Modernizing the Regulatory Framework to Enforce The Right To Access to Information (TN0022)

• Civic Space as a Key Prerequisite of Open Government Reforms in the MENA Region (November 1, 2020)

Modernizing the regulatory framework to enforce the Right to Access to Information

2. Modernize the regulatory framework to enforce the Right to Access to Information

Commitment Text:

Promote the application of the law on the right of access to information and put all necessary measures to guarantee access to information either proactively or by request.

Milestones:

• Issuing a decree to create publics entities in each public department in charge of enforcing FOA
• Establishing an independent public authority - the Commission of Access to Information - to oversee the implementation of the law and examine appeals against refusals by public authorities to disclose requested documents in the first instance
• Creating a commission in order to identify fees should be charged for access to information request (exceptional cases)
• Publication of the complementary regulation of the access to information law
• Drafting of a national action plan to facilitate the implementation of the law
• Completing the organization of the archive and developing a system for the classification of administrative documents

Responsible institution: Presidency of the Government, The ministry of public administration and governance, the National Archive, the Tunisian Parliament

Supporting institution(s):

As mentioned in the NAP: None

As evaluated: Article 19, World Bank, UNESCO, ATCP, FSVC

Start date: June 2016        End date: March 2017

Context and Objectives

The Tunisian parliament approved a law of access to information in March 2016. [8] This law guarantees the right to access to information and creates the Authority of Access to Information, as an independent authority.

However, implementation of the law has been problematic. Since the passage of the law, the public administration has had challenges dealing with the requests as there are no uniform procedures and mechanisms within the Tunisian administration. According to the analysis conducted by NGOs, [9] the application of the law is not systematic and is at the discretion of the institutions. The problem is compounded by the fact that data classification is not standardized or existing in most of the administration bodies. It is rare that information would be classified from public to confidential or secret and most of the public officials prefer using their personal emails instead of the official ones, which complicates data storage and classification. [10]

This commitment aims to enforce the right to access to information by providing the necessary decrees, opening the call for candidates for the Authority of Access to Information, and creating an internal access to information body in each institution, and define the standards for public and classified information. The commitment also entails developing a national strategy that would facilitate the implementation of the access to information law while supporting it with complementary legal regulations.

The commitment contains specific milestones and is relevant to access to information as it establishes steps to enforce the law by outlining practical steps to implement it. The commitment entails staffing the authority where citizens or legal entities can appeal denied requests for information. Therefore, this commitment meets OGP values on public accountability.

If fully implemented, this commitment could have a transformative potential impact in guaranteeing the right to information of Tunisian citizens in practice. According to Article 19 and the Tunisian Association of Public Auditors (Association Tunisienne des Controleurs Publics ATCP), the steps described in the commitment are necessary to ensure the implementation of the Law on Access to Information which was passed prior to this action plan. The commitment includes the completion of one of the major steps in the implementation of the access to information law, namely, having a functional authority (Instance Nationale d’Accès à l’Information). The authority has the mandate, through parliament, to enforce the right to access to information within public institutions and reviews the appeals for accessing information by citizens or organizations.

In addition, one of the milestones listed is data classification, which is a fundamental prerequisite needed in every access to information framework. While this commitment is very ambitious, the milestones listed are likely to require longer period of time and would involve a wider spectrum of public bodies. Reforms related to archiving and classifying information fall under the responsibility of the Presidency of the Government, the Ministry of the Public Administration and Governance or the National Archive but the reforms go beyond what is proposed by this commitment and would eventually involve the Ministry of Interior, Ministry of Defense, Ministry in charge of Information Communication Technologies, the National Agency of Computer Security in the first step and the roll out of adopted policies to all the public administration bodies. Traditions of access to information had never existed in Tunisia before the revolution, and the law has always been a demand of local CSOs. The implementation of this law is seen by I Watch as one of the key milestones to fight corruption and provide a legal base to appeal denial of access to information.

Completion

The Tunisian government planned to complete this commitment by March 2017, but it has had limited completion. During the assessment it became evident that some steps of this commitment entailed slightly modified actions, such as selecting the members of the High Authority to Access to Information, having the authority to work directly and develop an action plan to enforce the right to access to information, creating new positions within administration to review the access to information requests, publishing decrees regulating the application of the law and establishing relevant guides. Activities also included classifying the data with the National Archive within a year, and fixing the access to information fees by the Ministry of Finance.

In July 2017, almost five months after the scheduled completion of the commitment, the members of the Authority of Access to Information were selected. [11] The Authority has nine members, including two members from the judiciary, a lawyer, a representative of academia, two representatives of state bodies, a journalist and one CSO representative.

According to a member of the Authority of Access to Information, a draft of the action plan was completed, and some draft decrees were prepared but have not been made publicly available.

The delay could be explained by three main reasons:

• The commitment was overly optimistic. The commitment entailed carrying out major reform in less than a year. The government capabilities and means dedicated to support the right to access to information did not prove to be sufficient to carry out all activities in the set timeline.

• This commitment was not sufficiently prioritized by the government and the anti-corruption agenda declared by the Prime Minister that announced a war on corruption in July 2017. [12]

• The Ministry of Public Administration and Governance, which was one of the main implementing bodies, was dissolved by the Prime Minister in February 2017 after the Minister’s resignation and the refusal of the newly-appointed Minister to undertake the position. [13] Additionally, the government reshuffle in September 2017 brought some instability within the public administration and complicated the completion.

• The Tunisian parliament is perceived to be slow on reforms and advancement, and the political divide makes it very difficult to advance and multiple consensus needs to be achieved to adopt laws. [14] [15] Likewise, the National Archive is an institution that operates at a slow pace, lacking human and technological resources. For example, the website of the archive is down or functioning in static mode since 2010 due to underfunding. [16]

Nevertheless, some positive changes occurred during the implementation of this commitment. International donors, such as the World Bank and UNESCO, or local NGOs or chapters of international organizations, such as Article 19, Financial Service Volunteer Corp, or the Tunisian Association of Public Auditors (ATCP), stepped in to help the government and the parliament in the implementation through technical support, capacity building and advocacy.

Next Steps

If the commitment is not completed, the IRM researcher suggests carrying it forward to the next action plan.

The World Bank is committed to supporting the efforts to implement this commitment with financial resources budgeted through 2019. This would help the government speed up the implementation process.

Issuing a referential of data classification and reorganizing the data of the archive are complex undertakings that could be considered as separate commitment in the next action plan.

The IRM researcher recommends the following next steps:

• Commit to publish reports on statistics on the number of requests received and processed.
• The Tunisian government should specify the scope of intervention of UNESCO, World Bank, Article 19 and ATCP on this commitment. The commitment was not supported or funded by any local or international partner and it had more than four major players stepping in during implementation without clear results. It is very important to clarify the role and responsibilities of each partner to avoid duplicating the efforts and overlaps.
• Other institutional partners such as the Authority of Access to Information, the National Authority of Anti-Corruption, the National Agency of Computer Security, the Ministry of Interior, the Ministry of Justice and the Ministry of Defense should be involved in the data classification process.
• In the next action plan, the government could involve CSOs as monitoring partners for requests of access to information. Al Bawsala or IWatch could be pertinent partners.

2. Modernizing the regulatory framework to enforce the Right to Access to Information

Commitment Text:

Promote the application of the law on the right of access to information and put all necessary measures to guarantee access to information either proactively or by request.

Milestones:

• Issuing a decree to create publics entities in each public department in charge of enforcing FOA
• Establishing an independent public authority - the Commission of Access to Information - to oversee the implementation of the law and examine appeals against refusals by public authorities to disclose requested documents in the first instance
• Creating a commission in order to identify fees should be charged for access to information request (exceptional cases)
• Publication of the complementary regulation of the access to information law
• Drafting of a national action plan to facilitate the implementation of the law
• Completing the organization of the archive and developing a system for the classification of administrative documents

Responsible Institution: Ministry of Civil Service, Governance and Fight against Corruption (general directorate of public reforms), parliament, national archive institute.

Start date: June 2016 End date: March 2017

Editorial Note: This is an abbreviated version of the commitment text. For the full commitment text from the Tunisia National Action Plan, see here.

Commitment Aim:

This commitment aims to strengthen Access to Information practices by enforcing the public’s right to access government-held information. This commitment covers several measures including delivering the necessary decrees, holding the election of the Authority of Access to Information, creating an internal access-to-information body in each public institution and classifying the government’s information. To achieve its objectives, the commitment will be paired with a national strategy that would facilitate the enforcement of the access-to-information law.

Status

Midterm: Limited

By the midterm, the only milestone that was completed was the second milestone. The members of the independent public authority “the Commission of Access to Information” were elected by members of the parliament on 19 July 2017 for a six-year non-renewable term. [14] A member of the Authority mentioned to the IRM researcher that other milestones, such as the preparation of the draft action plan and the decrees had been started, [15] but the IRM researcher could not verify this information during the midterm assessment.

End of term: Limited

By the end of term, the government published the complementary regulations for the access-to-information law in May 2018, the fourth milestone was completed. ^[16] The complementary regulations translate the legal text to a technical/administrative language that facilitates the adoption of the law and its enforcement. The regulations, however, still need to be approved by the bureau of the Prime Minister. According to interviews with government officials, the government took several steps in implementing the remaining milestones although they could not complete it by the end of term. [17] The government stated that the delay in implementing this commitment is related to the change of political and economic circumstances in the country since the draft of the action plan. [18] Additionally, government argued that the implementation of austerity measures in 2017 delayed the creation of committees in every public institution to enforce the right to access to information. ^[19]

Did It Open Government?

Access to Information: Major

Public Accountability: Did Not Change

The commitment faced challenges during implementation however, the creation of Authority of Access to Information (AAI) was a key milestone and a major step in improving government practice to guarantee access to information. The authority will now provide a grievance mechanism for citizens if their request for access to information is denied or not granted properly. The assessment of the effectiveness of the authority as a grievance mechanism remains to be done. So far, several NGOs have submitted requests of access to information to AAI but received varied responses. ^[20] In some cases, the information was fully communicated but in others critical information was hidden or not disclosed at all. For example, in a request submitted by I Watch [21] to access information related to the settlement between Slim Chiboub and the Truth and Dignity authority, financial details had been removed. [22]

According to CSO activists, the implementation of access to information is still slow and needs further awareness-raising campaigns. A member of the AAI admitted that large scale trainings and awareness-raising campaigns need to be conducted with public servants.

With respect to public accountability, some members of the AAI confirmed that several NGOs made use of the grievance mechanism. ^[23] CSOs described that the public administration is still adapting to the new law and, therefore, any changes in how the government is held accountable are yet to be seen.

Carried Forward?

This commitment was not carried forward in the next action plan.