Assess Implementation of Law of Access to Administrative Documents (PT0020)

Brief Description of the Commitment

The objective of the Assessment of the implementation and effects of LADA is to assess compliance with the Law on Access to Administrative Documents (LADA) by public bodies and entities in Portugal. The evaluation also aims to identify the effects of LADA on transparency and civic participation. The LADA assessment is an important initiative to promote transparency and civic participation in Portugal. The assessment will help identify LADA's strengths and weaknesses and propose measures to improve its implementation.

Problem Definition

1. What problem does the commitment aim to address? Access to administrative documents is an essential condition for scrutinizing administrative activity and for deepening participatory democracy. However, there are few studies that allow us to understand how LADA has been implemented and its effects. This evaluation study fills this gap.

2. What are the causes of the problem? Lack of previous assessment.

Commitment Description

1. What has been done so far to solve the problem? Not applicable

2. What solution are you proposing? Existence of a study on the implementation and effects of the law. Improve the implementation and results of the law; contribute relevant information to the (re)design of the intervention.

3. What results do we want to achieve by implementing this commitment? The evaluation can help understand whether LADA is being implemented effectively and whether citizens are having access to the public information they need. The evaluation can help identify areas where LADA can be improved so that it can be more effective in promoting transparency and civic participation. The assessment can help raise awareness among citizens about their right to access public information. The LADA assessment is an important step towards strengthening democracy in Portugal.

Commitment Planning (Milestones | Expected Completion Date)

Consolidate the methodology, structure the evaluation and adjust the calendar | January 2024

Final report | April 2024

Public presentation | June 2027

Action Plan Review

Commission for Access to Administrative Documents (CADA); National Association of Portuguese Municipalities (ANMP); National Association of Parishes (ANAFRE); General Secretariat of the Presidency of the Council of Ministers (SGPCM); National Institute of Administration (INA); Portuguese Association of Librarians, Archivists and Information Professionals (BAD); Transparency International Portugal; Platform of Civil Society Associations (PASC); Platform Article 37

For a complete description of the commitments included in this cluster, see Portugal’s 2024–2027 action plan:

https://www.opengovpartnership.org/documents/portugal-action-plan-2023-2027-december/

Context and objectives

Portugal’s Law on Access to Administrative Documents (LADA) was adopted in 2016 and is not being fully implemented. [32] The Council of Europe’s Group of States against Corruption (GRECO) reports that restrictions in the law and a public administration culture of secrecy contribute to gaps in disclosure of information. [33] According to Article 9 of the Law, all public entities and private bodies managing public funds must appoint a Person Responsible for Access to Information (RAI, by its Portuguese acronym). [34] Of about 9,000 entities obliged by the law, [35] only 312 RAIs were registered on the portal of the Commission for Access to Administrative Documents (CADA) as of May 2024. [36] Commitments 2 and 3 seek to address this non-compliance. They intend to promote the Law within the Public Administration to raise the number of RAIs and the capacity of public entities to better deliver on access to information.

CADA’s mandate, as an independent administrative entity, is to safeguard access to administrative and environmental information by monitoring and ensuring compliance with the law. During Portugal’s previous two action plans, the Commission’s commitments did not yield expected results. In the first action plan, objectives were too broad and progress limited. In the second action plan, the commitment lacked ownership by the entities obliged to designate RAIs. [37] CADA reflected that by seeking to reach all public institutions, the commitment was not sufficiently feasible. [38] Nevertheless, dissemination activities had a positive effect on non-compliance. The number of RAIs increased from 49 to 257 during the implementation period, and more public entities continued to designate RAIs over the following months. [39]

In light of these previous efforts, CADA decided to take a step back to deeply understand and tackle the public sector’s slow compliance with the Law, building a reform that would balance ambition with feasibility. The third action plan’s cluster of commitments, proposed and led by CADA, focuses on addressing a key underlying cause for lagging RAI appointment: Lack of awareness of the Law. [40] Commitments 2 and 3 intend to assess LADA’s level of implementation, and to train officials in all regions and levels of government on their obligations to disclose information and respond to information requests.

Potential for results: Modest

This cluster of commitments aims to advance Portugal toward complete implementation of the legal framework for access to information. It will be the first time an extensive and wide-ranging dissemination campaign on LADA is conducted for the public sector in Portugal, with the goal of reaching all local governments in all regions of Portugal—a target of nearly 4,000 entities, according to a CADA representative. [41] It will also conduct the first comprehensive evaluation of the Law.

