumption in avor o grantingaccesswhat is sometimes reerred to as the

principle o maximum disclosure.49 They also estab-lish the exceptions to access, such as protectiono privacy, commercial secrecy, and national se-curity. Increasingly, as reviewed in this section,these laws incorporate provisions on proactivedisclosure, clearly establishing a legal obligation

on public authorities not only to respond to re-quests but also to push out inormation. Thissection also examines the impact o inormationrequests on decisions about what should be dis-closed proactively.

3.1 IncorporatingProactive Disclosureinto Access to

Information Laws

The worlds earliest access to inormation lawshad only minimal proactive disclosure pro-visions. For example, in the Netherlands, theWOB (Act on public access to governmentinormation, 1978) establishes the mechanismsor ling requests and receiving inormation. It

also includes a general provision on proactivedisclosure, requiring that:

The administrative authority directly con-cerned shall provide, o its own accord, inor-mation on its policy and the preparation andimplementation thereo, whenever the provi-sion o such inormation is in the interests oeective, democratic governance.50

This provision is not, however, the mainsource o proactive disclosure obligations in the

Netherlands; there are hundreds o inorma-tion-disclosure norms. For example, a recentreview o the proactive disclosure o the sala-ries o public ocials and senior sta in state-owned companies revealed over one hundredrules concerning the disclosure o salaries, extrapayments, bonuses, and so on.51

In 1989 when the Berlin Wall ell there were

just 12 access to inormation or reedom o in-

ormation laws in the world, to be ound mainly

in longer-established democracies, and the pro-

active provisions o these laws remained limited.

There are now 80 access to inormation laws,52

refecting eorts by civil society to redress pow-

er balances in ormerly authoritarian regimes by

empowering citizens with the right to request

and receive particular pieces o inormation.

Including stronger proactive disclosure pro-visions has been part o this expansion o the

3


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right to inormation. There seem to be threemain reasons or this trend. The rst is to es-tablish minimum standards or proactive disclo-sure applicable to all public bodies. The second

is to ease the burden o a new openness regimeby anticipating public demand and meeting itthrough proactive disclosure. The third is thegrowing recognition that proactive disclosure isan integral part o the right o access to inor-mation, ensuring that core inormation is avail-able in a timely ashion: as the European Courto Human Rights has noted, inormation is aperishable commodity and to delay its publica-tion even or a short period may well deprive it

o all value and interest.53The Mexican Law on Transparency and Ac-

cess to Public Inormation (2002)54 species17 classes o inormation or proactive disclo-sure.55 A strong civil society campaign behindthe Mexican law helped shape these provisions,as it did in India where right to inormation ad-vocates were always clear that the right placesan obligation on government to publish inor-mation proactively as well as to respond to re-

quests. The Indian Right to Inormation (RTI)Act (2005)56 identies 18 classes o inormationthat should be made public proactively withoutthe need or requests.

Indias RTI Act laid a set o obligations over

pre-existing proactive disclosure requirements in

other laws. This trend to use access to inorma-

tion laws to harmonize proactive disclosure has

lead countries to amend their legislation with

supplementary acts, dening across-the-board

proactive disclosure or all public bodies. For ex-

ample, Hungary, whose 1992 access to inorma-

tion law was the rst in central and eastern Eu-

rope, lacked strong proactive provisions. In 2005,

in response to the experience o implementing

the law, concerned at the burden that requests

place on both requesters and public ocials, and

responding to opportunities created by the Inter-

net, Hungary introduced its Electronic Freedom

o Inormation Act (e-FOIA).57 The e-FOIA re-

quires proactive disclosure by electronic means

o core inormation held by public bodies.58

Hungarys e-FOIAdrated ater input

rom civil society and academicssets out thelegal requirements in signicant detail. For ex-ample, it breaks down organizational and sta-ing inormation into ten classes, and withineach class it lists the types o inormation to bepublished. There are another 18 classes or inor-mation on operation and activities, and a urthersix classes or nancial inormation.59

Setting an obligatory minimum standardor proactive disclosure can also be benecial

in countries with longer democratic traditionswhere levels o proactive disclosure are vari-able because practices have evolved but have notbeen codied in law. In the UK, or example,the Freedom o Inormation Act initially let itup to each o the over 100,000 bodies coveredby the act60 to dene their proactive disclosureschemes, based on what these bodies had tradi-tionally made available. As a result, standards orproactive disclosure varied enormously across

government and between central and local level.For this reason, in 2008 the Inormation Com-missioners Oce (ICO) used its powers underthe act to develop and mandate a minimum seto standards or the publication scheme.61 Priorto doing this, the ICO established a multi-stake-holder steering group which, over 18 months,held consultations with public authorities at alllevels o government and around the country,and ran workshops which members o the pub-lic were also able to attend.

The classes o inormation that have beenincorporated into the proactive disclosure re-quirements o the Hungarian, Indian, Mexi-can, and UK laws are summarized in Annex A,along with the requirements o internationallaw. By comparing these provisions it is possibleto identiy a minimum standard or inormationto be disclosed under a modern democratic pro-


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17Access to Information Laws and Proactive Transparency

active disclosure regime (Section 4.3). It is im-portant to note that in the our countries stud-ied, consultations with the potential users o theinormation was given due consideration in de-

ning the proactive disclosure provisions.

3.2 User-driven ProactiveTransparency

Another way the public is shaping proactive dis-closure policies is through requests or inorma-tion, which provide public authorities with anindicator o what the public wants to know. I

a particular document is requested requently, itmakes good bureaucratic sense to publish it sothat uture inormation-seekers do not have tole a request, saving time or both ocials andrequestors.

Some lawsincluding those o Mexico,Slovenia, and the United Statesestablish thatrequent requests should result in proactive dis-closure. For example, the Mexican Federal Lawon Transparency and Access to Public Inorma-

tion (2002)62

requires public bodies to publishrelevant and useul inormation, and speciesthat one way to determine this category is thatit corresponds to the most requent questionsmade by the public. The sophisticated electron-ic request-tracking system developed in Mexi-co helps to capture data on requent requests.63

A similar provision in the U.S. e-FOIA(1996)64 requires creation o an index, and pub-lication o, requently requested records. Spe-cically the act requires that all agencies makeavailable or public inspection and copying ... all re-cords ... [which] have become or are likely to becomethe subject o subsequent requests or substantially thesame records.65 As a result o this provision, eder-al websites in the U.S. include a page with linksto requently requested documents.

The use o inormation obtained under ac-cess to inormation laws can also promote pro-

active disclosure. A large-scale example is theproject to make European Union arm subsidiestransparent. In Europe, a network o journalistsused access to inormation requests to compile

inormation on exactly who receives every eu-rocent o the 55 billion o agricultural subsi-dies spent annually in the EU. The rst coun-try to release the data was Denmark in 2004,ollowed by the UK in 2005. This inorma-tion was posted on the website Farmsubsidy.org.66The resulting stories (and in some cases scan-dals) about who was getting what money gen-erated a lot o media coverage and put pressureon the less transparent countries o the EU to

open up their les. Eventually an EU directivewas adopted requiring disclosure by 30 April2009, resulting in disclosure o a wealth o addi-tional inormation, making it possible to identi-y the major recipients o European arm subsi-dies, whether they be small landholders or largemulti-national companies.67

Another example o positive eedbackcomes rom the eld o budget transparency,where civil society groups have taken state bud-

gets and edited the inormation in order to pres-ent it in a user-riendly ormat. When civil soci-ety in Croatia prepared a citizen version o thebudget, the Ministry o Finance adopted thisguide as its own, thereby changing the way inwhich the government presents inormation.68

Innovative, value-added uses o public data-bases can impact positively on proactive disclo-sure policies. For example, in 2007, the UK gov-ernment released data about locations o bicycleaccidents. Members o the public linked this in-ormation to maps, making it possible or cy-clists to plan saer journeys avoiding the blackspots. The British government has been movedby such examples to launch new initiatives torelease ever-larger volumes o government da-ta proactively.69

In the U.S., the demand or greater access to

entire datasets so that the public can add value to


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the data has resulted in the May 2009 launch o

the web portal Data.gov, whose goal is to im-

prove access to Federal data and expand creative

use o those data beyond the walls o govern-

ment by encouraging innovative ideas (e.g., web

applications). ... The openness derived rom Da-

ta.gov will strengthen our Nations democracy

and promote eciency and eectiveness in Gov-

ernment.70 These are bold claims but indepen-

dent analysts agree that this is an unprecedented

initiative, based on a sophisticated understand-

ing o the added value potential when the pub-

lic uses these datasets to build applications, con-

duct analyses, and perorm research71 which is

also reerred to as collaborative transparency.72

The UK ollowed in January 2010 with thelaunch o Data.gov.uk. Similar initiatives havealso been launched in Australiathe data.aus-

tralia.gov.au website encourages users to makegovernment inormation even more useul bymashing-up the data to create something newand exciting!73and in New Zealand with da-

ta.govt.nz. Across the European Union numer-ous government departments have launchedsimilar direct access to raw datasets. In Denmark,or example, the Danish National IT and Tele-com Agency has created a meta-portal to linkusers to the available data.74

This section has looked at proactive disclo-sure in national access to inormation laws, theimpact o user eedback or proactive disclosure,and how new initiatives are likely to reshape at-

titudes to, and rules or, proactive transparency.The next section looks at how international e-orts are contributing to dening governmentsproactive disclosure obligations.


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19

means that they are interpretations o interna-tional and constitutional guarantees;75 by devel-

oping and explaining these standards, they pointto good practices that governments are encour-aged to adopt and implement.

At the European level, the Special Represen-

tative on Freedom o the Media o the Organi-

sation or Security and Cooperation in Europe

(OSCE) has noted that there is currently a Co-

pernican revolution taking place in the devel-

opment o the publics right to know.76 Proac-

tive disclosure is posited as an integral part o that

shit to a new paradigm or government transpar-ency. The Special Representative recommends:

Government bodies should be requiredby law afrmatively to publish inorma-tion about their structures, personnel, activ-ities, rules, guidance, decisions, procurement,and other inormation o public interest on aregular basis in ormats including the use oICTs and in public reading rooms or librar-ies to ensure easy and widespread access.77

In the Americas, standard setting has beenlead by the Organization o American States In-ter-American Juridical Committee,78 which in2008 developed a set o Principles on the Righto Access to Inormation. Included at Principle4 is guidance on proactive disclosure:

In spite o the increasing consistency in stan-dards or proactive disclosure contained in na-

tional access to inormation laws (Section 3), theinternational standards are not yet signicantlydeveloped. There are, however, useul reerencesin declarations rom intergovernmental organi-zations and in international treaties, which indi-cate that the obligation to disclose inormationproactively is an integral part o the r ight o ac-cess to inormation.

This section will review these internation-al provisions, identiy the classes o inormation

whose proactive disclosure they mandate and,by bringing these together with the leading na-tional standards on proactive disclosure, map outthe main classes o inormation that constituteemerging proactive disclosure standards.

4.1 Internationalstandard Setting onProactive Disclosure

Many texts adopted by international bodiesreer to transparency as a positive eature ogood, democratic administration, as noted inSection 2. In addition, a number o internation-al human rights bodies have recently made spe-cic recommendations on proactive disclosure.These recommendations are sot law, which

International and

Comparative Standardsor Proactive Disclosure

4


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Public bodies should disseminate inorma-tion about their unctions and activitiesin-cluding, but not limited to, their policies, op-

portunities or consultation, activities which

aect members o the public, their budget,and subsidies, benefts and contractson aroutine and proactive basis, even in the ab-sence o a specifc request, and in a mannerwhich ensures that the inormation is accessi-ble and understandable.79

As the next sub-section shows, these rec-ommendations are now being complementedby the hard law o binding treaties.

4.2 Proactive Disclosurein InternationalTreaties

At present, the strongest general provision in in-ternational law that reers directly to proactivedisclosure is contained in the worlds rst bind-ing treaty on access to inormation, the Council

o Europe Convention on Access to Ofcial Docu-ments, adopted on 18 June 2009. Article 10 re-quires that:

At its own initiative and where appropriate,a public authority shall take the necessarymeasures to make public ofcial documentswhich it holds in the interest o promotingthe transparency and efciency o public ad-ministration and to encourage inormed par-

ticipation by the public in matters o gener-al interest.80

TheExplanatory Memorandum to the Con-

vention elaborates on this, stating that citizens

need inormation to orm an opinion on the

authorities that govern them and to become in-

volved in the decision-making process. National

rules on proactive publication are thus encour-

aged.81 Examples o the classes o inormation

that should be published proactively include:

[I]normation about their structures, sta,

budget, activities, rules, policies, decisions, del-egation o authority, inormation about theright o access and how to request ofcial doc-uments, as well as any other inormation o

public interest.82

The proposed mechanism is that disclosurebe done on a regular basis and in ormats in-cluding the use o new inormation technolo-gies (or example web pages accessible to the

public) and in reading rooms or public librar-ies, in order to ensure easy, widespread access.83

The Explanatory Memorandum also sug-

gests requency o requests as a criterion or de-

termining which documents should be published

proactively.84 As noted in Section 3, requency o

requests can be an eective mechanism or en-

suring that proactive disclosure policies match

public interest in, and demand or, inormation.In addition to the Convention on Access to

Ocial Documents, there are two sector-spe-cic treaties that contain more detail. These are

the United Nations Convention Against Corruption

(UNCAC)85 and the 1998Aarhus Convention on

Access to Information, Public Participation in Decision-

making and Access to Justice in Environmental Mat-

ters (Aarhus Convention),86 both o which dene

specic classes o inormation which ratiying

states should take the initiative to make public.UNCAC, the rst legally binding interna-

tional anti-corruption instrument, includes pro-active disclosure in the chapter on preventingcorruption. UNCAC obliges 142 countries topublish inormation about matters that include:recruitment, promotion and retirement o civ-il servants; unding o candidatures and politicalparties; and public procurement systems. UN-CAC also requires transparency o anti-corrup-tion policies and the publication o periodic re-


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21International and Comparative Standards for Proactive Disclosure

ports on the risks o corruption in the publicadministration.87

The most detailed provisions, however, areto be ound in the Aarhus Convention (a UN

regional treaty with 44 European states par-ty), which regulates the mechanisms by whichmembers o the public can access inormationabout the environment, particularly when thatinormation is needed or participation in deci-sion-making or to deend environmental rights.The main elements o the Aarhus proactive dis-closure requirements are given in Annex B. TheAarhus Convention has our eatures that makeit a useul model or national regimes on proac-

tive disclosure o inormation:

Detailed denition o the inormation which

must be collected by public authorities; Requirement that registers o inormation

held be kept and made available to the pub-lic, thereby acilitating the search or inor-mation;

Detailed list o core classes o inormationto be made available proactively; and

Granted the public direct access to databasescontaining environmental inormation.

The Aarhus model also makes clear that u-ture standard-setting initiatives on proactive dis-closure should consider both the requirement tocollect inormation and specics on the level odetail to be released.

4.3 An EmergingMinimum Standardor ProactiveDisclosure

In principle, all inormation held by public bod-ies could be proactively disclosed, subject onlyto the application o exceptions that are consis-

tent with international law. In practice, legisla-tors and public ocials will need to prioritize.The driving orces or proactive transparency re-viewed in Section 2rule o law, accountability,

public participation, and the smooth unction-ing o e-Governmentcontribute to deningwhich inormation should be made available.

Comparing national legislation (Section 3)with the international provisions reviewed inthis section, sucient common eatures can beidentied to suggest an emerging standard orthe classes o inormation that should be dis-closed as part o the proactive dimension o theright o access to inormation:

isttutl fmt: Legal basis othe institution, internal regulations, unc-tions and powers.

oztl fmt: Organiza-tional structure including inormation onpersonnel, and the names and contact inor-mation o public ocials.

optl fmt: Strategy andplans, policies, activities, procedures, reports,

and evaluationsincluding the acts andother documents and data being used as abasis or ormulating them.

Dcss d cts: Decisions and ormalacts, particularly those that directly aectthe publicincluding the data and docu-ments used as the basis or these decisionsand acts.

Publc svcs fmt: Descrip-tions o services oered to the public, guid-ance, booklets and leafets, copies o orms,inormation on ees and deadlines.

Budt fmt: Projected budget,actual income and expenditure (includingsalary inormation) and other nancial in-ormation and audit reports.

op mts fmt: Inorma-tion on meetings, including which are openmeetings and how to attend these meetings.


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Dcs-m & publc ptc-

pt: Inormation on decision-mak-ing procedures including mechanisms orconsultations and public participation in de-

cision-making.88 Subsds fmt: Inormation on

the beneciaries o subsidies, the objectives,amounts, and implementation.

Public procurement information: De-

tailed inormation on public procurement

processes, criteria, and outcomes o decision-

making on tender applications; copies o con-

tracts, and reports on completion o contracts. Lsts, sts, dtbss: Inormation

onthelists, registers, and databases held bythe public body. Inormation about whetherthese lists, registers, and databases are avail-able online and/or or on-site access bymembers o the public.

ifmt but fmt hld:

An index or register o documents/inor-mation held including details o inorma-tion held in databases.

Publcts fmt: Inormation

on publications issued, including whether

publications are ree o charge or the pricei they must be purchased.

ifmt but th ht t f-

mt: Inormation on the right o access

to inormation and how to request inor-mation, including contact inormation orthe responsible person in each public body.

One open question about this proposedstandard is whether it can be seen as a min-imum, which places immediate obligations onpublic institutions, or whether it is a goal to-wards which public bodies should build pro-gressively, levering up levels o transparency and

meeting targets or increased disclosure overtime (or more on progressive implementationsee Section 5.7). In the meantime, it is clear thatthere is a growing international consensus onthe classes o inormation or proactive disclo-sure, which this should be o value to legisla-tors considering new access to inormation laws,as well as to civil society advocates aiming topromote a core o proactive disclosure in theircountries.


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23

Proactive Transparencyin Practice

This section examines the practical consider-ations related to the implementation o proac-

tive disclosure that may be o relevance or thosedeveloping proactive disclosure schemes. Thesection is based on examination o our countryexperiences, namely those o India, Mexico, Slo-venia and the UK, along with reerences to oth-er pertinent national examples.89

Six issues related to the mechanisms o dis-closing inormation have been identied:

How to ensure that proactively disclosed in-

ormation reaches members o the public; How to put inormation where it will be

ound; How to organize inormation in ways that

make it relevant to users; How to ensure that in addition to disclos-

ing complete inormation, core inormationis presented in a way so that it can be easi-ly understood;

Whether proactively disclosed inormationshould be ree o charge; and

How to ensure timely disclosure, taking intoconsideration the need to apply exceptions.

Consideration o each o these issues is ol-lowed at Section 5.7 by recommendations.

5.1 Multiple Channels

or Pushing OutInormation

The important role o the Internet in making

large-scale proactive disclosure possible (Section

2) has resulted in an emphasis on use o govern-

ment websites or publishing inormation, both

in laws and in practice. For public authorities,

organizing inormation or publication on a sin-

gle website helps internal inormation manage-

ment. For many users, particularly those workingin civil society, business, or educational establish-

ments with good Internet access, the website o

each public authority is a convenient place to

search or inormation. On the other hand, there

is a risk that the inormation will not reach oth-

er users who do not have good Internet access.This concern is refected in the Indian RTI

Act, which reers to various means o commu-nications, including Internet, so that the pub-

lic have minimum resort to the use o this Actto obtain inormation.90 The Act goes on torequire that every inormation shall be dis-seminated widely and in such orm and man-ner which is easily accessible to the public andnotes that all materials shall be disseminated

5


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taking into consideration the cost eectiveness,local language and the most eective methodo communication in that local area. The ex-planatory note states that disseminated means

making known or communicated the inorma-tion to the public through notice boards, news-papers, public announcements, media broad-casts, the Internet or any other means, includinginspection o oces o any public authority.

These provisions make sense in a coun-

try where Internet penetration is just 7.1 per-

cent,91 and are necessary to ensure equality o ac-

cess to proactively disclosed inormation.92 The

OSCEwhose 56-member states stretch rom

Canada, with 84% Internet penetration, to Tajiki-stan, with 6.7 percent93recommends that inor-

mation should be published in ormats includ-

ing the use o inormation and communication

technologies and in public reading rooms or li-

braries to ensure easy and widespread access.94

Low levels o Internet access or public au-thorities themselves, particularly at the local ormunicipal level, can pose a problem. This wasanticipated in Macedonias 2006 Law on Free

Access to Public Inormation,95

which gives thelocal authorities alternative means o disclosureincluding notice and bulletin boardssome-thing that can be preerable in rural areas withlow levels o Internet penetration.96

Sometimes publishing is not enough and e-orts should be made to ensure that proactivelydisclosed inormation reaches user communitiesand aected stakeholders, such as through radio,television, and public meetings.

5.2 Access Points forProactively DisclosedInformation

In countries where the Internet is a primary ve-hicle or proactive disclosure, the challenge ishow to organize it so that inormation can eas-

ily be ound by users. The most common solu-tions are either to publish inormation on thewebsites o each government body or to gatherit in a central transparency portal.

The rst solution makes sense or bod-ies with pre-existing websites. In the UK, orexample, most public bodies now have a rontpage button marked reedom o inormationor access to inormation which takes users toa dedicated section on how to request inorma-tion, as well as details o the proactive publi-cation scheme. An example is the UK Minis-try o Deence website97 (see Figure 2), whosegood-practice eatures include: clear access rom

the ront page to the Freedom o Inormationsection; a well-laid out page on how to requestinormation; a disclosure log containing answersto requests previously received; a section on theTop Choices items being requested and/ordownloaded rom the Ministry; and a button bywhich members o the public can rate the web-site (at time o writing the rating was 3 out o 5stars, based on 2,480 votes).

The second solution is a central portal,

which has the benet o providing the pub-lic with a one-stop shop or accessing all inor-mation whose proactive disclosure is requiredby law. Central portals overcome the problemo some bodies not having websites, provide apowerul incentive or public bodies to uploadtheir inormation (since any gaps are more vis-ible), and make it easier or oversight bodies toveriy compliance with legal requirements.

Perhaps the most ambitious such portal is

the Mexican Transparency Obligations Portal

(Portal de Obligaciones de Transparencia, hereinater

Transparency Portal),98 run by the Inormation

Commissioners Oce (Federal Institute o Ac-

cess to Inormation, IFAI by its Spanish acronym),

to ensure compliance with the proactive disclo-

sure rules o the Federal Law on Transparency and

Access to Inormation (2002) and to provide the

public with direct access to that inormation.


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25Proactive Transparency in Practice

The Transparency Portal is organized ac-cording to the provisions o Article 7 o the law,as shown in Figure 3. Users can select whetherto search by inormation category or by institu-tion, and then enter a more detailed search en-gine. A quick search in the Directory o Public

Ocials or a common name picked at random,Juan Gomez, returned 37 ederal public employ-ees in a range o positions, including a deputydirector o a library and a specialist in hydrau-lics; contact inormation such as phone numbersand e-mails is given. The name o the President,Felipe Calderon, returned only one result withno phone number but with his work e-mail ad-dress. Cross-reerencing the inormation about

the position o an ocial with the salaries sec-tion o the portal reveals that the net month-ly salary or the position o President is 146,830Mexican Pesos (US$10,639) and that o a librarysub-director (level NA1) is 21,092 Mexican pe-sos (US$1,528).

The Transparency Portal results rom acommitment to invest in technological solutionsto make proactive transparency work in prac-tice and to help the public nd the inorma-tion disclosed. The portal was not oreseen inthe 2002 law, but in response to mixed compli-ance, the IFAI decided to invest the equivalento US$300,000 in building it, ollowing a posi-tive experience with the System o Inormation

Figure 2: UK Ministry o Deence Freedom o Inormation Homepage


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Requests (or SiSi by its Spanish acronym), a

portal or ling requests.99

Launched in early 2007, the Transparen-

cy Portal now holds millions o registers (in-

cluding 1.3 million contracts and 1.6 million

entries in the register or concessions, permis-

sions, and authorizations). In 2008 there were

almost 14 million consultations.100 The most

popular inormation is the directory o public

servants, the details o the salar ies o public ser-

vants, the register o concessions and the regis-

ter o contracts.

For the IFAI, one key to the success o theTransparency Portal has been to require datasubmission in a standard ormat, thereby ensur-ing consistency when searching and cross-re-erencing. Planned reorms include making theportal more user-riendly and increasing ac-cess to historical inormation.101 Future changesshould result in stronger links between, or ex-

ample, budget inormation and contracts, and al-

low more sophisticated searches (or example, toenable a search or all the contracts issued by aparticular ocial across all public bodies he orshe may have worked in).

Sitting somewhere between the Mexican

centralized portal and the UKs decentralized

approach, is Hungarys hybrid model: searches

can be made on the central portal which then

directs the user through to the government

body which has published the inormation; in-

ormation is not actually stored on the portal.

This model relies on each body updating their

websites (which has been a problem in prac-

tice), but has advantages or users looking or

inormation by giving them both the depart-

mental websites and the central portals search

unction.

Whether publishing inormation via the In-ternet or using other communication channels,

Figure 3: Mexicos Transparency Portal


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due attention should be given to ensuring that itis located in places where members o the publicwill have ew problems in nding it.

5.3 Making InormationRelevant

The public reaction to central portals has beenmixed. For civil society and anti-corruption ac-tivists, such portals are exciting since they giveaccess to detailed nancial inormation at theclick o a mouse. For the ordinary citizen, how-ever, once initial curiosity about the salaries o

the President and their civil servant neighborhas been satised, much o the inormation incentral portals is out o context and not relevantto daily lie. For this reason, Mexican activists re-port that the Transparency Portal is well inten-tioned but cold and technical.

Responding to such concerns, while retain-ing the benets o centralized portals as, literal-ly, doors by which citizens can enter govern-ment,102 a new approach is being taken at the

Mexico City level to identiy the publics inor-mation needs. This initiative by the InormationCommission (InoDF), civil society (includingthe NGO Fundar) and government workingtogether, has identied our indicators: 1) thenumber o requests or particular inormation;2) the number o clicks on specic governmentweb pages; 3) eedback rom round tables withcivil society and the public; and 4) inormationassociated with the exercise o a right, such asthe right to water, unemployment benet, secu-rity, or a healthy environment.

In these consultations, one key problem

identied was that the public does not always

know precisely which government body deals

with which services. For example, in the criminal

justice system, what are the precise roles o police,

prosecutors, judges and penitentiaries and who

has which inormation? As a result, a structure

is currently being developed or social or cit-

izen portals to complement the Mexico City

transparency portal where core nancial inor-

mation is available to the public.103 The citizen-

oriented portals are organized by themes such as

environment, security, or political programs.104

In Slovenia, an initiative to link the proac-tive disclosure requirements in the 2003 accessto inormation act with the 2001 e-governmentand e-democracy strategy, resulted in the e-Uprava (e-government) which aims to providea one-stop access to services organized aroundlie events such as the birth o a child, selling acar, or starting a business.105

To date 71 percent o services are accessibleonline, putting Slovenia into second place in theEU on an indicator o sophistication and avail-ability o e-services.106 At the same time, eachgovernment body is required to maintain web-sites which are at all times accessible, available,rational and user-riendly,107 and must publishon these all the inormation mandated underthe 2003 Access to Public Inormation Act108and its implementing regulation.109 This latter

includes inormation on services, also organizedby the logic o lie events, business events, em-ployee events, events or bodies and public sec-tor organizations.110 The Slovenian Ministry oPublic Administration reports that having thisinormation as part o the proactive disclosurerequirement as well as the e-government initia-tive ensures that it exists in digital ormat and isavailable to the public via the maximum possi-ble number o channels (hard copies should beavailable to those without Internet access).

Another approach is to have a number oportals organized by theme or sector. In Can-ada, inormation relating to a particular sec-tor o government activity is collected in oneplace, such as the Canadian Treasury Board por-tal or proactive disclosure reerred to in Section2.2. Sectoral portals oer a solution to ensuringtransparency o a particular class o inormation


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and place a smaller demand on resources thanthe panopticon o a single central web portal.

5.4 ComprehensibleInormation

Another challenge is to ensure that inormationis also accessible in the sense o being clear andcomprehensible by the majority o the popula-tion.111 As noted in Section 4.1, the Organiza-tion o American States recommends that inor-mation be understandable.

As o yet, proactive disclosure provisions innational law do not incorporate this require-ment although it is possible to identiy goodpractices. Examples include the citizen budgetsmentioned in Section 3.2 and voluntary com-pliance by public institutions in the UK withthe Plain English Campaign, rst launched in1979, with the aim o removing jargon rom o-

cial documents (the Ministry o Deence web-site reerred to in Section 3.1 carries the cam-

paigns crystal mark award or clar ity).112

Holding public consultations (See examples

o Mexico above and the UK) and evaluating the

uses made o inormation (Section 3.2) contribute

to dening which inormation should be priori-

tized or disclosure in user-riendly ormats.Making inormation more easily digestible

or the public should not, however, replace hav-ing it available in the original ormat, as this isessential or there to be real transparency. A cre-ative solution to combining both raw data anduser-riendly presentation is the use o inorma-tion design techniques such as mapping. Thishas been done to good eect by the Govern-ment o the District o Columbia in the Unit-ed States, which has a website dedicated to livedata eeds o government inormation, therebygiving direct access to complete datasets.113 Tomake the inormation more meaningul or the

Figure 4: Slovenias e-government portal (English home page)


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public, some data sets are mapped onto Googlemaps, or example the inormation about issu-ance o construction permits shown in Figure 5.This system also gives the reerences that can be

used to search or additional inormation.114With respect to translation into multiple

languages, none o the countries surveyed hadormal requirements or inormation to be inlanguages other than the ocial languages othe country or o the local administrative ar-ea.115 This should, however, be a considerationin countries where more than one language isspoken and where not all the population usesthe main language o the administration. For ex-

ample, in India the vast majority o ederal gov-ernment inormation is in English whereas atthe state level inormation is almost always inthe ocial languages o the state; or those whodo not speak English, accessing the ederal levelinormation is a problem.116

For inormation to be o optimum publicvalue, it should be published in the languages ouser-communities and presented in an accessibleway. This should be a priority when planning

and allocating resources toany proactive dis-closure scheme.

5.5 Charges forProactively DisclosedInformation

Charges or inormation can prove an obstacleto access or members o the public less able to

pay. The great benet o disclosure via the Inter-net is that, i inormation is published on a web-site as an html page to which no password ac-cess is required, it is ree o charge to those whovisit the website. This then raises a question owhether inormation published proactively inother ormats should also be ree o charge.

In the UK, public authorities are permit-ted to charge or the photocopying and post-

age o inormation that alls under a publicationscheme.117 In India, on the other hand, decisionsby the Central Inormation Commission haveestablished that or inormation which by law

should be proactively disclosed, it is sucientor requestors who do not have Internet accessto make an oral request (that is, there is no needto le a request in writing) and the inorma-tion should be provided immediately withoutcharging any ee.118 Similarly, the MacedonianLaw on Free Access to Public Inormation establish-es the principle o ree access to proactively dis-closed inormation, irrespective o the ormat orvolume o that inormation, or whether it is ac-

cessed by the Internet or by other means.119A useul consideration here is that publicly

held inormation has been created with taxpay-ers money, so it is appropriate to release it with-out urther charges. In some countries, however,there is a long tradition o charging or certaininormation collected by government agen-cies, such as geographic inormation, statisti-cal data, and even consolidated laws. Althoughthis is seen as a legitimate opportunity to gener-

ate additional revenue or the administration, itis questionable in the right-to-inormation era.One country which has solved this problem isSlovenia, where the Inormation Commissionerhas ruled that access to public databases shall al-ways be ree o charge when the use to be madeo the inormation is in the public interest, a rul-ing which should encourage proactive disclo-sure o databases.120

5.6 InormationManagementor Timely andComplete Disclosure

In order to ensure that inormation or pro-

active disclosure is released in a complete and


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timely ashion, a public authority needs to have

good inormation management systems and

needs to plan ahead or proactive disclosure, or

example by planning how any legitimate ex-ceptions will be applied to documents and da-

tasets so that inormation can be released as rap-

idly as possible.

One o the most common complaints thatarise when reviewing compliance with proac-tive disclosure is that inormation is not regu-larly updated, thus undermining public con-dence and potentially causing problems or userswho might be relying on inormation that is notaccurate. The Hungarian e-FOIA, with its pen-chant or detail, species when each class o in-ormation should be updated. So or example,inormation about tenders has to be continu-ously updated, whereas other data, such as per-ormance indicators, should be updated quarter-ly.121 In practice however, not all bodies regularlyupdate their inormation, which, reports say, un-dermines condence in the central portal.

The UK Inormation Commissioners

guidance or a Model Publication Scheme rec-

ommends that public bodies should review

and update [inormation] on a regular ba-sis.122 A good practice example is that o the

UK Ministry o Deence website (Section 5.2):

many o the articles and reports on the site car-

ry a date indicating when the inormation was

uploaded.

Indicating when inormation will expireis important i it is only valid or a xed peri-od o time (or example, when a public consul-tation will close, or when an opportunity to ap-ply or subsidies will end), so that people do notlose opportunities or act based on outdated in-ormation.

Inormation can be compiled in ways thatacilitate rapid disclosure. The Washing

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