Commitment 3’s evaluation was already concluded during the first stage of implementation in April 2024. The evaluation [42] assesses how LADA is being implemented, the quality of the Law, and areas in which it could be improved. A series of presentations are planned to disseminate the report and findings, although the commitment does not contain a milestone on this. [43] Preliminary conclusions point to a lack of knowledge about the Law among public entities, as the main obstacle to the full implementation of the law. It also notes that LADA does not provide for any sanction if a public entity does not designate an RAI. [44] In addition, many entities that had appointed an RAI had not informed CADA of this. [45]

Based on the evaluation’s findings, under Commitment 2, a capacity-building programme will be developed for public entities covering all levels of public administration, with a focus on local governments. The Commitment outlines a programme with a series of workshops, trainings, conferences, and promotional actions that are to be detailed in yearly plans, as well as the production of a manual about LADA. [46] By May 2024, the programme for 2024 had been established. Every year of the implementation period, an annual training session will be organized in each of the country’s 21 intermunicipal communities and autonomous regions of Azores and Madeira. Each workshop will last half a day, combining theory and practice. In addition, other dissemination activities will be organized with the different entities.

In contrast with other commitments in the action plan, CADA sought to involve a range of entities, in particular local government associations ANMP and ANAFRE, and civil society organizations. [47] A dedicated working group led by CADA and ANMP will meet three to four times a year to ensure and monitor implementation of the workshops (it held its first meeting in early 2024). CADA will be responsible for the workshops’ content, and ANMP and ANAFRE will be responsible for their dissemination across the country, and will facilitate some of them. This collaboration entails ownership by local government associations, to ensure that the majority of public officials, especially at the local level, are trained. Two central authorities—the General Secretariat of the Presidency of the Council of Ministers (SGPCM) and the National Institute of Administration (INA)—will also be involved in training and promotional activities and will collaborate in the production of a manual about the Law. Finally, from civil society, TI Portugal, PASC, and Platform Article 37 were consulted during evaluation of the Law and included in a group accompanying the evaluation. In addition, the Portuguese Association of Librarians, Archivists, Information and Documentation Professionals (BAD) will carry out a capacity-building activity each year [48] - although civil society organizations note the need for a wider group of organizations to participate in implementation and monitoring. [49] During implementation, CADA expects information to be available to the public through ANMP and ANAFRE, which will widely disseminate and publicize activities through their websites. [50]

Given the dimension and duration of the capacity-building programme, CADA anticipates positive impact in several areas, unlocking implementation of LADA and increasing the number of RAIs. The commitments are also expected to inform a future parliamentary reform of the law. More broadly, CADA sees the potential to encourage a change in the behavior of public officials and boost a culture of transparency in the public sector. CADA has not established a quantitative target for the increase in RAIs, but expects their numbers to more than double to 600 RAIs by the end of 2027, and is focusing on strengthening the network of RAIs as well. [51] Civil society representatives also expressed that, by seeking to improve access to information, the cluster addresses an issue important to citizens and, indirectly, could enhance civic participation. [52]

However, achieving the cluster’s expected outcomes is not exclusively within CADA’s purview. In particular, CADA does not have the authority to designate RAIs in every public body, since the responsibility lies with the institutions themselves, and it cannot impose sanctions. [53] With information requests, when citizens address complaints to CADA about public entities’ non-response, CADA’s intervention leads to provision of information in a high percentage of cases. [54] However, this approach may not be sufficient to achieve full compliance with the law. Civil society representatives noted that, since the law already is already in place, OGP commitments could include more ambitious measures. In addition, they noted that the commitment does not directly target citizen engagement in making use of government information. [55] CADA anticipates undertaking efforts to raise citizens’ awareness on access to information at a later stage, once all public institutions effectively comply with the law. [56]

Overall, this cluster undertakes a promising, evidence-based effort to increase awareness of LADA across public institutions. It has the potential to modestly improve the application of LADA, although it would not change the legal and institutional framework for access to information in Portugal.

Opportunities, challenges, and recommendations during implementation

CADA’s continued engagement and leadership of this cluster is essential to achieving results, particularly since the March 2024 general elections. Under the new administration, changes to OGP’s governance may impact action plan implementation. [57] Beyond the commitment’s current scope, the government could start considering how it might take more ambitious steps to enhance access to information. For instance, by conducting an awareness-raising campaign, trainings on information reuse for citizens, [58] and by revising LADA with public participation. [59] Revisions to LADA could take further measures to limit the use of the Law’s restrictions. [60] During implementation, the IRM also recommends: